The Decision-making and Advance Directives sub-committee of the Law Reform Commission has released a consultation paper on two aspects of decision-making in relation to medical treatment.

First, it concerns decisions made by a third party - or "substitute decision-making" - regarding medical treatment of people who are comatose or in a vegetative state.

Second, it relates to an individual deciding in advance as to the healthcare or medical treatment he wishes to receive at a later stage when he is no longer capable of making such decisions. These instructions are referred to as "advance directives".

'Mentally incapacitated' to cover comatose patients

Currently, the Mental Health Ordinance makes provision for managing mentally incapacitated persons' property and affairs, for their guardianship and the right to give consent for their medical treatment.

However, it is unclear as to who can authorise medical treatment of people who are comatose or in a vegetative state, or manage their property and affairs in the absence of an enduring power of attorney, as such people do not fall within the Ordinance's definition of "mentally incapacitated person".

The sub-committee proposes to amend the definition to make it clear that those parts of the Ordinance which deal with the giving of consent for medical treatment, guardianship and the management of a mentally incapacitated person's property and affairs should apply to people who are comatose or in a vegetative state.

There is no legal framework to give force to advance directives made by mentally competent people as to the form of healthcare or medical treatment which they would like to receive at a future time when they are no longer competent.

The sub-committee does not favour a legislative approach, but has instead put forward a proposed model form of advance directive. Instructions in an advance directive will take effect if the individual becomes terminally ill, or is in an irreversible coma or in a persistent vegetative state, and is unable to take part in decisions about his medical care and treatment.

There will be two witnesses for the model form of advance directive, one of whom should be a medical practitioner. They should not have an interest in the estate of the person making the advance directive.

The sub-committee also recommends the establishment of a 24-hour accessible central registry for safe-keeping of all advance directives.

The sub-committee emphasises that any decision to withhold or withdraw artificial life-support procedures for a terminally ill patient will continue to be governed by the medical profession's medical and ethical guidelines, and does not amount to euthanasia.

The proposals will not affect the application of Hospital Authority's current Guidelines on Life-sustaining Treatment in the Terminally Ill, which sets out the major principles for decision-making for adults.

Under the existing guidelines, a valid advance directive refusing life-sustaining treatment should be respected; the sub-committee's proposed model advance directive is intended to provide a means to help ensure that the individual's wishes are made clear.

The sub-committee recommends that the Government should promote the concept of advance directives in the community, and enlist the support of relevant bodies such as the Medical Council and the Hospital Authority in the campaign.

The Government should encourage those who wish to make an advance directive to seek legal advice and to discuss the matter first with their family members. Family members should also be encouraged to accompany the individual when he makes the advance directive.

Sub-committee chairperson Sophie Leung stresses that the recommendations in the consultation paper are intended to facilitate discussions and do not represent the sub-committee's final conclusions.

Public's views, comments welcome

"The public is welcomed to submit views, comments and suggestions on any issues discussed in the consultation paper on or before September 30," she said.