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THE LAW REFORM COMMISSION OF HONG KONG

Decision-Making and Advance Directives
Sub-committee


Consultation Paper


Substitute Decision-Making and AdvanceDirectives in Relation to Medical Treatment


This report can be found on the Internet at: http://www.info.gov.hk/hkreform.


July 2004


This Consultation Paper has been prepared by the Decision-making and Advance Directives Sub-committee of the Law Reform Commission. It does not represent the final views of either the Sub-committee or the Law Reform Commission, and is circulated for comment and discussion only.


The Sub-committee would be grateful for comments on this Consultation Paper by 30 September 2004. All correspondence should be addressed to:


The Secretary
The Decision-making and Advance Directives
Sub-committee
The Law Reform Commission
20th Floor, Harcourt House
39 Gloucester Road
Wanchai
Hong Kong
Telephone: (852) 2528 0472
Fax: (852) 2865 2902
E-mail: hklrc@hkreform.gov.hk

It may be helpful for the Commission and the Sub-committee, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, the Commission will assume that the response is not intended to be confidential.

It is the Commission's usual practice to acknowledge by name in the final report anyone who responds to a consultation paper. If you do not wish such an acknowledgment, please say so in your response.

The Law Reform Commission
Of Hong Kong


Sub-Committee on
Decision-Making and Advance Directives


Consultation Paper


Substitute Decision-Making and Advance
Directives in Relation to Medical Treatment

____________________________________________

CONTENTS


Chapter

Page


Preface 1


Introduction 1
Terms of reference 1
The Sub-committee 2
Acknowledgements 3




1. The concept of capacity and decision-making 4


Concept of capacity 4
Causes of mental incapacity 5
    Dementia 6
    Coma 8
    Vegetative state 9
Problems of decision-making disability 10




2. The concept of advance directives
12


Advance directives
12




3. Mentally incapacitated persons: existing statutory provisions
15


Introduction
15
Mental Health Ordinance (Cap 136)
15
     Management of property and affairs of mentally incapacitated persons
17
     Medical care and treatment
20
Enduring Powers of Attorney Ordinance (Cap 501)
22




4. Mentally incapacitated persons: the common law and consent to medical treatment
24


Introduction
24
Factors affecting medical and health-care decisions
24
     Consent
24
     Informed consent or refusal
24
     Vitiating effect of outside influence on consent
25
     Best interests principle
25
     Conflict between patient’s and society’s interests
26
     Treatment against refusal amounts to battery in tort
28
     Principle of necessity
29
     Principle of the sanctity of life
30
     Principle of self determination
31
     Human rights
32
    Capacity to make an advance refusal
36
     Pregnant women
38


5. Practice in the medical profession relating to medical treatment and the assessment of mental capacity
39


Introduction
39
     Hospital Authority’s Guidelines on In-Hospital Resuscitation Decisions
39
     Hospital Authority’s Guidelines on Consent to or Refusal of Treatment and/or Blood Transfusion by Patients
42
     Hospital Authority’s Guidelines on Life-sustaining Treatment in the Terminally Ill
43
     British Medical Association’s Guidelines on Withholding and Withdrawing Life-prolonging Medical Treatment
46
     Dr H K Cheung’s Frequently Asked Questions and Answers in the Application of the Mental Health Ordinance
47




6. Problems with the existing law
57


Introduction
57
Deficiencies in the Mental Health Ordinance (Cap 136)
57
     The definition of “mental incapacity”
57
     Exception to definition of “mental disorder”
64
     Progressive/fluctuating mental incapacity
64
     Decision-making capacity not considered
66
Uncertainty of the common law regime
66
     Decision-making as to health care or medical treatment
66
     Lack of autonomy of patient
70
Issues for consideration
71




7. The law and proposals for reform in other jurisdictions
73


Introduction
73
Australia: Queensland
73
     Mental Health Act 1974
74
     Public Trustee Act 1978
75
     Intellectually Disabled Citizens Act 1985
75
     Inherent jurisdiction of the Court
77
     Criticisms of the old law
77
     The Commission’s recommendations and reform
79
     Powers of Attorney Act 1998
80
     Guardianship and Administration Act 2000
84
     Mental Health Act 2000
90
Canada: Alberta
91
     Law reform proposals
91
     Personal Directives Act 1996
93
Canada: Manitoba
95
     The Health Care Directives Act
95
England and Wales
97
     Existing Law
97
     Deficiencies of the existing law
99
     Factors emphasising the need for change
101
     The Law Commission’s reform proposals
102
     The UK Government’s response to the Law Commission’s proposals
109
Scotland
114
     Scottish Law Commission reports
114
     Criticisms of the previously existing law
116
     Adults with Incapacity (Scotland) Act 2000
119
Singapore
123
     Mental Disorders and Treatment Act (Cap 178)
123
     Advance Medical Directive Act (Cap 4A)
124
United States of America
128
     Advance directives
128
     The Uniform Rights of the Terminally Ill Act
129
     The Uniform Health-Care Decisions Act
133


8. Proposed options for reform
137


Introduction
137
Part 1: Advance directives
138
Options
138
     Option A - Extend the existing scope of enduring powers of attorney
139
     Option B - Create welfare or continuing powers of attorney
141
     Option C - Expand the functions of the Guardianship Board
147
     Option D - Create a legislative basis for advance directives
149
     Option E – Retain the existing law and promote the concept of advance directives by non-legislative means
153
Conclusion
154
Part 2: Decision-making for persons in a coma or vegetative state
161


9. Summary of recommendations
168


Annex 1
Proposed form of advance directive for use in Hong Kong
172
Annex 2
Form of advance directive prepared by the British Medical Journal		 178
Annex 3
Form of advance directive prepared by the District of Columbia Hospital Association, USA
180
Annex 4
Form of advance directive prepared by the Ministry of Health, Singapore
186
Annex 5
Proposed revocation form for use in Hong Kong
190
Annex 6
Proposals for consequential amendments to Part V of the Mental Health Ordinance (Cap 136)
192