Assisted-Decision Making Act and Advance Healthcare Directives
The Assisted-Decision Making (Capacity) Act 2015 (‘the 2015 Act’) came into effect on 26 April 2023.
A significant element of the 2015 Act is the ability to make an Advance Healthcare Directive (AHD) allowing a person to refuse medical treatment in advance, provided the conditions set out the 2015 Act are satisfied. The term ‘advance healthcare directive’ as defined in section 82 of the 2015 Act ‘in relation to a person who has capacity, means an advance expression made by the person, in accordance with section 84, of his or her will and preferences concerning treatment decisions that may arise in respect of him or her if he or she subsequently lacks capacity’.
This aspect of the 2015 Act was considered for the first time by the High Court in June 2023 in a case relating to a prisoner who was refusing food and fluids (Governor of A Prison v X.Y.  IEHC 361 (22 June 2023)). The stated intention of the prisoner was to end his or her life.
On 13 May 2023 the prisoner had executed an AHD whereby he or she was not to receive any medical intervention or medication, and, if actively dying, had a preference to do so in a clinical setting, such as a hospital or hospice. The prisoner had directed that those wishes were to be respected should they become incapacitated or unconscious; and that the AHD was to apply even if the prisoner’s life was at risk.
The governor of the prison applied to the High Court seeking orders in respect of the prisoner’s wishes. It was established that the prisoner had full capacity at the time of making the AHD and at the time of the hearing. The prisoner was quoted as stating that he or she was:
…making the decision with full mental capacity to end my life by refusing fluids and food. I have considered my options incredibly carefully and upon reflection have decided this is the best course of action for me. This is not a decision I take lightly. I have been and am in a deep state of trauma and feel to continue my life is not a feasible option. I regretfully respect that my decision may not suit everybody but until a person stands in my shoes and carries my weight and my baggage, they will never understand. I have not been coerced or controlled into make any unlikely decision, however, it is a decision I stand firmly for. I take the time to thank you for reading this.
Following consideration of the matter, the Court declared that pursuant to section 89(2) of the 2015 Act the prisoner’s AHD was valid. It was lawful not to force-feed the prisoner, and that while the AHD did not apply while the prisoner had capacity, the governor was entitled to give effect to the AHD in the event that the prisoner lost capacity or became unconscious or incapacitated.
Changes to Occupiers’ Liability
For those of our clients who operate premises, the recent changes to occupiers’ liability will be of interest. The Courts and Civil Law (Miscellaneous Provisions) Act 2023 (‘the 2023 Act’) was signed into law by the President on 5 July 2023. The 2023 Act includes new provisions governing an occupiers’ duty of care under the Occupiers’ Liability Act 1995. The part of the 2023 Act relevant to occupiers' liability was commenced on 31 July 2023.
Broadly speaking, the changes reduce the burden on occupiers and raise the threshold for a finding of liability against an occupier. The changes, however, will not impact on any claims or proceedings already in being.
While an occupier continues to owe a common law duty of care to lawful visitors, the 2023 Act limits the extent of that duty of care. In assessing whether an occupier has complied with their duty of care towards an entrant, regard will be had to several factors including:
- the probability of the danger existing and injury/damage being suffered;
- the probable severity of injury/damage if suffered; and
- practical and policy-based considerations such as cost of taking preventative measures and social utility of the conduct creating the risk in the first instance.
Another key change is that an occupier does not owe a duty of care to visitors or recreational users who voluntarily consent to (and are able to understand) the risk. Consent to the risk can be implied from words or conduct.
Previously, a court could award damages to a recreational user or trespasser who entered an occupier’s premises for the purpose of committing an offence or committed an offence while on the premises, where it believed the award to be in the interest of justice. The 2023 Act restricts occupiers’ liability in this context to ‘exceptional circumstances, having regard to matters such as the nature of the offence, the extent of [occupier] recklessness…or the fact that the person was not a trespasser’.
by Josephine Breen
Challenge Helpline Team Medico-Legal Advisor.
Josephine has extensive experience in the area of medical negligence defense litigation and health law generally.