PRACTICE DIRECTION 40
APPLICATIONS UNDER THE ADVANCE DECISION ON
LIFE-SUSTAINING TREATMENT ORDINANCE (CAP. 651)
A. GENERAL
1. This Practice Direction governs the conduct of applications made to the Court of First Instance (“the Court”) under section 21 of the Advance Decision on Life-sustaining Treatment Ordinance (Cap. 651) (“the Ordinance”) in relation to an advance medical directive made by a person (“the Maker”).
B. MODE OF APPLICATION
2. An application made under section 21 of the Ordinance should be commenced by:
(a) Originating Summons – general form (Form No. 8) if it is made inter partes; or
(b) ex parte Originating Summons (Form No. 11) if it is made ex parte.
3. The claim nature must be clearly identified as “non-monetary claim” and “Declaration under the Advance Decision on Life-sustaining Treatment Ordinance (Cap. 651)” at the top of the front page of the Originating Summons.
4. The application must be supported by an affidavit.
C. AFFIDAVIT EVIDENCE
5. An affidavit in support of the application should set out all relevant matters, including:
(a) where no leave to make the application is required, the category of plaintiff under section 21(3) of the Ordinance relied upon;
(b) where leave to make the application is required, the factual matters relevant to the consideration of the factors under section 21(6) of the Ordinance;
(c) whether a declaration under section 21(1) of the Ordinance had previously been made by the Court in respect of the matter; if so, the factual matters as required under section 21(8) of the Ordinance, such that the present application may be made in respect of that matter, despite the previous declaration;
(d) an explanation of why the specific order sought is required;
(e) the nature of the dispute;
(f) the key persons involved in the case and the nature of their involvement;
(g) evidence that the key persons have been consulted;
(h) insofar as the application is made under section 21(1)(a) of the Ordinance, matters which are relevant by virtue of sections 8 to 12 of the Ordinance;
(i) insofar as the application is made under section 21(1)(b) of the Ordinance, matters which are relevant by virtue of section(s) 16 and/or 17 of the Ordinance; and
(j) the steps taken pursuant to paragraph 6 below.
D. PARTIES TO PROCEEDINGS
6. The plaintiff must take all necessary steps to identify all potential defendants and interested parties to the proceedings.
7. If the organisation which is, or will be, responsible for providing medical care to the Maker is not the plaintiff, it should be named as a defendant in the Originating Summons.
8. The Maker should normally be joined as a defendant.
9. Other persons with sufficient interest may apply to be joined as parties to the proceedings. Such an application should be made by summons supported by an affidavit which should set out:
(a) the full name and address of the person seeking to be joined as a party to the proceedings;
(b) such person’s interest in the proceedings;
(c) whether such person proposes that an order different from that claimed in the originating summons should be made, and if so, what that order is; and
(d) an address for service, which must be within the jurisdiction of Hong Kong.
E. SERVICE
Inter partes application
10. The application together with the affidavit in support ought to be served on the Maker, all defendants and interested parties to the proceedings. An affidavit of service should be filed setting out the mode of service and why the deponent is of the view that all relevant parties have been served.
11. If the Maker is in such a state that personal service on him / her would be ineffectual, substituted service (e.g. on the person in charge of the institution having the care of the Maker) would be considered.
12. The application should be served on the Official Solicitor, who shall consider whether he / she should be appointed as a guardian ad litem of the Maker.
13. If service out of jurisdiction is required, prompt action should be taken to apply for leave to do so. If the circumstances of the case require any application for leave to be urgently decided, the supporting affidavit for leave should set out those circumstances, and the plaintiff should also draw the Registrar’s attention to the application by way of letter once the affidavit has been filed.
Ex parte application
14. Even though the Maker is not a defendant to the application, the application should be served on him / her personally. The above provision on substituted service is applicable.
15. The application must also be served on the Official Solicitor, who shall consider whether he / she should take any step in protecting the interest of the Maker.
F. FIRST DIRECTIONS HEARING
16. Unless the matter is one which needs to be disposed of urgently, the Court will list it for a first directions hearing before a Judge within 28 days after the commencement of the action. At the hearing, among other things, the following may be considered:
(a) whether the Official Solicitor or some other person should be invited to act as a guardian ad litem;
(b) whether all interested parties have been joined; and
(c) a timetable for the proceedings, and where possible, the date for the substantive hearing.
G. EX PARTE applications
17. The plaintiff must set out by affidavit the reason why the application needs to be made ex parte.
18. If an application is made ex parte, it must be made on notice to the Official Solicitor.
H. URGENT APPLICATIONS
19. If an urgent application needs to be made, the plaintiff should, after filing an Originating Summons and obtaining a case number from the High Court Registry, contact the Clerk of Court who will direct the plaintiff to a Judge who is free to hear the application. This applies during the opening hours of the Registry (9 a.m. to 1 p.m.; 2 p.m. to 5 p.m.; Mondays to Fridays).
20. Outside of the opening hours of the High Court Registry, the Duty Judge should be approached in the usual way. The Duty Judge may either deal with the matter personally or otherwise refer the matter to another Judge as he / she sees fit.
21. The plaintiff must set out by affidavit:
(a) an explanation of why the case is urgent and what the consequences will be if the case is not treated as urgent; and
(b) whether there is any specific deadline.
22. A hearing bundle containing the following should be made available to the Clerk of Court when the plaintiff requests an urgent application:
(a) the Originating Summons;
(b) the affidavit in support of the application and an affidavit of service (if applicable); and
(c) a draft Order.
23. The application should be accompanied by a skeleton argument (with a list of authorities where applicable) setting out precisely and succinctly how it is said that the case meets the requirements for the Order sought.
I. COMMENCEMENT DATE
24. This Practice Direction shall come into effect on 31 July 2026.
Dated this 29th day of June 2026.
| (Andrew Cheung) | |
| Chief Justice |