Advance Medical Directives as an Instrument of Advance Planning in Hong Kong: Implementation and Best Practices for Solicitors
1. implementation Challenges: Common Questions
The existence of a valid AMD does not by itself guarantee that the maker’s instructions will be implemented without difficulty. One might ask: what will happen when the document is eventually needed? The principal challenges concern whether healthcare professionals know that the AMD exists, whether it applies to an unforeseen clinical situation, and how disagreements over its validity or applicability should be resolved.
How will healthcare professionals know that an AMD exists?
An AMD can only guide treatment if the relevant healthcare professionals have notice of it. This raises practical questions about who should retain the document, which family members or trusted persons should receive copies, and how it can be accessed during an emergency.
Under the new framework, proof of an AMD may take the form of the original, a copy certified by a solicitor or a doctor, a paper AMD stored electronically in eHealth, or an AMD made and stored electronically through eHealth. The phased introduction of electronic storage should significantly improve accessibility, particularly where an unconscious patient is admitted without relatives or without a paper copy.
Electronic storage does not, however, remove the need for communication. Healthcare professionals and rescuers are not required to search a patient or the patient’s belongings for an AMD or DNACPR order. Where they have no notice of a valid and applicable instrument, the governing principle is “if in doubt, save lives first”. Solicitors should advise AMD makers to tell family members, partners, carers and family physicians that an AMD exists and where it is kept. Where refusal of cardiopulmonary resuscitation is intended to operate outside a hospital setting, the distinction between an AMD and an AMD-based DNACPR order must also be understood. Execution is only the first step; communication and accessibility are integral to implementation.
Unexpected circumstances not anticipated by the maker
No AMD can anticipate every future illness, accident or treatment decision. This is particularly relevant where a person makes an AMD after being diagnosed with a terminal illness, but subsequently loses capacity because of an unrelated and potentially reversible event.
The HKAM Best Practice Guidelines state that an AMD is not applicable where the attending registered medical practitioner reasonably believes that the current circumstances are “outside the reasonable expectations or could not have been reasonably anticipated” by the maker and that those circumstances would have affected the maker’s decision had they been anticipated.3 The assessment therefore concerns not only whether the maker now lacks capacity, but also whether the present clinical situation falls within the circumstances and treatment refusal that the maker intended the AMD to govern.
Consider a patient who made an AMD refusing CPR after being diagnosed with terminal lung cancer and who subsequently suffers major trauma in a traffic accident, loses consciousness and requires immediate cardiopulmonary resuscitation. Despite the fact that the patient is terminally ill and has lost mental capacity to make medical decisions, if the treatment providers reasonably judged that the patient’s critical condition arose from the trauma rather than the underlying lung cancer, they would not incur liability for administering LST because the mere existence of a terminal illness and an AMD therefore does not mean that all future LST must be withheld.
Applicability remains dependent on the selected precondition, the treatment refused, and whether the circumstances confronting the treatment team were reasonably within the maker’s contemplation. Where an acute event is potentially reversible and falls outside the anticipated disease trajectory, emergency treatment may properly be commenced while the patient’s condition and the applicability of the AMD are assessed.
Disputes concerning applicability and resolution
The distinction between validity and applicability is critical. Applicability concerns whether a valid AMD governs the clinical circumstances now confronting the treatment team.
Applicability may be disputed where clinicians disagree about prognosis or reversibility; where the patient has both an underlying terminal illness and a treatable acute condition; or where the wording does not clearly address the treatment under consideration. Different teams may also approach the same condition from different perspectives. An oncologist may focus on the limited prognosis from the underlying disease, while an intensive-care team may regard the immediate complication as reversible.
Although no person may override a valid and applicable AMD, such concerns may still require careful investigation before clinicians can be satisfied that it should govern the subsequent management.
Many disagreements may be addressed through review of the AMD, contemporaneous medical records and documented discussions about the maker’s values and intentions. A multidisciplinary discussion may assist where prognosis, reversibility or the satisfaction of a clinical precondition is uncertain.
Where uncertainty remains unresolved, the Ordinance permits an application to the Court of First Instance for a declaration as to whether an AMD is valid, applicable, or both. Treatment providers and specified persons with a sufficiently close relationship to the patient may apply without first obtaining leave of the Court. Pending determination, where the patient is in an urgent and critical condition, LST may need to continue in accordance with the patient’s best interests.
Court proceedings should nevertheless remain a last resort. The more effective safeguards are earlier ones: clear instructions, adequate medical explanation, contemporaneous documentation, communication with trusted persons, accessible storage, and regular review as the maker’s health and circumstances change.
