Consultation Paper on Bioethics - Law Reform Commission

person making the advance care directive. 42 It argued that requiring a medical
practitioner to act as a witness would serve a number of purposes. The medical
practitioner would be able to assess whether the individual was competent at
the time of making the advance care directive and explain the nature and
implications of making the advance care directive to the maker. It argued that
consistency of practice by witnessing doctors could best be achieved by the
Medical Council issuing guidelines.
(b) Heirs and relatives
4.31 The rationale for disqualifying heirs and relatives is to guard against
duress and coercion, and appears to be borrowed from the law of wills. 43 An
individual who takes under the will cannot be regarded as an impartial witness
to attest to the circumstances surrounding the execution of the will. However,
the difficulty with excluding heirs and relatives from acting as witnesses is that
they are likely to be the individuals most familiar with the maker‟s wishes and
values and “most likely to advocate honestly on his behalf.” 44
(2) Conclusion
4.32 While reluctant to impose a list of requirements to satisfy before a
written advance care directive is valid, the Commission provisionally
recommends that a written advance care directive which refuses life-sustaining
medical treatment must be witnessed by at least one person. At first glance a
medical professional would be suited for this role as they are in a position to
explain the implications of an advance care directive. To impose such a duty,
however, would be an undue burden upon the doctor.
4.33 The Commission provisionally recommends that only a written
advance care directive which refuses life-sustaining medical treatment must be
witnessed by at least one person.
42 Hong Kong Law Reform Commission Report on Substitute Decision-Making and
Advance Directives in Relation to Medical Treatment at 170-172.
43 For example, in Ireland, under section 82(1) of the Succession Act 1965, if a
witness attests the execution of a will and any devise, bequest, estate, interest,
gift or appointment of or affecting any property is given or made by the will to that
person or his spouse, that gift, so far as it concerns the witness or his spouse,
shall be null and void.
44 Kusmin “Swing Low, Sweet Chariot: Abandoning the Disinterested Witness
Requirement for Advance Directives” (2006) 32 American Journal of Law,
Medicine & Ethics 93 at 107.
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