THE FUTURE OF THE LAW ON ADVANCE DIRECTIVES REFUSING LIFE-SUSTAINING TREATMENT IN HONG KONG

This article examines the future of the law on advance directives refusing life-sustaining treatment in Hong Kong by responding to the recommendations made by the Hong Kong Law Reform Commission (HKLRC) in its 2006 Report and the implementing Hospital Authority Guidelines published in mid-2010. In particular, it challenges the interim conclusion made by the HKLRC that there is no need to legislate on advance directives in Hong Kong and reliance on the common law model will suffice. Reference will be made to English case law where courts have often struggled to determine the validity of oral advance directives and frequently misapplied the standard of proof in ascertaining the directives' applicability, to the extent that they fail to uphold the patients' basic right to bodily integrity. The author suggests that legislation may be used to (i) prescribe formalities for advance directives as in the case of wills to promote their clarity, legitimacy and societal acceptance; (ii) dispel the unprincipled idea that there is a higher standard of proof in scrutinising the applicability of advance directives; and (iii) provide for optional and non-exclusive model checklist advance directive forms which render it easier for patients to convey their wishes in a clear and unequivocal manner.