Substitute Decision-making and Advance Directives in Relation to
Medical Treatment
(HKLRC Report)
On 16 August 2006, the Law Reform Commission released its report on Substitute decision-making and advance directives in relation to medical treatment. The report is concerned with how decisions as to medical treatment can be made for patients who are unable to make those decisions themselves because they are comatose or in a vegetative condition. The report deals with the situation where decisions as to medical treatment are made on behalf of a patient by someone else, such as a doctor, when the patient is comatose or in a vegetative conditions (what is termed "substitute decision-making"). It also deals with the situation where the patient himself, while competent, gives instructions as to the medical treatment he wishes if he later becomes incompetent to make such a decision (referred to as an "advance directive").
In relation to substitute decision-making for those in a coma or vegetative condition, the Commission proposes that the definition of "mentally incapacitated persons" in the Mental Health Ordinance should 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, the Commission notes that the lack of an agreed form of advance directive leads to difficultiies and uncertainty for both the individual and the doctors treating him or her. One solution would be to provide a statutory form of advance directive. However, the Commission has rejected this option at this stage because it believes it would be premature to legislate on advance directives when the concept is still new to the community and is one on which most people have little knowledge.
Instead, the Commission has put forward a model form of advance directive which could be used by those wishing to make decisions as to their future health care. The Commission believes that the advantage of a model form of advance directive is that, if correctly completed, an individual can be reasonably assured that his wishes will be carried out. The model form will also assist medical practitioners in their consideration of consent to medical treatment and make it easier for them to be confident as to the patient's prior wishes.
The model form would require two witnesses, one of whom must be a medical practitioner. Neither witness should have an interest in the estate of the person making the advance directive.
The advance directive would be triggered only where the individual is terminally ill, in a persistent vegetative state or in an irreversible coma.
An advance directive can be revoked at any time by the person who has made it. Those wishing to revoke an advance directive should be encouraged to do so in writing, but it may also be revoked orally.
The Commission considers that the Government should play a role in promoting public awareness and understanding of the concept of advance directives, and should endeavour to enlist the support of relevant bodies such as the Medical Council and the Hospital Authority in this information campaign. The Commission also proposes that the Government should review the situation in due course once the community has become familiar with the concept of advance directives and consider whether legislation should be introduced.
| Press Release (PDF) (MS Word) |
| Executive Summary (PDF) (MS Word) |
| Report (PDF) (MS Word) |