L07 End-Of-life Law (Revised)

The law at the
end-of-life
16/11/2022
Breaking Bad News
• According to principle of respect for autonomy,
patients have the right to know their health condition
in order to decide the treatment they receive.
• However, if a patient is informed that his/her condition
is of grave prognosis, one may lose all hope of
recovery and even the motivation to fight with the
illness.
• Healthcare professions may feel obliged to protect the
patient from sensitive information and may even have
to collude with family members to hide the
information.
Breaking Bad News
• But is hiding information from patient ethical?
• What if the bad news in disclosed to family members only?

Breaking Bad News
Breaking Bad News
Patients’ Charter
• Right to Information
1. About what health care services are available, and what
charges are involved.
2. Be given a clear description of medical condition, with
diagnosis, prognosis and treatment proposed including
risks and alternatives.
3. To know the names of medication to be prescribed, its
actions and potential side-effects.
4. Access to medical information relating to condition and
treatment.
Breaking Bad News
• Physicians theoretically would have breached the duty
of confidentiality by disclosing patient’s information
to a third party (even if they are patient’s family
members) without seeking their prior consent.
• When the patient asked about their own medical

condition, the healthcare profession would inevitably
be deceiving to his client, which undermines the duty
to be honest and eventually jeopardize the physician-
patient relationship.
Breaking Bad News
• The patient might still intuitively sensed that their
condition is incurable.
• Non-disclosure will even lead to patients being

isolated and deprived of the opportunity to plan for
the remaining days as well as end-of-life care.
• Hence, the central issue should be “how to disclose”

instead of “should we disclose”
Euthanasia
Euthanasia
• Active vs Passive Euthanasia
• Act vs Omission
• Passive è Withdrawing vs Withholding Treatment (?)
• Voluntary vs Non-voluntary vs Involuntary Euthanasia
• Direct vs Indirect Euthanasia

• Indirect è e.g. Symptomatic Tx, s/e speeding death
• Assisted Suicide
Euthanasia
• A Greek word meaning “good and peaceful death”.
• Euthanasia and Assisted Dying refers respectively to

actions taken deliberately to end a person’s life or
assist a person to end his life, by medical means with
an intention to alleviate suffering
• It is in contravention with Hippocratic Oath, thus

considered as unethical all along.
Ref.: NHS Choices, “Euthanasia and Assisted Suicide” (2015), available at

www.nhs.uk/conditions/euthanasiaandassistedsuicide/pages/introduction.aspx
Euthanasia
• It is illegal in Hong Kong.
• MCHK defined euthanasia as “direct, intentional killing

of a person as part of the medical care being offered”.
• While this is obviously relinquishing the healthcare

workers’ role as healer and contrary to societal
expectation towards healthcare professionals, tragic
cases may trigger discussions on this topic.
Ref.: Medical Council of Hong Kong. “Code of Professional Conduct for the Guidance of
Registered Medical Practitioners”
Euthanasia
• The undesirable outcome of fulfilling a patient’s
request to die is of utmost concern. A balance must be
strike between individual rights and societal interest.
The appeal for right to die may eventually develop into a
culture which compels the sick and fragile to end their
lives.
• The slippery slope argument: if voluntary euthanasia is

allowed, someday involuntary would also be
considered permissible.
Mentally
Incapacitated Patient
(“MIP”)
Mentally Incapacitated Patient
(“MIP”)
Section 2(1) of the Mental Health Ordinance (Cap. 136)
• “MIP” è persons who are...

• incapable, by reason of mental incapacity, of
managing and administering their property
and affairs; or
• persons suffering from mental illness or
psychopathic disorders or having significant
impaired intelligence
Mentally Incapacitated Patient
(“MIP”)
Part IVC of the Mental Health Ordinance (Cap. 136)
• Part IVC MHO...

• Governs consent to treatment in relation to an MIP who
has attained the age of 18 and is incapable of giving
consent
Section 59ZB(2) of the Mental Health Ordinance (Cap. 136)
• A MIP is incapable of giving such consent if…

• He/ she is incapable of understanding the general
nature and effect of the treatment
• If a MIP can understand the general nature and effect of
the treatment, he/ she is able to give consent
When MIP incapable of
giving consent
Part IIIA & IVB of the Mental Health Ordinance (Cap. 136)
• For MIP who is incapable of understanding the general nature

and effect of the treatment, consent may be given by the
guardian of the patient under Part IIIA or IVB of the MHO in
respect of whom a guardianship order has conferred the power
to consent under Sections 44B(1)(d) or 59R(3)(d) of MHO
When MIP incapable of
giving consent
Section 59ZF(1) of the Mental Health Ordinance (Cap. 136)
• Where consent cannot be obtained from guardians, a registered

medical practitioner or registered dentist can carry out or
supervise a treatment if it is a matter of urgency and that
treatment is necessary and is in the best interests of the MIP
• Exception:
• Sterilization and removal of organs for transplantation, even if the
treatment is a matter of urgency and is necessary and is in the MIP’s
best interests (s.59ZA, 59ZC, 59ZG and 59ZBA of the MHO)
• Consent may be given by the Court upon application by any person
(including a medical superintendent, registered medical practitioner
or registered dentist)
Can the clinical team maintain organ
function of a brain dead patient
for organ donation in the presence of
valid AD ?
Consent given by Court
Section 59ZB(3) of the Mental Health Ordinance (Cap. 136)
• When considering whether or not to give consent the Court shall

observe and apply the following principles, namely to:
“(a) ensure that the mentally incapacitated person is not deprived of

the treatment merely because he lacks the capacity to consent to the
carrying out of that treatment; and
(b) ensure that any treatment that is proposed to be carried out in

respect of the mentally incapacitated person is carried out in the best
interests of that person.”
“In the best interests…”
Section 59ZA of the Mental Health Ordinance (Cap. 136)
• “In the best interests” means in the best interests of the MIP in
order to:
“(a) save the life of the MIP;
(b) prevent damage or deterioration to the physical or mental
health and well-being of that person; or
(c) bring about an improvement in the physical or mental health
and well-being of that person.”
• If the Court is satisfied that the treatment should be carried out

“in the best interests” of the MIP, the Court may consent to the
carrying out of the treatment and make an order to the
applicant to that effect
Life-sustaining
Treatment
Photo credit:
https://www.newyorker.com/magazine/200
7/12/10/the-checklist
Life-sustaining Treatment
• Life-sustaining Treatment (“LST”) refers to any

treatment which has the potential to postponed
patient’s death
o Some treatments are invasive è may cause suffering

and physical harm to the patient
o Once the patient is disconnected from these life-

sustaining devices è survival is often impossible
• Examples of Life-sustaining Treatment (“LST”) :
o Cardiopulmonary resuscitation
o Artificial ventilation (ventilator)
o Blood products (transfusion, blood platelet, blood
plasma)
o Pace makers & vasopressors
o Chemotherapy
o Dialysis
o Antibiotics
o Artificial nutrition and hydration (nasogastric tube)
o ICU care
o Surgery
o Hospitalization
Withholding LST
• The medical team does not provide the treatment
from the outset.
Withdrawing LST
• The medical team discontinue the treatment after
its initiation.
• This option is allowed because the medical team
can give a timed trial to the treatment if its benefit
is uncertain.
Ref.: Lawrence O Gostin, “Deciding Life and Death in the Courtroom: From Quinlan to
Cruzan, Glucksberg, and Vacco – A Brief History and Analysis of Constitutional Protection
of the ‘Right to Die’”. JAMA 1997; 278:1523-1528
Re Quinlan 355 A 2d 647 (NJ 1976)
• A 21-year-old college student took a mixture of alcohol
and drugs at a party and she suffered cardiac arrest as
a result. She was saved by CPR but she sustained
severe brain damage and resulted in a persistent
vegetative state (“PVS”). Mechanical ventilation and
nasogastric tube feeding were given as life support.
• Several months later the patient’s parents requested

to have her ventilator removed and let her die
naturally. The medical team sought Court’s decision in
order to avoid potential civil and criminal liability.
Re Quinlan 355 A 2d 647 (NJ 1976)
• (Cont’d.) Eventually the New Jersey Supreme Court
ruled that an individual’s right to privacy, including
the right to refuse medical treatment, would be
passed to the family or a surrogate when the patient
became mentally incompetent (精神上無行為能力).
• With this decision, the endotracheal tube and the

ventilator were then withdrawn from the patient.
Cruzan v Director, Missouri Department of Health 497 US
261 (1990)
• A 25-year-old female met with a car accident. Her life was
saved by CPR but then she fell into PVS due to brain
damage. A percutaneous endoscopic gastrostomy
(“PEG”) was inserted into her stomach as a LST.
• However, the Missouri Supreme Court did not approve

the feeding tube withdrawal until 7 years after the
accident, when “clear and convincing” evidence has
proved that the patient would not want to be kept alive
by treatment of this kind in the event of mental
incapacity.
• Currently there are no legal or moral differences
between withholding and withdrawing LST.
• Forgoing of treatment in either way is ethically and

legally acceptable when:
1. A mentally competent (精神上有行為能力) and
properly informed patient refuses treatment or;
2. Treatment is futile (徒勞無功) .
• The purpose of forgoing futile treatment is to avoid

prolonging the dying process, NOT to hasten death.
Therefore, it should not be confused with the term
“passive euthanasia”.
Ref.: Hospital Authority, “Guidelines on Life-Sustaining Treatment in the Terminally Ill”.
Withholding/ Withdrawing
futile LST = Euthanasia ?
• Euthanasia è “direct intentional killing of a person as
part of the medical care being offered”
• Killing a patient to end his/her suffering

• Considered as criminal + ethically controversial
• Hong Kong does not legally permit euthanasia è violates
the professional ethics of healthcare workers

Withholding/ Withdrawing
futile LST = Euthanasia ?
• Patient has the right to refuse unwanted treatment,
including LST
• A healthcare professional who provides treatment against
the patient’s will may be liable to legal action for battery or
assault
• Withholding such treatment in this case is an act of
respecting the patient’s wish + ensuring a peaceful death
This is not tantamount to performing euthanasia
• Withholding or withdrawing futile treatment for a

patient is not performing euthanasia as the treatment is
not in the best interests of the patient
• Administering futile LST on a dying patient would only
inflict more suffering
Futile Treatment
• It means a treatment that is highly unlikely to achieve

its intended purpose.
• When a treatment is considered as physiologic futility

(i.e. certain treatment which clinical evidence showed
that it is futile in a particular situation) the medical
team has no ethical obligation to provide the same.
• However, since clinical situation is not so clear cut

most of the time, the decision-making process is
indeed subject to how one interprets the benefits and
burdens resulting from the treatment.
Treatment futility
Airedale NHS Trust v Bland [1993] AC789
• Tony Bland, an 18-year-old football fan, was a victim of
the Hillsborough disaster in 1989. He suffered crushed
ribs and punctured lungs, also a deprivation of oxygen to
his brain causing severe brain damage. He was left in a
persistent vegetative state (“PVS”) condition and relied
on PEG for nutrition and hydration support for the
following 3 years.
• He was clinical not yet dead (his brainstem still
functioning) and he would not recover but would
continue to “survive” for many years with medical
support.
Treatment futility
• (Cont’d) The medical team, with the support from the
Bland family, applied to High Court seeking for a
declaration.
• The judges of the High Court considered that being
kept alive in a PVS condition was of no benefit at all to
the patient and his family, and the use of life-sustenance
measures in this case was not in the “best interests” of
the patient.
• The court also stated that the medical staff was
“neither entitled nor under a duty to continue such
medical care.” As such, it was declared that they will not
be guilty of murder of they discontinue such care.
Treatment futility
• (Cont’d) The ruling implied that tube feeding was
futile for Bland. The Court’s decision was supported by
the Court of Appeal and the House of Lords (which is the
highest level of legal appeal in UK). Bland passed away
nine days after the PEG was withdrawn.
• This landmark case is the first one in English legal

history that court allowed withdrawing of LST and let
the patient die. It also established the distinction
between withholding LST from murder as passive
omission and active intervention. Omission is not to be
taken as a deliberate act. However, no positive action
can be taken to hasten death.
Artificial Nutrition and
Hydration
• Artificial nutrition and hydration (“ANH”), which is the
bypassing of swallowing to provide nutrition and
hydration is also a kind of LST to support the patients
if they are at risk of aspiration or their nutritional
intake is insufficient to meet their needs.
• Since the provision of nutrition and hydration is the

basic care required to fulfill fundamental needs;
therefore the withholding and withdrawing of ANH is
more controversial than in other LST.
Artificial Nutrition and Hydration
• The HA Guidelines on LST in the terminally ill have
highlighted that the decision-making process on feeding
options should be through consensus-building, which can
be very straightforward if the patient has clearly stated
their preferences and the same has been made known to
family members.
• Basically patients have the right to accept or refuse

treatment if they are mentally competent and are given
sufficient information for making informed decisions. Such
decisions should be respected unless their mental capacity
has been affected. However, it is unusual for patients to
have planned ahead for end-of-life care making the best
interest decision difficult.
Can a patient refuse all treatments
including non-LST?
Can a patient refuse investigations?
Can a pregnant patient refuse LST?
(if that would affect the survival of the fetus )
Do Not Attempt Cardio-
Pulmonary Resuscitation
Orders
(DNACPR)
Cardiopulmonary
Resuscitation
• CPR è emergency procedure for a person suffering
cardiac arrest
• The steps involved are…

1. Perform chest compression to restore blood flow
temporarily
2. Ensure an unobstructed airway
3. Use artificial ventilation in place of autonomous
breathing
• Healthcare workers will also use drugs and automated

external defibrillators as appropriate to restore the
patient’s normal heart rhythm
When CPR become futile
• CPR è invasive emergency intervention + outcome
depends on various factors
• In a terminally ill patient, as the underlying factor such

as cancer and organ failure causing cardiac arrest has not
changed, the success rate of CPR resulting in effective
rescue is very low
• CPR may cause complications (e.g. rib fracture) è
Performing futile CPR on a dying patient can only
prolong the dying process while causing unnecessary
pain and suffering
DNACPR
• Patient should be offer information about CPR, when
he/she with capacity, is at foreseeable risk of cardiac
and respiratory arrest.
• In order to determine whether the benefits of CPR

would likely outweigh the harms and burdens, or
whether the level of recovery would be acceptable,
there should be sensitive exploration with patient’s
wishes, feelings, beliefs, and values.
DNACPR
• In practice, it would be sensitive to discuss
DNACPR when the patient has just been admitted
to hospital.
• But in fact, CPR may just prolong the dying

process; it works in only 10-15% of patient and is
not uncommon for patients to be left with serious
brain damage.
DNACPR
In R (on the application of Tracey) v Cambridge NHS Foundation
Trust [2014] EWCA Civ 822
• Mrs Tracey was diagnosed with terminal lung cancer and was
admitted to hospital after being seriously injured in RTA. Her
condition later deteriorated and eventually died.
• Shortly after admission, a 1st DNACPR notice was completed

without consultation with the family. Her doctor believed that he
had discussed the notice with Mrs Tracey but there was no record
of this in the medical notes. Mrs Tracey's daughter objected to the
DNACPR and as a result the notice was removed.
• Later, following deterioration in Mrs Tracey's condition, it was

agreed with members of the family that a 2nd DNACPR notice
should be put in place.
DNACPR
Claim against the Trust
• For the 1st DNACPR notice è the Trust breached Mrs Tracey's
rights under Article 8 ECHR because it failed:
1. Adequately to consult Mrs Tracey or her family members
2. To notify her of the decision to impose the notice
3. To offer her a second opinion
4. To make its DNACPR policy available to her
5. To have a policy that was clear and unambiguous

DNACPR
In R (on the application of Tracey) v Cambridge NHS
Foundation Trust [2014] EWCA Civ 822
Article 8 of the European Convention on Human Rights (ECHR)

DNACPR
Court of Appeal HELD:
• The Trust violated Mrs Tracey's Article 8 rights by failing to

involve her in the process which led to the 1st notice
• Even if the treating team believe that the treatment is futile

there should be a presumption in favour of patient involvement
and there needs to be convincing reasons not to involve the
patient, as this gives the patient the possibility of seeking a
second opinion
• However this does not alter the position that clinicians cannot be
forced to give CPR
DNACPR
In R (on the application of Tracey) v Cambridge NHS
Foundation Trust [2014] EWCA Civ 822
Lesson to learn:
1. Decision making
2. Record keeping
3. Policies
4. Training
Advance Directives
Ref.: End-of-life Care: Legislative Proposals on Advance Directives and Dying in Place Public
Consultation Document.
Advance Directives
• “Living Will”
• A means for mentally competent individuals to indicate the

form of healthcare they would like to have in future should
they become mentally incompetent
• AD is underpinned by the principle of respect for

autonomy, in which contemporaneous autonomy is
extended to a prospective one for future care.
• The person giving directions in a AD is the “Donor”
Ref.: Food and Health Bureau of the Hong Kong Government. Introduction of the Concept of
Advance Directives in Hong Kong Consultation Paper. Para 3 and 6.
Advance Directives
• Although there is currently no statutory status, AD are
arguably binding under common law framework.
• A valid and applicable AD should be respected provided

that the patient is properly informed.
• The family has no authority to override an AD and the

healthcare team is liable to legal action for battery or
assault if they knowingly provide treatment against the
advance refusal.
HA, “Guidelines on Life-Sustaining Treatment in the Terminally Ill.” Section 5.2

Advance Directives
• Currently in HA, AD are usually made by patients with
serious irreversible illnesses via advance care planning.
• Persons who are aged 18 or above, mentally competent and

well-informed, can give directions in an AD.
HA, “Guidelines on Life-Sustaining Treatment in the Terminally Ill.” Section 5.2

What should clinical team do if
patient made an oral AD/
written AD not immediately available?
Advance Directives
• The development of AD was related to US Court cases.
Following Re Quinlan, the “Natural Death Act” (a.k.a. Death
with Dignity Acts or Living Will Acts) was enacted in all
states in the US in the late 1970s and 1980s to acknowledge
the constitutional right to forgo LST according to the
patient’s wish, in the event of terminal condition or
irreversible coma, through AD.
• In Cruzan v Director, Missouri Department of Health, it was

further clarified that AD should be supported by clear and
convincing evidence that specified the clinical situation and
the particular treatment considered for refusal.
Advance Directives
• To meet the requirement, US Congress passed a federal
law, the Patient Self-Determination Act in 1990, which
requires healthcare institutions to provide patients with
written information about the right to self-determination
in end-of-life care, provide staff education on AD, maintain
policies and procedures related to AD and promote
documentation for informed decision by completing
written AD.
• All these are to ensure patients understand their rights

regarding decision-making for their future care and assured
that their decisions would be acknowledged and respected
by their healthcare providers.
Developments in Hong Kong
• In 2004, the Law Reform Commission of Hong Kong (“LRC”)
issued a public consultation paper on Substitute Decision-
Making and Advance Directives in Relation to Medical
Treatment.
• Subsequently in its report in 2006, LRC recommended that

the Government should promote the concept of AD under
the existing common law framework instead of by legislation.
• It also recommended that the Government should review

the position in due course once the community has become
more widely familiar with the concept and should consider
the appropriateness of legislation at that stage.
• In 2009, the Food and Health Bureau (“FHB”) issued a
consultation paper titled Introduction of the Concept of
Advance Directives in Hong Kong to consult stakeholder on
the issue.
• The majority of views received at the time agreed to adopt

a non-legislative approach to promote AD in Hong Kong
first, and consider whether legislation is appropriate
when there is greater awareness of the society.
• Government recommended at the time that guidance

should be developed for medical and other relevant
professions on the making and handling of AD.
• In 2010, HA issued the Guidance for HA Clinicians on Advance
Directives in Adults. The scope of HA AD followed the form
that of LRC. Upon 2014, a new category “other end-stage
irreversible life-limiting condition” was added in the 2014
version.
• In 2014, HA adopted the broader version of Advance Care

Planning.
• Also in the same year, HA extended the Guidelines on Do-

Not-Attempt Cardiopulmonary Resuscitation (“DNACPR”)
to seriously ill non-hospitalized patients.
• Local studies have found that the acceptance of AD
among elderly is high. One study found that 88% of older
Chinese adults residing in nursing homes preferred to
have AD regarding medical treatment in future [1].
• Another study found that the awareness of AD increased

in both general public and healthcare professionals [2].
1. Chu L. W. et al. (2011), Advance directive and end-of-life care preferences among
Chinese nursing home residents in Hong Kong. Journal of American Medical Directors
Association.
2. Chow A. Y. M. et at. (In preparation), Report of Jockey Club Community End-of-Life
Care Project. Hong Kong: Faculty of Social Science, HKU.
Issues of AD under Common Law
Framework
• Lack of legislation for AD in Hong Kong poses legal
concerns:
• Healthcare professionals could be reluctant to initiate
discussion of AD due to concerns over the lack of legal
protection;
• It is unclear whether AD may supersede other statutory
provisions when in conflict, e.g.
• Ambulance personnel of Fire Service Department are
currently bound by the Fire Services Ordinance (Cap.95) to
perform resuscitation
• Under Mental Health Ordinance (Cap. 136) doctors may
provide life-sustaining treatment to mentally incompetent
patients without consent if considered to be in the best
interests of the patient
Food and Health Bureau
END-OF-LIFE CARE:
Legislative Proposals
on
AD and Dying in Place
Consultation Document
September 2019
Purpose
To consult the public on the Government’s proposals to:
a) Codify the current common law position in respect of

an advance directive and to increase the safeguards
attached to it;
b) Remove legislative impediments to implementation of

advance directives by emergency rescue personnel; and
c) Amend the relevant provisions of the Coroners

Ordinance (Cap. 504) to facilitate dying in place in
residential care homes for the elderly (“RCHEs”)
Government’s Proposal
• It is proposed that the current common law position
with respect to AD should be codified and clarified.
• If an AD is both valid and applicable, it has the same

effect as a contemporaneous refusal of treatment by
a person with mental capacity, i.e. the treatment
cannot be lawfully given.
• If given, the estate of the patient would be able to

claim damages for the tort involved.
• The proposal is based on the following 4 principles:
1. Respecting a person’s right to self-determination;
2. A valid and applicable AD… overrides treatment

decisions based on treatment provider’s
interpretation of patient’s best interests;
3. A person should have the primary responsibility of

keeping an AD and ensuring that the original copy be
presented to treatment providers as proof of
evidence of valid AD;
4. Sufficient safeguards should be provided to preserve

lives.
• It is proposed that for an AD to be legally valid, it must
be made by a mentally competent patient who is aged
18 or above. Formal assessment of mental capacity is
not required unless circumstances suggest.
• It is proposed to model on HA’s current practice, the
primary objective of an AD is for refusal of LST to
minimize distress or indignity when the patient faces a
serious irreversible illness.
• Based on this principle, it is proposed that the non-

statutory model AD form will only provide for refusal
of LST when the patient is (i) terminally ill, (b) at
persistent vegetative state (“PVS”), (c) in other end-
stage irreversible life-limiting condition. A patient
cannot use AD to refuse basic care or symptom
control that is necessary for comfort.
• AD not made in a model form should still be accepted
if the statements are clear and not ambiguous. If a
patient uses a non-model AD form refusing all medical
treatments including relatively simple maintenance
medical treatments, it may raise doubt if patient has
been properly informed and thus treatment providers
may challenge the validity of AD.
• An AD cannot include:
a) Refusal of basic and palliative care that is essential to

keep a person comfortable, such as nursing care,
pain relief, keeping warm;
b) Refusal of the offer of food and drink by mouth; or
c) Anything that is against the law, such as euthanasia.

Format requirement:
• The making of AD must be in writing.
• Modification of an AD must also be in writing.
• As to revocation of an AD, both verbal and written

revocation should be considered valid. Any AD should
be considered invalid if there is evidence that the
patient has revoked the AD orally.
Format requirement:
• Non-statutory model AD form, instead of a statutory

prescribed form should be used.
• AD not made in a model form should still be accepted

if the statements are clearly written and
unambiguous.
• The use of non-statutory model form should also help

retain under the common law framework the legal
status of AD made outside HK.
Witness requirement:
• Witness requirement is not mandatory under common

law.
• Yet, as safeguard, the making and modifying of AD

requires two witnesses, one of whom must be a
medical practitioner.
• Neither witness should have an interest in the estate

of the person making the AD.
• As to revocation, witness is not required.

Safeguards to ensure validity of an AD:
• The original copy of the AD should be presented

under normal circumstances. In the case that a valid
AD is said to exist but original cannot be presented,
treatment provider should continue to provide
emergency LST while waiting for clarifications;
• The AD should be sufficiently clear and is not being

challenged. If it is challenged at the scene, validity of
the AD would be regarded as in doubt and emergency
LST should continued to be provided;
• The AD must not have been withdrawn;
• The person has not done something that clearly goes

against the AD which suggests that she/she has
changed his/her mind.
• AD should limited to “pre-specified conditions” in the

non-statutory model form, which should cover (a)
terminal illness, (b) PVS / state of irreversible coma,
and (C) other end-stage irreversible life-limiting
conditions.
An AD will not be applicable if:
1. The patient has the capacity to make the decision

when treatment concerned is proposed;
2. Treatments or conditions not specified in the AD; or
3. There are reasonable grounds to believe that current

circumstances were not anticipated by the patient
and if such circumstance had been anticipated it
would likely change the patient’s mind.
• To facilitate the awareness of treatment providers on
the existence of AD, it is proposed to consider the
feasibility of leveraging the existing Electronic Health
Record Sharing System (“eHRSS”) to store and allow
access by designated healthcare professionals to the
AD records.
• Same as the existing arrangements for eHRSS, storage

of the records of AD should be voluntary.
• Since the registration is on voluntary basis, eHRSS

should not be treated as a central registry.
Legal protection for treatment providers:
• Treatment providers does not incur civil or criminal

liability for carrying out treatment if he/she reasonably
believe a valid AD does not exists;
• Treatment providers does not incur civil or criminal

liability for withholding treatment if he/she reasonably
believe a valid AD exists.
The Law Society’s Submissions for
Consultation Paper of End-of-Life Care
• The Law Society agree to the fundamental principles
under paragraph 4.8(a) and (b) of the Consultation
Paper, i.e.
a) respecting a person’s right to self-determination;
and
b) a valid and applicable AD… overrides treatment
decisions based on treatment provider’s
interpretation of patient’s best interests.
• As for the fundamental principles under 4.8(C) and
4.8(d), i.e. :
c) “a person should have the primary responsibility of
keeping an advance directive and of ensuring that
the original copy shall be presented to treatment
providers as proof of valid AD, and
d) “sufficient safeguards should be provided to
preserve lives… treatment providers must continue
to provide clinically indicated emergency life-
sustaining treatments, with legal protection
conferred to treatment providers acting in good
faith and with reasonable care.”
• While some members agreed to paragraph 4.8(c) and
4.8(d), there are views that: -
1. Clear legal provisions should be enacted on the

making of AD in order to protect the public, their
family members and the health professionals;
2. There are also different views as to whether a

compulsory central registration (i.e. an upgraded
eHRSS) of the AD should be put in place.
(Cont’d)
• There are views that the production of the original AD
by the patient of his/her family member is not realistic
(given the aging population both the patient and the
caregiver could be elderly and have senile problems);
• A central registration could help to avoid challenges to

AD as the medical doctor who witnessed the signing of
the AD is obligated to check the person making the AD
has the mental capacity and whether he/she is under
undue influence;
• There are increasing number of lone elderly which could

make it unreasonable to expect timely production of
the original AD by the patient or the family members.
(Cont’d)
And if there is a central registration regime...
• There must be clear policy considerations as to whether
an AD could still have its intended legal effect if
unregistered;
• Adequate resources should be committed to the eHRSS
to ensure prompt updating and accuracy of the
registration system… There must also be an access
control mechanism with a designated AD zone in eHRSS
where only the patient, the emergency rescue personnel
and the “personal care attorney” under Continuing
Powers of Attorney Bill (if enacted), have automatic
access.
Other submissions:
• If a healthy person is to make an AD, a doctor who
witnesses its signing should have the duty to ensure that
the person is aware or the pros and cons of a healthy
person making an AD;
• A person may revoke or modify an AD only when he/she

has the mental capacity at the time of the
revocation/modification.
• A modified AD should be treated as a new AD and

supersede the previous one, if any.
Other submissions (Cont’d.) :
• There are different views on whether a revocation
needs witnesses. Some considered that a revocation
means the person does not want to abandon his right of
survival and that should take his case back to square one
and hence no witness is needed.
• The AD should not be easily displaced by one single

family member.
• Some opined that registration of an AD by a doctor

should be compulsory since witnessing by a doctor is
compulsory.
Advance Care Planning
• Experience in US suggested that AD alone are not
likely to improve family’s or healthcare team’s
understanding of patient’s end-of-life care wishes.
• Instead, the focus should be shifted to Advance Care

Planning (“ACP”), by which AD is merely the end
product of the whole process.
Advance Care Planning
• ACP is defined as “the ongoing process of
communication between a patient, his healthcare
providers and family members/caregivers regarding
the care that is considered appropriate thereafter and
at the end of life when the patient has lost decisional
capacity”.
• HA suggested that ACP as an integral part of clinical

care for patients suffering from advanced, progressive
diseases.
Enduring Power of
Attourney
持久授權書
Enduring Power of Attorney (EPA)
• The EPA regime is governed by the Enduring Powers of

Attorney Ordinance (Cap 501) (“EPAO”)
• An EPA is a document which allows a person making the

EPA (“Donor”授權人) to appoint attorneys (“Attorney”
受權人) and to give directions as to his or her affairs in
the subsequent event that the Donor becomes mentally
incapacitated. (s.4 of EPAO)
• EPAs are limited to arrangements of the Donor’s

property and financial affairs. (s.8(1) of EPAO)
Characteristics of an EPA
• An EPA must be in a prescribed form. (s.3 EPAO)
• Unless otherwise specified to take effect on a later date

or upon a certain event, an EPA takes effect on the date
of execution. (s.10 EPAO)
• Unlike ordinary power of attorney, an EPA will continue

to be valid even after the the Donor become mentally
incapacitated, and the Attorney can continue to manage
the affairs of the Donor after he has become mentally
incapacitated.
Execution of an EPA
• The Donor must sign the EPA before a registered medical

practitioner and a solicitor.
• The EPA must be signed before the solicitor either (i) at

the same time or (ii) within 28 days when it is signed
before a medical practitioner. (s.5(2)(a) of EPAO)
Execution of an EPA
The solicitor must certify that (s.5(2)(d) of EPAO):
1. The Donor appears to be mentally capable;
2. The EPA was signed in the presence of the solicitor; and
3. The Donor signed the EPA voluntarily.

Execution of an EPA
The medical practitioner must certify that (s.5(2)(e) of

EPAO):
1. He or she is satisfied that the Donor is mentally capable;
2. The EPA was signed in the presence of the medical

practitioner; and
3. The Donor signed the EPA voluntarily.

Execution of an EPA
• The Attorney must also sign the EPA. (s.5(2) of EPAO)
• In practice, the Attorney often signs the EPA at the same

time with the Donor, though simultaneous signing is not
necessary. (s.3 of EPAO)
• The Attorney must not be the same person as the

solicitor and the medical practitioner, and must not be
the spouse of a person related by blood or marriage to
the Donor or the Attorney (s.5(2)(aa) of EPAO)
Requirements and duties of an Attorney
• The Attorney must be at least 18 years old;
• He / she must not be bankrupt or mentally incapable;
• It can be a trust corporation. (s.6 of the EPAO)
• The Attorney must not be given general authority over
all his or her property and financial affairs, otherwise the
EPA will be invalid;
• The Attorney has a duty to apply to the Registrar of the
High Court to register the EPA when the Donor is, or is
becoming, mentally incapable. (Clause 1 of Part B of the
Form of EPA under Form 1 of Sch. 1 to EPAR);
Requirements and duties of an Attorney (cont’d.)
• The Attorney owes a fiduciary duty to the Donor and has

a duty to: - (s.8 of EPAO)
1. Exercise his or her powers honestly and with due

diligence;
2. Keep proper accounts and records;
3. Not enter into any transaction where a conflict of

interest would arise with the Donor; and
4. Not mix the property of the Donor with other property.

The scope and restrictions of an attorney
• An EPA must specify the particular matters in relation to
which the Attorney has authority to act (s.8 of EPAO), for
example:
• Collecting any income due to the Donor;
• Collecting any capital due to the Donor;
• Selling any of the Donor’s movable property;
• Selling, leasing or surrendering the Donor’s home of
any of his or her immovable property;
• Spending any of the Donor’s income; and
• Spending any of the Donor’s capital.
• The Donor can also list out specific property or financial

affairs that he or she wants the Attorney to deal with.
• The Attorney may only make gifts or a seasonal nature or

at a birthday or marriage anniversary to persons (incl. the
Attorney) who are connected with the Donor and any
charity, which the Donor might be expected to make
gifts to. (s.8(3)(c) of EPAO)
• The Law Reform Commission (“LRC”) launched a public

consultation in 2009 to review the requirements for the
execution of EPA. Afterwards, the LRC recommended
the scope of an EPA should be extended to include
matters related to the donor’s well-being and personal
cares, which may include decisions in relation to living
place, diet, daily dress and healthcare.
• However, the LRC specified that the decisions made by

EPA would not involved the consent to or refusal of LST.
Ref.: Law Reform Commission of Hong Kong, “Report on Enduring Powers of
Attorney: Personal Care” (July 2011)
Decision-making for mentally incompetent
• At present, local guidelines emphasize that treatment

decision-making process should be a consensus-building
process between the healthcare team and family if
patient is mentally incapacitated without making AD.
• The final decision is a medical decision, decision based on

the best interests principle.
• According to HA Guideline, a guardian of a mentally

incapacitated patient is legally entitled to make
treatment decisions which are considered to be in the
best interest of the patient.
Decision-making for mentally incompetent
• However, according to the Guardianship Board,

appointing a guardian is not necessary and not
encouraged if there is adequate assistance for welfare
planning, medical treatment or financial management
from family, friends, relatives or services providers for
the mentally incapacitated and without conflict
concerning arrangement. Since applying for guardianship
is not mandatory requirement, most of the mentally
incapacitated patients in HA have not apply for
guardianship.
References
• Wai, A., Wong, D., Joynt, G., Cheung, R. (2016). Medical Law and
Ethics in Hong Kong. Sweet & Maxwell.
• Chan, S. G. (2019). A Practical Guide to Mental Health Law in Hong

Kong. HKU Press.
• Jackson, E. (2019) Medical Law: Text, Cases, and Materials (5th

edn.) OUP.
• Hospital Authority, “Guidelines on Life-Sustaining Treatment in the

Terminally Ill”.
• The Law Society of Hong Kong, “Consultation Paper on End-Of-Life

Care Legislative Proposals on Advance Directives and Dying in Place
– The Law Society’s Submissions”. 3rd December 2019.

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The law at the

• What if the bad news in disclosed to family members only?

• When the patient asked about their own medical

• Non-disclosure will even lead to patients being

• Hence, the central issue should be “how to disclose”

• Voluntary vs Non-voluntary vs Involuntary Euthanasia

• Direct vs Indirect Euthanasia

• Euthanasia and Assisted Dying refers respectively to

• It is in contravention with Hippocratic Oath, thus

Ref.: NHS Choices, “Euthanasia and Assisted Suicide” (2015), available at

• MCHK defined euthanasia as “direct, intentional killing

• While this is obviously relinquishing the healthcare

• The slippery slope argument: if voluntary euthanasia is

• “MIP” è persons who are...

• Part IVC MHO...

• A MIP is incapable of giving such consent if…

• For MIP who is incapable of understanding the general nature

• Where consent cannot be obtained from guardians, a registered

• When considering whether or not to give consent the Court shall

“(a) ensure that the mentally incapacitated person is not deprived of

(b) ensure that any treatment that is proposed to be carried out in

• If the Court is satisfied that the treatment should be carried out

• Life-sustaining Treatment (“LST”) refers to any

o Some treatments are invasive è may cause suffering

o Once the patient is disconnected from these life-

• Several months later the patient’s parents requested

• With this decision, the endotracheal tube and the

• However, the Missouri Supreme Court did not approve

• Forgoing of treatment in either way is ethically and

• The purpose of forgoing futile treatment is to avoid

• Killing a patient to end his/her suffering

Ref.: Hospital Authority, “Guidelines on Life-Sustaining Treatment in the Terminally Ill”.

• Withholding or withdrawing futile treatment for a

• It means a treatment that is highly unlikely to achieve

• When a treatment is considered as physiologic futility

• However, since clinical situation is not so clear cut

• This landmark case is the first one in English legal

• Since the provision of nutrition and hydration is the

• Basically patients have the right to accept or refuse

• The steps involved are…

• Healthcare workers will also use drugs and automated

• In a terminally ill patient, as the underlying factor such

• In order to determine whether the benefits of CPR

• But in fact, CPR may just prolong the dying

• Shortly after admission, a 1st DNACPR notice was completed

• Later, following deterioration in Mrs Tracey's condition, it was

Claim against the Trust

1. Adequately to consult Mrs Tracey or her family members

2. To notify her of the decision to impose the notice

3. To offer her a second opinion

4. To make its DNACPR policy available to her

5. To have a policy that was clear and unambiguous

Article 8 of the European Convention on Human Rights (ECHR)

Court of Appeal HELD:

• The Trust violated Mrs Tracey's Article 8 rights by failing to

• Even if the treating team believe that the treatment is futile

• A means for mentally competent individuals to indicate the

• AD is underpinned by the principle of respect for

• The person giving directions in a AD is the “Donor”

• A valid and applicable AD should be respected provided

• The family has no authority to override an AD and the

HA, “Guidelines on Life-Sustaining Treatment in the Terminally Ill.” Section 5.2

• Persons who are aged 18 or above, mentally competent and

HA, “Guidelines on Life-Sustaining Treatment in the Terminally Ill.” Section 5.2