Part 1 - Advance Medical Directives in Hong Kong: What You Need to Know About the New Legal Framework

Introduction

The Advance Decision on Life-Sustaining Treatment Ordinance (the “Ordinance”), enacted in November 2024, is a groundbreaking development in Hong Kong’s legal and medical landscape. It ensures that individuals have a clear legal right to express their wishes concerning medical treatment in circumstances where they are unable to communicate or make decisions due to health conditions associated with the end-of-life stage. This includes the use of Advance Medical Directives (“AMDs”), which empower individuals to refuse life-sustaining treatments under specific conditions. This article will explain what AMDs are, who can make them, and the legal requirements for doing so.

What is an Advance Medical Directive (AMD)?

An AMD is a formal legal document that enables a mentally capable adult to state their refusal of certain life-sustaining treatments (“LSTs”) in advance. Life-sustaining treatments may include procedures such as cardiopulmonary resuscitation (commonly known as CPR), artificial ventilation, or artificial nutrition and hydration.

The AMD will only be "used" or come into effect if the individual becomes mentally incapable of making medical decisions and meets the specific conditions. These conditions include being in a terminally ill state, a persistent vegetative state or irreversible coma, or another end-stage, irreversible life-limiting condition.

The purpose of an AMD is to allow natural death to occur without unnecessary medical interventions that may not enhance the individual’s quality of life or align with their personal values. However, it is crucial to understand that AMDs do not permit euthanasia or physician-assisted suicide, which remain illegal and unethical in Hong Kong.

Why Are AMDs Important?

AMDs ensure that your healthcare preferences are respected even if you are unable to communicate your decisions. They can prevent unnecessary medical interventions, reduce suffering, and ease the burden on your family and healthcare providers by making your wishes clear.

Who Can Make an AMD?

You can make an AMD if you meet the following conditions:

• You are an adult (18 years or older).
• You are mentally capable of making decisions regarding life-sustaining treatment. This means you can:
  • Understand the medical information relevant to your decision;
  • Retain that information long enough to make the decision;
  • Weigh the information and consider its consequences; and
  • Communicate your decision in any way, including verbally, in writing, or through gestures.

Who Cannot Make an AMD?

An AMD cannot be created if an individual is mentally incapable at the time, due to cognitive disorders, psychiatric conditions, or substance influence. Minors under 18 are also prohibited from making AMDs under the Ordinance, unless approved by doctors in the minors' best interests.

Legal Requirements for Making an AMD

To ensure that your AMD is valid and enforceable, it must meet the following legal requirements under the Ordinance:

1. Mental Capacity: You must be an adult and mentally capable of deciding on life-sustaining treatment at the time of making the AMD. This means you must fully understand the implications of refusing treatment, including the possibility of death.
2. Clear Instructions: The AMD must clearly state:
   • The specific life-sustaining treatments you wish to refuse (e.g., CPR, artificial ventilation, or other treatments); and
   • The conditions under which your refusal will apply (e.g., terminal illness, persistent vegetative state, or irreversible coma).‍
3. Witnesses: You must sign the AMD in the presence of two adult witnesses, and the following requirements apply:
   
   • One of the witnesses must be a registered medical practitioner (“RMP”), who will verify that you are mentally capable and acting voluntarily. The RMP must also explain the nature and effect of the AMD to you before you sign it
   • The other witness must be an adult who is not a medical practitioner.
   • Both witnesses must, to the best of their knowledge, confirm that they are not “interested persons”. This means they cannot have any financial or other vested interest in your estate, such as being a beneficiary under your will or a recipient of insurance benefits.
4. Voluntariness: The decision to make the AMD must be entirely your own, free from coercion or undue influence. The RMP acting as your first witness is responsible for ensuring that your decision is made voluntarily.

When Does an AMD Become Applicable?

An AMD is not enforceable immediately upon being signed. It will only take effect when both of the following conditions are met:

1. You become mentally incapable of making medical decisions; and
2. The situation you described in the AMD (e.g., terminal illness or persistent vegetative state) has occurred.

For example, if your AMD specifies that you refuse CPR in the event of irreversible coma, healthcare providers will only act on your directive if you are unconscious and unable to make decisions for yourself, and your medical condition meets the definition of irreversible coma as outlined in your AMD.

What Happens if There is a Dispute?

In cases where there is doubt about whether your AMD is valid or applicable, healthcare providers must act in your best interests until the situation is clarified. If necessary, the matter can be referred to the Court of First Instance for a legal determination.

How Can You Revoke an AMD?

If you change your mind after making an AMD, you have the right to revoke it at any time, as long as you are mentally capable. There are several ways to revoke an AMD:

• Write a statement saying you are revoking it;
• Verbally express your intention to revoke the AMD in front of witnesses;
• Destroy the AMD document (e.g., tear it up) yourself or ask someone to do so in your presence; or
• Sign Part 5 of the model AMD form where revocation is indicated.

It is important to destroy any certified copies of the revoked AMD or remove it from electronic storage (if applicable) to avoid confusion in the future. If you create a new AMD, the old one will automatically be cancelled.

Conclusion

Advance Medical Directives are a powerful tool to ensure that your healthcare preferences are respected, even when you are unable to express them yourself. By understanding the legal requirements and safeguards for making an AMD, you can take proactive steps to protect your autonomy and dignity in critical medical situations. In Part II of this series, we will discuss what happens to AMDs made before the new Ordinance comes into effect, how existing directives will transition under the new framework, and the legal protections provided for healthcare providers.

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Disclaimer: Nothing herein shall be interpreted as legal advice to any person. Readers are encouraged to consult their legal representatives for independent advice. The information provided is based on overall observations and the experience of the practitioners of the firm at the time of writing. The content may change without prior notification depending on changes in the law. If there are two versions of the article in different languages, the English version will prevail in case of discrepancies.

About Us:

Rendy Ng Law Firm is a law firm based in Hong Kong, providing a full range of commercial legal services for all sectors, with particular focus on supporting professionals and businesses in the medical and veterinary, consumer goods and retail and entertainment industries to achieve sustainable success. By combining legal guidance with understanding of business practicalities, we ensure that our clients receive support tailored to their business goals and individual needs. Please feel free to reach out to our team should you have any questions about our services.

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