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Elder Law

入住香港安老院：不可忽视的法律与合约考量

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2024年4月15日，消费者委员会发布了一份 重要報告，深入检视香港安老院的标准、费用及透明度。报告中揭示了多项问题，例如隐藏费用、不一致的护理标准以及含糊的合约条款。同时，报告也突显出一个更深層次的问题：含糊的合约条款及许多家庭选择安老院所涉及的法律和财务复杂性缺乏认知。

入住养老院，无论是政府补贴的还是私人的，都是一个重大决定，不仅涉及评估设施、人员配备和服务是否足够。合约的条款规范了从费用到护理服务以及作为住户的权利等一切事项。这一点在私人安老院尤为重要，因为家庭通常需要承担更多大的财务责任，所以必须更加谨慎地审视所签署的协议内容。

在本文中，我们将探讨在香港选择安老院时每个人都应该注意的主要法律和合同考量。

牌照与认证照

无论你考虑的是私人还是资助的安老院，第一步是确保该设施拥有合法牌照。在香港，所有安老院（RCHEs）均受《安老院条例》（第459章）规管，该条例为住宿、员工配置和护理服务设立了最低标准。

除了牌照外，还应考虑该安老院是否获得像香港认证服务（HKAS）等认可机构的认证。认证意味着该机构遵守更严格的标准，这可能会转化为更好的护理服务和更安全的环境。正如消费者委员会指出的，获得认证的安老院更有可能投资于持续改进。

费用：透明度至关重要

报告显示，私人安老院的费用差异巨大，从每月6,000港元到超过80,000港元不等。然而，这些数字往往不包括消耗品、医疗护理，甚至基本的空调费用等额外费用。因此，仔细检查合同并确保以下事项清楚明确是至关重要的：

  • 基本费用：清楚了解每月收费包含哪些项目
  • 额外收费：常见的额外费用包括医疗陪诊、特殊膳食需求或失禁用品如尿片。这些费用可能迅速累积，因此务必要求提供详细清单
  • 退款和押金政策：如果住户住院或选择提前离开安老院，未使用的费用是否会退还？许多合同对于退款有严格的规定，或者根本没有相关条款，因此这一点需要特别注意。
  • 费用调整：查看是否有允许调整费用的条款。虽然生活成本上涨是常见的，但合同应明确规定通知期限以及允许的涨幅百分比。

在私人安老院中，家庭需承担全部财务负担，因此费用透明度尤为重要。

护理服务：安老院能否满足不断变化的需求？

消费者委员会的一大关注点是安老院在应对住户健康状况变化时的灵活性有限。无论安老院提供的是基本护理、护理服务还是专门的失智护理，合同都应清楚列明可提供的服务以及如果护理需求随时间发生变化时的应对方式。

例如：

  • 该设施是否提供24小时全天候护理服务？
  • 如果住户出现行动问题或需要临终护理，会怎样处理？
  • 如果需要，安老院是否会协助安排转介至更高护理级别的设施？

私人安老院可能提供更具个性化的护理服务套餐，但这些通常需要支付相当高的费用。事先了解安老院是否能持续满足你亲人的需求，或者是否可能需要将其转介至其他设施，这是非常重要的。

终止政策

终止条款在不同的安老院之间差异很大，消费者委员会的调查结果显示，安老院在处理合同终止方面缺乏一致性。务必注意合同中有关以下方面的具体条款：

  • 自愿终止：如果你决定离开安老院，需要提前多长时间通知？退款政策是怎样的？
  • 安老院主动终止：在什么情况下安老院可以解除住户合同（例如，无法支付费用或健康问题无法处理）？
  • 驱逐程序：这些程序应与消费者保护法相符，以防止不公平或突然的驱逐。

私人安老院，可能会有更严格的条款偏有利于安老院，因此仔细审查这些条款至关重要。

争议解决：你的选择是什么？

许多合同中包含要求争议通过仲裁或调解而非法院诉讼解决的条款。虽然这些程序可能较为快速，比较昂贵，也可能会限制你采取法律行动的权利。确保合同中规定了清晰、公正和透明的解决程序，并了解像香港消费者委员会等资源，该机构可以调解争议并提供建议。

住戶權利：應注意的法律保護

根据《安老院（长者）条例》，住户有权享有基本权利，如隐私、尊严以及参与护理决策。私人安老院经常以提供“高端”服务为卖点，但这些基本权利不应该受到妥协。在审查合同时，确保它反映了对以下承诺的支持：

  • 医疗服务：现场医疗人员和紧急应对系统的可用性。
  • 安全与卫生：感染控制、清洁和定期健康检查的政策。

消费者委员会还鼓励家庭询问员工与住户的比例，因为较低的比例通常会带来更好的护理服务。

数据隐私与法律监护

消费者委员会强调，保护住户的个人和医疗信息至关重要，特别是在可能涉及外部服务的私人设施中。确保合同符合《个人资料（隐私）条例》（第486章），并包含有关资料共享或使用的明确指引。

如果住户有法律监护人或授权书，请确认安老院承认这些安排并尊重指定代表的决策权。

结论：保持知情，保障权益

消费者委员会的报告强烈提醒人们，在香港入住安老院是一个具有重大法律和财务影响的决定。

如果您想了解更多关于这方面的保障，请联络我们的合伙人，赵君宜律师，（+852 2186 1885 / +852 9169 4356）。

免责声明: 本文仅供参考。本文中的任何内容均不得诠释为香港法律建议或向任何人提供的任何与此相关的法律建议。对于任何人因本文所含的内容而造成的任何损失和/或损害，高李严律师行不承担任何责任。

A Review of In Vitro Fertilisation Regulations in Different Jurisdictions

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(This article was published in the February 2025 Issue of the Hong Kong Lawyer)

In vitro fertilisation (“IVF”) has emerged as a cornerstone of assisted reproductive technology, offering hope to same sex couples, single people, couples facing infertility and/or mothers in high-risk pregnancies. With advancements in medical science, the procedure has become more accessible with increasingly higher success rates, yet the legal frameworks governing IVF vary significantly around the world. This article examines the legal landscape of IVF across a number of jurisdictions, highlighting key regulations, ethical considerations as well as societal implications.

The Rising Importance of IVF

The dawn of IVF began in 1978 with the birth of Louise Joy Brown, the world’s first “test-tube baby”. By 1982 when Brown’s sister was born, the latter was already the world’s 40th IVF baby. Since then, the procedure has evolved, becoming a common solution for men and women struggling to become parents due to various factors as diverse as age, medical conditions and/or lifestyle choices. Since 2001, the World Health Organization has recognised infertility as a significant global health issue affecting millions of people, estimating that worldwide, one of every six persons of reproductive age will experience fertility at some point in their lives; it emphasises the need for equitable access to reproductive technologies.

Jurisdictional Variations and Legal Considerations
Australia

Australia has established a comprehensive legal framework for IVF through the Reproductive Technology Accreditation Committee and the National Health and Medical Research Council. The Assisted Reproductive Technology Act 2007 in New South Wales allows IVF for both medical and social reasons. Publicly supported and private IVF clinics may impose their own age limits on IVF patients. One of the stated objects of the legislation is to prevent the commercialisation of human reproduction – hence the sale of human embryos is not legal in Australia. If donated embryos are used in IVF, they must be donated as altruistic gifts, although the payment of reasonable expenses is allowed. Consent is also a critical component, requiring both partners to agree on the use of their gametes. In New South Wales, providers must seek the approval of the Secretary of the Ministry of Health if embryos over 15 years old are to be used.

Canada

In Canada, the Assisted Human Reproduction Act (“AHRA”) regulates IVF practices, emphasizing patient safety and informed consent. The Act permits IVF for medical reasons, while social IVF is less clearly defined. Storage of embryos is limited to a maximum of 10 years and public healthcare coverage for IVF varies by province, with some offering partial public funding or tax credits for IVF treatments. In the province of Ontario, for example, the government provides treatment for one IVF cycle for one patient per lifetime, provided the patient is a resident of Ontario under 43 years of age. The AHRA prohibits the sale of ova, sperm and/or embryos and specifically states that altruistic donations are in line with Canadian values.

Germany

Germany maintains a conservative stance on IVF. The Embryo Protection Act dates back to 1990 and prohibits egg donation, surrogacy, the creation of embryos for non-medical reasons and limits the number of embryos that can be transferred in one cycle. A few states offer subsidies for IVF to same sex couples and unmarried couples, but the vast majority of states only provide assistance to heterosexual couples. The outdated legal framework reflects societal values that have apparently evolved. The current German coalition government set up an expert commission which in April 2024 recommended legalising and regulating egg donation and making surrogacy legal in limited circumstances.

Hong Kong SAR

Hong Kong’s Code of Practice on Reproductive Technology & Embryo Research was published by the Council of Human Reproductive Technology in 2002 and also reflects conservative values. Since same sex marriage is not yet legally recognised in Hong Kong, couples in same sex marriages and single women are not yet able to access post egg freezing services leading to live pregnancies. Only altruistic IVF is allowed in Hong Kong – commercial surrogacy is not legal. A few public hospitals provide public IVF services to couples where the wife is a Hong Kong permanent resident under the age of 40 years with no biological children. Unfortunately, the waiting period for the initial IVF appointment could be up to three years.

Japan

Japan has seen a rise in IVF popularity – in 2021, 1 in every 11.6 babies born was an IVF baby. Yet legal support for IVF remains limited. The Act on Regulation of Human Cloning Techniques governs IVF practices, only allowing the procedure under strict regulations. Embryo storage is permitted, but the law emphasizes that embryos should not be created for non-medical reasons. Due to the declining birth rate, IVF and other infertility treatments were added to national health insurance in 2022 but are only available to married couples. There are no legal provisions regulating surrogacy in Japan.

United Kingdom

The United Kingdom offers a progressive legal environment for IVF pursuant to the Human Fertilisation and Embryology Act 1990, which also established the Human Fertilisation and Embryology Authority. IVF is permitted for both medical and social reasons, with no age restrictions for women, although clinics may impose their own policies. Public funding for IVF is available depending upon where a patient lives but typically reserved for couples facing medical infertility. Altruistic surrogacy with paid expenses is legal in the UK, but surrogacy agreements are not enforceable.

United States

In the United States, IVF and surrogacy laws are primarily regulated at the state level, leading to significant variations and a complex landscape. While many states have adopted supportive legislation for IVF and commercial surrogacy, others impose restrictions based on ethical or religious beliefs. Insurance coverage for IVF also varies widely, with some states mandating coverage for infertility treatments. In February 2024, IVF treatments came to a standstill in Alabama when the state’s supreme court ruled that frozen embryos should enjoy the same rights as children. Fertility providers paused IVF treatments for fear of prosecution for “wrongful death” in the event any embryos were destroyed during treatment. It was not until certain protections were carved out for fertility providers that IVF treatments resumed.

Conclusion – Ethical and Societal Implications

The legal frameworks surrounding IVF vary considerably across jurisdictions, guided by significantly different cultural, ethical and societal values. Issues such as embryo rights, consent and access to reproductive technologies are at the forefront of public discourse and legislation. 

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.

What to do if there is issue regarding Testamentary Capacity?

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BACKGROUND

In our last article, ENSURING TESTAMENTARY CAPACITY FOR AGED AND INFIRM TESTATORS, we have discussed the importance of ensuring testamentary capacity for aged and infirm testators in the will-making process. The next issue then becomes: if we consider that there is issue regarding testamentary capacity, what should we do?

WHAT TO DO IF THERE IS ISSUE REGARDING TESTAMENTARY CAPACITY?

If your solicitor has concerns or doubts about your testamentary capacity, it is always advisable to instruct a medical practitioner to assess testamentary capacity. Whilst it is not necessary for the doctor tasked to be a specialist doctor with experience in diagnosing or treating of mental disorder or mental handicap or to be an Approved Doctor under s. 2(2) of the Mental Health Ordinance (Cap. 136), nevertheless, engaging a mental health expert, especially a psychiatrist, is always preferred and advised.

Usually, the psychiatrist will consider:[1]

1. Understand

Whether you are able to understand the information relevant to decision concerned:

  • Nature and purpose of the will
  • Risks and benefits of executing the will
  • Risks of not signing the will
  • Alternative and their risks and benefits

2. Retain

Whether you are able to retain the information long enough to make an effective decision;

3. Believe

Whether you are able to believe the information and to apply information realistically to own situation;

4. Weigh

Whether you are able to weigh the information in the balance to arrive at a choice – i.e. making a decision based on all the relevant factors (risks, benefits, short term outcomes, and long-term outcomes)

5. Express

Whether you are able to express the choice, through verbal or non-verbal means

If the psychiatrist considers there is testamentary capacity on the testator’s part, it is advisable to adhere to the “Golden Rule”, i.e. to have the psychiatrist to serve as a witness to your will.

HOW CAN OLN ASSIST?

At OLN, we provide initial consultation service regarding wills drafting. Our solicitors are experienced in assessing if the testator has the requisite testamentary capacity. In case of any issue, OLN can arrange mental health specialist doctor to assist in conducting an assessment for client to ascertain his/her testamentary capacity. If you have any questions on the above, please contact our Partner Mr Jonathan Lam or our Associate Mr Dexter Yuen.

[1] Dr. Gabriel B K Hung, “Framework for clinical assessment of mental capacity in older adults” (The Hong Kong Mortgage Corporation Limited, presentation material for HKMC Seminar dated 28th July 2013), available at https://www.hkmc.com.hk/files/page/82/2.%20Framework%20for%20clinical%
20assessment%20of%20mental%20capacity%20in%20older%20adults%20%20Dr.%20Gabriel%20Hung.pdf accessed at 3rd January 2025.


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.

Ensuring Testamentary Capacity for Aged and Infirm Testators

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BACKGROUND

Population ageing has become a challenge to most metropolitans in the world. Similar to other developed economies such as the United Kingdom and Japan, Hong Kong is also facing a serious problem of aging population. The phenomenon of population ageing is expected to continue, with the median age of Hong Kong’s population estimated to reach 55.5 in 2046[1]. 

As a result, many people have become more open-minded about the discussion of those end-of-life issues, including will preparation and estate planning.

That said, before you rush to instruct solicitor to prepare a will, you must understand that you can only make a valid will when you have testamentary capacity.

But what does it mean to have testamentary capacity? How far does the assessment exercise go?

TEST ON TESTAMENTARY CAPACITY

The principles set out in the UK landmark authority of Banks v Goodfellow[2] remains the standard for determining testamentary capacity in Hong Kong. When being assessed on testamentary capacity, as a testator you must:

  • understand the nature of the act of making the Will and its effects;
  • understand the extent of the property being disposed of
  • comprehend and appreciate the claims to which you ought to give effect.

In Re Estate of Au Kong Tim (Wills: Validity),[3] the Court of Appeal of Hong Kong emphasised the importance of solicitors following this three-limb test, as well as referring to the checklist in the “Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers” (the “Checklist”) for assessing testamentary capacity.

THE CHECKLIST

According to the Checklist, the three-limb test is particularised as follows:

1. Understand the nature of the act of making the Will and its effects:

You should understand:

  • you will die
  • your Will shall come into operation on your death, but not before
  • you can change or revoke the Will at any time before your death, provided you have the capacity to do so

2. Understand the extent of the property being disposed of:

You should understand and make choices:

  • who should be appointed as executor(s) (and perhaps why they should be appointed)
  • who gets what under the Will
  • whether a beneficiary’s gift is outright or conditional (for example, where the beneficiary is only entitled to the income from a lump sum during his or her lifetime, or is allowed to occupy residential property for the rest of the beneficiary’s life)
  • that if you spend your money or give away or sell your property during your lifetime, the beneficiaries might lose out
  • that a beneficiary might die before you
  • whether you have already made a Will and, if so, how and why the new Will differs from the old one

3. Comprehend and appreciate the claims to which the testator ought to give effect:

Crucially, the judge in Banks v Goodfellow used the word extent, rather than value. There could also be practical difficulties when investments are managed by somebody else, and there are no recent statements or valuations.

In these cases, a reasonableness test should be applied by your solicitors to any estimate you give about the extent of your wealth.

You should understand:

  • the extent of all the properties owned solely by you
  • the fact that certain types of jointly owned properties might automatically pass to the other joint owner, regardless of anything that is said in the will
  • whether there are benefits payable on your death which might be unaffected by the terms of their will (insurance policies, pension rights, etc)
  • that the extent of your properties could change during their lifetime

4. Potential claim of others:

You should be able to comprehend and appreciate the claims to which you ought to give effect. As a testator, you have the right to ignore these claims, despite being up to the extent of being prejudiced or capricious. You must be able to give reasons for preferring some beneficiaries and, perhaps, excluding others. For example possible beneficiaries:

  • may already have received adequate provision from you
  • may be financially better off than others
  • may have been more attentive or caring than others
  • may be in greater need of assistance because of their age, or physical or mental disabilities

HOW CAN OLN ASSIST?

At OLN, we provide initial consultation service regarding wills drafting, as well as advisory work regarding testamentary capacity. Our solicitors are experienced in assessing if the testator has the requisite testamentary capacity. In case of any issue, OLN can arrange mental health specialist doctor to assist in conducting an assessment for client to ascertain his/her testamentary capacity. If you have any questions on the above, please contact our Partner Mr Jonathan Lam or our Associate Mr Dexter Yuen.

[1] Yiu, William and Ng, Kang-Chung, “Hong Kong going grey faster than expected, sparking fears over healthcare, calls for new retirement policies” (South China Morning Post, 17 August 2023), available at https://www.scmp.com/news/hong-kong/society/article/3231335/hong-kong-going-grey-faster-expected-sparking-fears-over-healthcare-calls-new-retirement-policies, accessed on 8 January 2025.

[2] (1870) LR 5 QB 549.

[3] [2018] 2 HKLRD 864.

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.

Eggs on Ice: The Legal Landscape of Oocyte Cryopreservation on Jurisdictions Around the World

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(This article was published in the November 2024 Issue of the Hong Kong Lawyer)

Egg freezing has become more mainstream in the post-pandemic era. Weddings were postponed along with pregnancies during the pandemic years and this has been significant for millions of women in their prime childbearing years. A report in the US National Library of Medicine stated that females are born with a finite, lifetime supply of approximately 1-2 million oocytes (immature eggs); by the time a woman reaches the age of 51 (the average age for menopause), her eggs have decreased in both quality and quantity, with approximately one thousand eggs left. Freezing high quality eggs during the prime childbearing years for later use is now considered practical when one is not quite ready for pregnancy and childbirth.

Some US companies have offered egg freezing as an employee benefit for over a decade now. The Guardian reported as early as 2014 that Silicon Valley companies were covering egg freezing costs for their employees, in a push to attract and retain top female talent. A Yale University study published in 2018 on egg freezing found that 85 percent of the women were single, with many of them reporting not having suitable partners. There are a myriad of reasons why women may not be ready for pregnancy or childbirth, including career aspirations, family situations, financial considerations, personal circumstances and health conditions.

Egg freezing for reasons other than purely health conditions is known as egg freezing for generic ”social reasons”

Jurisdictional Variations and Legal Considerations

Not every jurisdiction allows oocyte cryopreservation (egg freezing) to be done for social reasons (i.e., non health conditions) without restrictions. Here is a review of the legal landscape in a number of jurisdictions:

Australia offers a liberal legal regime for egg freezing, allowing the procedure for social reasons. In fact it was the first country to produce a live birth from frozen eggs, in 1984. There are no specific age restrictions, but women are encouraged to freeze their eggs before the age of 35 to optimise success for later live birth(s). The storage limit depends upon state legislation and is generally 10 years in states like New South Wales and Victoria. The Assisted Reproductive Treatment Act 2008 (Section 31A) in Victoria allows its Patient Review Panel to extend the 10 year storage period for eggs and sperm if reasonable grounds are given or if the
panel considers there are exceptional circumstances. The Human Reproductive Technology Act 1991 also provides for a storage period of 10 years in Western Australia, with extensions allowed for “special reasons”. Costs also vary by state, but some health insurance plans may provide coverage for a portion of the expenses.

In Canada, the Assisted Human Reproduction Act governs assisted human reproduction technologies, which encompasses egg freezing. Health Canada’s Guidance Document on the Safety of Sperm and Ova Regulations allows eggs to be stored for up to 10 years. There are no restrictions on age or marital status, although some clinics do not provide services
to non-Canadian citizens. Social egg freezing (termed elective egg freezing) is not covered by
governmental healthcare.

France only recently legalized social egg freezing for all women between the ages of 29 and 37 regardless of marital status or sexual orientation, via the French Public Health Code Article L2141. Although this liberalisation allowed women more autonomy over their reproductive choices, critics decry the reality of the situation since egg freezing is prohibited in the private sector and there could be a wait in the public health system of over two years just for the initial doctor’s appointment. This effectively denies women over the age of 35 the right to egg freezing and is despite the fact that Le Monde reported in 2022 that one in every four couples of childbearing age in France suffers from infertility issues

In the Hong Kong SAR, there are no age restrictions on egg freezing; however, a woman must be legally married to have the eggs fertilised using IVF pursuant to the Code of Practice on Reproductive Technology & Embryo Research. Since same sex marriage is not yet legally recognised in Hong Kong, women in same sex marriages and single women are unable to access post egg freezing services leading to live pregnancies. The Human Reproductive Technology Ordinance established the Council on Human Reproductive Technology, which
oversees the now outdated 2002 code of practice. Frozen eggs can be stored for up to 10 years, and since women are advised to freeze their eggs before the age of 35 due to declining egg quality, this storage limit tries to cap potential pregnancies at age 45. This legal framework illustrates the complex intersection between restrictive marriage laws and reproductive rights in Hong Kong.

Ireland’s Health (Assisted Human Reproduction) Act 2024 was signed by its President on 2 July 2024. There are no restrictions on social egg freezing although it must be privately funded. Where medical treatments have affected fertility, public healthcare may cover egg freezing costs. Eggs may be stored for a maximum of 10 years, following which new consent must be obtained for any extension. The Assisted Human Reproduction Regulatory Authority has the authority to consider and determine applications for extensions of storage.

In 2023, Singapore’s Healthcare Services Act 2020 which governs assisted reproductive services liberalised egg freezing for social reasons pursuant to the Healthcare Services (Assisted Reproductive Service) Regulation 2023, but only for women from the ages of 21 to below 38 years. However, where egg freezing is not done for social reasons, a woman must be
legally married and her husband must consent to the procedure, again representing very conservative societal values. Social egg freezing is not covered under the country’s Medisave, the mandatory medical savings account that all working citizens and permanent residents contribute to, although other reproductive services may be covered.

Spain has had a progressive approach to reproductive technologies since 2006. Assisted Reproductive Technology Law 14/2006 allows egg freezing for social reasons without age restrictions and without time limits. The legal framework supports women’s rights to make
reproductive choices, making Spain one of Europe’s most popular destinations for egg freezing. However, social egg freezing is not covered for citizens under the government healthcare system and must be privately funded.

In the United Kingdom, women are able to freeze their eggs for social reasons. The Human Fertilisation and Embryology Act 1990 regulates the practice, and women can store their eggs for up to 10 years and renew consent for each successive period of 10 years up to a maximum of 55 years. While there are no specific age restrictions, the Human Fertilisation and Embryology Authority in the UK advises that women under 38 years of age are generally able to freeze 7-14 eggs. However, access to public funding for egg freezing is reserved for those facing medical treatment that could affect fertility, with the criteria varying between England, Northern Ireland, Scotland and Wales. Social freezing must be privately funded and it is not subject to any price regulations.

Each state regulates egg freezing in the US. In New York state, liberal laws allow egg freezing for social reasons without age restrictions and regardless of marital status. Pursuant to the colloquial “IVF law”, Insurers are required by law to cover egg freezing if deemed medically
necessary (and three cycles of IVF following egg freezing)

Other Considerations

Cost may be a significant factor in the decision to freeze eggs. The entire process – from initial consultation to pre-treatment testing, ovarian stimulation, trigger injection, monitoring, oocyte retrieval, oocyte assessment to cryopreservation plus subsequent storage fees can often be costly. The financial burden can be considerable, and in many if not most jurisdictions, social egg freezing is not covered under public healthcare or reimbursable under private insurance plans. “Venue shopping” is becoming more and more popular in order to undergo the procedure in jurisdictions with lower costs, high safety standards and ultimately, high success rates in oocyte thawing.

Conclusion

The legal aspects of egg freezing vary significantly across jurisdictions, which should guide women’s decisions about when and where to undergo the procedure. It is crucial to understand these differences alongside other important factors such as costs, clinical success rates, available support systems and the accessibility of ongoing assisted reproductive technology services (e.g., in-vitro fertilisation, surrogacy) including the specific laws governing them. This comprehensive understanding is important for those considering egg
freezing as part of their reproductive plans.

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.

患者自主权的新纪元：《维持生命治疗的预作决定条例草案》赋予的新权利

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2024年11月20日，香港立法会通过了《维持生命治疗的预作决定条例草案》，并于2024年11月24日刊宪。 《条例草案》将在经过18个月的缓冲期后，于2026年5月正式生效。这项条例引入了重大变革，使个人在可能因精神或身体状况无法自行作出医疗决定的情况下，能够事先决定其医疗治疗方式。

《条例草案》赋予个人订立预设医疗指示（Advance Medical Directives，简称AMD）的权利，使其能够预先作出具法律约束力的医疗决定。这包括在特定情况下拒绝接受如机械通气、心肺复苏术（CPR）或人工营养及水分补给等生命维持治疗。此外，患者亦有权选择「不作心肺复苏术指示」（Do Not Attempt Cardiopulmonary Resuscitation，简称DNACPR），让患者有权利拒绝心肺复苏。

本文解释《条例草案》引入的新权利，并概述个人如何采取步骤行使这些权利。

预设医疗指示（AMD）

预设医疗指示（Advance Medical Directive，简称AMD）是一份具法律约束力的文件，允许个人指示医护人员在特定情况下不提供生命维持治疗，例如当其处于末期病况、持续植物人状态或不可逆昏迷。

可以拒绝的生命维持治疗的类别：

  • 医疗机械通气
  • 心肺复苏术（CPR）
  • 人工营养及水分补给（如经导管喂食）

步骤 1：确认资格

  • 年满18岁或以上
  • 具备精神能力，能就生命维持治疗作出决定
  • 在订立AMD时，在医生和律师的判断下,不受外界或第三者的不当影响

步骤 2：选择拒绝的治疗

  • 决定要拒绝哪些生命维持治疗，例如：

– 机械通气

– 心肺复苏术（CPR）

– 人工营养及水分补给

步骤 3：填写法定表格

  • AMD必须以书面形式订立，并使用法定表格。表格需签署并由至少两名证人见证。
  • 一名证人必须是注册医生（Registered Medical Practitioner，简称RMP），以确认您具备精神能力并理解决定的后果。
  • 证人不得是您遗产的受益人。

步骤 4：数码存档

完成AMD后，数码副本将安全地存放于专用电子系统中（计划整合至由医务卫生局管理、目前正分阶段开发的电子健康记录平台 eHealth），确保医护人员在需要时能够查阅您的AMD。

步骤 5：撤销

如果您改变主意，可以通过以下方式撤销您的AMD，只要您仍具备精神能力：

  • 口头声明您的撤销意图
  • 提供书面声明
  • 销毁原始文件

「不作心肺复苏术」指示（DNACPR）

《条例草案》亦赋予个人权利，可订立「不作心肺复苏术指示」（Do Not Attempt Cardiopulmonary Resuscitation，简称DNACPR）。该指示明确要求医护人员在患者发生心肺停止时，不进行心肺复苏术（CPR）。

如果您希望选择DNACPR指示，可以通过以下方式开始程序：

选项 1：通过预设医疗指示（AMD）：如果您已订立AMD，您可以在其中包含拒绝CPR的指示，这相当于发出了DNACPR指示。

选项 2：医学判定：当医生判定CPR在您的情况下适当或无效时，医生可以基于医学建议发出DNACPR指示。

选项 3：明确要求：如果您希望主动提出DNACPR指示，必须通过填写法定表格以书面形式确认，并由医护人员记录，确保其与您的意愿和健康状况一致。

紧记： DNACPR指示需由两名注册医生（Registered Medical Practitioners，简称RMPs）确认，其中至少一名必须是专科医生。

《维持生命治疗的预作决定条例草案》标志着个人在医疗决策自主权方面的一次重大转变。通过允许患者订立预设医疗指示（AMD）和选择不作心肺复苏术指示（DNACPR），该条例赋予个人提前作出重要治疗决策的权利，确保即使在未来丧失表达能力的情况下，其意愿仍能得到尊重。

尽管该法案要到 2026 年 5 月才会生效，但个人应考虑在此过渡期间的选择。

如果您想知道关于这方面的保障，请联络我们的合伙人，赵君宜律师（+852 2186 1885 / +852 9169 4356）。

免责声明: 本文仅供参考。本文中的任何内容均不得诠释为香港法律建议或向任何人提供的任何与此相关的法律建议。对于任何人因本文所含的内容而造成的任何损失和/或损害，高李严律师行不承担任何责任。