The new Advance Decision on Life-sustaining Treatment Ordinance in Hong Kong - A step towards dignity in one's final moments

As a city with the longest life expectancy in the world, the passing of the Ordinance on 20 November 2024 is a significant step for Hong Kong in catering towards the needs of its aging population.

Although it is possible for 'Advance Directives' to be made (and a specific form was produced by the Hospital Authority (HA)), which allows members of the public to express their choice as to the types of medical treatment that should not be administered when they reach their final stage of life, the enforceability of such instruments has been uncertain.  There were no clear legal definitions of the situations when such instruments may become applicable, the validity of this type of 'living wills' being based on common law principles¹ only.  Further, the medical team should generally only rely on an original of the instrument, and if such cannot be produced in an emergency situation, or if there is dispute from family members on the applicability, the medical team is still obliged to continue emergency life-sustaining treatment (including resuscitation) while waiting for clarification. 

The passing of the Ordinance codifies the common law position, provides more clarity to the types of situations when cessation of treatment is justified, specifies protection for the treatment providers, and deals with the practical issues of the format of the 'Advance Medical Directive' (AMD) which should be recognized.

When would the AMD become applicable? 

The first criteria is that the instructions expressed in an AMD will only take effect when the person making the AMD is 'mentally incapable of deciding on a life-sustaining treatment' (s 14 (1) of the Ordinance).  There is a helpful definition in s 3 (2) of the Ordinance, which states that a person may be so treated when e.g. he is suffering from disturbance in the functioning of the mind and as a result, is unable to weigh information in making the decision as to life-sustaining treatments. 

The second criteria is that the person must be in one of the three 'end of life pre-conditions' (s 14 (1)(b) of the Ordinance).  There are definitions in s 3 A to 3 C of the Ordinance on each type of the pre-conditions:  

a)    terminally ill, 

b)    in a persistent vegetative state or a state of irreversible coma, or 

c)    in other end-stage, irreversible, life-limiting conditions.

The definition of persistent vegetative stage recognizes that the person does not have to be totally 'brain dead' but it is sufficient that he or she is unable to give 'purposeful response to the person's surroundings'; even though 'the person maintains a state of wakefulness with sleep-wake cycles'.²   Other end-stage includes situations when a person has end-stage renal failure or motor-neuron disease.   

What type of treatment can be refused? 

The Ordinance clarifies that a person may refuse all types of 'life-sustaining treatment', meaning any medical treatment that is necessary to keep a person alive, including for example artificial nutrition and hydration. 

Thus a person can make instructions for the cessation of artificial nutrition and hydration through non-oral means (e.g. through a tube or by intravenous administration). 

However, 'basic care' and 'palliative care' are not life-sustaining treatments and cannot be refused.  Any instructions to refuse such care would be of no effect (s 11 (1)(a) of the Ordinance).  For example, a person cannot refuse the offer of food and drinks for consumption by mouth, clothing or measures to relieve pain. 

The AMD cannot take effect as an authorization for euthanasia.  Any instruction given which purports to require any substance to be administered to end one's life, or for a substance to be prescribed to enable a person to end his life by self-administering the substance should be of no effect (s 11 (b) and (c) of the Ordinance).

Execution of AMD

The AMD can be made by any person over 18 with mental capacity.  The AMD must be in writing, in paper form and all instructions must be presented clearly.  The use of the prescribed forms (annexed to the Schedules of the Ordinance) is not a must, but the presentation of instructions in these documents is presumed to be clear (s 7 (2) of the Ordinance).

Two persons must witness the signing on the AMD by the maker, one of whom must be a registered medical practitioner, and both witnesses cannot be 'interested person' of the maker (including persons who may benefit under the maker's estate by will or by intestacy, or under an insurance policy).   

Storage and notice of AMD; and protection to treatment providers

As long as the treatment provider has notice of a 'validating copy of the AMD', which means that he has either 1) seen a valid copy of the AMD  (including a certified copy or electronic image of the AMD which is stored in a designated election system) or 2) been informed that a copy of the AMD is stored in a designated electronic system and the copy is actually stored in the system and is accessible to the treatment provider (s 16 of the Ordinance), he may act according to the instructions on the AMD.  

The new law expressly provides limitations on the civil or criminal liability of the treatment providers for subjecting or not subjecting any person to life-sustaining treatment if certain conditions are met (e.g. in the latter, they honestly and reasonably believe that an AMD was made and is valid (based on having notice of the same) (s 19 of the Ordinance). 

DNACPR Order 

The Ordinance also legislates the effectiveness of a 'do-not-attempt-cardiopulmonary resuscitation' Order.  For persons who have signed an AMD, a DNACPR Order on paper (but not electronic) form may be issued by two registered medical practitioners (one of whom must be a specialist) when it is determined that the person has entered one of the three end of life 'pre-conditions'.  This Order would be sufficient evidence to show the treatment providers and rescuers (including paramedics in the ambulance) that CPR treatment should not be performed on the person in case of cardiac arrest.  The treatment providers or rescuers who have seen the original or certified copy of the Order and fulfilled certain conditions would be protected from liability in not administering CPR to the person (s 37 and 40 of the Ordinance). 

For adults already suffering from incapacity who have not made an AMD, the Ordinance recognizes the right of his immediate family members as well as persons in a cohabitee relationship (whether of the same or opposite sex, as long as they live together in an intimate relationship) to request the medical practitioners treating the person to issue a DNACPR Order. They may co-sign the Order agreeing to the cessation of CPR in the best interest of the incapacitated person.  This seems to be another important legislative milestone in Hong Kong, with legislative provisions recognizing the rights of cohabitees and the 'rainbow' families (s 29 (3) and s 22 of the Ordinance).

Revocation 

The government has promoted the concept of 'cautious making, easy revoking'.   The AMD can be revoked by the maker alone in writing, by the maker destroying the document, or by the maker verbally revoking it in the presence of one witness only (s 10 of the Ordinance).  The DNACPR Order that is based on an AMD can also be revoked in a similar manner (s 32 of the Ordinance), while one that is not based on an AMD can be revoked by the crossing out of the document by two registered medical practitioners. 

Transitional arrangement 

Schedule 1 A of the Ordinance provides that preexisting advance directives or DNACPR orders made before the Ordinance comes into effect would be recognized as if made under the Ordinance provided certain conditions are met (Schedule 1 A) and that those made on HA forms are presumed to be valid.   

Other considerations on incapacity 

The Ordinance enables members of the public to plan ahead in case of incapacity by providing more certainty that their wishes as set out under an AMD or DNACPR Order to refuse certain types of treatment should be respected when they reach specific end-of-life stages.  More guidance on their application is expected from the medical profession. 

However, there are more areas one needs to consider to properly plan for the unfortunate event of incapacity.  The AMD only covers 'life-sustaining treatment' during certain end-of-life stages.  With respect to the frequently asked questions – such as 'if I may designate certain persons to make decisions for me during my incapacity as to where I live, what types of general treatment I should receive etc.' – Hong Kong is still to legislate³ to put in place a mechanism for recognizing the appointment of a decision maker in advance with authority to decide on such matters.

Another important topic is 'Who could look after my expenses and those of my dependants, help me collect income e.g. rent and dividends, exercise my rights as shareholders etc. during my incapacity?'  Having instruments such as 'Enduring Powers of Attorney' (see our article on How Enduring Power of Attorney works in Hong Kong and why it is useful) and /or the setting up of lifetime discretionary trusts to hold part of the person's assets with the person and his dependants as the beneficiaries should help during those periods, and clients are strongly recommended to seek early advice on the application of these tools when they still have mental capacity.