Activating Directive

Representative

A directive-maker may designate, in his advance healthcare directive, a named individual to exercise the following powers. If the individual agrees to exercise the powers, he shall sign the directive to confirm his willingness to do so in accordance with the known will and preferences of the directive-maker as determined by reference to the directive.

He must be over 18. He must not

• have been convicted of an offence in relation to the person or property of the directive-maker or his family,
• be subject to a safety or barring order,
• be the owner of a registered provider of designated centre or mental health facility in which the directive-maker resides, or a person residing with, or
• an employee or agent of, such owner or registered provider, unless that person is the spouse, civil partner, cohabitant, parent, child or sibling of the directive-maker.

The person must not be an individual who provides personal care or healthcare services to the directive-maker for compensation unless he is so related or is the primary carer of the directive.

Where, after the designation of an individual as a designated healthcare representative, any of the above circumstances apply, the individual shall cease to be qualified to exercise the relevant powers.

A designated healthcare representative acts as the agent of the directive-maker in exercising powers. Unless otherwise provided, the healthcare representative shall not be permitted to exercise the functions in the case where he is the spouse of the directive-maker and the marriage is dissolved, annulled, a judicial separation is ordered, a written agreement to separate is entered, or the parties cease to cohabit for a period of 12 months. Similar provisions apply in relation to civil partners.

Powers of Representative

A designated healthcare representative has the power to ensure that the terms of the healthcare directive are complied with. The directive-maker may, in his directive, confer on the person one or more of the following powers:

• the power to advise and interpret what the directive-maker’s will and preferences are regarding treatment as determined by the representative by reference to the relevant advance healthcare directive;
• the power to consent to or refuse treatment, up to and including life-sustaining treatment, based on the known will and preferences of the directive-maker as determined by the representative with reference to the relevant advance healthcare directive.

Nothing in this Part of the legislation is to impose civil or criminal liability on a designated healthcare representative who, in exercising powers, in good faith in accordance with what he reasonably believes to be the will and preference of the directive-maker, by reference to the relevant advance healthcare directive.

The designated healthcare representative shall as soon as practicable after making a relevant decision but, within seven days and no later, make and keep a record in writing of the decision. He shall provide for that record for inspection at the request of the directive-maker if he regains capacity or the Director.

Complaints

The Director shall receive and consider complaints and allegations in relation to the way in which a designated healthcare representative is exercising his power. He shall review the complaint and, if satisfied it has substance, shall conduct an investigation. On completion of an investigation, the Director may take no further action or may apply to the court.

The court may determine an application if it is satisfied that the designated healthcare representative has behaved, or is behaving or proposing to behave in a manner outside the scope of his powers, make an order prohibiting him from exercising his powers from the date, or the occurrence of an event, specified in the order, or if not so satisfied, it may decline to make such an order.

Exercise of Power

A designated healthcare representative may only exercise powers when and for so long as the decision-maker lacks capacity. A designated healthcare representative shall not delegate any of the relevant powers. Any purported delegation is void.

The directive-maker may designate in his directive, a named individual to be an alternative designated healthcare representative if the nominated representative dies or is unable to exercise the powers. The named individual must be eligible to act at the time and will be regarded as representative for all purposes.

On an application made by an interested party, the court may make a declaration as to whether the advance healthcare directive is valid, is applicable, or the representative is acting in accordance with the relevant powers. The application may not involve considerations relating to life-sustaining treatment.

On an application that does relate to life-sustaining treatment, the High Court may make an order in relation to the above matters.

While awaiting a decision of the High Court in relation to a decision on a life-sustaining treatment, nothing in the advance healthcare directive is to be interpreted to prevent a person from providing life-sustaining treatment or doing any act he or she believes necessary to prevent a serious deterioration in the health of the directive-maker or the unborn, if she is pregnant.

Offences

A person who uses fraud, coercion or undue influence to force another to make, alter or revoke an advance healthcare directive is guilty of an offence. It is subject on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both. It is subject on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term of five years, or both.

There are offences of falsifying, altering, purporting to revoke, an advance healthcare directive without a person’s consent. Similar penalties apply.

Undue influence or coercion in this context includes any case where the person’s access to, or continued stay in, a designated centre or mental health facility is contingent on the person having to, or being led to believe that he has to, make, alter or revoke an advance healthcare directive.

Codes of Practice

The Minister may establish a multidisciplinary working group of suitable persons to make recommendations in relation to codes of practice. The Director may prepare and publish codes of practice, based on recommendations made by the working group as to the contents of the code, for the purposes of guidance of designated healthcare representatives or healthcare professionals, or both, with respect to matters under the Act.

Before publishing the code, drafts are to be made available and representations invited and considered. The consent of the Minister is required for the publication of a code of practice. A copy is to be published and notice of publication is to be published in Iris Oifigiúil. A copy of each code of practice is to be published on the Director’s website and to be accessible to the members of the public.

Application to Court

An application to the court, other than one by the directive maker concerned is to be on notice to the directive maker, the below-mentioned persons and such other persons as may be specified by Rules of Court. The application shall not be made unless the person making the application has received the consent of the court under an ex parte application.

The requirement for an ex parte application does not apply to the following parties

• directive-maker,
• Director,
• spouse or civil partner, cohabitant,
• decision-making assistant, co-decision-maker, decision-making representative,
• attorney,
• a designated healthcare representative,
• person specified for that purpose in an existing court order.

An application to the relevant court shall state the applicant’s connection with the directive-maker, the benefit sought to be achieved, the reasons why the application is made and in particular, the reason why the benefit to the directive-maker sought to be achieved has failed to be achieved by any other appropriate and practicable means prior to the making the application, and the reason why, in the opinion of the applicant, no other appropriate and practicable manner to achieve that benefit remains to be taken.

In every application to the court, the applicant shall inform the court of the existence of any decision-making assistance agreement, co-decision-making agreement, power of attorney,  advance healthcare directive, and any decision-making order or decision-making representation order made, which, to the applicant’s knowledge, still has effect.

The hearing shall be conducted with the least amount of formality consistent with the proper administration of justice. They should be heard and determined otherwise than in public. The relevant court for the purpose of this section is the High Court.