Advance Decision on Life-Sustaining Treatment Bill: a step towards patient autonomy

Currently, Hong Kong lacks specific laws regulating Advance Medical Directives (AMDs) and Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) orders, despite AMDs being acknowledged under common law. The absence of a clear legal framework has resulted in practical challenges and legal ambiguities for both patients and healthcare providers. The growing acceptance of AMDs among patients and healthcare professionals highlights the need for formal legislation. ¹

To address the complexities surrounding end-of-life care and strengthen patient autonomy, the Hong Kong Legislative Council introduced the Advance Decision on Life-Sustaining Treatment Bill (the Bill). This legislation aims to provide a well-defined legal framework for creating and revoking AMDs and DNACPR orders, ensuring that patients' preferences regarding life-sustaining treatments are legally protected. The Bill was published in the Gazette on 24 November 2023 and passed by the Legislative Council of Hong Kong on 20 November 2024.

Key provisions of the Bill

Advance Medical Directives (AMDs)

An AMD is a legal document created by individuals to instruct that life-sustaining treatment be withheld if they become mentally incapable of making such decisions in the future and the specified conditions are met. ²The Bill stipulates that any person aged 18 or above and mentally capable of deciding on life-sustaining treatment may create an AMD. Upon meeting the specified precondition stated in the AMD, medical professionals are prohibited from administering any life-sustaining treatments outlined in the directive when the individual is mentally incapable of making such decisions.

The creation of an AMD follows the principle of "cautious making, easy revoking". ³ It requires the presence of at least two witnesses who meet certain criteria (such as not being beneficiaries of the maker's estate), with one witness being a registered medical practitioner (RMP). The RMP must ensure that the maker is mentally capable of making decisions about life-sustaining treatment and understands the nature and implications of the AMD. The AMD must be documented in writing, and a scanned and digitised copy can be stored in a designated electronic system as proof of the directive's validity. An AMD can be revoked at any time by verbal or written means or by destroying the document, provided the maker is mentally capable.

It is worth noting that AMDs and euthanasia are fundamentally different. An AMD permits the cessation or omission of life-sustaining treatments for terminally ill patients under certain conditions. Nevertheless, individuals creating an AMD cannot decline basic or palliative care, nor can they request substances to end their life through an AMD.⁴ This ensures that patients' rights to autonomy and dignity are respected without crossing the ethical boundaries associated with euthanasia.

Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) Orders

A DNACPR order is an instrument that has a continuing effect and directs not to perform cardiopulmonary resuscitation (CPR) on a person who is in cardiopulmonary arrest. ⁵ The Bill permits three types⁶ of DNACPR orders, including those based on an AMD.⁷ These orders must be issued by two registered medical practitioners, with at least one being a specialist. ⁸ The Bill also specifies conditions for revoking a DNACPR order, such as automatic revocation when a person under 18 reaches adulthood.

Recognising that medical professionals and rescuers often need to make quick decisions during emergencies and following the principle of "if in doubt, save life first", the Bill provides legal protection for medical professionals and rescuers (including lay rescuers).⁹ This protection ensures they are not held legally liable for administering or withholding life-sustaining treatment as long as specified conditions are met.

Buffering period

A preparation period of 18 months will be provided for medical institutions, relevant policy bureaux and departments, and other related organisations to update their protocols, records and systems, and to train their staff before the Bill becomes effective.¹⁰ The government will also enhance public education and collaborate with healthcare professionals and community CPR training organisations to promote the new legislation. ¹¹

Conclusion

The Bill marks a significant milestone in the development of end-of-life care services in Hong Kong. By establishing a detailed legal framework for AMDs and DNACPR orders, the Bill respects patients' wishes and provides essential legal safeguards for healthcare providers. This reduces their liability risks and allows them to follow directives without fear of legal repercussions. Additionally, the Bill promotes patient autonomy, enhances the quality of life for terminally ill patients and supports the option for dying in place, such as in residential care homes. By fostering a more humane and dignified healthcare system, the Bill ensures that end-of-life care in Hong Kong is compassionate, respectful and aligned with patients' values and preferences.

Acknowledgements to Trainee Solicitor Karen Lee for research and contribution to this article.

1. Legislative Council, "Advance Decision on Life-Sustaining Treatment Bill," LC Paper No. LS81/2023, 8 December 2023
2. Legislative Council, "Advance Decision on Life-Sustaining Treatment Bill," LC Paper No. LS81/2023, 8 December 2023
3. Gazettal of Advance Decision on Life-Sustaining Treatment Bill, Coroners Ordinance (Amendment of Schedule 1) Notice 2023 and Births and Deaths Registration Ordinance (Amendment of Second Schedule) Notice 2023
4. Gazettal of Advance Decision on Life-Sustaining Treatment Bill, Coroners Ordinance (Amendment of Schedule 1) Notice 2023 and Births and Deaths Registration Ordinance (Amendment of Second Schedule) Notice 2023
5. Legislative Council, "Advance Decision on Life-Sustaining Treatment Bill," LC Paper No. LS81/2023, 8 December 2023
6. The Advance Decision on Life-Sustaining Treatment Bill permits three types of Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) orders: those based on an Advance Medical Directive (AMD), reflecting a patient's pre-stated preference not to receive CPR; those issued by medical professionals based on the patient's current medical condition, typically when CPR is deemed medically inappropriate or futile; and those based on the patient's explicit verbal or written request not to receive CPR, which must be documented and confirmed by medical professionals to ensure alignment with the patient's wishes and medical condition.
7. Legislative Council, "Advance Decision on Life-Sustaining Treatment Bill," LC Paper No. LS81/2023, 8 December 2023
8. A registered medical practitioner whose name is included in the Specialist Register as defined by section 2(1) of the Medical Registration Ordinance (Cap. 161)
9. Gazettal of Advance Decision on Life-Sustaining Treatment Bill, Coroners Ordinance (Amendment of Schedule 1) Notice 2023 and Births and Deaths Registration Ordinance (Amendment of Second Schedule) Notice 2023
10. https://www.info.gov.hk/gia/general/202411/20/P2024112000545.htm?fontSize=1
11. Gazettal of Advance Decision on Life-Sustaining Treatment Bill, Coroners Ordinance (Amendment of Schedule 1) Notice 2023 and Births and Deaths Registration Ordinance (Amendment of Second Schedule) Notice 2023

Public link

Please use the above public link if you want to share this noodl on another website.