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Text of THE LAW REFORM COMMISSION OF HONG KONG - Gov · PDF file 2004-10-01 · i THE LAW...






    This consultation paper can be found on the Internet at:

    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: [email protected] 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.

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    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

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    Chapter Page Mental Health Ordinance (Cap 136) 15

    Management of property and affairs of mentally incapacitated persons


    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


    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


    Hospital Authority’s Guidelines on Life-sustaining Treatment in the Terminally Ill


    British Medical Association’s Guidelines on Withholding and Withdrawing Life-prolonging Medical Treatment


    Dr H K Cheung’s Frequently Asked Questions and Answers in the Application of the Mental Health Ordinance


    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

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    Chapter Page 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


    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

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    Chapter Page 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


    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


    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


    Annex 2 Form of advance directive prepared by the British Medical Journal


    Annex 3 Form of advance directive prepared by the District of Columbia Hospital Association, USA


    Annex 4 Form of advance directive prepared by the Ministry of Health, Singapore


    Annex 5 Proposed revocation form for use in Hong Kong


    Annex 6 Proposals for consequential amendments to Part V of the Mental Health Ordinance (Cap 136)


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    Preface __________ Introduction 1. “Making decisions is an important part of life. It empowers people by allowing them to express their individuality. It enables people to control their lives and gives them a sense of self-respect and dignity. However, for some decisions to be legally effective, it is necessary that the person making the decision has a certain level of understanding. The reason for this is very simple: it is to protect against abuse or exploitation of a person who may be made vulnerable by impaired decision-making capacity. It also helps other people who may be affected by a decision to know where they stand.”1 2. When an individual has the level of understanding sufficient to make a legally binding decision he is said to have the “capacity” to make that decision. In certain circumstances, the individual’s capacity to make decisions for himself may be impaired by his physical or mental condition. Decisions may still need to be made, however, particularly when they affect the individual’s health and wellbeing. There is therefore a need for the law to provide a mechanism for decision-making where the individual’s capacity is impaired. 3. This consultation paper is concerned with two specific circumstances, both relating to decision-making for persons who are unable to make those decisions at the time of execution of the associated action. The first relates to decisions made by a third party in respect of the medical treatment and the management of property and affairs of persons who are comatose or in a vegetative state. The second relates to advance decision-making by the individual himself as to the health care or medical treatment he wishes to receive at a later stage when he is no longer capable of making such decisions. The two aspects of the subject can perhaps best be distinguished or contrasted as being concerned with pre-incapacity decision-making (for persons in the second situation) and post-incapacity decision-making (for persons in the first situation). Terms of reference 4. On 23 March 2002, the Secretary for Justice and the Chief Justice made the following reference to the Law Reform Commission:

    1 The Queensland Law Reform Commission Report No 49, Assisted and Substituted Decisions:

    Decision-making by and for people with a decision-making disability, Vol 1(1996), Ch 1, para 3.

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    “To review the law relating to: (a) decision-making for persons who are comatose or in a

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