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Making of advance healthcare directives, etc.
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84. (1) A person who has attained the age of 18 years and who has capacity may make an advance healthcare directive.
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(2) A refusal of treatment set out in an advance healthcare directive shall be complied with if the following 3 conditions are met:
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(a) at the time in question the directive-maker lacks capacity to give consent to the treatment;
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(b) the treatment to be refused is clearly identified in the directive;
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(c) the circumstances in which the refusal of treatment is intended to apply are clearly identified in the directive.
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(3) (a) A request for a specific treatment set out in an advance healthcare directive is not legally binding but shall be taken into consideration during any decision-making process which relates to treatment for the directive-maker if that specific treatment is relevant to the medical condition for which the directive-maker may require treatment.
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(b) Where a request for a specific treatment set out in an advance healthcare directive is not complied with in a decision-making process referred to in paragraph (a), the healthcare professional concerned, involved in that decision-making process, shall—
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(i) record the reasons for not complying with the request in the directive- maker’s healthcare record, and
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(ii) give a copy of those reasons as so recorded to the person’s designated healthcare representative (if any) as soon as is practicable after they have been recorded but, in any case, not later than 7 working days after they have been recorded.
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(4) An advance healthcare directive shall be in writing.
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(5) (a) An advance healthcare directive shall contain the following:
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(i) the name, date of birth and contact details of the directive-maker;
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(ii) subject to paragraph (b), the signature of the directive-maker, and the date that the directive-maker signed the directive;
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(iii) the name, date of birth and contact details of the designated healthcare representative (if any);
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(iv) the signature of the designated healthcare representative (if any) and the date that the representative signed the directive;
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(v) the signatures of the 2 witnesses referred to in subsection (6)(a).
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(b) An advance healthcare directive may be signed on behalf of the directive-maker by a person who has attained the age of 18 years and who is not one of the witnesses referred to in subsection (6)(a) if—
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(i) the directive-maker is unable to sign the directive,
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(ii) the directive-maker is present and directs that the directive be signed on his or her behalf by that person, and
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(iii) the signature of the person is witnessed in accordance with subsection (6)(b).
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(6) (a) The directive-maker, or the person signing on his or her behalf in accordance with subsection (5), and the designated healthcare representative (if any) shall sign the advance healthcare directive in the presence of each other (where applicable) and in the presence of 2 witnesses—
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(i) each of whom has attained the age of 18 years, and
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(ii) of whom at least one is not an immediate family member of the directive-maker.
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(b) Each of the witnesses referred to in paragraph (a) shall witness the signature of the directive-maker or the person signing on his or her behalf and the signature of the designated healthcare representative (if any) by applying his or her own signature to the advance healthcare directive.
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(7) (a) A directive-maker who has capacity may revoke his or her advance healthcare directive in writing.
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(b) Subject to paragraph (c), a directive-maker who has capacity may, in writing, alter his or her advance healthcare directive.
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(c) An alteration referred to in paragraph (b) of an advance healthcare directive is of no effect unless it is signed and witnessed in accordance with subsections (5) and (6) as if the alteration itself were an advance healthcare directive.
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(8) An advance healthcare directive made outside the State but which substantially complies with the requirements of this Part applicable to an advance healthcare directive shall have the same force and effect in the State as if it were made in the State.
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(9) The Minister may, for the guidance of persons wishing to make advance healthcare directives, specify forms of such directives, not inconsistent with this Part, that such persons may use or adapt in making their respective advance healthcare directives.
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(10) The Minister’s power under subsection (9) may be exercised in such a way as to specify forms of advance healthcare directives to provide for particular circumstances or particular cases, as the Minister thinks appropriate.
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(11) The Minister may publish any forms of advance healthcare directives that he or she has specified under subsection (9) in such manner that he or she thinks appropriate, including by the use of a website on the internet.
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(12) The Minister may make regulations as respects advance healthcare directives, including regulations relating to—
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(a) requiring the directive-maker to give notice of the making of an advance healthcare directive—
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(i) to the Director, and
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(ii) to other specified persons, and whether or not by reference to persons who, under this Act, are required to be notified of an application made under this Act,
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and
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(b) requiring the Director to establish and maintain a register of advance healthcare directives so notified to him or her.
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(13) In this section, “immediate family member” means—
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(a) a spouse, civil partner, or cohabitant,
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(b) a child, son-in-law or daughter-in-law,
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(c) a parent, step-parent, mother-in-law or father-in-law,
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(d) a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law,
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(e) a grandparent or grandchild,
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(f) an aunt or uncle, or
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(g) a nephew or niece.
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