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2009: Healthcare and decision-making in dementia


Consent to medical treatment

In Ireland, although the term "informed consent" is frequently used in the medical and/or legal context, there is no Irish judicial or statutory definition of this term (Tomkin and Hanafin, 1995) (other than in the context of the Mental Health Act 2001). If a doctor either intentionally or recklessly touches a patient, in the absence of legally effective consent, he/she could be accused of assault. Such consent must be freely given, without any coercion or pressure. This forms the basic framework of the doctor-patient relationship.

Under common law, it is illegal to give treatment to a person who has not consented to it, unless the treatment is of an urgent nature.

Consent to treatment under the Mental Health Act

Part 4 of the Mental Health Act 2001 defines consent in relation to a patient under the Act as meaning consent obtained freely without threats or inducements where the consultant psychiatrist responsible for the care and treatment of the patient is satisfied that the patient is capable of understanding the nature purpose and likely effects of the proposed treatment and has given the patient adequate information in a form and language that the patient can understand on the nature purpose and likely effects (section 56).

Consent of the patient is not required for treatment when in the opinion of the consultant psychiatrist responsible for their care, the treatment is necessary to safeguard the life of the patient, to restore their health, alleviate their condition, or relieve their suffering and by reason of their mental disorder the patient is incapable of giving such consent. In all other circumstances consent is required. (section 57).

There are further safeguards in relation to certain highly invasive treatments. Psychosurgery, even with the written consent of the patient, must be authorised by a Tribunal. Electroconvulsive therapy requires either the written consent of the patient or the approval of the consultant psychiatrist responsible for the patient and a second consultant psychiatrist and must be administered in accordance with the rules published by the Mental Health Commission (section 58-59).

Medication for a mental disorder cannot be continued for more than three months unless the patient consents in writing or if the patient is unable or unwilling to consent, with the approval of the consultant psychiatrist responsible and a second consultant psychiatrist. Consent or approval must be obtained every further three months that the medication is continued (section 60).

Consent in case of emergency

Under common law, it is illegal to give treatment to a person who has not consented to it, unless the treatment is of an urgent nature.

Consent to the donation of organs and/or human tissue

People may indicate by means of an organ donation card that they wish to donate one or several organs in the event of their death. In practice, a person's next of kin may be asked for consent to remove the organs of a deceased person and a refusal by the next of kin is not contested. Whilst the law is not clear on this issue, it seems that the next of kin are not obliged to respect the wishes of the deceased person (Citizens Information Board, 2009). Moreover, children and mentally incapacitated adults do not have the right to consent to body or organ donation.

In 2008, the Human Body Organs and Human Tissue Bill (a private members bill) was introduced in the Seanad by Senator Feargal Quinn. The bill promotes the introduction of provisions for presumed consent, sometimes known as an "opt out" system (Prendeville, 2008).

Consent to clinical trials

The Control of Clinical Trials Act of 1987 (which came into force on 6 December 1988) addresses the issue of participation in clinical drug trials. This legislation compels clinical trials to be approved by the Minister for Health and an Ethics Committee. Anyone who carries out clinical trials without abiding by the rules of this Act would be considered to have committed a criminal offence.

Participants in clinical trials must give informed consent. Nevertheless, a person who lacks mental capacity can take part in such trials provided that someone has given written and signed consent on his/her behalf. This must be an independent person who has been judged competent to make such a decision by the ethics committee. It cannot be anyone who applied to undertake the trials or is involved in conducting it.

Anyone who is a patient with a mental disorder in an approved centre under the Mental Health Act 2001 cannot take part in a clinical trial (section 70).

Advanced directives/living wills

In Ireland, advance directives are not legally binding, although a growing number of people are in fact writing them. According to Costello (1998), in a recent Ward of Court case, certain comments were made by the members of the Supreme Court to the effect that views expressed by a person in relation to future medical treatment (which could have been written in an advance directive) would be taken into account by the Court in coming to decisions in relation to the termination of treatment. Nevertheless, the extent that such directives would be binding to medical professionals remains unclear.

In July 2008, the Law Reform Commission published a Consultation Paper on Bioethics: Advance Care Directives (LRC CP 51-2008) (3rd Programme of Law Reform, Project 30). The Consultation Paper provisionally recommends that there is a need for legislation to cater for people who make advance care directives, whether verbally or in writing. An advance care directive sets out a person’s wishes about what should happen to them in the event of an incapacitating accident (such as a serious car crash) or illness (such as stroke or the onset of Alzheimer’s disease) that makes it impossible for them to communicate their wishes directly. The main recommendations in the Consultation Paper are that: the proposed legislation would not involve euthanasia, assisted suicide or allow a person to refuse basic care; it would deal only with advance care directives involving refusal of treatment, for example: “I do not wish to be resuscitated;” an advance care directive could, in general, be written or verbal but one that refuses life-sustaining treatment would have to be in writing; the proposed legislation could, in general, allow a person to refuse treatment on religious grounds; a person should be encouraged to seek medical advice when making an advance care directive, but it should only be mandatory in the case of directives involving the refusal of life-sustaining treatment. The Commission intends to publish a Report on this area by the end of 2009.

Access to information/diagnosis

The right to be informed

Under common law consent must be based on an understanding of the nature of proposed treatment, likely effects and risks of the treatment, the likelihood of success and details of any alternative treatment possible. The more a patient is capable of understanding, the more detailed the explanation should be and vice versa.

Access to medical files

The Freedom of Information (FoI) Act 1997 covers the issue of access to information. According to this act, all patients (treated under the public health system) have the right to access their health records. Previously, the only legislation relating to access to information concerned that which was held on computer and hence came under data protection laws (Cusack, 1998). Under the FoI access to records covers information in any form which relates to medical, psychiatric and psychological treatment or care and may include opinions made about patients on this basis.

Requests for access to records should be made in writing to the head of the relevant public body (the Chief Executive Officer). This is radically different from the previous system, whereby it was the responsibility of the doctor to decide on access to records. Not later than four weeks after receipt of a request, the CEO must decide whether or not to grant access to the information and determine how access will be arranged. In the case of a favourable response (wholly or in part), the requester should be notified of this, provided with details of when the request was granted and the name of the person dealing with the request and details of any fee to be charged. In the case of a negative response (wholly or in part), the requester should be informed of the reasons.

If access to a record is granted, the request can be provided in a number of ways, e.g. a copy of the record, a transcript of the information concerned, a computer disk or other electronic device, the opportunity to inspect the record, written notes of shorthand or coded information or a combination of these forms.

The doctor’s right to withhold information

Access to information can be denied for various reasons. Access can be refused if in the opinion of the CEO the information might be prejudicial to the mental health, well-being or emotional condition of the person making the request. However, in such cases the patient would still be able to access the required records, but through the intermediary of a health professional which he/she had specified (e.g. a doctor, dentist or other kind of health worker).

Confidentiality/disclosure of information to other people

According to the Irish Code of Medical Ethics, confidentiality is a fundamental aspect of the doctor/patient relationship. The FoI of 1997 has been described as an important step forward with regard to patient confidentiality (Cusack, 1998). According to this act any request for information will be refused unless the information relates to the person requesting it and that person has either consented to its disclosure or failure to disclose the information would entail a serious and imminent danger to the life or health of an individual.

End-of-life care and issues


Concerning passive euthanasia, whilst there is no law which deals directly with the issue of refusal of life-sustaining treatment, it has been claimed that such a right may be covered by article 40.3.1. of the Constitution of Ireland (1937):

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”

This article has been interpreted in a number of ways. According to Judge Costello (1986), "the dignity and autonomy of the human person require the State to recognise that decisions relating to life and death are, generally speaking, ones which a competent adult should be free to make without outside restraint and that this freedom should be regarded as an aspect of the right to privacy which should be protected as a "personal" right by Article 40.3.1." He also stated that in the case of incompetent patients, the proper discharge of the duty of care would involve no legal fault. According to this line of thought, the foregoing or withholding of life-sustaining treatment for terminally ill patients does not involve a crime and is compatible with the Constitution.

Active euthanasia, on the other hand, is considered by the Medical Council as professional misconduct. It is also a crime and is classed as murder. Nevertheless, a doctor can legally administer drugs in order to reduce the suffering of a patient even if there is a risk that the dose necessary to relieve suffering could kill the patient. This is known as "double effect" and is not a crime as the doctor's intention is to ease pain, not to kill.

Assisted suicide

In the past suicide was considered as a crime under common law. This changed in 1993 due to the Criminal Law (Suicide) Act which stated that, suicide was no longer to be considered an offence. However, assisted suicide is a crime. According to §2(2) of this Act, any person who aids, abets or procures the suicide or attempted suicide of another, is liable to a prison sentence of up to fourteen years (Tomkin and Hanafin, 1995). Physician assisted suicide would also be a crime.


Citizens Information Board website. Accessed on 27 October 2009:

Costello, D (1986), "The Terminally Ill: The Law's Concerns", Irish Jurist (1986), Vol. 21 (ns), p.35-44

Costello, J., (1998), Legal Issues and the Elderly

Cusack, D. (1998), Freedom of Information Act – triumph for patient rights over medical paternalism and secrecy, or threat to healthcarer-patient relationship?

Prendeville, T (2008), Controversy mounting over 'opt-in' organ donation move, Accessed online on 27 October 2009 from:

Tomkin, D. and Hanafin, P. (1995), Irish Medical Law, Round Hall Sweet and Maxwell



Last Updated: Wednesday 27 April 2011


  • Acknowledgements

    Alzheimer Euriope gratefully acknowledges the support of Fondation Médéric Alzheimer which made possible the data collection and publication of the country reports in our 2009 Yearbook.
  • Fondation Médéric Alzheimer