Re Patient L

DCMP 740 and 947/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 740 of 2001

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Reasons for Ruling

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On 27 March 2001, I received a Form 7, a prescribed form, under section 36 of the Mental Health Ordinance, Cap. 136 ("the Ordinance") relating to Patient L. This is one of the peculiarities of procedure under section 36 of the Ordinance. It will be seen that by virtue of that section Form 7 (a certificate completed by two medical doctors) may be forwarded to a District Judge who may countersign it resulting in the detention of a mental patient. Although clearly initiated by doctors, there is technically no applicant in such procedure. The judge is addressed or approached by a statutory form.

The Patient

2. Patient L ("the patient") had been the subject of an application dated 1st March 2001 by virtue of section 31 (1) of the Ordinance as a result of which the patient was ordered under section 31(1B) of the Ordinance to be detained no more than 7 days for the purpose of observation, investigation and treatment in Castle Peak Hospital. I must assume that the application and the order made on the 1st March 2001 were both regular and valid. Then on 6th March 2001, Deputy Judge Ma countersigned a Form 4 whereby the patient was to be detained for a further period of 21 days under section 32(2) of the Ordinance for the purpose of observation, investigation and treatment in Castle Peak Hospital. The Form 4 has become DCMP 740 of 2001. I must also assume that the detention of the patient on the basis of the Form 4 countersigned by Deputy Judge was lawful.

3. The Form 7 I received on 27 March 2001 was meant for me to countersign that would result in the detention of the patient for treatment in Castle Peak Hospital for an unspecified period. This Form 7 has become DCMP 947 of 2001. For reasons that will become apparent, I refused to countersign the form. During the late afternoon of 27 March 2001, I spoke on the telephone with Dr. Cheng, one of the two doctors who signed the Form 7, telling him why, on legal grounds, I refused to countersign the Form 7. I expressly told Dr. Cheng that he should seek legal advice if he had misgivings about my decision. Then on 28 March 2001, a new Form 7, with exactly the same particulars as the one handled by me the previous day and signed by the same two doctors, came to the District Court for countersign. I refused to countersign and marked on the form that this new Form 7 with same particulars is an abuse of process. Obviously, certain members of the medical profession believed that the Form 7 ought to be countersigned and they did not quite understand the reason why I had refused to countersign the first Form 7 on the 27 March 2001. In the circumstances, I think it is my duty to hand down written reasons for my decisions in relation to the two Form 7s.

The Form 7

4. In the Form 7s I received, two doctors of Castle Peak Hospital stated that the patient "is a patient liable to be detained in a mental hospital or in the Correctional Services Department". Both doctors also certified that in their opinion

"(a) the patient is abnormally aggressive; and

(b) the patient's conduct is seriously irresponsible"

and

"(a) for the health or safety of the patient; and

(b) for the protection of other persons

that the patient should receive treatment and it cannot be provided unless he is detained under section 36 of the Mental Health Ordinance....."

5. The particular medical conditions and symtoms of the patient are irrelevant in the present context and I am content to rely on the findings of the doctors that are within their expertise. It follows that I accept the opinion of the doctors quoted above. It is, however, the statement by the doctors that the patient "is a patient liable to be detained in a mental hospital or in the Correctional Services Department Psychiatric Centre" that caused and still causes my concern.

The Ordinance

6. The relevant provisions in the Ordinance are as follows :-

31. Detention of a patient under observation

(1) An application may be made to a District Judge or magistrate for an order for the detention of a patient for observation on the grounds that the patient-

(a) is suffering from mental disorder of a nature or degree which warrants his detention in a mental hospital for observation (or for observation followed by medical treatment) for at least a limited period; and

(b) ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(1A) An application for an order for the detention of a patient for observation shall be founded on the written opinion in the prescribed form of a registered medical practitioner who has examined the patient within the previous 7 days, which opinion shall include-

(a) a statement that in the opinion of the practitioner the conditions set out in subsection (1) are satisfied;

(b) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in subsection (1)(a); and

(c) a statement of the reasons for that opinion so far as it relates to the conditions set out in subsection (1)(b).

(1B) Upon receipt of an application under subsection (1) the District Judge or magistrate may make an order in the prescribed form authorizing the removal of the patient to a mental hospital for the purpose of detention and observation during the period not exceeding 7 days from and including the date of the order.

(4) A medical superintendent may detain in a mental hospital for observation, investigation and treatment any person who is the subject of an order under this section or under section 32.

32. Extension of period of detention of a patient under observation

(1) If a patient under observation in a mental hospital has been examined by 2 registered medical practitioners, either separately or together, and the 2 registered medical practitioners are of the opinion that it is necessary that the patient under observation should be detained in a mental hospital for a further period for the purpose of observation, investigation and treatment, they may complete a certificate in the prescribed form and forward it to a District Judge.

(2) If a District Judge who has received a certificate in accordance with the provisions of subsection (1) is of the opinion that it is necessary for the person named in the certificate to be detained in a mental hospital for a further period of observation, investigation and treatment, he shall countersign the certificate and shall forward it to the medical superintendent of the mental hospital in which the person is detained.

(3) Only one extension of not more than 21 days shall be made in accordance with this section to any order made in accordance with section 31.

(4) Subject to section 36, no person shall be detained in a mental hospital after the expiration of the period of any order made in accordance with section 31 and of any extension thereto made in accordance with this section unless he has become a voluntary patient.

36. Detention of certified patients

(1) If -

(a) a patient liable to be detained in a mental hospital (otherwise than under this section) or in the Correctional Services Department Psychiatric Centre; or

(b) a voluntary patient in a mental hospital,

has been examined by 2 registered medical practitioners either separately or together and the 2 registered medical practitioners are of the opinion that -

(i) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital; and

(ii) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section,

they may complete a certificate in the prescribed form and forward it to a District Judge.

(2) If a District Judge who has received a certificate in accordance with subsection (1) is satisfied that the certificate referred to in subsection (1) is in order and there are no grounds for rejecting it, he shall countersign the certificate and shall forward it to the medical superintendent of the mental hospital in which the person is detained :

Provided that a District Judge shall not countersign a certificate-

(a) in respect of a voluntary patient unless he is satisfied that the voluntary patient , or some person on his behalf in the case of a voluntary patient of less than 16 years of age, has given notice of the intention of the voluntary patient to leave the mental hospital in accordance with section 30(2)(a) and that it would be likely to be dangerous to the voluntary patient or to other persons if the voluntary patient were discharged from the mental hospital; or

(3) A medical superintendent may detain in a mental hospital for observation, investigation and treatment any person who is the subject of an order under this section and may transfer the patient to any other mental hospital.

(4) The procedures described in subsections (1) and (2) may be undertaken notwithstanding that the patient is detained under a hospital order or because he has been sentenced to imprisonment or is detained by an order of a court, but where the patient is detained under a hospital order or because he has been sentenced to imprisonment--

(a) such procedures shall not commenced more than 30 days before the date when he would, in the absence of such procedures, be released from detention; and

(b) the provisions of Part IV or, where the Criminal Procedure Ordinance (Cap. 221) applies, that Ordinance, shall continue to apply to that patient until that date,

and nothing done under this section shall have the effect of varying any order of a court.

(5) This section -

(a) applies to a patient who suffers from mental illness or psychopathic disorder; and

(b) applies to a patient other than a patient referred to in paragraph (a) only where the 2 medical practitioners referred to in subsection (1) are, in addition to being of the opinion described in that subsection, also of the opinion that the patient is abnormally aggressive or that his conduct is seriously irresponsible.

(Emphasis added)

The rights and liability of the patient

7. It is immediately apparent upon perusal of section 32(4) of the Ordinance that a patient, having been detained initially under section 31(1B) of the Ordinance and then under section 32(2) of the Ordinance, may no longer be detained "after the expiration of the ..... extension .... unless he has become a voluntary patient." The patient in the instant case, not being able to become a voluntary patient, has the right to be discharged and (to use the significant legal language) becomes no longer liable to be detained after the expiration of 21 days counting from 6th March 2001.

8. Presumably, the two doctors who signed the Form 7s thought that when they render their opinion as per section 36(1)(i) and (ii) of the Ordinance the patient becomes liable to be detained. But section 36(1)(a) clearly provides that the liability for detention must be otherwise than under that very section.

Conclusion

9. As I marked on the forms, there was no apparent evidence or material on which I could be satisfied that the patient was a patient liable to detention under any other provision in the Ordinance or common law principle. Consequently, unless the patient was a voluntary patient, section 36 of the Ordinance did not apply and could not be invoked to detain him without his consent after the expiration of the extended observation period.

10. In case it is thought that the patient can be re-cycled through section 31 and the section 32 of the Ordinance in order to keep him detained for treatment to his ultimate mental well being, I would point out that there is every risk that the re-cycling is an abuse of process and blatant violation of the human rights of the patient. See the decision of the English Court of Appeal in R.v. East London and The City Mental Health NHS Trust and another, The Independent Law Reports 1 March 2001. In short, the law is quite clear - the patient must be released once the detention period under section 31 and/or 32 of the Ordinance has expired.

11. I hope I have made clear the reasons for my decision on each of the Form 7s relating to the patient that I refused to counter-sign.