39. (1) A health services provider shall make the open disclosure of the Part 5 review to—

(a) the patient concerned,

(b) a relevant person where—

(i) in the opinion of the principal health practitioner providing clinical care to the patient, having regard to the clinical circumstances of the patient, who is the subject of the Part 5 review, the capacity of the patient is such that he or she is unable to—

(I) participate in that open disclosure, and

(II) consent to that open disclosure being made to a relevant person,

and that capacity is unlikely to be of a temporary duration, and the health services provider is satisfied that a Part 5 review has taken place, it is appropriate, having regard to section 37, that the open disclosure of that review is made to a relevant person,

(ii) the patient has died, or

(iii) the patient has requested the health services provider to make the open disclosure of the Part 5 review to a person whom the patient has nominated as a relevant person for the purposes of this Act and not the patient,

or

(c) both the patient and a relevant person where, before the Part 5 review disclosure meeting is held, the patient has requested that a person whom the patient has nominated as a relevant person for the purposes of this Act attends that meeting to assist the patient and that in addition to making the open disclosure to the patient that the health services provider makes the open disclosure of the Part 5 review to that relevant person.

(2) For the purposes of subsection (1)(b)(i), and making an open disclosure of the Part 5 review to a relevant person, the health services provider shall make the open disclosure—

(a) where an appointment has been made under Part 3, 4, 5, 7 or 8 of the Assisted Decision-Making (Capacity) Act 2015 in relation to health matters, to the person appointed,

(b) where the patient has, under the Powers of Attorney Act 1996, made an enduring power of attorney (within the meaning of that Act) which includes a personal care decision (within the meaning of that Act), to the attorney appointed pursuant to that Act,

(c) where the patient is a ward of court, to the Committee of the Person of that ward, duly authorised in that behalf,

(d) where the patient has nominated, in writing, a person to whom his or her clinical information may be disclosed, to that person,

(e) where the patient is a child, to the parent or guardian of that child or where—

(i) an order in respect of the child has been made under section 18 of the Act of 1991,

(ii) the child has been taken into the care of the Agency under section 4 of the Act of 1991, or

(iii) an order in respect of the child has been made under section 13, 17 or 20 of the Act of 1991,

to the parents or guardian of the child and the Child and Family Agency (or an authorised person) or, where an order under section 23H of the Act of 1991 has been made in respect of the child, to the parents or guardian of the child and that Agency (or the social worker assigned responsibility for the child by the Agency), or

(f) where the patient does not fall within the categories specified in paragraphs (a) to (e), to—

(i) the spouse, civil partner or cohabitant of the patient,

(ii) an adult son or daughter of the patient, or

(iii) the mother, father, brother or sister of the patient.

(3) For the purposes of a request referred to in—

(a) subsection (1)(b)(iii), and

(b) subsection (1)(c),

without prejudice to subsection (2)(d), where a patient makes a request referred to in paragraph (a) or (b), the patient shall nominate the person in writing (including a person referred to in subsection (2)) as a person to whom clinical information may be disclosed in respect of information to be provided in an open disclosure of a Part 5 review.

(4) For the purposes of subsection (1)(b)(ii), and making an open disclosure of a Part 5 review, the open disclosure shall be made to a person specified in subsection (2).

(5) Where an open disclosure of a Part 5 review is made pursuant to—

(a) subsection (1)(b)(i) or (iii), to a relevant person, or

(b) subsection (1)(c), to both the patient and the relevant person,

the relevant person shall consult with the patient in respect of the information provided at the Part 5 review disclosure meeting, and shall convey, to the health services provider with the consent of the patient, the instructions, preferences and wishes of the patient in respect of any matter arising from that information.

(6) Where, after a health services provider has, in accordance with subsection (1)(b)(i), held the Part 5 review disclosure meeting with the relevant person and after that meeting was held the patient regains capacity, the health services provider shall inform the patient that such meeting was held with the relevant person and shall provide the patient with the information given at that meeting.

(7) In this section—

“Act of 1991” means the Child Care Act 1991;

“authorised person” in relation to a child referred to in subsection (2)(e) who is—

(a) placed in residential care pursuant to the Act of 1991, has the same meaning as it has in the Child Care (Placement of Children in Residential Care) Regulations 1995 (S.I. No. 259 of 1995),

(b) placed in foster care pursuant to the Act of 1991, has the same meaning as it has in the Child Care (Placement of Children in Foster Care) Regulations 1995 (S.I. No. 260 of 1995), or

(c) placed with a relative pursuant to the Act of 1991, has the same meaning as it has in the Child Care (Placement of Children with Relatives) Regulations 1995 (S.I. No. 261 of 1995);

“civil partner” has the meaning assigned to it by section 172(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

“cohabitant” means one of 2 adults (whether of the same or opposite sex) who live together as a couple in an intimate and committed relationship and who are not married to each other or civil partners of each other.