Substitute Decision-making and Advance Directives in Relation to Medical Treatment
(HKLRC Consultation Paper)
The Law Reform Commission's Decision-making and Advance Directives Sub-committee on 13 July 2004 released a consultation paper on proposals to reform the law relating to decision-making by a third party in relation to the medical treatment or the management of the property and affairs of persons who are comatose or in a vegetative state, and the giving of advance directives by an individual as to the health care or medical treatment he wishes to receive at a later stage when the individual is no longer capable of making such decisions.
It is unclear under the current statutory provisions as to who has authority to authorise medical treatment of persons who are comatose or in a vegetative state, or to manage their property and affairs in the absence of an enduring power of attorney, as such persons do not fall within the definition of "mentally incapacitated person" in the Mental Health Ordinance.
To answer this difficulty, the sub-committee proposes that the definition of "mentally incapacitated person" in the Ordinance be amended to make it clear that those parts of the Ordinance which deal with the giving of consent for medical treatment, guardianship and the management of a mentally incapacitated person's property and affairs should apply to persons who are comatose or in a vegetative state.
In relation to advance directives given by persons when mentally competent as to the form of health care or medical treatment which they would like to receive at a future time when they are no longer competent, there is at present no legal framework to give force to such advance decision-making. The sub-committee therefore proposes that a model form of advance directive should be adopted by those wishing to make decisions as to their future health care. The sub-committee envisages that the proposed form of advance directive would provide a means to help ensure that the individual's wishes are made clear.
The sub-committee would welcome comments on its proposals, and these can be sent to the Commission by email or by post. The consultation period will last until 30 September 2004.
| Press Release (PDF) (MS Word) |
| Executive Summary (PDF) (MS Word) |
| Consultation Paper (PDF) (MS Word) |