Introduction

In his article, ‘Mental health advance planning documents: complexities and considerations’, Ruck Keene examines the difficulties arising at three stages of advance planning documents: creation, the period between creation and activation, and the point at which the intended circumstances arise, primarily in the context of the law in England and Wales (‘E&W’) (Ruck Keene 2025, in press; see also Ruck Keene 2020). His central concerns include how formality requirements at creation can both protect against abuse and impede accessibility; how documents should be stored and discovered and how they age between creation and activation; and, when circumstances arise, how to resolve tensions between past instructions and present wishes/feelings, how ‘contrary action’ is treated, and how mental health contexts (including advance refusals and any purported advance consent to admission/confinement) are handled under the Mental Capacity Act 2005 (‘MCA 2005’). This article considers analogous issues through the lens of Irish law and practice, comparing and contrasting the two jurisdictions and drawing out points of doctrinal convergence and divergence that are of practical importance to clinicians and lawyers.

Creation of advance healthcare directives

The Irish framework contains more formal procedural requirements than those in E&W. In Ireland, an Advance Healthcare Directive (‘AHD’) must be in writing, whether through actual writing, voice or video recording or speech recognition technology (Assisted Decision-Making (Capacity) Act 2015 (‘ADMCA 2015’), s. 82 and s.82(4)). In addition, AHDs must contain the directive-maker’s name, date of birth, contact details, signature, the signatures of two witnesses and, if applicable, the details of the designated healthcare representative, their signature and the signature of witnesses to that signature (ADMCA 2015, s.84(5)). A directive-maker (‘DM’) must be at least 18 and must have capacity to create an AHD.

It is a limitation of the current framework that AHDs are only available to those who have reached the age of 18 years. A 16- or 17-year-old can legally consent to medical treatment under the Non-Fatal Offences Against the Person Act 1997 (s. 23(1)). Yet if, for example, they were terminally ill and wished to make decisions in relation to their future care, to which they can lawfully consent, there is no legal instrument for them to do so. Given this gap, consideration ought to be given to extending eligibility for AHDs to those who have attained the age of 16.

One area likely to cause practical difficulty is the treatment of formal defects and minor clerical errors in purported AHDs. No provision was made in the ADMCA 2015 for minor deviations from the formal requirements for an AHD or for clerical errors arising therein. For instance, the Act requires a DM to include their contact details in order to create an AHD; however, it does not go so far as to provide that a purported AHD which does not comply with the criteria is not a ‘valid’ AHD. An AHD is only not valid if it was not created voluntarily or if the DM has done something clearly inconsistent with the AHD whilst they had capacity. In practice, it is likely that an application would have to be made to court to determine whether a document that omits a required detail constitutes an AHD.

It may be suggested that these formal requirements impose an unnecessary or overly procedural barrier on DMs in the creation of AHDs. For example, it may be considered overly burdensome to expect two witnesses for each AHD. This may impede those without support, among others, from availing of the opportunity to put an AHD in place. When contrasted with the English and Welsh requirement for only one witness in situations concerning life-sustaining treatment, the requirements of Part 8 of the Act are more onerous. The intention is likely to mitigate against undue influence and fraud. As uptake develops in Ireland, the key question will be whether the likely benefits of reducing undue influence and fraud outweigh the deterrent effect such requirements may have on DMs wishing to put an AHD in place.

One argument in favour of the formal writing requirement is that it reduces the likelihood of disputes over the existence of an AHD (in the physical sense, not the legal sense). However, it does not eliminate them. In March 2024, the High Court had to consider a hospital’s application for treatment orders in respect of a man who was a Jehovah’s Witness. The hospital had been told by the man’s family that he had signed a document stating that he would refuse a blood transfusion in all circumstances due to his religious beliefs. However, that document could not be located. Consequently, the hospital was obliged to seek orders, and the court could not take account of the advance directive (O’Faolain Reference O’Faolain2024).

It can reasonably be argued, on the face of Part 8, that the Act does not itself differentiate between ‘advance statements’, ‘advance instructions’ and ‘wishes’. The Act only permits refusals of treatment and requests for specific treatment (which are not legally binding). Given the stated objective of AHDs as being to ‘enable persons to be treated according to their will and preferences’ it is perhaps an apparent omission that the Act does not permit DMs to indicate in a broader sense their will and preference. That said, detailed practice-level guidance on these distinctions is more appropriately addressed in the Decision Support Service, Code of Practice for Healthcare Professionals (April 2023) (the ‘Healthcare Professionals Code’) and the Decision Support Service, Code of Practice on Advance Healthcare Directives for Healthcare Professionals (April 2023) (the ‘Advance Healthcare Directives Code’), which provide the operational framework for assessing validity and applicability and for healthcare professional (‘HCP’) processes, rather than in primary legislation. In particular, the Advance Healthcare Directives Code sets out how will and preferences should be identified and recorded in practice, alongside validity/applicability checks and documentation duties.

Against that backdrop of formal requirements and the heightened onus on directive-makers to specify treatment and circumstances with precision, practical supports at the drafting stage assume particular importance. While not a formal requirement, the involvement of an HCP, preferably a member of the DM’s treating team (if applicable), is likely to be beneficial in terms of optimising clarity and specificity during the creation stage. Given the complexities implicit in healthcare, clear and specific requests would seem more likely to be followed than those that are vague and open to multiple interpretations. Similarly, without the assistance of an HCP, a DM may not be aware of all the treatment options which a treating team may consider and would therefore not be able to accurately refuse such treatments in advance.

Acknowledging that HCP involvement may hinder accessibility for some DMs, consideration could be given to support from a trained peer worker with personal experience of the relevant illness, who could assist the DM in creating their own AHD. This model has been used in France in the field of mental health regarding psychiatric advance directives, and studies have suggested possible benefits in terms of health utility and healthcare costs (Loubière et al. Reference Loubière, Geoffroy, Auquier, Baumstarck, Lançon, Giordana and Da Silva2023).

Capacity

Given the issues which have arisen in E&W with regard to establishing that the DM had capacity at the time the advance decision (‘AD’, E&W) was made, it is perhaps surprising that the Irish legislature opted not to include an obligation to have a contemporaneous capacity assessment at the time of creation of an AHD. This approach will require the courts to consider retrospective capacity assessments when determining whether an AHD has been made. Capacity is defined by reference to the ability to understand the nature and consequences of the decision in the context of the available choices at the time, and the definition is tied to the time at which a decision is to be made (ADMCA 2015, s.3(1)). In the specific context of a retrospective capacity assessment (i.e., did the DM have capacity at the time the AHD was created) this may lead to an incongruent application of law, and it will in any event be challenging to establish convincing and inherently reliable evidence of the DM’s capacity, possibly years earlier.

One issue that has arisen in E&W has been obviated, though, by the presumption of capacity in s.8(2) of the Act, which provides that ‘It shall be presumed that a relevant person … has capacity in respect of the matter concerned unless the contrary is shown …’. This framing of the presumption of capacity in Ireland neatly solves an issue identified by Ruck Keene, who concludes that the presumption of capacity being framed in the present tense means that retrospective capacity assessments cannot, on a strict construction of the MCA 2005, enjoy the presumption of capacity. In Ireland, the presumption of capacity appears to extend to directive-makers, as they would fall within the definition of a person ‘whose capacity is in question or may shortly be in question’ (ADMCA 2015, s.2(1)). This is a preferable formulation to the position in E&W under the MCA 2005 because the Irish presumption of capacity in s.8 applies to persons whose capacity ‘is in question or may shortly be in question’, supporting retrospective assessments of capacity at the time of making.

Ruck Keene recommends that E&W healthcare practitioners obtain or undertake a contemporaneous capacity assessment at the time of making an AD, which he describes as ‘either a sensible insurance policy or an unnecessary – and potentially discriminatory – departure from the presumption of capacity’ (Law Society of Scotland 2021). In the Irish context, this should be understood as an evidential safeguard (i.e., it being useful to generate contemporaneous proof in the event that a dispute later arises) rather than a doctrinal requirement, given the presumption of capacity and the absence of any statutory mandate.

The Advance Healthcare Directives Code provides that, where there is uncertainty about the directive-maker’s capacity at the time of making, clinicians ‘must presume the directive-maker had capacity to make the advance healthcare directive’ (Advance Healthcare Directives Code, s.2.7.2). The Code does not mandate a contemporaneous capacity assessment, but it recognises that the presumption is rebuttable. If there are reasons to believe the directive-maker lacked capacity at the time, further inquiries should be undertaken (Advance Healthcare Directives Code, s.2.7.1), and an advance healthcare directive will not be valid if the directive-maker did not have capacity when it was made (Advance Healthcare Directives Code, s.2.7.2). Consistently with the Act’s decision- and time-specific definition (s.3(1)) and the general presumption (s.8(2)), a contemporaneous assessment is therefore not a legal requirement but may provide the most reliable evidence in any later dispute about capacity at the time of making. In practical terms, where no contemporaneous assessment exists and capacity is later contested, satisfying the court on the balance of probabilities that the directive-maker had capacity at the material time will typically be more difficult, as the parties must rely on retrospective records, witness accounts and circumstantial indicators rather than direct clinical evidence.

Set against the rebuttable presumption of capacity and the absence of any legal requirement for contemporaneous assessment, the case for routine assessment at the point of making requires careful consideration. It might very well offend the presumption of capacity that a capacity assessment be carried out merely because of the making of an AHD, but there is an undeniable practicality to the point that this is one of very few ways to be in a position to adduce compelling evidence as to capacity at the time an AHD was made. It is acknowledged that to make this a statutory requirement would be too onerous on DMs, and the approach taken here is sensible. It would be helpful, however, if the Advance Healthcare Directives Code highlighted the benefits of a contemporaneous assessment to DMs. In addition, a contemporaneous capacity assessment may help limit the potential for coercion (from family members, for example) when making an AHD given that many of those for whom an AHD may be of benefit may be vulnerable persons.

Positive treatment requests

Irish law explicitly envisages that positive treatment requests may come within an AHD (ADMCA 2015, s.84(3)(a)), while, in contrast, ADs in E&W are only framed in statute through the refusal of treatment. A request for a certain form of treatment through an AHD is not binding in Irish law. Instead, there is an obligation placed on the person(s) involved in the decision-making process to consider the treatment requested by the directive-maker, if that treatment is ‘relevant’ to the medical condition requiring treatment. Where the request for a specific treatment is ultimately not complied with, there is an obligation on the ‘healthcare professional’ involved to record why the request was not complied with in the directive-maker’s healthcare record and, if a designated healthcare representative exists, give a copy of those reasons to the designated healthcare representative within seven days after those decisions were recorded (ADMCA 2015, s.84(3)(b)).

In our view, given the statutory scheme in s.84(3), the practical and ethical implications of positive treatment requests warrant emphasis. The inclusion of positive requests supports patient autonomy while maintaining appropriate clinical discretion. However, complexity arises where there is no evidence that a request was considered, contrary to s.84(3). While there is no right to receive the requested treatment, there is a right to have one’s will and preferences taken into account within the statutory framework. Where multiple clinically reasonable options exist, a failure to document reasons for departing from a request may raise legal and ethical concerns. Involvement of a healthcare professional at the creation stage can improve the clarity and specificity of expressed preferences, including benefits, risks and side-effects, although such involvement may also create accessibility barriers.

Creation to activation

Between creation and activation, the central practical question is how AHDs are stored and discovered at the point of care. Following the 2022 amendments, the Act provides for a notification and review regime and for the Director to establish and maintain a register of notified AHDs that comply with the statutory criteria, with ministerial regulations to govern notification and review (ADMCA 2015, s.84(12)–(12B), as amended). However, no operational AHD register currently exists. In its absence, storage remains fragmented. A central register could improve discoverability and reduce duplication but would entail administrative burdens. By contrast, local approaches – such as patient-held copies, inclusion in clinical records, or electronic flags on hospital systems – are easier to implement but are vulnerable to loss, inaccessibility, and non-communication between providers. Periodic updates and amendments may also be easier in local systems, but only where there are reliable processes for version control and transmission.

Complementing this statutory position, the Advance Healthcare Directives Code sets out practical steps to ascertain whether an AHD exists, including asking the person directly; asking any accompanying or supporting person; checking the person’s clinical records; and consulting other clinicians involved in the person’s care (Advance Healthcare Directives Code, s.2.1.1). In the current non-register environment, the most pragmatic approach is to embed AHDs within clinical records – ideally with clear electronic flags – so that treating teams can readily locate them at the point of activation. Patient-held copies and care-plan summaries provide useful redundancy, but processes must address version control, inter-provider communication, and confidentiality and data-protection obligations. Paper-based storage, in particular, remains vulnerable to loss or non-communication and requires careful governance to mitigate these risks.

Determining the validity of AHDs

Under the ADMCA 2015, an AHD is ‘not valid’ under s.85(1) of the Act if it was not made voluntarily or if, while having capacity, the directive-maker ‘has done anything clearly inconsistent with the relevant decisions outlined in the directive’ (ADMCA 2015, s.85(1)). It is unclear what ‘capacity’ means in this context. There are two plausible readings: capacity to do the later ‘thing’ that purports to invalidate the AHD, or capacity to make the underlying AHD. On balance, it appears to refer to capacity to do the clearly inconsistent ‘thing’. This is problematic insofar as a person who later lacks capacity and whose AHD ought to be operative could previously have invalidated it, perhaps unknowingly. The standard for ‘clearly inconsistent’ is not defined. In practice, the assessment will be fact-sensitive and may turn on the nature, timing and persistence of the contrary act, whether the person understood they were departing from their earlier directive, and the quality of contemporaneous evidence. It is also not specified who should record such inconsistent acts or how the standard of ‘clearly inconsistent’ is to be applied in routine practice.

This provision can be contrasted with the ‘contrary action’ debate under the MCA 2005, where it has been unclear whether post-loss-of-capacity behaviour can disapply an advance decision. Ruck Keene’s analysis in his discussion paper suggests that, as a matter of practical adjudication, courts and clinicians may treat persistent contrary behaviour as undermining advance refusals, but the statutory footing in E&W is debated (Ruck Keene Reference Ruck Keene2020). The Irish drafting in s.85(1)(b) avoids some ambiguity by tying invalidation to clearly inconsistent acts done while capacitous.

Building on the foregoing, it is important to distinguish between an AHD that is ‘not valid’ within s.85(1) and a document that is not an AHD at all for the purposes of Part 8. The Advance Healthcare Directives Code states that an AHD will not be valid if the directive-maker did not have capacity when it was made and directs further inquiries where there is reason to doubt capacity (Advance Healthcare Directives Code, ss.2.7.1–2.7.2). On a strict reading of the Act, however, a document purportedly made without capacity falls outside Part 8 rather than being rendered ‘not valid’ under s.85(1). Where the Code’s phrasing diverges from the Act’s structure, the Act prevails.

Identification of disapplying circumstances

Section 84(2) of the ADMCA 2015 provides that a refusal of treatment under an AHD must be complied with if, at the time in question, the directive-maker lacks capacity, the treatment is clearly identified, and the circumstances in which the refusal is intended to apply are clearly identified in advance.

This raises questions about the extent to which intended circumstances must be specified. The Irish approach places the onus on directive-makers to identify circumstances ex ante, seeking to avoid binding people to decisions they did not intend to cover unforeseen situations, but it risks onerous drafting burdens and later disputes over sufficiency.

By contrast, the MCA 2005 provides that an advance decision may specify treatment or circumstances even if expressed in lay terms (s.24(6)) and that an AD is not applicable if there are reasonable grounds to believe that unanticipated circumstances exist which would have affected the person’s decision (s.25(4)(c)). Ireland lacks an equivalent to s.24(6), which could be beneficial to mitigate over-strict readings of specificity requirements.

Explicit disapplying criteria

As originally enacted, the ADMCA 2015 provided in s.85(7) for a broad disapplication of AHDs where treatment was regulated by Part 4 of the Mental Health Act 2001 (‘MHA 2001’) and where the person was subject to a conditional discharge order under s.13A of the Criminal Law (Insanity) Act 2006, with an exception for refusals relating solely to treatment of a physical illness not related to the amelioration of a mental disorder. However, Part 8 of the ADMCA 2015 did not commence until 26 April 2023, and it commenced in tandem with the Assisted Decision-Making (Capacity) (Amendment) Act 2022 (‘2022 Amendment’). Accordingly, the originally enacted version of s.85(7) never operated in practice.

The 2022 Amendment (s.74) substituted s.85(7). From commencement, the operative position is that an AHD shall be complied with unless, at the time when it is proposed to treat the directive-maker, the person’s treatment is regulated by Part 4 of the MHA 2001 and they are detained on the ‘risk’ criterion within s.3(1)(a) MHA 2001 (immediate and serious harm to self or others), or the person is the subject of a conditional discharge order under s.13A of the Criminal Law (Insanity) Act 2006. As explained by Kelly, Reference Kelly2025), this means that advance refusals by involuntary patients are to be complied with where detention is on the ‘impaired judgment/treatment’ criterion in s.3(1)(b) MHA 2001, but not where detention is on the s.3(1)(a) ‘risk’ criterion. The statutory carve-out for refusals relating solely to treatment of a physical illness remains.

The Mental Health Bill 2024 proposes further changes to the treatment of AHDs for persons receiving mental health care. The Bill has passed Dáil Éireann (9 July 2025) but has not been enacted at the time of writing. As currently drafted, it would amend s.85 of the ADMCA 2015 to restate the general rule that an AHD shall be complied with (subject to existing validity and applicability provisions) and, where treatment is regulated by the Bill’s mental health treatment regime, make compliance subject to that regime, including provision for High Court treatment orders in defined, exceptional circumstances. The Bill also maintains the position that refusals relating solely to treatment of a physical illness must be respected in all cases. This analysis is contingent on the Bill’s progression, final text on enactment, and commencement.

Applicability

To frame the applicability test, Irish law requires close alignment between what is proposed and what the directive specifies. Section 85(2)(b) provides that an AHD is not applicable where the proposed treatment is not materially the same as the specific treatment identified in the directive. This is stricter than the position in England and Wales, where MCA 2005, s.24(6), allows an advance decision to specify treatment or circumstances even if expressed in lay terms. While no equivalent exists in Irish law, adopting a similar interpretative aid would, arguably, be beneficial. The Advance Healthcare Directives Code mitigates over-literalism by directing clinicians to resolve ambiguity conscientiously and not to treat minor differences in terminology or mode of delivery as fatal to applicability, coupled with clear documentation of reasoning (Advance Healthcare Directives Code, ss.2.6–2.7, 2.9).

Read together, these features mean that, on a narrow reading of the Act, there appears to be a requirement for the DM to be more exact in identifying treatments they wish to refuse or request. This adds to a growing theme that there is a greater onus on directive-makers in Ireland, compared to E&W, when making advance decisions. That may deter uptake unless there is careful clinical support at drafting.

Against that backdrop, applicability first presupposes that, at the material time, the directive-maker lacks capacity (s.85(2)(a)). Where that threshold is met, a specific refusal that is valid and applicable has the same effect as a contemporaneous capacitous refusal (s.86(1)). In Governor of a Prison v XY [2023] IEHC 361, the High Court declared the AHD valid (s.89(2)) but found it inapplicable because the respondent then had capacity to refuse treatment. The Court also addressed the meaning of ‘basic care’ in s.85(4), indicating that forced provision of hydration or feeding would likely amount to “artificial hydration or nutrition” within s.85(4)(b), and that nothing in s.85(4) required oral nutrition or hydration to be provided contrary to clearly expressed wishes. Finally, by reference to constitutional rights, applicable policy, and the Court’s inherent jurisdiction, orders were made to ensure that, if capacity were lost, actions consistent with the AHD could be taken. The case therefore illustrates the statutory sequence. First, consider capacity at the material time, then consider validity and applicability. The case also highlights the practical need for clear documentation around ‘basic care’ versus artificial nutrition and hydration in clinical planning.

Expanding beyond the medical

There could be scope to expand Irish law to a broader ‘living will’ concept addressing non-medical domains, such as accommodation or education. Given current uncertainties and the relative paucity of case law, a cautious, evidence-led approach is advisable pending further jurisprudence and implementation experience. Enduring powers of attorney (‘EPAs’) may be more suitable for some non-medical decisions, although not all directive-makers will have (or wish to appoint) an attorney.