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A New Era of Patient Autonomy: New Rights Under the Advance Decision on Life-Sustaining Treatment Bill

On 20 November 2024, the Legislative Council of Hong Kong passed the Advance Decision on Life-Sustaining Treatment Bill, which was subsequently gazetted on 24 November 2024. Set to come into effect in May 2026 following a buffering period of 18 months, the Bill introduces significant changes to how individuals can make decisions regarding their medical treatment, particularly in the event they become mentally or physically incapable of making those decisions in the future.

The Bill grants individuals the right to issue Advance Medical Directives (AMDs), allowing them to make binding decisions about their medical treatment ahead of time. This includes the option to refuse life-sustaining treatments such as mechanical ventilation, CPR, or artificial nutrition and hydration under certain conditions. Additionally, patients will have the right to opt for a Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) order, which allows the patient to reject CPR rescue in the event of cardiopulmonary arrest.

This article explains the new rights introduced by the Bill, and outlines the steps individuals can take to exercise those rights.

ADVANCE MEDICAL DIRECTIVE

An Advance Medical Directive (AMD) is a legally binding document that allows an individual to instruct healthcare providers to withhold life-sustaining treatment under specific circumstances, such as if they are terminally ill, in a persistent vegetative state, or in an irreversible coma.

Types of life-Sustaining Treatments that can be refused:

• medical ventilation
• cardiopulmonary resuscitation (CPR)
• artificial nutrition and hydration (e.g. via a tube)

Step 1: Ensure Eligibility

• You must be 18 or older
• Mentally capable of making decisions about life-sustaining treatment
• Not under undue influence at the time of creation, as adjudged by a doctor and lawyer

Step 2: Choose the Treatments to Refuse

• Decide which life-sustaining treatments you want to withhold such as:

– Ventilation

– CPR

– Artificial nutrition

Step 3: Complete the Statutory Form

• The AMD must be created in writing, using a statutory form. This form must be signed and witnessed by at least two people.
• One witness must be a Registered Medical Practitioner (RMP), who will confirm that you are mentally capable and understand the implications of your decision.
• Witnesses cannot be beneficiaries of your estate.

Step 4: Store the AMD Digitally

After completing the AMD, a digitized copy can be securely stored in a dedicated electronic system (planned to be integrated into the eHealth platform by the Health Bureau, and currently under phased development) for safekeeping and validation. This ensures that healthcare providers can access your AMD when necessary.

Step 5: Revocation

The creation of an AMD follows the principle of “cautious making, easy revoking.” Revocation is If you change your mind at any point, you can revoke your AMD by the following means, provided you are mentally capable.

• Verbally stating your intention to revoke
• Providing a written declaration
• Destroying the original document

DO NOT ATTEMPT CARDIOPULMONARY RESUSCITATION (DNACPR) ORDER

The Bill also grants individuals the right to issue a DNACPR order, which directs healthcare providers not to attempt CPR in the event of cardiopulmonary arrest.

If you wish to opt for a DNACPR, there are a few ways to initiate the process:

Option 1: Through an AMD: If you create an AMD, you can include instructions regarding the refusal of CPR, effectively issuing a DNACPR.

Option 2: Medical Determination: If CPR is deemed medically inappropriate or futile, a DNACPR may be issued based on a physician’s recommendation.

Option 3: Explicit Request: If you wish to make an explicit DNACPR request, it must be confirmed in writing via the completion of the statutory form and documented by medical professionals to ensure it aligns with your wishes and medical condition.

Reminder: A DNACPR must be confirmed by two Registered Medical Practitioners (RMPs), one of whom must be a specialist.

The Advance Decision on Life-Sustaining Treatment Bill represents a major shift in the autonomy granted to individuals regarding their healthcare decisions. By allowing patients to issue Advance Medical Directives (AMDs) and Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) orders, the Bill empowers individuals to make critical decisions about how they wish to be medically treated in advance, ensuring their wishes are respected even if they become incapable of expressing them later.

Although the Bill will not come into effect until May 2026, individuals should consider their options for this interim period.

If you would like to explore your options in this regard, please contact our Partner, Eunice Chiu (+852 2186 1885 / +852 9169 4356).

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

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