The Hospital Authority in Hong Kong had previously utilised certain Advance Directive forms to allow individuals to direct that their life-sustaining treatments be withheld in case they are unable to decide on the medical treatment in the future. While such forms have been held to be legally binding under common law, there was no specific legislation governing the matter in Hong Kong.
The Advance Decision on Life-Sustaining Treatment Bill (the “Bill”) was passed by the Legislative Council of Hong Kong and gazetted on 24 November 2024. The Bill establishes a formal legal framework governing the creation and revocation of Advance Medical Directives and Do Not Attempt Cardiopulmonary Resuscitation orders. The Bill provides important policy measures to honour patients’ decisions and enhance patients’ quality of life during their final days. It also seeks to ease the legal ambiguities faced by patients, medical professionals and rescuers as well as facilitating the choice of dying in place for terminally ill patients in residential care homes.
Advance Medical Directive (the “AMD”)
An AMD is a legal instrument allowing individuals to direct that life-sustaining treatment be withheld under specified conditions if they become mentally incapable of making such decisions later. The AMD is based on the principle of “cautious making, easy revoking”.
Under the Bill, any person aged 18 or above who is mentally capable of making decisions about life-sustaining treatment may execute an AMD to specify their refusal of life-sustaining treatment under specified pre-conditions. Medical professionals are prohibited from administering such life-sustaining treatments specified in the AMD after the pre-conditions are met and when the individual is mentally incapable of making decisions.
As to the execution of an AMD, the directive must be made in writing and signed in the presence of at least two witnesses, one of whom must be a registered medical practitioner (the “RMP”). Witnesses must meet specific criteria, such as not being beneficiaries of the maker’s estate. The RMP must certify that the maker is mentally capable of deciding on life-sustaining treatment and understands the effect of the AMD. A copy of the AMD can be stored in a designated electronic system as proof of validity. An AMD may be revoked at any time through verbal (in the presence of one or more adult witnesses) or written communication or by destruction of the document, provided the maker is mentally capable at the time of revocation.
Do Not Attempt Cardiopulmonary Resuscitation (“DNACPR”) Order
A DNACPR order directs medical professionals not to perform cardiopulmonary resuscitation (“CPR”) on a person suffering cardiopulmonary arrest. The Bill provides for three categories of DNACPR orders, including those based on AMDs, for a mentally incapable adult and for a minor.
Under the Bill, a DNACPR order must be made in writing using a statutory form. It must be issued by two registered medical practitioners, with at least one being a specialist. A DNACPR order may be revoked under certain conditions, including automatic revocation when a minor subject to the order reaches adulthood. It may also be revoked at any time through verbal (in the presence of one or more adult witnesses) or written communication or by destruction of the document, provided the maker is mentally capable at the time of revocation.
Buffer Period
The Bill is expected to be implemented in around 18 months’ time following passing of the Bill. During the interim period, medical institutions, policy bureaux, and other stakeholders should update their protocols, records, and systems and train their personnel before the legislation takes effect. However, one may still in the meantime in addition to creating a Will and Trust, Enduring Power of Attorney, include the making of AMD and DNACPR order for a complete end-of-life plan to ensure one’s care preferences will be honoured.
Significance
The Bill is a big step towards the development of modern end-of-life care environment in Hong Kong though it is short of euthanasia. By setting up a detailed framework for the creation of AMDs and DNACPR orders, the Bill respects individuals’ autonomy to decide on the ways to end their lives if they become terminally ill. It also provides legal certainty to medical professionals and other healthcare providers such that they can follow the medical directives with reduce liabilities.
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Angela Wang, Partner, Angela Wang & Co
angelawang@angelawangco.com
