Medical and Welfare
Why do I need to sign informed consent for medical procedures? Can I give consent or refuse treatment on behalf of my family member who cannot make decision? How to indicate my preference of medical decision in future? What is “best interest” of patient?
A person’s ability to make his or her own medical decisions carries major clinical, ethical and legal significance
In Hong Kong, within the healthcare context, there are three legislations or “instruments” dealing with this medical-legal issue
1) Advance Directive (AD)
When we are “smart”, we can create an AD to indicate the form of healthcare we would like NOT to have at a future time when we are no longer mentally competent to make medical decisions.
2) Guardianship Order (GO)
Granted by the Guardianship Board to appoint guardians for adults who are mentally incapable of making their own decisions about personal affairs, financial matters, medical or dental treatment.
3) Part IVC of Mental Health Ordinance
Part IVC of the MHO enables a doctor to provide necessary medical treatment to a MIP without consent.
4) Protection of Children
There are a number of Ordinances in Hong Kong intended to enhance the rights of children and protect them from abuse, including: the ”Protection of Children and Juveniles Ordinance” and the ”Guardianship of Minors Ordinance”.
Advance Directive (AD)
Nowadays, medical technology is advancing by strides. Even when life is coming to an end and the disease becomes irreversible, there are still “treatment” to prolong survival. However, some life sustaining treatments (LST) only prolong the dying process which may be of little meaning to the patient, or even aggravate patients’ suffering.
In Hong Kong, a mentally competent and properly informed adult aged 18 and above can make an Advance Directive (AD), explicitly expressing his wish to refuse specified LST when he is in an end-stage condition and no longer able to make medical decisions. If an AD is applicable and valid, doctors have the responsibility to follow the directive under common law.
No one including family members may revoke the AD made by the patient. The law of Hong Kong does not require an AD to be made in a specified format, but Hospital Authority (HA) of Hong Kong has designed an AD form for use by HA patients.
If the public wishes to sign an AD in private hospital or clinic, it is best to consult the doctor who is taking care of the patient’s long-term illness(es), for example, people with chronic renal failure can discuss with their nephrologists. If you are a healthy person, it is advised to talk to a geriatrician for further information.
Guardianship Order HK (GO)
The Guardianship Board, under Part IVB of Mental Health Ordinance, is a quasi-judicial tribunal that makes order appointing guardians for adult MIPs who are unable to make their own decisions about matters such as medical treatment, welfare issues, and financial management.
The Guardianship Board has specific and limited powers and it can:
1. Make Guardianship Orders to appoint a guardian
The guardian could be a family member or friend or the public guardian (Director of Social Welfare);
2. Grant the following powers to appointed guardian
(a) to require the person concerned to reside at a specific place;
(b) to require the person concerned to attend at a place and time for medical or dental treatment, special treatment, occupation, education or training;
(c) to consent to medical or dental treatment if the person concerned is incapable of understanding the general nature and effect of the treatment;
(d) to require access to the person concerned to be given to any doctor, approved social worker or other person specified in the Guardianship Order;
(e) to hold, receive or pay a specified monthly sum for the maintenance or other benefit of the person concerned (currently maximum at HK$17,400 per month).
Before making an application for guardianship, we should consider whether there is already an appropriate informal arrangement because initiating a guardianship application is primarily a legal proceeding. If the person concerned is receiving adequate assistance from his/her family members, friends, relatives or service providers, there may be no need for guardianship.
Guardianship Order is not suitable for many cases. For example: withdraw MPF; on behalf of the subject to deal with insurance policies; to rent out, sell, assign or manage property; buy or sell stocks, securities or investments; applying for a grant of probate; seeking work injury or accident compensations; handling disputes on property or investment; recovering money misappropriated; handling problems on access and visit or making pension options of civil servants.
Regarding (1) the needs and appropriateness of applying guardianship, and (2) the procedure of the application, you may contact the following organizations for further information and assistance:
You can also seek advice from private psychiatrists or geriatricians and arrange mental capacity assessment for the MIP when indicated.
Part IVC of Mental Health Ordinance
This is a legal requirement for doctors to seek informed consent from patients before giving any healthcare intervention. This reflects their ethical duty to respect a person’s autonomy. Incapacity for consent to treatment is defined under Part IVC of the Mental Health Ordinance (MHO) as the inability to understand the general nature and effect of the treatment.
Part IVC of the MHO gives a doctor to provide urgent or non-urgent medical treatment to a mentally incapacitated person (MIP) without consent, provided that the treatment is necessary and in the best interests of the patient. This ensures the MIP is not deprived of necessary treatment, solely because he/ she lacks the capacity to give consent. If the medical or dental treatment is necessary but non-urgent, and the adult MIP is having a legal guardianship with power to consent, then the doctor can obtain substitute consent from the Guardianship.
Children’s Protection & Welfare
The Protection of Children and Juveniles Ordinance (PCJO) is a key Ordinance in the protection of children and juveniles from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation (including sexual abuse) while in the care of parent(s), legal guardian(s) or any other person who has the care of the children.
The PCJO enables police offices and social workers to take action to protect a child or juvenile in need of care or protection. A care or protection order may be sought from the Juvenile Court.
The Guardianship of Minors Ordinance plays an important role in arrangements for the long
term welfare of children. The Ordinance enable parents and current guardians to appoint
other people to act as future guardians for their children who are still minors in the event of
the death of the parents or current guardians.
MIP Care Resources Connect is a charitable organisation (IRD File No. 91/16692) established in 2018. The main objectives of MIPCRC are twofold: first, to provide information and resources to carers and professionals to mentally incapacitated persons via a web-based platform; and second, to promote awareness of issues surrounding mental capacity. As a carer charity in Hong Kong, we share a common vision of finding ways to support carers in their laborious routine of caring for family or friends who are mentally incapacitated.