Health Care Providers should understand
their given legal power in treating mentally incapacitated

(Keywords: mentally incapacitated, defensive medicine, consent, patient-doctor relationship)

          It has always been the honourable practice of the medical profession from the days of Hippocrates to put the patients' interest before their own.

          Without hesitation, many doctors would perform an operation or a treatment procedure on a patient in life saving condition without any consent. This they do with the clear conscience of "in the best interest of the patient", yet not without risk and in the absence of any legal protection.

          In the same light, doctors would treat a mentally incapacitated adult with no consent or when no guardians could be contacted.

          Thus when the Mental Health (Amendment) Bill was passed in mid-1997, it was met with jubilation by the medical and dental profession alike. This law empowers doctors and dentists to administer treatment on a mentally incapacitated adult without consent in emergency or when it is necessary in the best interest of the mentally incapacitated. It also empowers the health care providers to apply to the High Court for administering such treatment when the relevant guardian refused to give consent.

          The recent revelation that there have been cases of doctors refusing to treat mentally incapacitated patients without consent thus raise a few areas of concern. Are the health care professionals unaware of the law? Are doctors, having been given the encompassing power to exercise his knowledge and skill in the best interest of the patients, not making good use of it? And, are the health care professionals retracting themselves to practise "defensive medicine"?

          When the said bill was passed into law in 1997, legislators have called for wide publicity of these new provisions to ensure that all health care professionals, social workers and guardians of mentally incapacitated persons understand their legal obligation and protection.

          How much publicity has been done in the ensuing years is not known, suffice it to say that many health care and social welfare professionals are unaware of it.

          The Administration should, therefore, reverse this ignorance without delay. At the same time, hot lines could be set up in public hospitals for staff to consult on uncertain situations.

          The health care profession, having understood the law, should exhibit their best to treasure the power and trust that the public has empowered on them not only by positively taking the responsibility at the right moment, but also by vigilantly demonstrating that they will exercise their power with the greatest of concern.

          Are our doctors and dentists tilting towards practising "defensive medicine"?

          It may be ironic to note that "defensive medicine" has been practised in a big way in the United States where health care cost is the highest worldwide, and where medical litigation is instigated at the "drop of the hat". In that country where lawyers make their debuts chasing ambulances, patients could be buried in the documents they have to sign before some doctors are willing to administer treatment for only one reason -- to try to stay out of trouble, though aiming to do their best to their patients.

          Such unnecessary over-swing of the pendulum has not, and hopefully will never, come to Hong Kong.

          The crux of the matter lies in the up-keeping of the time honoured patient-doctor relationship -- a relationship built on partnership, understanding, trust and respect. It has to be remembered that whilst medicine is a science, the practice of medicine is an art for which no doctor can guarantee a complete success.

          It is up to the health care provider to show his patients that he has given his utmost attention and care. Yet, it is also up to the patients to exhibit his trust to the provider. The win-win situation for all parties concerned must be when the patients get well!

(Hongkong Standard)