EXCLUSIVE: Handled with care

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York Chow, Chairperson of the Equal Opportunities Commission, believes it is time for Hong Kong to consider protecting de facto couples from discrimination. The EOC’s report on the Discrimination Law Review comes out in 2016.


Handled with care

There cannot be many events in life as traumatic as seeing a partner seriously injured, requiring major medical treatment, and being unable to respond to doctors. It would, however, be even more traumatic if, in such a situation, you as their partner were denied the right to make medical decisions on their behalf, merely because you were not married.

The Government and the Legislative Council are to be praised in recognising and addressing this issue in a pragmatic manner which respects the dignity and right to equal treatment of cohabiting partners in Hong Kong, whether they are in heterosexual or same-sex relationships.

In July 2015, the Government enacted the Electronic Health Record Sharing System Ordinance. The Ordinance creates a system for electronically recording and sharing health information of persons receiving health care. It includes provisions specifying which persons can make medical decisions on behalf of a patient where they themselves are unable to, for example if they are in a coma, unconscious, or mentally incapable of doing so.

“LegCo Members decided the definition should be expanded to the effect that a person living with a healthcare recipient can act on their behalf in such emergency situations.

The Ordinance defines a “substitute decision maker” of a healthcare recipient as “a family member of the healthcare recipient, or a person residing with the healthcare recipient, who accompanies the healthcare recipient at the relevant time”. This was amended from the wording in the original Bill, which only covered  “an immediate family member of the healthcare recipient who accompanies the healthcare recipient at the relevant time”.

A number of Legislative Council Members were of the view that the decision making in such circumstances should not be limited to “immediate family” members that are related to a healthcare recipient by blood, marriage, adoption or affinity (for example in-laws). They suggested that the definition should be expanded to the effect that a person living with a healthcare recipient can act on their behalf in such emergency situations.

To its credit, the Government agreed with the Legislative Council Members’ suggestions, which are reflected in the relevant provisions of the Ordinance. This now means that cohabiting partners are provided with equal treatment to, for example, spouses in the same situation. This makes practical sense, as the provisions are designed to ensure that where persons require medical treatment, but cannot communicate, they can be appropriately cared for by their children, parents, spouses and partners with whom they are in a family relationship.

“In the State of Victoria in Australia, the Guardian and Administration Act (Vic) 1986 also provides that where a person is unable to make medical decisions, their domestic cohabiting partner can make decisions on their behalf.

A similar approach has been taken in a number of other jurisdictions with comparable  legal systems to Hong Kong. For example, in New Zealand, the Relationships (Statutory References) Act 2005 made comprehensive changes to a large number of pieces of legislation which formerly only provided rights for persons in married relationships. The amendments included similar rights regarding medical treatment of partners in cohabiting relationships. In the State of Victoria in Australia, the Guardian and Administration Act (Vic) 1986 also provides that where a person is unable to make medical decisions, their domestic cohabiting partner can make decisions on their behalf. In each jurisdiction, the provisions apply to both heterosexual and same-sex cohabiting partners.

Precedent exists

The rights of cohabiting partners have been recognised previously in Hong Kong in the context of protecting people from violence of their partners. The Domestic Violence Ordinance 1986 provided protection from domestic violence for persons in marriages and heterosexual cohabiting relationships. In 2009, the government agreed to extend that protection to same sex cohabiting relationships. The current Domestic and Cohabitation Relationships Violence Ordinance also takes into account, in establishing that a cohabitation relationship exists, factors such as whether there is stability and permanence in their relationship, the degree of their financial interdependence, and the degree of mutual commitment to a shared life.

Providing protection from discrimination

At the EOC, we believe that it is an appropriate time for the community to consider whether cohabiting partners should be more broadly protected from discrimination in the sectors covered by the existing four anti-discrimination Ordinances such as employment, provision of goods and services, and government functions. This is why, as part of our Discrimination Law Review (DLR) public consultation last year which is reviewing all the existing laws, we consulted on two issues relating to persons in de facto/ cohabiting relationships similar to marriage.

Firstly, connected to the issues raised by the Electronic Health Record Sharing System Ordinance, we consulted on amending the definition of “family status” under the Family Status Discrimination Ordinance. This provides protection from discrimination for people that care for an “immediate family member” who is related by blood, marriage, adoption or affinity.  We consulted on whether protection should be extended to cover situations where you care for a de facto partner, such as where they require medical treatment.

“We plan to publish the report on the Discrimination Law Review and related recommendations early in 2016.

Secondly, we consulted the public on amending the scope of protection from marital status discrimination under the Sex Discrimination Ordinance. Currently, this covers the marital status of being single, married, divorced or widowed. In the consultation we considered whether there is a need to protect persons in de facto relationships from discrimination.

We are currently preparing a report on the responses we received to the DLR and the submissions to the Government on our priority proposed areas of reform. We plan to publish the report and submissions early in 2016.

The EOC welcomes these legislative developments which are sensitive to the needs of a wide range of families in Hong Kong, and we look forward to working with the Government in furthering equality for all families.

Dr York Chow

Chairperson, Equal Opportunities Commission