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There have long been practical challenges and legal concerns surrounding end-of-life care given the lack of legislation on advance medical directives (AMDs) and do-not-attempt cardiopulmonary resuscitation (DNACPR) orders in Hong Kong. The recently passed Advance Decision on Life-sustaining Treatment Ordinance (Cap. 651) (Ordinance) in November 2024 provides long-awaited guidance for patients, families, and healthcare professionals on the implementation of advance decision instruments. The Ordinance marks a milestone for the promotion of patient autonomy, while providing legal protection to healthcare professionals.
The Ordinance seeks to provide a legal framework for the making, revocation and implementation of AMDs and DNACPR orders. There will be an 18-month transition period for medical institutions, relevant departments and organisations to update their guidelines and provide necessary training to their frontline staff.
AMDs
The Ordinance clarifies the nature and scope of AMDs. An AMD is an instrument allowing a person to make decisions in advance in relation to withdrawing or withholding life-sustaining treatments (LSTs), provided certain pre-conditions are met. The pre-conditions include that the person who makes an AMD is terminally ill, is in a persistent vegetative state or is suffering from irreversible medical conditions. An AMD cannot be used to refuse basic care or palliative care, nor some nursing interventional procedures which are not classified as LSTs, such as suctioning of the airway. The nature of AMDs is fundamentally different from that of euthanasia. An AMD maker cannot request the administration of a substance to end their life through an AMD.
Making and revocation of AMDs
The legal framework provided for the making and revocation of AMDs under the Ordinance is based on the principle of ‘cautious making, easy revoking’. To make valid AMDs, all of the following requirements under the Ordinance have to be met:
Legal capacity: At the time of making an AMD, the maker must be an adult and mentally capable of deciding on whether they want to receive life-sustaining treatment.
Format / model form: An AMD must be made in writing and all instructions in the directive must be presented in a clear way. A model form is provided under Schedule 2 of the Ordinance but it is not mandatory to use the model form. To facilitate the use of AMDs, an AMD not made using the model form could also be valid, so long as the substantive content is complete and not affected by any expression or conduct which is clearly inconsistent with the instruction.
Signature and date: The maker of the AMD must sign the instrument and the date of signing must be shown in the instrument.
Witnesses: The AMD must be signed in the presence of at least two adult witnesses who are not interested persons of the maker, such as an estate beneficiary, and one of which must be a registered medical practitioner (RMP). As set out in the Ordinance, the RMP witness must:
- explain to the maker the nature of the AMD and the effect;
- be satisfied that the maker is mentally capable of deciding on a life-sustaining treatment at the time of signing of the AMD; and
- declare in the AMD that the requirements under (a) and (b) have been met.
The requirements for revocation under the Ordinance are less stringent. An AMD can be revoked in writing, verbally, or by destroying it, crossing out contents of each page and signing each page, making another AMD or taking other steps permitted under the Ordinance, provided that the maker is mentally capable of making the relevant decision.
Implementation of AMDs
The maker of an AMD has the primary responsibility for keeping possession of the AMD, and making sure that a validating copy of the AMD can be presented to the treatment providers by them or their family members to prove that they have made an AMD. There is no requirement for the treatment providers to search for a validating copy of an AMD. To facilitate the implementation of AMDs, under the Ordinance, a validating copy includes the original copy, certified copy or scanned copy of the AMD in paper form or electronic image stored in a designated electronic system.
DNACPR orders
The Ordinance also clarifies different types of DNACPR orders that may be made. A DNACPR order is an instrument that has a continuing effect and directs not to perform CPR on a person-in-arrest. It may be AMD-based when an AMD maker had an instruction of refusing CPR in the AMD. Alternatively, it may be non-AMD-based in the case of minors and adults who are mentally incapable of deciding on life-sustaining treatment and do not have an AMD containing an instruction of refusing CPR. In the latter case, if there is consensus among related parties, including RMPs and the patient’s family members, that CPR would not be in the best interests of the patient, the RMPs could make a DNACPR order for the patient.
Making and revocation of DNACPR orders
Similar to AMDs, all requirements under the Ordinance have to be met for a DNACPR order to be made. The requirements for a non-AMD-based DNACPR order are more stringent:
Form: A DNACPR order must be made in writing and in the prescribed form for an AMD-based or non-AMD-based DNACPR order.
Complete and accurate information: The prescribed form must be properly completed with accurate information, including and by way of summary from the Ordinance:
- personal particulars of the patient of the DNACPR order;
- personal particulars of the persons who sign the form;
- the joint diagnosis and prognosis of the patient made by two RMPs;
- the joint decision of the RMPs to make a DNACPR order for the patient; and
- the joint decision of the RMPs on the effective period of the order.
Signature: The form must be signed by at least two RMPs, with one being a specialist. A responsible person of the patient, such as an immediate family member, cohabitee, or guardian on behalf of a mentally incapable adult, or a parent or guardian on behalf of a minor is also required to sign the form. However, if a RMP is satisfied that no responsible person can be found despite reasonable efforts being made, another person who is determined as eligible by the RMP may sign the form. Such eligible person is considered to be able to form a view as to whether performing CPR on the patient lacking mental capacity would be in their best interests. For an adult patient in the case of a non-AMD-based DNACPR order, such requirement of a co-signee may be exempted if the RMP is satisfied that performing CPR would not be in the patient’s best interests.
In terms of revocation, a DNACPR order made on the basis of an instruction of refusing CPR in an AMD can be revoked when the maker is mentally capable of deciding on a life-sustaining treatment in writing, verbally or by destruction of the instrument. The Ordinance also provides that there could be automatic revocation if the effective period of the DNACPR order expires. This is subject to the necessary extension of the effective period as determined by the RMP.
Implementation of DNACPR orders
If any circumstances arise which are not anticipated by the RMP or the subject person at the time of making the DNACPR order, or where such order would not have been made, the DNACPR order will not be applicable.
A treatment provider or rescuer should still administer CPR on the subject person who has a valid and applicable DNACPR which are not AMD-based if there are any exceptional circumstances that warrant disregarding the order or if doing so is in the subject person's best interests.
Protection for healthcare practitioners
Under the Ordinance, the treatment provider or rescuer will not incur liability for administering life-sustaining treatment if they are unaware of the existence of the AMD or DNACPR order, or if they are not satisfied that a valid and applicable AMD or DNACPR Order exists. Conversely, they will not be held liable for withholding life-sustaining treatment if they honestly and reasonably believe a valid AMD or DNACPR order is in place.
Legal implications
We hope this recent legislative development, together with public education, will ease concerns over implementation of advance decision instruments, thereby encouraging more open discussion on end-of-life care planning among patients, family members and healthcare professionals. Despite the legal protection provided under the Ordinance, it remains crucial for healthcare professionals to exercise proper care and independent judgement in the management of patients. Further public education provided by the Government could enhance the public’s understanding of the Ordinance and the requirements therein.
Healthcare
Hong Kong