The law presumes that all persons are capable of guiding their own day-to-day lives, but the presence of various types and degrees of mental disability or mental incapacity can call this capability into question. When competency is convincingly demonstrated to be impaired, to the extent that decision-making requires input, persistent guidance, or outright control by some external entity, the civil courts might elect at that juncture to impose some form of “substituted judgment.” Substituted judgment undertakes to address three broad and potentially overlapping decision-making domains, described here with brief accompanying examples: prior judgment (regarding wills and other advance directives), present judgment (regarding informed consent and the corresponding right to refuse treatment), and future judgment (regarding guardianship and conservatorship). This chapter will explore each of these domains in detail, identifying the contributions mental health professionals can make to reliable and valid forensic assessment in this regard.

This chapter concentrates on the advice given to NHS workers in the NICE guideline of 2015 and subsequent related advice from the National Institute of Care and Clinical Excellence. In the interests of transparency, we give the principles that lie behind NICE guidance that have only recently been published. In the NICE guideline we placed great emphasis on the prevention of violence and the reduction of all forms of restrictive intervention, and the reasoning behind this is given. We point out the major impact of the environment in both facilitating prevention of violence and, sadly, all too often in over-crowded NHS settings, promoting it. Advance directives, although rarely used at present, are likely to become more relevant and need to be highlighted. Finally, we address the thorny issue of risk. In our guideline we could not give advice on sound evidence; the situation has not changed since, and the dynamic elements of a potentially violent episode are more important to attend to than even the best of written guidance.

This chapter describes the use of advance directives and similar instruments in the Philippines and the specific contexts in which these have been applied. Numerous attempts to pass end-of-life advance directive legislation in both houses of congress since the present constitution was ratified in 1987 have resulted in very limited success, although the recent National Mental Health Act has paved the way for legal recognition of patients’ rights to set out preferred treatment options through advance directives – in the context of mental healthcare. This chapter explores the religious and sociocultural reasons that have been offered as an explanation for the seeming indifference on the part of political leaders in relation to end-of-life advance directives. It also examines the circumstances in which healthcare providers and patients have used alternative ways of documenting preferred treatment options. Despite the absence of a formal legal framework and the protection from liability that it could provide, medical institutions have made written advance directive instruments available to patients. The actual utility of such instruments is discussed in relation to the interests of professionals, patients, and their families, and in the specific context of the COVID-19 pandemic.

Singapore was one of the first movers in Asia to legally facilitate the recognition and use of advance directives in end-of-life decision-making. The Advance Medical Directive Act (AMDA) came into force in 1997 to emplace a legislative framework to enable individuals to exercise greater control over the medical care for their terminal illness. Notwithstanding extensive consultative and parliamentary deliberative processes, the Advance Medical Directive facility never really took hold in clinical care for the terminally ill in Singapore. Although uptake rates since 1997 have risen appreciably, rates of implementation are too low to have any measurable impact. This chapter therefore evaluates the merits and weaknesses of the Singapore AMDA framework. It then traces the evolution of anticipatory end-of-life decision-making policy from its original transactional mindset to the current, process-oriented and ‘communications’ model. The question then evaluated is whether advance directives (in statutory or other forms) have any continuing role in the current push towards more widespread advance care planning under the national ‘Living Matters’ programme spearheaded by the Singapore Agency for Integrated Care.

This chapter explores advance directives in Israel. Specifically, the background behind legislation of the “Dying Patient” Act is articulated, which constitutes the main legal framework for advance directives in Israel, with an emphasis on the role that a combination of religion and politics has played in shaping this law. Then, the main aspects of the law in relation to advance directives are explained, including the (narrow) definition of the “dying patient” and its implications, actions that are forbidden and allowed, with respect to not prolonging the dying patient’s life, how emphasis on advance directives may go both in the direction of prolonging or refraining from prolonging the dying patient’s life, etc. These main legal aspects are also compared to the manner in which they were addressed before the law was enacted. Finally, the chapter shows how the restrictiveness of Israeli regulations for advance directives has actually led to their under-regulation in practice from various facets. This includes practical difficulties in their implementation, the many “shades of grey” in interpreting the law by healthcare providers, as well as legal critique and precedent questioning the Dying Patient Act. Possible cultural influence(s) in the Israeli context are also stressed.

The issue of end-of-life decision-making has become increasingly important in the super-ageing society that is Japan. Until now, however, there are little regulation and no legislation on end-of-life medical issues, such as forgoing life-sustaining treatment (LST) or advance directives. In 2007, the Ministry of Health, Labour and Welfare developed the first guideline on the decision-making process for terminal medical treatments. This guideline includes two key elements: (1) respecting patient self-determination and (2) broadening decision-making on the course of care to involve the healthcare team. However, it leaves many terms undefined and the position of liability is vague, leading to much uncertainty in healthcare practice. Revisions to the guideline in 2018 have emphasised advance care planning, but the completion rate for advance directives has, however, remained low, and this may be explained by practical and sociocultural factors. In light of this situation, we argue that we need further research and discussion to seek the best end-of-life decision-making framework that is most suitable for Japanese culture.

In this final chapter, we offer some comparative analysis and tentative concluding comments. We begin with an examination of different aspects of the law and practice of advance directives (ADs) in these jurisdictions, identifying similarities and trends. With this summary of the various connections between these jurisdictions, we then offer some broader reflections on two key features common to Asian jurisdictions, the role of religion and the role of the family. We conclude with a critical examination of this emerging picture of ADs in Asia, arguing that these insights suggest that distinctive patterns of “generative accommodation” are observable as a way of aligning international consensus with localised traditions and expectations in a more nuanced account of the meeting ground between the East and the West.

This chapter considers the role of advance directives in Malaysia, beginning with a discussion of the legal principles that are likely to apply in the end-of-life decision-making context. We then examine the professional guidance on advance directives published by the Malaysian Medical Council and the Ministry of Health, and highlight points of concern that such guidance has failed to address. The chapter then turns to consideration of the limited empirical data on advance directive awareness in Malaysia, followed by a discussion of the various sociocultural factors that may influence the acceptance of advance directives, with a particular focus on the significant roles played by the family and physicians. Religion as a key influence is also explored in relation to Malaysian attitudes towards advance directives.

In 1979, the nation of Iran underwent an intellectual-cultural-religious-political revolution integrating Islamic law/principles into Iranian healthcare legislation and healthcare delivery. In this chapter, we investigate the domain of patient autonomy in Islamic law and scrutinise Iranian statute law and by-laws, including the Patient Rights Charter (2009). We conclude that advance directives in Iran, at most, function to advise the patient’s legal surrogate decision maker provided they are in keeping with the law. Despite this, advance directives are significantly underutilised in Iranian healthcare. This may be influenced by a lack of legislation clarifying the status of physician liability for respecting advance directives to refuse life-sustaining treatment, controversy in Islamic legal circles over personal autonomy, pressure from relatives to continue futile care, cultural beliefs around divine fate/suffering and a lack of palliative care services. In order to utilise the potential for advance directives to improve the delivery of appropriate healthcare in end-of-life patients, a clear fatwa is required on the matter, followed by clear legislation clarifying patient rights to refuse treatment and physician liability. Hospital and community healthcare services must also be empowered to implement advance directives and improve delivery of palliative care where indicated.

Hong Kong currently lacks both a statute and local case law clarifying the legal status of advance directives, although a legislative framework has recently been proposed by the government. This chapter begins by tracing the development of advance directives in Hong Kong, leading up to the government’s legislative proposal. After a detailed discussion of this proposal, we consider the legal obstacles that must be overcome for advance directive legislation to be successfully introduced in Hong Kong, including deficiencies in mental capacity law. We then explore the local practice of advance directives, as well as the sociocultural values and influences that shape this practice, and the practical challenges in promoting wider use of advance directives in Hong Kong.

Legal regulation dedicated to advance directives (ADs) do not yet exist in Turkey. However, the Patient’s Rights Regulation (1998), Convention on Human Rights and Biomedicine (2003) and professional guidance issued by several professional medical societies provide broad ethical and legal underpinning for advance care planning and emphasise the importance of taking into consideration a patient’s previously expressed wishes. Although these regulatory approaches have force, they have not been entirely harmonised in the jurisdiction. Thus, there is a need to legislate living wills and ADs based on human rights and dignity, which will help develop a more patient-centred healthcare, diminish paternalism and enhance patient–physician–relative interactions on the basis of trust, balancing patient autonomy in a pluralistic vein and honouring dying in dignity. This chapter considers ADs in Turkey, beginning with a consideration of the possible legal bases for such directives. It then explores the relevant professional guidance from medical associations, as well as empirical data relating to the level of awareness of ADs amongst patients and healthcare professionals. The sociocultural factors that pose potential obstacles to the introduction and implementation of ADs in Turkey are also discussed, and the chapter concludes with some thoughts about the way forward.

Making sense of advance directives, and the regulatory frameworks governing healthcare more generally, in Saudi Arabia requires a careful understanding of the traditional Islamic religious legal framework of Shari’ah. There is much uncertainty about how to interpret Islamic legal principles in making use of advance directives and in providing end-of-life care in Saudi Arabia. In this chapter, we aim to offer clarity on how well-established principles, and Islamic statements of permissible and impermissible behaviour, should be reasoned through to provide an underpinning governance framework for healthcare practices at the end of life. We also review published evidence on the practical application of advance directives in Saudi Arabia and examine the social and cultural factors that may explain the limited uptake of advance directives, We conclude with two suggestions for establishing an appropriate role for advance directives in future – one concerning the need for legal clarity and the other concerning how to bring about improvements in professional knowledge and understanding.

To respect an individual’s autonomy and dignity, Thai laws provide the right for a patient to make an advance decision concerning their medical treatment. With specific legal rules on advance directives, Thailand has a comprehensive approach to the regulation of advance directives. Since the law simply requires a patient to be competent while making an advance directive, with no strict format except that it must be done in writing, it seems easy to make an advance directive in Thailand. However, the loose format of advance directives might not ensure their effective application in practice. This chapter begins by exploring the regulations on advance directives, including the requirements for a lawful advance directive and its execution, followed by the scrutinising of practical problems regarding their application. The role of ethical values, as well as social and cultural influences, will then be discussed to explain the legal rules and practice of advance directives in Thailand. The chapter ends with suggestions regarding additional requirements for advance directives to address problems surrounding their application, as well as better guidelines for the healthcare professions, so that the aims of the laws on advance directives – to protect an individual’s autonomy and dignity – can be actually achieved.

This chapter examines the current semi-normative framework for advance healthcare directives and related practice and discussion in China’s mainland. Without specified legislation acknowledging binding advance healthcare directives, China’s new Civil Code (2021) adopts legal criteria for a person to be deemed lacking in decision-making capacity and for the appointment of substitute decision makers for them. The Code of Ethics (2014) of the Chinese Medical Doctor Association requires Chinese medical practitioners to respect the expressed will of patients when they are capable of making decisions and to ensure patients’ maximum participation in the decision-making process even when they are considered to lack capacity. This chapter presents a doctrinal understanding of such a framework of norms that may potentially affect practices relating to advance healthcare directives. However, the existing evidence reflected by judicial proceedings and medical research papers suggests that the framework has rarely, if ever, been translated into medical practice. The chapter considers the possible legal and social explanations for such a lack of implementation. It also surveys a number of civil society-led pilot projects that promote advance healthcare directives, presenting a wider landscape of the relevant practice in China’s mainland.

Despite a broad consensus that terminally ill patients should be empowered to choose and deny life-sustaining-treatments (LSTs), South Korea’s path towards the regulation of advance directives was not easy. In this chapter, I sketch the development of social and legal discourse regarding advance directives, from the 1998 Boramae Hospital case to the current Act on Hospice and Palliative Care and Decisions on Life-Sustaining Treatment for Patients at the End of Life (ELDA). I show how ELDA has recognised the patient’s right to decide, and establishes procedures, safeguards and a governance framework for advance directives. Legislation of ELDA occurred in a manner similar to translational research in biomedical science, as new ethical norms gained practical power after being translated, diffused and accepted among practitioners and patients and their families. I also consider how this law connects to practice in different kinds of ways. The necessity of continuing conversation among ethical, legal, medical and governmental actors is emphasised.

In this chapter, we provide an explication of advance directives (ADs) in a broad, international context, laying out the origins of the concept and how this is developing over time, as well as some of the conceptual and practical challenges that arise when ADs are implemented. We then put forward the two key rationales for our focus on the Asian context of advance directives and conclude with an introduction of the typology of jurisdictions that is employed in this volume.