Views sought on medical treatment decision-making

A special sub-committee of the Law Reform Commission today (July 13) released a consultation paper on two aspects of decision-making in relation to medical treatment.

The first aspect concerns decisions made by a third party -- or 'substitute decision-making' -- regarding medical treatment of people who are comatose or in a vegetative state.

The second relates to an individual deciding in advance as to the healthcare or medical treatment he or she wishes to receive when no longer capable of making such decisions. These instructions are referred to as 'advance directives'.

Currently, the Mental Health Ordinance makes provision for managing the property and affairs, the guardianship and the right to give consent for medical treatment for 'mentally incapacitated persons'.

However, the paper says it is not clear who may authorise medical treatment for people who are comatose or in a vegetative state, or manage their property and affairs in the absence of an enduring power of attorney, because such people do not fall within the ordinance's definition of 'mentally incapacitated person'.

The sub-committee proposes to amend the definition to make it clear that those parts of the ordinance that deal with consent for medical treatment, guardianship and the management of a mentally incapacitated person's property and affairs should apply to people who are comatose or in a vegetative state.

In relation to advance directives, there is no legal framework to give force to advance decision-making by people who are mentally competent as to the form of health care or medical treatment they would like to receive when they are no longer competent.

The sub-committee does not favour a legislative approach. Instead, it has put forward a model form of advance directive that could be used by those wishing to make decisions on their future health care.

The instructions, in the form of an advance directive, would take effect if the individual becomes terminally ill or enters an irreversible coma or persistent vegetative state and is unable to take part in decisions on medical treatment.

There would be two witnesses, one of whom should be a medical practitioner. Neither witness should have an interest in the estate of the person making the advance directive.

The sub-committee also recommends establishment of a central registry, accessible 24 hours a day, for the safekeeping of all advance directives.

The sub-committee says any decision to withhold or withdraw artificial life-support procedures for a terminally ill patient will continue to be governed by the medical profession's medical and ethical guidelines, and does not amount to euthanasia.

The proposals will not affect the application of the Hospital Authority's current 'Guidelines on Life-sustaining Treatment in the Terminally Ill', which set out the major principles for decision-making for adults.

Under the existing guidelines, a valid advance directive refusing life-sustaining treatment should be respected; the sub-committee's proposed model advance directive is intended to provide a means to help ensure that the individual's wishes are made clear.

The sub-committee recommends that the government should promote the concept of advance directives in the community, and enlist the support of relevant bodies such as the Medical Council and the Hospital Authority in the campaign.

The government should encourage those who wish to make an advance directive to seek legal advice and to discuss the matter first with their family members, who should also be encouraged to accompany the individual when making the advance directive.

The sub-committee chairperson, Mrs Sophie Leung, said the recommendations in the consultation paper were intended to facilitate discussions and do not represent the sub-committee's final conclusions.

"The public is welcome to submit views, comments and suggestions on any issues discussed in the consultation paper on or before September 30," she said.

Copies of the consultation paper can be accessed on the Law Reform Commission's website at www.info.gov.hk/hkreform.

Ends/Tuesday, July 13, 2004