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Advance Healthcare Directives

  1. Advance Healthcare Directives Assisted Decision Making (Capacity) Act Conference 2018 November 2018 Deirdre Shanagher
  2. Today: • Advance Care Planning (ACP) • Advance Healthcare Directives (AHD) • Implications for health and social care professionals • Questions
  3. In Ireland: Only 6% of people have written an AHD Irish Attitudes to Death, Dying & Bereavement (2014) National representative sample of 891 people
  4. More recent research…. • Almost half of adults in Ireland have not planned ahead for their future leaving themselves more vulnerable to abuse • Just 6% of adults (over the age of 18) had legally nominated a family member, or friend to be their Attorney (under Enduring Power of Attorney) to make legal and financial decisions, should they become unable to do so • Just 8% had discussed a preferred place of care (at home, or nursing home) with family, friends, or an appointed Attorney for if they developed a serious, or long-term illness
  5. More recent research…. • 22% reported having a personal pension and just 27% had made a will • Just 11% were aware of what an advance healthcare directive is • 7% were aware of the ‘Think Ahead’ resource which guides people in organising their affairs in the event of an emergency, serious illness, or death. • Awareness raising needed
  6. Advance Care Planning –What is it? Voluntary discussions over time about future care Process not task – may be more than one conversation When we know things may change When we know decision making in the future may be difficult
  7. Oct 30th 09 ST/AON What might be included in ACP discussions Spiritual
  8. Guidance for healthcare professionals: • Always presume decision making capacity • Help the person to maximise their decision making capacity • Remember that the person with dementia can choose not to take part in the advance care planning process • Be aware of how to assess a persons decision making capacity if required to do so • Gain knowledge on what steps to take if decision making capacity is an issue • Check existing advance care plans with the person regularly for validity and applicability
  9. Advance Healthcare Directives (AHD): • A document where a person can write down what they would not like to happen in relation to certain medical care treatments • Only comes into force when a person loses capacity, becomes ill and the circumstances in their AHD arise. • ADMA allows a person to appoint a representative (designated healthcare representative) to make treatment decisions in accordance with their will & preferences
  10. Legal status of AHDs: • Case law: Irish Supreme Court in Re a Ward of Court (No 2) [1996]2 IR 79 – AHDs are recognised by Irish law, provided that the author was competent and that the directive was specific to the patient’s current situation • Irish Medical Council Guide to Professional Conduct & Ethics (8th Ed 2016) Section 16.2: …. An AHD has the same status as a decision by a patient at the actual time of an illness and should be followed provided that: • the request or refusal was an informed choice, in line with the principles in paragraph 9; • the decision covers the situation that has arisen; and • there is nothing to indicate that the patient has changed their mind.
  11. Legal status of AHDs: • NMBI Code of Professional Conduct for Registered Nurses & Midwives (2014): An AHD should be respected on condition that: • the person made an informed choice regarding their decisions at the time of making the plan; • the decision in the directive covers the situation that has now arisen; • there is no indication that the person has changed their mind since the advance care directive or plan was made. • Part 8 of the ADMA (2015) – legislative provisions for AHDs
  12. Making an AHD: • Must be 18 years or older • Must have capacity at the time the AHD is being made • Must be made voluntarily • Documented to include name, DOB & contact details (video & voice recording acceptable) • Be signed by 2 witnesses who are over 18, one of which is not a member of the directive makers immediate family. Each witness is to observe the directive maker signing the AHD. • If appointing a DHR: He/she to be a witness and DHR details to be documented also (name, DOB & contact details)
  13. Think Ahead form Includes an advance healthcare directive compliant with the new legislation
  14. Think Ahead form Think Talk Tell Recor d Revie Sections: 1. Key Information 2. Care Preferences (AHD and emergency summary form) 3. Legal 4. Financial 5. When I Die
  15. Issues that may be covered in an AHD: • Treatments that a person would refuse in the future – this is legally binding – even if deemed unwise, not based on sound medical principles or will result in death • A request for a specific treatment. This is not legally binding but should be taken into consideration during any decision-making process which relates to treatment for the person in question if that specific treatment is relevant to the medical condition for which the person may require treatment.
  16. What makes an AHD legal? • The person had decision making capacity at the time they made the advance healthcare directive. • The advance healthcare directive was made voluntarily. • The advance healthcare directive was not altered or revoked. • The person who made the advance healthcare directive did not do anything inconsistent with the terms of the advance healthcare directive while they had decision making capacity.
  17. When will an AHD come into effect? • Only comes into force when a person loses capacity, becomes ill and the circumstances in their AHD arise. • AHD is NOT applicable if: • The person has capacity to consent to or refuse treatment • The treatment is not materially the same as specified in the AHD • The circumstances for the AHD to apply are absent • Re life sustaining treatment; if the AHD does not state that it is to apply even if the directive makers life is at risk • The refusal in the AHD relates to “basic care”
  18. Uncertain re AHD? • Consult with the DHR (if one appointed) or family and friends and • Seek opinion of a second health and social care professional • If ambiguity remains; resolution in favour of preserving the directive makers life
  19. Implications for healthcare: • If there are grounds to believe a treatment refusal in an AHD is valid & applicable – no civil or criminal liability • If belief that AHD is not valid & applicable and AHD not complied with – no civil or criminal liability • No civil or criminal liability if at time in question: • There were no grounds to believe an AHD existed • There was no immediate access to the AHD
  20. Designated Healthcare Representative: • A person(s) appointed by a directive maker to act on their behalf in relation to healthcare decisions when they lack capacity • They are responsible for ensuring an AHD is complied with • They can be specifically appointed • to advise and interpret the directive makers will & preferences • to consent/refuse treatment • (with reference to the AHD) • Must keep a written record of decisions taken and present for inspection at request of the directive maker or DSS
  21. Designated Healthcare Representative: • The DHR: • Must not be convicted of an offence • Must not be the owner or registered provider of a residential facility or mental health facility where the directive maker lives • Must not be a provider of personal or healthcare services to the directive maker for compensation • Complaints re DHR can be made to the DDSS who can investigate
  22. Draft codes of Practice: • Section of ADMA commenced to allow for HSE multidisciplinary group to be established to make recommendations re codes of practice to the DDSS • Codes of practice in development • AHD multidisciplinary working group established (prepare recommendations for code of practice for AHDs) • Consultation closed May 4th 2018 • When approved will be published by DDSS • Codes will be admissible in legal proceedings • DDSS will establish & maintain a register for AHDs
  23. Planning for the future can help you… • Create opportunities to do enjoyable things • Say important things to people you care about • Be prepared for various situations that might arise • Reduce the practical and emotional burden on family and friends • Address concerns & fears • Remain in control at a time when this may become limited e.g. during a crisis • Enjoy life knowing that important things have been discussed
  24. How does it work? Have you done it yet?
  25. Deirdre Shanagher Acknowledgements: Information here available via drafts codes of practice, HSE 2018

Notes de l'éditeur

  1. Title slide. Image needed?
  2. Show of hands how many people have an AHD. Show of hands how many of you have ever worried about not being able to make your own decisions because of an accident or due to illness. How many you believe that illness or having an accident is something that could potentially happen to you?
  3. The Red C research found overall a significant difference between the practice of older and younger people which older persons more likely to have planned ahead, particularly for wills and pension. However, just 12% of adults 65+ had nominated an Attorney compared to 5% of 18-25 year olds, and just 13% of people 65+ has discussed preferred place of care with others.
  4. Presuming covered under the functional approach to capacity
  5. Broader than healthcare
  6. Submissions to the forum indicated wanting info on handling financial affairs and speaks to Prevention of Elder abuse You don’t have to complete all of the document
  7. The difference between an ACP and AHD is the refusal and legal binding with refusing treatments.