CRPD.C.CHN.Q.1.Add.1_en (1).doc

44 in common law the best interests of a patient is

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person concerned. 4.4 In common law, the best interests of a patient is determined on similar principles to the welfare of a child. The next of kin has no legal right either to consent or to refuse consent of treatment. The doctors must act in accordance with a responsible and competent body of professional opinion. 4.5 According to the Code of Professional Conduct for the Guidance of Registered Medical Practitioners of the Hong Kong Medical Council, January 2009 (mentioned in paragraphs 15.5 and 17.6 of the Report), withholding or withdrawing life-sustaining treatment after taking into account the patient's benefits, wishes of the patient and family, and the principle of futility of treatment for a terminal patient, is legally acceptable and appropriate. A doctor's decision should always be guided by the best interests of the patient. Doctors should exercise careful clinical judgment and whenever there is disagreement between doctor and patient or between doctor and relatives, the matter should be referred to the ethics committee of the hospital concerned or relevant authority for advice. In case of further doubt, direction from the court may be sought as necessary. 4.6 For those without the mental capacity to make a decision (i.e. those who are terminally ill, in a state of irreversible coma or in a persistent vegetative state), it is ultimately a clinical decision to be made by the healthcare professionals as to whether life-sustaining treatment for the patient should be withdrawn or withheld based on the best interests of the patient. A declaration about the lawfulness of withdrawal or withholding of life-sustaining treatment is often sought from the court when a clinical decision has been made that it is in the best interests of patient that life- sustaining treatment should be discontinued. 4.7 In the case of child patients who are persons with disabilities, according to case law a child who has sufficient maturity and 45
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understanding to make a competent decision about the issue can effectively consent to treatment ( Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112). If the child refuses, the parents can still consent. Even if the child and the parents refuse to consent to treatment, the court can still authorise it. While the courts accord great respect to parental wishes, and they are usually put into the balancing exercise, parental wishes never prevail over the best interests of the child. 4.8 There are no reported cases in Hong Kong which deal with withdrawal of medical treatment of a child. However, there have been cases where the court in wardship has authorized medical treatment of a child despite refusal of the parents to give consent. In Director of Social Welfare v Tam and Chan [1987] HKLR 66 (CA), the court held that a child with spina bifida and hydrocephala, and meningitis (although not in danger of death) should have an operation to improve its chances in the future for a reasonably normal life. The parents' refusal of consent to the operation was therefore overridden. In
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