In considering the medicolegal issues concerning withdrawing or withholding treatment from terminally ill patients, it would also be necessary to consider advance directives and do not resuscitate orders.
Advance directives are directions given by an adult, at a time when he/she is mentally competent, concerning the medical treatment which he/she wishes to receive or does not wish to receive at a future time when he/she will no longer be mentally competent. In other words, these are medical directions given by an individual patient in advance, to be put into effect if and when he/she subsequently becomes (either temporarily or permanently) mentally incompetent.
Advance directives do not allow for patients to require a doctor to provide specific treatment(s) against their clinical judgment.
At the time of giving his/her directions, the individual patient has to be mentally competent
As already stated, at the time of giving his/her directions, the individual patient has to be mentally competent. His/her mental capacity should not be diminished by long-term illness or medication. Further, there should be no undue influence by any third party.
In the same way that a mentally competent patient can validly refuse treatment (and such refusal must be respected), the patient can communicate his/her wishes at an early time before he/she becomes incapable of communicating them.
Those involved in looking after the terminally ill (including patients who have become mentally incompetent) have a duty to respect the wishes of the patients. According to the Hospital Authority’s guidelines (Guidelines on life sustaining treatment in the terminally ill, published by the Hospital Authority) (paragraphs 5.16 to 5.23), validly executed advance directives, including those refusing life-sustaining treatment, should be respected.
The present and the future
In August 2006, the Law Reform Commission published a report on advance directives in relation to medical treatment, having collected views from the public through a consultation paper (published in 2004). The Law Reform Commission have made the following recommendations:
a. The concept of advance directives should be promoted, initially by non-legislative means, until the community has become more widely familiar with the concept (recommendation 1).
b. The Commission put forward a model form of advance directive. This ensures that the directions given are clear and unambiguous. The form should be witnessed by two witnesses, one of whom should be a medical practitioner who is in a position to explain to the patient the nature and implications of the advance directive. Neither witness should have an interest in the estate of the patient (recommendation 7).
c. The model form does not allow the patient to refuse basic or palliative care necessary to maintain the patient’s comfort and dignity, or to relieve pain.
If for any reason the patient is unable to make a written advance directive, then an oral advance directive should be made before a doctor, lawyer or another independent person
d. If for any reason the patient is unable to make a written advance directive, then an oral advance directive should be made before a doctor, lawyer or another independent person (recommendation 7). (It is important that the doctor records such directives/instructions in the medical records.)
e. The advance directive can subsequently be revoked in writing or orally. If it is revoked in writing, then the revocation should be witnessed by an independent witness who does not have an interest in the estate. In the case of an oral revocation, it should be made before a doctor, lawyer or another independent person (recommendation 8).
On 23 December 2009, the Food and Health Bureau published a consultation paper in response to the abovementioned report. This consultation addresses the issue of whether the concept of advance directives should be introduced in Hong Kong, the information to be provided to the public as well as the guidance to be provided to the medical profession. It was proposed that procedures and guidelines should be developed for medical and healthcare professionals on the making and handling of advance directives.
Withholding or withdrawing life-sustaining treatment is appropriate where a mentally competent patient who has been properly informed of the risks and benefits of such treatment refuses the treatment
Assuming that no advance directive has been executed, in deciding whether or not to withhold or withdraw lifesustaining treatment, a medical practitioner should take into account the wishes of the patient as well as those of his family (Code of Professional Conduct for the Guidance of Registered Medical Practitioners, paragraph 34.3).
In general, withholding or withdrawing life-sustaining treatment is appropriate where a mentally competent patient who has been properly informed of the risks and benefits of such treatment refuses the treatment, or if the treatment is futile and ineffective. It may be necessary to assess the patient’s mental capacity. If in doubt, the medical team should seek a second opinion from a senior doctor who is not directly involved in the care of the patient, or seek advice from the hospital’s ethics committee.
Do not resuscitate orders
Do not resuscitate orders are advance clinical decisions, made on an individual basis, not to attempt CPR on patients. Such an order would be appropriate if it is undesirable to prolong the process of dying. If an advanced directive has been made, it should be taken into account. As a doctor should perform treatment, including resuscitation, on a patient only if it is necessary and in the patient’s best interest to do so, it would be appropriate for the doctor to decide not to attempt CPR if to do so is not in the patient’s best interest.
The doctor should consider the likely outcome and expected benefit of resuscitation. If an order is made, it should be clearly documented and communicated to all relevant staff. The order should also be reviewed at regular intervals.
For more information on a range of medicolegal topics, read the Clinical Risk Management Handbook.
Dr David Kan is a Partner at Howse Williams Bowers, Hong Kong