By Alex Liu

Hong Kong, 3 December 2024: A new law that formally recognises a terminally-ill patient’s right, under certain circumstances, to refuse life-sustaining treatments has been passed by the Legislative Council, thus giving Hong Kong a much-needed legal framework for end-of-life care. It is expected to be implemented in around 18 months’ time.

The Advance Decision on Life-Sustaining Treatment Bill is designed to honour patients’ decisions and enhance quality of life during their final days while, at the same time, offering protection for medical professionals and rescuers. As well, it seeks to prevent any potential misunderstandings that could arise between patients, their families and healthcare providers.

The Bill sets out rules governing Advance Medical Directives (AMDs) and Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) orders, as well as facilitating the choice of dying in place for terminally-ill patients in residential care homes (RCHs). At present, Hong Kong has no legislation that provides for the legal status of AMDs and DNACPR orders, although AMDs are considered legally binding under common law.

Main provisions

AMDs: Anyone aged 18 or over who is mentally capable may make an AMD for refusal of certain life-sustaining treatments under specific circumstances. Adhering to the principle of “cautious making, easy revoking”, at least two witnesses are required, one of whom must be a registered medical practitioner (RMP). An AMD can be revoked at any time when the maker is mentally capable by verbal or written means or by destroying it. A scanned and digitalised copy of the AMD can be stored in a designated electronic system.

DNACPR orders: As defined in the Bill, such an order is an instrument that directs not to perform cardiopulmonary resuscitation on a person suffering from cardiopulmonary arrest. It must be made by two RMPs, one of whom must be a specialist, in writing by using a statutory form. The legislation also outlines specific instances where a DNACPR order can be revoked.

Dying in place: To facilitate the choice of dying in place for terminally ill patients in RCHs, there are proposed amendments to the relevant provisions in the Coroners Ordinance (Cap 504) and the Births and Deaths Registration Ordinance (Cap 174). Thus, if a citizen passes away in an RCH after being diagnosed as terminally ill and having been attended to by an RMP within the previous 14 days, they will be considered to have died of natural causes and the matter will not be reported to the Coroners Court.

Observations

First, it must be stressed that the Bill is distinct from euthanasia. An AMD allows withdrawal or withholding of life-sustaining treatment for terminally ill patients in specified situations. AMD makers cannot refuse basic or palliative care or request the administration or prescription of a substance to end their life.

Second, recognising that medical professionals and rescuers sometimes need to make split-second decisions, especially in emergencies, and under the principle of “if in doubt, save life first”, the Bill protects such individuals from legal liability as long as specified conditions are met.

Third, the estimated 18-month period before the Bill is implemented allows medical institutions and related organisations to revise their guidelines and train frontline staff, while the government will enhance public education.

Summary

The Bill is a milestone in the evolution of end-of-life care services in Hong Kong and should be welcomed by all stakeholders in the sector. Humane and compassionate, it allows terminally ill patients to complete their life journeys with dignity and enjoy greater autonomy while protecting healthcare workers going about their duties.

As well, it has the capacity to reduce the significant stress, both physical and emotional, that is sometimes endured by patients’ families and loved ones, especially if they are responsible for administering constant care at home.

We recommend that anyone considering making an AMD, or who thinks they will be impacted by the new legislation, should seek legal advice. Here at BC&C, we actively assist clients in making AMDs in the prescribed statutory form. We have a team experienced in dealing with sensitive issues surrounding mental capacity, vulnerable clients, estate planning and related matters.

Alex Liu is Managing Partner of BC&C. Among his many public appointments and community outreach roles, he is serving his second three-year term as a member of the Guardianship Board, which is authorised to appoint guardians for people aged 18 and over with decision-making incapacities. He can be contacted at alex@boasecohencollins.com.