When mentally ill patients in Macau lack the capacity to make healthcare decisions, and their health rights eventually come to be exercised by legally appointed tutors, the decisions made may not be in the true interest of these patients. We need to change the law.
If you live in Macau, be aware that the mental healthcare decisions doctors make will depend on what the legal tutors say, if you lack the capacity to make your own healthcare decisions.
But do those tutors’ decisions reflect what you would want for yourself?
Probably not.
For this reason, many countries have laws that take into account the binding nature of prior will.
Man Teng Iong, former legal advisor to Macau Health Services and PhD student at Portugal’s Universidade do Minho School of Law, is committed to help change the situation.
In 2017 he published a book in Portuguese on the issue (“Directivas Antecipadas de Vontade – Um Regime Existente em Macau?”), and now a scientific paper has been published in the Medicine and Law journal, which directly challenges the members of the Macau Legislative Assembly.
“Please Allow True Self-Decision Under Macau Law” seeks to call attention to this problem. “I intentionally put the word ‘please’ in the title because I want to plead with Macau legislators for legislation on the binding nature of prior will, instead of its non-binding nature that has been applied in Macau for many years,” he explained to Macau Business. “I just want Macau legislators to hear my voice and understand why I have been insisting on legislation for the binding nature of prior will.”
Wrong Decision By Tutors
According to Macau’s mental health law (1999), mentally ill patients have a right to accept or refuse diagnostic and/or therapeutic intervention, except – as Mr. Iong points out – “in cases of compulsory hospitalization or in emergency situations where non-intervention is likely to create serious risks to patients or to others.”
The problem arises when these patients lack the capacity to make healthcare decisions for themselves, and as a result, their health rights are eventually exercised by legally appointed tutors.
According to mental health law in Macau, the legal representatives should be tutors prioritized in the following order: spouses of interdicts, persons designated by their parents or progenitors who exercise paternal authority, progenitors of interdicts, their adult sons appointed by court, and persons of marriage in fact.
“Numerous factors can affect the communication and relationship between tutor and patient and can result in outcomes not desired by the patient,” wrote the author.
Man Teng Iong warns of the “potential risk of tutors making the wrong decision, against the true will of mentally ill patients, who would not make the same decision when capable.” In the paper published last year, Mr. Iong expressed concern about “decisions made by tutors that may not fully express the true will of mentally ill patients” that would entail “a significant impact on self-decisions and a reduction of autonomy.”
Health Bureau Began a Discussion
Iong, a senior instructor at the University of Macau’s School of Law, understands that “the only way to let people with serious mental disorders (interdicts) make a true self-decision is to make a prior will, similar to an advance directive, before they lose their decision-making capacity.”
That’s why Mr. Iong proposes introducing the binding nature of prior will, as prevails in Portuguese law. “As we know, Macau follows the legal culture of Portugal, although with some differences. However, in contrast to Macau’s legal situation, Portugal has recognized the binding nature of prior will since 2012 by passing the Law of Advance Directives. It is a great step forward for the enhancement of patient autonomy,” he told Macau Business.
It means new legislation for the binding nature of prior will.
“I think in this moment the most important thing to do in Macau is not only to let Macau legislators know the importance of the binding nature of prior will, but also to let Macau residents recognize its importance and learn how to make a true self-decision for medical treatments. To enhance autonomy, it is not enough for one side to make an effort. We need the efforts of both sides,” he explained. “I was very happy to see that on December 3rd, 2019, the Health Bureau began a discussion on Advance Directives and agreed to the future legislation thereof. It is a positive step toward increasing patient autonomy in the future. In my opinion, the Health Bureau needs to start creating conditions (for example, public consultations or promotions by poster) to let local residents know what this model is and what its advantages are.”
Man Teng Iong adds that he welcomes “all comments and feedback regarding my investigations, not only from Health Services and the Legislative Assembly.”
Not in China or HK; Singapore as a Model
Hong Kong also lacks legislation regarding prior will or Advance Directives, “but that does not equate to a prohibition of these models in the region. In recent years, we have seen that the Hong Kong government has made a great effort to promote Advance Directives,” said Man Teng Iong. The best example is the issuing of “Guidance for HA [Hospital Authority] Clinicians on Advance Directives in Adults” in 2010, which was updated in 2014 and again in 2016. In 2019, public consultation on Advance Directives began.
In China, “we also cannot find any legislation about prior will or Advance Directives. Even so, China has made some efforts on this model.” Those efforts include the creation of a website, Choice and Dignity, “in order to help people make their living will online.”
The main difference between Macau and China in the ambit of Advance Directives is that ”when doctors in Macau should take into account a patient’s prior will, doctors in China can make a healthcare decision according to the opinions of a patient’s family without considering Advance Directives.”
In Singapore, the Advance Medical Directives Act was passed by Parliament in 1996. Therefore, “Singapore is the earliest one, compared with other Asian regions and countries, to legally recognize the use of Advance Directives.”
Mr. Iong emphasizes that, “[In Singapore] we can find many resources about this model, including papers, legal opinions and news, which can be considered valuable references for future legislation in Macau.”
