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GAZETTE
MARCH 1995
The Law at Life's End *
Peter Charleton, Barrister and
Marguerite Bolger,
Barrister
Part II
4. ADVANCE DIRECTIVES /
LIVING WILLS
4.1 What is an Advance
Directive?
An advance directivé enables a person
to dictate the medical procedures
to be carried out on them, or not, in
the event of their being incapable of
directing such procedures themselves.
It can be in the form of a document
specifying exactly the person's
wishes, usually known as a living
will, or a power of attorney which
empowers another person to act
on the person's behalf. The most
common specified request in such a
directive is a DNR (Do Not
Resuscitate) order declining CPR
(Cardiopulmonary Resuscitation) in
the event of heart failure. Sometimes a
person might also decline life
sustaining, as versus life saving,
treatment such as force feeding or the
treatment of infection. Whilst the
former is largely accepted by the
medical profession,
35
the latter poses
some difficulties and a greater
likelihood of litigation as can be
clearly seen from the relevant
American caselaw discussed earlier. It
is estimated that some 15% of the
North American population have
drawn up living wills, although only
half of those people have discussed
them with their families.
36
The Federal
US Patients Self-Determination Act of
1990 also obliges the physicians of
patients under the Medicare scheme to
inform them, in writing at the time of
admission, of their right to draw up a
living will, and many hospitals in
America (and Canada) fulfil their
obligations by giving their patients a
booklet which gives a significant
amount of detail on advance
directives, and even sample
documents.
37
Marguerite
Bolger
4.2 Advance Directives in Irish
Hospitals
In the Irish context there has been
little discussion of the legal validity of
such documents and no judicial
intervention in the area. Whilst this is
probably as it should be, as the courts
may not be the appropriate place to
resolve the agonising personal
problems underlying such cases,
38
unless clear guidelines on the legal
status of such documents are
forthcoming the courts may be forced
to assume medical roles for which
they are poorly suited.
39
Presently, the
prevalent attitude amongst Irish
patients and their relatives tends to be
"doctor knows best", and advance
directives are virtually unheard of,
with any DNR orders that do exist
being purely medical decisions with
no patient input. However, this was
also the attitude in America until the
1960s and '70s but more recent times
have seen a distancing between
patient and physician and a greater
difficulty in defining 'family'. This,
according to one American writer, is
what has necessitated advance
directives.
40
There is no reason to
think that Ireland can remain immune
to similar developments. Thus it is
important to examine the possible
difficulties with the legality and
enforceability of living wills and their
Peter Charleton
treatment in the UK and North
American courts where doctors have
been prosecuted for terminating life
support measures
41
or for
administering a drug the only effect of
which could be to stop the patient's
heart
42
and where families have been
forced to go to court in order to cease
life support for a vegetative patient
43
or to attempt to discontinue tube force
feeding.
44
4.3 Issues emerging in Litigation
It is clear from the caselaw that many
of the problems leading to litigation
arise from the fear of the medical
profession of withdrawing or
declining treatment, thereby handing
over the life or death decision to the
judiciary.
"In an absurdity of absurdities,
patients and relatives have to fight
both for an entrance to and exit
from the health care system... The
medical system has been bypassed,
and courts and legislatures have
stepped in to try to put patients and
relatives in charge of what is now
often mere chaos."
45
Whilst much of the caselaw concerns
efforts by relatives to discontinue
treatment on a patient for whom there
is no clear written evidence of his
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