The end of life issue in this article includes the euthanasia and the advance directive. It introduces the definition, the position of various Hong Kong organizations, and its legislative proposals. It opens the door to full implementation of both issues in the coming future in Hong Kong, China. Another type of euthanasia called Physician Assisted Suicide and its current situation in the world will be discussed. There will be a final touch on the reguation of Medical Law in Hong Kong.
Introduction to the Euthanasia
Life-sustaining treatment means any medical procedure, device or medication to keep a person alive. It includes: medical devices put into the airway for breathing; food and water supplied by medical device (tube feeding); intravenous fluid; cardiopulmonary resuscitation; major surgery; blood transfusions; dialysis; antibiotics; pacemakers; vasopressors; and anything else meant to keep a person alive.
Euthanasia is defined in the broad sense as the direct intentional killing of a person as part of the medical care being offered. Active euthanasia is defined as the killing is achieved by a direct act to kill such as lethal injection. Passive euthanasia is defined as the killing is achieved by omission of treatment and in Hong Kong they prefer the term “Forgoing life-sustaining treatment (FLST)” instead of passive euthanasia. FLST is defined as withholding or withdrawing all treatments that have the potential to postpone the patient’s death and it is only appropriate when it is the wish of a mentally competent and properly informed patient or when the treatment is considered futile. The futility is determined by balancing the burdens and benefits of the treatment towards the patient and asking whether the treatment is in the best interests of the patient. The ethical principles of “nonmaleficence” (do no harm) and “beneficence” (do good) are involved. Voluntary euthanasia is the killing at the voluntary request of the patient. Non-voluntary euthanasia is when the patient killed is either not capable of making the request or has not done so. Involuntary euthanasia is defined as the killing is against the wishes of the patient and it is treated as murder. The medical and legal fields in Hong Kong, China limited the discussion of euthanasia to “voluntary active euthanasia”.
The Position of the Hong Kong Government
The Secretary for Health and Welfare explained on 26 January 2000 at the Legislative Council and he mentioned that the acts involved in euthanasia are illegal in Hong Kong by virtue of the provisions in the Offences Against the Person Ordinance (Cap 212) which provides that a person “aids, abets, counsels or procures the suicide of another to commit suicide, shall be guilty of an offence”. A person also commits the crime of murder if he unlawfully kills another person with the intent to kill or cause grievous bodily harm.
The Position of the Hong Kong Medical Council
According to the Professional Code and Conduct published by the Hong Kong Medical Council in November 2000, the Hong Kong Medical Council does not support the practice which is illegal and unethical. Where death is imminent, it is the doctor’s responsibility to take care that a patient dies with dignity and with as little suffering as possible. The rights of the terminally ill patients for adequate symptoms control should be respected. This includes problems arising from physical, emotional, social and spiritual aspects. The withholding or withdrawing of artificial life support procedures for a terminally ill patient is not euthanasia. Withholding/withdrawing life sustaining treatment taking into account the patient’s benefits, wish of the patient and family, when based upon the principle of the futility of treatment for a terminal patient, is legally acceptable and appropriate. It is important that the right of the terminally ill patients be respected. The views of his relatives should be solicited where it is impossible to ascertain the views of the patient. The decision of withholding or withdrawing life support should have sufficient participation of the patient himself, if possible, and his immediate family, who should be provided with full information relating to the circumstances and the doctor’s recommendation. In case of conflict, a patient’s right of self-determination should prevail over the wishes of his relatives. A doctor’s decision should always be guided by the best interest of the patient.
The Position of the Hospital Authority
The Hospital Authority of Hong Kong is firm in its stand against euthanasia. The authority issued “Guidelines on In-Hospital Resuscitation Decision” in July 1998. It is essentially a set of clinical guidelines to enable clinicians to arrive at a professionally and ethically sound resuscitation decision which will safeguard the best interest of the patient and clinician. It serves to give health care professionals guidance in decisions to administer or withhold cardio-pulmonary resuscitation (CPR) based on the patient’s medical conditions, the overall treatment plan; the likelihood of the patient benefiting from the resuscitation; and the patient’s expressed wishes. The attending physicians should exercise clinical judgment in the best interest of the patient. Hospital Authority guidelines in 2002 mentioned that if the patient is not mentally competent, the decision of withholding or withdrawing the life-sustaining treatment (LST) should base on the best interest of the patient and a decision on futility of LST involves consensus building between the healthcare team and the family if possible.
The Position of the Hong Kong Society of Palliative Medicine
The society opposes euthanasia and upholds the principle of palliative care. They believe palliative care should have priority over euthanasia because it has developed in Hong Kong for more than 20 years with recognized quality and impact, and yet still with gaps in coverage. They believe the government should consider accessibility to quality palliative care as a policy before discussion of legislation of euthanasia. They believe patients request euthanasia because they are afraid of a painful dying process but not death itself, they suffer from uncontrolled symptoms including pain, they perceive themselves as burden to the family, they have undiagnosed depression which is treatable and they feel hopeless as defined by “no use, no time and no cure”.
Introduction to the Advance Directive
The advance directive is classified into instructional directive (a living will) which usually comprises of instructions about what kind of life-sustaining treatments that a patient wishes to refuse when he/she becomes mentally incapacitated under some specified circumstances. It is legally bound in Hong Kong, China. A proxy directive (durable/lasting power of attorney for health care) expresses the patient’s wish to appoint another person (the so-called proxy, surrogate, or representative), usually a family member, to make health care decisions on his/her behalf when he/she becomes mentally incapacitated under some specified circumstances. A proxy directive has no legal status in Hong Kong, China at the current stage.
The Law Reform Commission of Hong Kong has recommended in 2006 that the concept of advance directive should be promoted in Hong Kong, China by non-legislative means. They also encourage “advance care planning” which is the process of communication among the patient, the family members and the healthcare team to allow improved understanding, reflection and decision making regarding end of life care. The Law Reform Commission had completed a sample advance directive and the sample was currently used by the Hospital Authority of Hong Kong. Their advance directive includes only instructional directive.
The Establishment of Awakening Research Foundation Hong Kong Limited and The Eternity Living Life Company Limited
When I was a child in Mainland China, I am good at creative thinking. I used to raise fund from the neighborhood in order to organize a small library in the local community but the plan dropped off later on because they believe I was a child and I am incapable of handling the money raised. I was less than 10-year-old at that time. I devoted to the local community and was willing to help cleaning the street of the local community. That is one of the reasons I was awarded as an outstanding student during my primary school years.
During my secondary school years (The Church of Christ in China Mong Man Wai College), I have a chance to join the library to become a librarian and worked there for many years. I had a chance to become the Secretary of the Computer Club. I also had a chance to become the Master of the class and a Vice Head Prefect of the school for controlling the disciplines of the schoolmates. My school principal encouraged me to join the Boy Scout sourced from the UK. I also had a chance to join the Edinburgh Award. I used to write the poems and was awarded by the school and had a chance to join the Putonghua recital competition organized by the Bureau of Education of Hong Kong and received an outstanding award. It is because of my outstanding academic performance during my Secondary School years I received Mong Man Wai Scholarships in 1994 and 1996.
During my University years (The University of Hong Kong), I become a member of the Publishing Committee of the Student Union magazine called Caduceus and had written some articles for the magazine. I also lead the group in carrying out a research project in Behavioral Science at my University years. I received Distinction Viva in Anatomy and Distinction in Internal Medicine term test. I am the recipient of the Digby Memorial Scholarship in 1996 and the Wong Chung Yee Memorial Scholarship in 2001 that is for the exchange study at the National University of Singapore.
When I worked in the Hong Kong Central Hospital, I was willing to initiate a clinical audit on follow-up of patients in the out patient department and also made a public presentation at the annual general meeting of the Hong Kong College of Family Physicians. I also completed my four years of basic family medicine training from 2002-2006. The clinical audit has entered the scholarship selection process organized by the American College of Family Physicians. I joined the hospital exhibition organized by the Trade Development Council of Hong Kong. I made a public presentation and answered the questions raised by the audience. While I worked for the Town Health Medical Group, I was responsible for the Health Talks delivered to the public every year from 2014-2016.
While I study at the University of Edinburgh in 2017, I was the candidate of the class representative for the Master degree in Medical Law and Ethics.
The promotion of Medical Law especially the end of life issue started in 2009. Firstly I promoted it as an individual then I established Awakening Research Foundation Hong Kong Limited in 2012. The main goal of the company is to promote medical law in Hong Kong and China especially advance directive and euthanasia. Owing to lack of funding, the company mainly promoted the relevant issues through the social media including Twitter and YouTube. The promotion is quite successful as I have more than 28,000 followers on Twitter and my videos on YouTube have more than 10,000 viewers. I have built a website so as to promote the relevant issue. I was previously named the number one influencer in Advance Directive by the website personifind.com and the only influencer in Voluntary Active Euthanasia by the same website. The accreditation website Kred.com named me as the top 10% influencer worldwide. The Awakening Research Foundation was previously the only member society of the World Federation of Right to Die Societies in Asia in 2013. I continued the relevant promotion later on and actually received help calls locally and from Taiwan and China. I had actually signed a few Advance Directive forms in Hong Kong, China but the scale is small. The company was renamed Eternity Living Life Company Limited in 2017 with the same goal. The Eternity Living Life Company Limited becomes the member society of the World Federation of Right To Die Societies in September 2017. Currently, I am a member of a local political party (Democratic Alliance for Betterment and Progress of Hong Kong). We have the discussion on my ideas to a certain degree and we are also discussing on how to promote it in Hong Kong and China (e.g. advertisement, distribution of pamphlets on the street and through post). My contemplation of Medical Law in Hong Kong received support from the former US President Barack Obama. I joined the Inaugural Obama Foundation Summit in Chicago and the Town Hall International Program in India. Owing to the continuous and outstanding performance in advance directive and euthanasia, I received Honorary Organizing for Action Fellowship and Honorary Obama Foundation Fellowship in 2017. I am currently also an endorsed and accredited mentor and tutor in advance directive and euthanasia by Obama Foundation. My excellent performance in volunteering also earned me to be nominated for the Year Volunteer Scholarship 2017 by IVHQ. The reasons President Obama supported me are due to his belief in the importance of health care system and end of life issues. There are no such issues in China and it is even rare in Asia. He appreciated my continuous and outstanding performance in this respect in Asia.
The Awakening Research Foundation also completed a document known as ‘My Advance Directive’ for the purpose of advance directive promotion and it includes both instructional directive and proxy directive. With the introduction of President Obama, I also signed the Advance Directive forms for overseas citizens and, of course, these Advance Directive forms are only legally bound in Hong Kong. I formally received a positive feedback from the overseas funding organization in 2017.
The Legislative Proposal on the Voluntary Active Euthanasia
The doctor must be convinced himself that the patient made his request for termination of life after careful consideration and has voluntarily adhered to it.
The doctor must be convinced himself that the person concerned is unbearably suffering.
The doctor must judge that on the basis of the facts known to him termination of life is responsible, because together with the patient he has reached the conclusion and there are no other solutions for the situation of necessity in which the patient finds himself.
The doctor must consult a doctor appointed by the government or an independent doctor.
The doctor must make sure the patient’s decision was not influenced by a mental illness or disorder, then at least one psychiatrist must have been consulted with regard to the question whether that is the case of and, if so, whether the influence is predominant.
The doctor must ensure that a good report is made of the decision making and administration.
The doctor who fails to consult an independent doctor before terminating the patient’s life is liable to a term of imprisonment not more than three years or a fine.
The doctor who intentionally fails to comply with the duty imposed by pursuant to law to report a death, or who does so untruthfully, is liable to a term of imprisonment of not more than three years or a fine.
The doctor shall without delay send a truthful statement concerning the death to the coroner, pursuant to a form provided by the government.
The patient must be informed with respect to his situation.
The patient’s right of making a written request for termination of life in advance before he/she is no longer capable of expressing his/her will must be respected provided that the written request was made after careful consideration and voluntarily.
The patient’s request for termination of life must be made voluntarily and after careful consideration.
For patients aged from 14 to 18, a legal representative must be included in the decision making. If these persons or one of them cannot agree with the request for termination of life, no such decision shall be made.
Fear of mental or physical deterioration that has become inescapable and imminent can suffice as the basis for a well-considered request to make the means for achieving a humane death available.
A person who intentionally terminates the life of another person, who is not able to express his will, because of severe physical or mental illness or disorder, is liable to a term of imprisonment of not more than six years or a fine.
A person who intentionally terminates the life of another person at that other person’s express and earnest request is liable to a term of imprisonment of not more than four and a half years or a fine.
A person who intentionally incites another to commit suicide is liable, if the suicide ensues, to a term of imprisonment of not more than twelve years or a fine.
A person who intentionally assists in the suicide of another or procures for that other person the means to commit suicide is liable, if the suicide ensues, to a term of imprisonment of not more than four years or a fine.
The act is not punishable if the termination of life was performed by a doctor in the context of careful medical practice on a patient who, according to prevailing medical opinion, has permanently lost consciousness and after treatment has been stopped because it was futile.
The act is not punishable if the termination of life is performed by a doctor in the context of careful medical practice on a patient who is in a situation of hopeless necessity or at the express and earnest request of a person who is suffering unbearably.
The termination of life includes furnishing the means for suicide and assisting therein, in the context of careful medical practice.
The Legislation Policy on the Advance Directive
The proposed law requires hospitals and other providers (including psychiatric hospitals and other mental health providers) to maintain written policies and procedures with respect to advance directives.
Typically under the proposed law, individuals have the right to:
The proposed law does not require individuals to complete any form of advance directive and it expressively forbids requiring an advance directive as a requisite for treatment.
Who must Comply with This Law
Certain provider entities must comply with the law in order to receive coverage payment from the Hong Kong government. However, the requirements of the law apply for all individuals in these facilities (or treated through these providers). Provider entities covered under the law are:
Department of Health;
Doctors in Nursing Homes, Group practice or those who are in solo or partnership practice;
Traditional Chinese Medicine Practitioners;
Other paramedical health care personnel including nurses, chiropractors, physiotherapists or occupational therapists etc.
What Hospitals and Other Institutions Must Do
The proposed law requires that these entities meet certain requirements in order to be paid under the government subsided programs. The entity must:
Maintain written policies and follow certain procedures with respect to advance directives;
Document in the patient’s medical record whether or not the patient has executed an advance directive (including psychiatric advance directive);
Comply with the proposed laws regarding advance directives (this includes complying with any law on psychiatric advance directives);
Not condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive. This does not mean, however, that a provider is required to provide care that conflicts with an advance directive;
Inform the individual that complaints concerning implementation of these advance directive requirements may be filed with government agency that surveys and certifies government subsided programs;
Provide staff and community education on issues related to advance directives.
How Does This Law Apply to Mental Health
Individuals with mental illness have equal rights under this law with other users of health care. They may establish an advance directive for health care (generally this is used for end of life care), or establish a health care agent for health care.
In addition, this law can be used to establish an advance directive for mental health care, to be used in the event the person becomes incapacitated, and/or to appoint an agent for mental health care. Individuals with mental illness are empowered to make advance decisions concerning their health care needs when they are incapacitated.
It is possible under this law and most Hong Kong laws to combine advance health care decision making and advance mental health care decision making in one document and to appoint a single health care agent to address both health and mental health care issues. It is also possible to use the proposed law to establish separate advance directives for health and for mental health care and to have two different agents (one for health and one for mental health).
Information for Clients
Adult clients must be provided, under the terms defined by the proposed law, with written information:
When Providers Can Refuse to Follow an Advance Directive
If permitted under proposed law, providers can refuse to implement provisions of an advance directive, based on conscience objections. The facility must make clear when instructions of an advance directive would not be followed due to a conscience objection and:
Provide a clear and precise statement of limitations if the provider cannot implement the advance directive based on conscience;
Clarify any differences between institution wide conscience objection and those that may be raised by individual physicians;
Identify the government legal authority permitting a conscience objection;
Describe the range of medical conditions or procedures affected by the conscience objection.
This means that it is possible that a specific treatment or specific medication a consumer lists on their advance directive as being the treatment they prefer may be denied them if the provider, in good conscience, does not feel he/she can authorize it.
Individuals Who Are Incapacitated
When individuals are incapacitated and unable to receive information due to a mental disorder or an incapacitated condition, or if they are unable to articulate whether or not they have an advance directive, the provider may give the information to the family or surrogate instead. However, the information must be given to the individual directly once he/she is no longer incapacitated.
When Must Institutions Provide Information on Their Policies
Under the law and implementing regulations, health care providers must provide the required information to individuals at the time of admission. In the case of managed care health plans, the required information must be provided at the time of enrollment. In the case of hospice programs, information must be provided at the time of initial receipt of care and in the case of home health care or personal care providers, in advance of the individual receiving care.
The institutions must provide community education regarding advance directives, either directly or in concert with other providers. The education must define an advance directive, emphasize that it is designed to enhance an incapacitated individual’s control over medical treatment and describe applicable law on advance directives.
The same written materials do not have to be provided in all settings, but all must define an advance directive, emphasize that it is to enhance an incapacitated individual’s control over medical treatment and describe applicable law.
The government required to conduct a public education campaign about advance directives, provide technical assistance, oversee provider compliance and provide information on advance directives.
Individuals may file complaints concerning the advance directive requirements with the government. The institutions and other providers must inform clients that they have this right.
Physician Assisted Suicide and the Peaceful Pill
Suicide and Depression
Feelings of sadness are a normal response to a diagnosis of a serious illness. Severe depressive states can rob a person of the ability to make rational decisions, yet illness of this severity is not common and needs to be distinguished from a larger group of people who show occasional signs of depression but who are in full control of their actions. There is a significant difference between a person having moments of feeling down or having a transitory feeling that their life has lost purpose and the person who has severe clinical depression. A decision to end one’s life can be rational.
End of Life Decision and the Role of Palliative Care
To date, palliative care has been most successful in the treatment of pain. What is much less spoken about is the specialty’s limited ability to alleviate some other common symptoms of serious disease; such as weakness, breathlessness or nausea or quite simply to guarantee a good death. A modern civilized society needs the best palliative care and voluntary euthanasia/assisted suicide.
Physician-assisted Suicide and the World
Physician-assisted suicide describes when a medical professional might prescribe, but not administer, a lethal drug to a patient. An example is the US States of Oregon and Washington. In Switzerland the provision of lethal drugs to people who are suffering has long been decriminalized. In Australia, the penalty range from 5 years to life imprisonment depending upon jurisdiction. The Northern Territory has the Rights of the Terminally Ill Act 1995 but the patient had to be ‘terminally ill’ and had to satisfy a number of other strict criteria. It was effectively nullified in 1997 by the Federal Parliament. In the US, it is legal in States of Oregon, Washington and Montana. To make use of Oregon or Washington’s Death with Dignity laws, a person must be residents of that state and be able to prove this with suitable documents. In the Netherlands, the Termination of Life on Request and Assisted Suicide Act 2002 allows euthanasia but with strict residential requirements. This effectively restricts the use of this euthanasia law to Dutch citizens. This also happens to be the case of Belgium and Luxemburg which legalize euthanasia in 2002 and 2009 respectively. In Switzerland, assisted suicide is allowed by law since the 1940s as long as the person providing the assistance has no selfish motive. Importantly, the person receiving the assistance does not need to be a Swiss citizen. But voluntary euthanasia remains illegal in Switzerland. The most well known organization helping foreigners is the Dignitas which was established by Ludwig Minelli in 1998.
Peaceful Pill is defined as a pill or drink that provides a peaceful, pain-free death at a time of a person’s individual choosing; a pill that is orally ingested and available to ‘most’ people. The late Dutch Supreme Court Judge Huib Drion called for introduction of a pill to end life at one’s own discretion which could alleviate some of their anxiety. It is not a pill for now, but for the unforeseeable future so that the end can be humane. It is so-called ‘Drion Pill’. The best Peaceful Pill is pentobarbital (Nembutal) which is firstly introduced as a sleeping pill but later removed from the market due to death caused by overdose. Most of the respondents (average age 72 years) prefer to take a pill than other methods. Currently available methods of physician-assisted suicide includes the plastic bag filled with insert gas such as helium resulting in hypoxic death, carbon monoxide inhalation, ingestion of cyanide compounds, detergent death, and drugs such as morphine, propoxyphene, tricyclic antidepressants, insulin, and Nembutal.
From Health Care System to Medical Law in Hong Kong
Every year billions of dollars from the government’s annual budget were spent in the health care sector of Hong Kong. But still we need to queue up for the health care services in the public sector because of the ‘cheap’ prices or we can choose to spend a ‘fortune’ to use the exceedingly fast private sector services especially the private hospitals. What choices do we have if we are the middle-class citizens who work diligently to sustain our family and just prefer a higher quality of medical care when we are sick once in a while? Self financed medical care seems to be the only option. Hopefully there will be some changes when the government implements the health care reform later.
When we talk about the public health care sector we are basically talking about the Hospital Authority because over 90% of the government’s annual budget in health care will be transferred to their account automatically. The ivory tower employs thousands of doctors and paramedical personnel and is almost the sole organization responsible for training doctors (of course in junction with the Hong Kong Academy of Medicine) and paramedics in Hong Kong. Once you left the ivory tower, again you don’t have much options in private sector. You either join a medical group or a private hospital as an employee or you start your own practice with high risk due to the difficulty in securing proper amount of your own ‘fans’. Why? You can try to count the number of clinics on a main street in Hong Kong while you are having your window shopping. The competition is so keen that the general practitioners keep using what I call the ‘miracle’ drugs (which mean steroids) for treating your cough and runny nose. It is definitely very helpful because it treats all the inflammatory conditions. But you are reserving a seat in the Hong Kong Medical Council’s hearing at the same time. Alright, you will get a seat in the Hong Kong Medical Council’s hearing for the teeny weeny mistake you committed but who is going after the big ivory towers like the Hospital Authority, the Academy, the Universities, and those big medical groups or private hospitals? The government or the press? Any formal regulations? The answer is ‘NO’. They will regulate themselves because the ‘MEDICINE’ is so specialized that even you are highly educated you may not understand the medical details not to mention the complicated medical administration. Some of you may say I can always sue the relevant authorities but don’t forget even the solicitors or the barristers you are hiring do not understand ‘MEDICINE’ and they will always seek help from the medical experts. Again, you are going backwards because you seek help from the people who work on the same subject ‘MEDICINE’. Do you think they will pick up a stone and throw it on their own feet? The answer is ‘NO’ again. I do believe these had already come to the attention of some senior government officials and they are probably searching for a person who can understand both medicine and law. ‘Are you talking about medical legal advisers and solicitors practicing medical law from the medical indemnity organization?’ NO, what we need is a barrister with sound medical background and connection!
The Barrister at Law who practices medical law
The Barrister at Law who practices medical law. What a wonderful position if it becomes the truth! Currently, we do have some barristers who have medical background but does it mean that they are practicing medical law? It’s not as simple as that. Actually, all of them practice law but not medical law. Almost all medical law cases go to the medical indemnity organization because almost all doctors in Hong Kong are under the their coverage. When the organization receives a ‘help’ call from the local medical doctors, they will send the cases to the relevant law firms. They will liaise with the medical experts and the lawyers to deal with the cases. They play a middle man role. They rely on the opinions from the medical experts. Basically, medical experts defend for the doctors and the barristers and solicitors deal with the legal procedures only. They play the division of labor. You are correct. We are talking about medical negligent cases. Whenever patients have disputes with the medical practitioners, of course they can sit down and discuss frankly with each other and try to conciliate the case. But the reality is that people tend to make the complaints directly to the medical council or the relevant governing councils of the health care professionals such as dental council. The cases will go through the preliminary investigation and then a formal hearing if necessary. The majority of the Board members of the medical council are medical practitioners and definitely they will handle the cases from a medical practitioner’s point of view and tend to stand on the doctor’s side subconsciously. Is it much better if the cases are properly dealt with by the Barrister practicing medical law? Isn’t it much fair for both the doctors and patients? There is no formal regulation of the major medical organizations like the Hospital Authority and the relevant professional colleges. The ivory tower like the Hospital Authority is self regulatory and reports directly to the government only. Most of the time they solve the disputes by setting up an investigation committee with members appointed according to their own will. Most of the time the investigation ends up with a series of suggestions and recommendations which are not necessarily adopted by the relevant authorities because they are not legally bound. People tend to minimize the impact of medical incidences. The setting up of investigation committee is one way to escape from the heavy criticism of the society. It is not useful in improving the standard of health care. The only way to improve the situation is to enforce the changes as suggested by judges in court because the judgment made by the court overrides everything and represents the spirit of justice. Also, this is the spirit of the Common Law or we should say the Basic Law.