Vital details: The Law Reform Commission's Dr Lawrence Lai and Sophie Leung unveil the commission's report on substitute decision-making and advance directives relating to medical treatment.

The Law Reform Commission has proposed introducing a model form of advance directive for people to make decisions on the healthcare or medical treatment they should receive when they are mentally incapacitated.

It also proposes amending the definition of "mentally incapacitated persons" in the Mental Health Ordinance to make it clear the laws dealing with consent for medical treatment, guardianship and the management of such people's property and affairs should apply to those who are comatose or in a vegetative state.

The commission today released a report on two aspects of decision-making in this regard. "Substitute decision-making" refers to decisions made by a third party about the medical treatment of someone who is comatose or in a vegetative state. "Advance directives" refers to a person's advance decision regarding their own future healthcare or medical treatment.

Unclear definition

The Mental Health Ordinance has a provision for managing property and affairs, guardianship and the giving of consent for medical treatment of the mentally incapacitated. It is unclear, though, as to who can authorise treatment, 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 persons".

Sophie Leung, chairman of the commission's sub-committee on the subject, said the ordinance's definition of "mentally incapacitated persons" should be amended to address the question of substitute decision-making for this group of people. But the commission rejects the idea of providing a statutorily prescribed form for advance directives.

"It would be premature to attempt to legislate on advance directives when the concept is still new to the community and it is one on which most people have little knowledge," she said.

Instead, the commission has put forward a model form of advance directive. The advantage of such a form is that, if correctly completed, an individual can be reasonably assured their wishes will be carried out.

The form will also help doctors in their consideration of consent to medical treatment and make it easier for them to be confident regarding the patient's prior wishes.

The form requires two witnesses, including at least one doctor. Neither witness should have an interest in the estate of the person making the directive.

The directive would be triggered only if the person became terminally ill, or fell into a persistent vegetative state or irreversible coma.

Directive can be revoked

Under the proposals, the person making an advance directive can revoke it at any time. Though they should be encouraged to revoke it in writing, it could also be revoked orally.

The commission said the Government should play a role in promoting public awareness and understanding of the concept of advance directives, and should enlist the support of relevant bodies such as the Medical Council and the Hospital Authority in this information 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. Families should also be encouraged to accompany the person when they make the advance directive.