The Patient Right to Autonomy Act came into force on January 6, 2019. The purpose of this legislation is to protect the patient’s right to information, decision making and choice, and to ensure that the patient’s wishes for hospice are protected by law in a predetermined manner when he or she is unconscious and unable to express himself or herself clearly, and to carry out the wishes of the person in a dignified manner in the final stages of life.

Therefore, the focus of this legislation is on the “Advance Directive”(AD), i.e., once a person is faced with five clinical conditions, including (1) terminally ill; (2) in an irreversible coma; (3) in a permanent vegetative state; (4) suffering from severe dementia; and (5) other conditions announced by the central competent authority as unbearable, incurable or otherwise unsuitable for treatment by medical professionals according to the standards and knowledge prevailing at the time. Through prior consultation with the health care team, the family and health care agent will discuss with the person and assist the person to determine whether he/she wishes to have “medical intervention” or choose hospice and palliative care. AD will also reduce the stress on relatives and health care agents, allowing them to make medical decisions in the most respectful manner.

The following is a summary of the more frequently asked questions about this legislation.

(i) Do foreign nationals have the right to execute an AD?

Yes. All foreign nationals with full capacity (Note: According to the current civil law, the age of 20 years or older, but as of January 1, 2023, the age of 18 years or older is the age of majority, with full capacity), enrolled in the National Health Insurance (NHI) program and possessing a valid NHI card have the right to execute an AD.

(ii) How does one execute an Advance Directive?

Prior to doing so, the person must visit an authorized medical institution and attend an Advance Care Planning (ACP) session.

The decision to accept, terminate, withdraw or not to administer life-sustaining treatment or artificial nutrition or fluid feeding, in whole or in part, when the person is under any of the above five clinical conditions, shall be made upon consultation in the ACP session among the person himself/herself, at least one second-degree relative (or closer) of the person seeking to execute an AD (with just cause, this relative’s attendance may be waived), a health care agent (if one does not wish to appoint one, this agent’s attendance may also be waived), and medical professionals from the authorized medical institution.

Upon consultation among all attendees, the person seeking to execute an AD may decide whether to do so. If so, then an AD may be signed in the presence of two witnesses and affixed with the authorized medical institution’s official seal. The person’s NHI card will also be linked to the executed and effective AD.

(iii) Can one attend an ACP session if he/she does not have a second-degree relative (or closer)?

Yes. As long as there is a written explanation of why a second-degree relative (or closer) is unable to attend or cannot participate, the ACP session can still be conducted.

(iv) Can same-sex couples participate in ACP session and register as a health care agent? Is there any restriction on the status of a health care agent?

Yes, a person who has full capacity (note: under the current Civil Code, a person is 20 years of age or older, but as of January 1, 2023, a person is 18 years of age or older), and apart from the declarant’s heirs, is not a declarant’s legatee, a legatee of the declarant’s remains or organs, or a person who shall benefit from the death of the declarant, may participate in the ACP session and register as a health care agent.

Other than the above restrictions, there are no other restrictions on the status of a health care agent.

(v) What happens if more than two agents are appointed and there is a conflict of decision?

When appointing health care agents, the applicant should first decide the order of appointment. When the hospital executes an AD, the opinion of the agent who is first in line will be used as the medical decision. If the first-ranking agent is not available or does not express his or her opinion, the second-ranking agent may express his or her opinion on the medical decision.

(vii) Is there a template document for the AD?

Yes. It is accessible here on the Ministry of Health and Welfare (MOHW)’s website.

(viii) Does it mean that the health care provider will not actively treat the person who signed an AD?

No. An AD will be activated and executed only when any of the five specific clinical conditions mentioned above occurs. If not, medical staff must follow the medical protocols and perform the necessary emergency measures without undue delay.

(ix) Can one withdraw or change an AD after it has been signed?

Yes, one can withdraw or change an AD in writing to the medical institutions. Upon receipt of the withdrawal or change, the institution will make the corresponding change to, or withdrawal of, the notation on the NHI system.

(x) What happens if a medical decision is made by the person who is fully aware during the course of a medical procedure that is different from the AD?

An AD may be withdrawn or changed in writing at any time. Therefore, in the course of medical treatment, the person may change the contents of his or her AD in writing at any time.

(xi) Is there a list of the authorized medical institutions for purposes of the ACP and the Advance Directive?

Yes. It is accessible here on the MOHW’s website.

For more information on enforcement matters in Taiwan, please contact Christine Chen at cchen@winklerpartners.com and Patrick Luo at pluo@winklerpartners.com.

This is a translation of the original article in Chinese, which can be found here. Translation by Chi-hsien Nieh.