LC Paper No. LS 70/98-99
Special Meeting of the Panel on Health
to be held on 23 November 1998
At the last meeting of the Panel on 9 November 1998. Members raised various points relating to the consent provisions contained in section 5(4) and (5) of the Human Organ Transplant Ordinance (Cap. 465) ("the Ordinance"). The provisions relating to transplant in the Ordinance only came into operation on 1 April 1998. This is a new area of law and there is no directly related judicial decisions. There are, however, decided cases in UK on the requirement of and the giving of consent which might be of assistance to Members when considering this issue.
Common law on consent to medical treatment
2. The law on consent to medical treatment is summarized by the UK Court of Appeal in Re T (Adult: Refusal of Medical Treatment)  4 All ER 649 as follows:-
"The law requires that an adult patient who is mentally and physically capable of exercising a choice must consent if medical treatment of him is to be lawful, although the consent need not be in writing and may sometimes be inferred from the patient's conduct in the context of the surrounding circumstances. Treating him without his consent or despite a refusal of consent will constitute the civil wrong of trespass to the person and may constitute a crime. If, however, the patient has made no choice and, when the need for treatment arises, is in no position to make one, e.g. the classic emergency situation with an unconscious patient, the practitioner can lawfully treat the patient in accordance with his clinical judgment of what is in the patient's best interest.
There seems to be a view in the medical profession that in such emergency circumstances the next of kin should be asked to consent on behalf of the patient and that, if possible, treatment should be postponed until that consent has been obtained. This is a misconception because the next of kin has no legal right either to consent or to refuse consent. .........."
3. In essence, the common law principle is that an adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered. This right is absolute even to the extent that a refusal might risk permanent injury to his health or even lead to premature death. The court has neither the jurisdiction to give consent to medical treatment on behalf of patients who are unable to give consent nor to appoint some other person to give it.
4. In emergency cases and the patient is unconscious, a doctor may under the common law lawfully operate upon or give other treatment to adult patients who are incapable of consenting, provided that the operation or treatment is in the best interests of such patients. Treatment will be in their best interests if it is carried out in order to save their lives or to ensure an improvement or prevent deterioration in their physical or mental health. The test of what would be appropriate treatment is whether the doctor has acted in accordance with a practice accepted at the time by a responsible body of medical opinion skilled in the particular form of treatment in question.
5. Although not necessary as a matter of law, it is desirable to apply for a court declaration that the proposed treatment is lawful as it is in the best interests of the patient before giving treatment without consent. Such a declaration is not necessary, but is highly desirable in certain cases, such as the patient subsequently sues the doctor for trespass to the person.
The requirements of consent in the Human Organ Transplant Ordinance
6. The Human Organ Transplant Ordinance provides that for transplants between living persons who are not genetically related, written approval of the Human Organ Transplant Board is required. It is an offence for a medical practitioner to remove an organ from a living person or transplant it into a living person who is not genetically related without such approval.
7. The Ordinance provides that the Board has to be satisfied certain conditions before giving its approval. One of those conditions relates to consent of the recipient. Section 5(4)(c) provides that before giving approval the Board has to be satisfied that a registered medical practitioner (not the medical practitioner removing or transplanting the organ) has explained to the donor and the recipient, and each has understood the procedure, the risk involved and his entitlement to withdraw consent at any time. Also, the Board has to ensure that the donor and the recipient have each been interviewed separately by a suitably qualified person who would report to the Board on the donor's and recipient's understanding that, inter alia, they could withdraw consent at any time (s. 5(5)).
Practical problems in enforcing the requirements for consent
8. If the recipient is unconscious, there would be practical difficulties in fulfilling the two above requirements because the medical practitioner cannot explain, and the recipient cannot be considered as understand, the entitlement to withdraw consent at any time etc. Also, the suitably qualified person cannot conduct any interview with the recipient, not to say to make a report to the Board on his understanding of the entitlement. According to the plain wording of section (4) and (5), it would seem that the Board could only give its approval when all the conditions prescribed therein are met.
9. The question is, given the common law discretion of the doctor when the patient could not give consent, could the Board exercise a similar discretion to approve without the prescribed consent. The Hong Kong Medical Association ("HKMA"), in its submission, has apparently suggested that the Board may exercise such a discretion if there is medical evidence that the procedure is in the best interests of the patient and in accordance with acceptable medical opinion. In my view, the wording of section 5(4) is so clear that would be hard to argue that such a discretion could be inferred. At any rate the discretion at common law is with the medical practitioner, not with the Board. It could be argued that an option to satisfy the consent required in section 5(4)(c) is to substitute it by a court declaration. The argument would be that the provision essentially safeguards an informed consent, which is the same as consent to other forms of medical treatment. The validity of this argument is not yet tested in the court. If such a flexibility is deemed desirable, the safer option is to state the flexibility in the Ordinance.
10. The next question is, could the a medical practitioner perform the transplant given his common law discretion in an emergency. Also, could the medical practitioner or the hospital authorities apply for a court declaration to make the transplant lawful. Arguably, if the transplant is a form of treatment, the medical practitioner might have the discretion. His position is even better if he obtained a court declaration. On this point, the HKMA has apparently suggested that the common law discretion of a medical practitioner may resolve the problem when the patient is unconscious and unable to give consent. However, it should be noted that the common law discretion only protects the medical practitioner from civil liability, such as when the patient subsequently sues for trespass to the person. In view of the offence under section 5(1), if the Board could not give the approval because the statutory conditions are not met in total, a medical practitioner who performs a transplant without approval would have technically committed an offence.
11. Members have also asked whether a mentally incapacitated person could give a valid consent. In law, the degree of capacity required to consent to medical treatment is the capacity to understand in broad terms the nature and effect of the treatment proposed. It is a matter of fact whether a particular mentally incapacitated person has the required capacity. If he does not, he cannot give a valid consent. In the general situation of consent to medical treatment, a declaration from the court would suffice the requisite consent. Again, it is not clear whether a declaration from the court may satisfy the consent requirements in section 5(4) and (5).
Senior Assistant Legal Adviser
Legislative Council Secretariat
20 November 1998