C v. S

HCMP 929/2017

[2020] HKCFI 2427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 929 OF 2017

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D E C I S I O N

(On Payment/Reimbursement of Costs of Psychiatric Treatment)

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Introduction

1.  The detailed background of these wardship proceedings has been set out in the numerous published judgments and will not be repeated here.

2.  The present application was taken out by the Mother on 16 January 2019 (“Reimbursement Summons”), for the Father to pay and/or to reimburse her the costs of the psychiatric treatments received by the ward N from her treating private psychiatrist Dr Joanna Lam (“Dr Lam”). Mother issued the Reimbursement Summons in person.  This Court’s understanding was that at the time of issue, she had not yet been granted legal aid for the issue of that summons, but since then, she has obtained legal aid, and her present solicitors and Counsel Mr Kevin Li have taken over the conduct of the matter. 

3.  Father instructed Counsel Mr Richard Todd and Ms Athena Wong over this matter.  Mr Jason Chan of the Official Solicitor lodged written submissions on behalf of N.

The relevant orders of this Court in relation to N’s psychiatric treatment

4.  The Reimbursement Summons arose out of an order made by this Court on 18 December 2017 (“December 2017 Order”)[1] and an order of this Court made on 20 June 2018 (“June 2018 Order”)[2].

5.  On 18 December 2017, upon learning of symptoms displayed by N at around that time, this Court ordered that N should receive urgent psychiatric treatment from a private psychiatrist as soon as possible, as an appointment with a Government psychiatrist at the YMT Child Service, which was recommended by N’s then Government clinical psychologist, could take time. At the hearing, the parties agreed to this course, save that they were not able to agree to who should be the private psychiatrist.

6.  The drawn up order of 18 December 2017 (as amended) states in paragraph 5 as follows:

“Unless agreed, parties to submit two names of private psychiatrists to the Court with their full CVs and the Court will decide on who should be the treating psychiatrists for the Ward. Costs of the psychiatrists should be paid by the Plaintiff in the interim and the treatment is to start as soon as possible[3].” (emphasis added)

7.  4 days after the above order, on 22 December 2017, Father’s solicitors wrote to Mother’s solicitors to make clear that should public treatment later become available at the YMT Child Service, this could be chosen at the time. 

8.  Thereafter, on 3 January 2018, this Court directed by letter that one of the psychiatrists proposed by Mother, namely Dr Lam, be appointed as the treating psychiatrist for N (“03.01.18 Directions”). This Court further directed that :

(i)  A joint letter of instructions to be sent to Dr Lam by the parties;

(ii)  N to be accompanied by parties jointly to Dr Lam’s clinic but neither parent was to be present at time of treatment;

(iii)  If agreed, referral also be made to the YMT Child Service and if no agreement, parties to issue a proper application.

9.  The Father was clearly not happy with the appointment of Dr Lam.  Notwithstanding this, eventually a joint letter of instructions was sent to Dr Lam, and N started receiving treatment from Dr Lam as from 2 February 2018[4].

10.  In the meantime, Mother’s solicitors had responded to Father’s solicitors’ letter of 22 December 2017 informing Father that the YMT Child Service was no longer in service.  However, Father then found out that this was not in fact correct, and that the YMT Child Service had only been relocated to another address.

11.  This led to Father issuing a summons on 6 February 2018, 4 days after N started to receive treatment from Dr Lam, to replace Dr Lam with the YMT Child Service, which eventually led to the June 2018 Order.    As seen in the June 2018 Order, this Court ordered that, amongst other things, that there be leave for N to receive treatment or service at the YMT Child Service as well as continuing to receive treatment from Dr Lam.

12.  Thereafter, Mother issued the Reimbursement Summons.

13.  Subsequently, the Father failed to sign a written consent within the stipulated deadline to allow Dr Lily Ho Nga Lei (“Dr Ho”) or any medical professionals at the YMT Child Service to have the authority to treat, interview, assess N in any way professionally considered appropriate by them.  This led to the Official Solicitor to issue a summons on 7 May 2019. Thereafter, Father then proposed to impose certain terms to the written consent.

14.  On 21 June 2019, the Court made an order as sought by the Official Solicitor, refusing Father’s proposal to include additional terms (“June 2019 Order”).  The effect of the June 2019 Order was to allow the medical professionals of the YMT Child Service to have a free hand in formulating a treatment plan for N.  So far, N has attended sessions with Dr Ho, and also a clinical psychologist Dr Winnifred Mark (“Dr Mark”) at the YMT Child Service.

The Reimbursement Summons

15.  In the Reimbursement Summons, the Mother sought, amongst other things, the following orders against the Father:

(i)  To comply with the December 2017 Order and to pay direct to Dr Lam direct all her fees or to reimburse Mother for Mother’s payments to Dr Lam;

(ii)  To reimburse Mother for all payments Mother had already made to Dr Lam;

(iii)  To pay all expenses at the YMT Child Service (comprising both Dr Ho and Dr Mark), either directly or to reimburse Mother for payments made by her.

16.  The Reimbursement Summons was supported by Mother’s 7^th affidavit.  According to the Mother:

(i)  As from 2 February 2018 until 14 September 2018, Father had initially failed to reimburse her for 3 treatments with Dr Lam (on 23 March 2018, 4 May 2018 and 18 May 2018) and upon her solicitors pressing for payment, eventually Father paid for 2 of those 3 treatments, leaving the treatment on 18 May 2018 unpaid as at 16 January 2019 (date of Mother’s 7^th affirmation);

(ii)  On 5 October 2018, Father announced to Mother that as N could receive treatment at the YMT Child Service, he would no longer pay for any of Dr Lam’s fees, and thus, Mother had herself paid Dr Lam’s fees;

(iii)  As from 5 October 2018 until 16 January 2019, N had attended 3 sessions at the YMT Child Service, but according to the Mother, she had paid part of the treatment fees and medications which Father had failed to reimburse her.

17.  The Reimbursement Summons first came before this Court on 19 March 2019, together with various other matters, and directions were given for the further filing of affirmation evidence, and the matter was to be fixed for a 2 hour substantive argument.

18.  Subsequently, Father’s 18^th affidavit was filed in response to Mother’s application.  Essentially, he argued that the December 2018 Order did not order him to pay Dr Lam’s fees “for ever but only on an interim basis”[5]. It was further his case that Mother had flouted the 03.01.18 Directions, in particular in respect of the 3 treatments mentioned in Mother’s 7^th affirmation.  Father complained that Mother made the appointments for 2 out of those 3 treatments well knowing that Father was unable to accompany N on those dates for reasons set out by Father and that Mother made the appointment for 18 May 2018 without even informing Father.  It was Father’s allegation that Mother had been constantly and persistently trying hard to exclude him and to obstruct his involvement in N’s medical care.

19.  Anyway, according to Father, save for the 18 May 2018 session, he had paid all other medical bills of Dr Lam until 5 October 2018.  There was no mention by the Father of the payment of any fees incurred on N’s behalf at the YMT Child Service. 

20.  Mother had filed her 10^th affidavit in reply to Father’s 18^th affidavit.  

21.  The substantive hearing was fixed on 29 October 2019 (“Hearing”).

22.  First, in the December 2017 Order, it was stated that the costs of the psychiatrists should be paid by Father in the interim and the treatment was to start as soon as possible.  It was not disputed that this order was at the time made with Father’s agreement. However, Father’s case was that he had only agreed to pay for the private psychiatrist in the interim, namely only pending the appointment being made at the YMT Child Service.  

23.  Second, although pursuant to the June 2018 Order, this Court gave leave for N to receive treatment at the YMT Child Service as well as continuing to receive treatment from Dr Lam, this had been interpreted by the Mother to mean that N was to have a session with Dr Lam after each of N’s session with Dr Ho, and which had been described as “parallel treatment”.  Anyway at the Hearing, it was not exactly clear as to the number of sessions N had had respectively with Dr Lam and Dr Ho. 

24.  In light of the above issues, the parties agreed that the  Hearing should be further adjourned to 6 December 2019 for (i) Mother to file a table of appointments schedule of N with Dr Lam, and with Dr Ho, from 1 October 2019 (which was clearly a typing error and later amended to 1 October 2018) to 12 November 2019; (ii) for the Official Solicitor to consult Dr Lam and Dr Ho as to whether “parallel treatment” would be necessary; (iii) whether YMT Child Service will be able to take care of N on an urgent basis if such need arises, such as during midnight or weekend, and reschedule of appointment to an earlier date.  Further, on a without admission of liability basis, the Father agreed to reimburse the Mother for Dr Lam’s fees of HKD 24,940 up to 29 October 2019 and all fees of Dr Ho of the YMT Child Service of HKD 420 up to 29 October 2019, and to pay for any further fees at the YMT Child Service either direct or to reimburse Mother upon provision of receipts, until further order of the Court (“October 2019 Order”).

25.  Thereafter, Dr Lam submitted a report dated 16 November 2019 and the Official Solicitor submitted a report dated 29 November 2019.  As seen in the Official Solicitors’ Report dated 29 November 2019, Dr Ho had stated that in case of any emergency, N can always use the service of the A&E Department. 

26.  The 2^nd hearing on 6 December 2019 later had to be vacated and on a without admission of liability basis, Father agreed to pay for Dr Lam’s fees or reimburse the Mother of the same upon production of receipts/proof of payment, up to the adjourned hearing.  

27.  Subsequently, the substantive hearing was refixed to 18 June 2020.  The parties then agreed to the Reimbursement Summons to be dealt with on paper.

What was Father’s agreement regarding the payment of the costs of the private psychiatrist at the hearing of 18 December 2019

28.  As can be seen from the transcript of the hearing on 18 December 2017 (“Transcript”)[6], it was at that hearing that Mother’s solicitors handed to the Court the 1^st Referral Letter of 12 December 2017 written by Mr Alex Lam, who was at that time the clinical psychologist treating N and who had referred N to receive urgent psychiatric assessment at the YMT Child Service due to certain symptoms displayed by N. It was then disclosed by Counsel appearing for the Mother, Mr Li, to the Court that on the Saturday immediately preceding the hearing on the 18^th which was a Monday, that the Mother had taken N to see a private psychiatrist, a Dr Lee recommended by N’s school psychiatrist whom N also saw.  All this was done without informing the Father, and in fact Mr Li further disclosed that Mother had also registered with the Union Hospital for an appointment for psychiatrist treatment, and Mr Li had explained that as the government psychiatrists would take a long time to get a first appointment and although signing up for such an appointment, at the same time N was seeing the private psychiatrist.

29.  Father admitted that he had received Mr Lam’s 1^st Referral Letter and that he had suggested that rather than waiting for an appointment from the government service, N should see a private psychiatrist for treatment and he had suggested Dr Gabriel Hung who had previously seen N and who had provided evidence in previous proceedings in the Family Court.

30.  It was in light of the above exchanges and the Mr Lam’s 1^st Referral Letter that, this Court directed that N should consult a private psychiatrist to be agreed by the parties who were then directed to send in two proposals each for the Court to decide.

31.  This Court had initially asked the parties whether the costs of the private psychiatrist should be shared equally[7].  Mr Li explained that Mother was out of a job and that all the financial provisions of N had been paid by Father.  The Court had queried over Mother’s taking N to see a private psychiatrist prior to that hearing without alerting the Father and that she had paid for the fees herself and Mr Li explained that it was on an urgent basis and she paid it, and that if treatment was going to be routine, she would have to apply to increase the financial provision from Father.  The Court then asked the Father’s side, and his then Senior Counsel Mr Coleman had said that he would certainly pay in the interim until other arrangements were made.

32.  Having read the Transcript, I am of the view that when Father said he agreed to pay in the interim, it was pending the arrangements were made with any government service and further order of the Court, since any further arrangements would have to be subject to Court’s approval, N being this Court’s ward.  The December 2017 Order in relation to Father’s payment in the interim was based on his then agreement. However, this Court did not order that Father’s payment was to cease immediately upon an appointment being made with the YMT Child Service, nor did the Court make any order as to who was to pay for the government service.

33.  Further in the 03.01.18 Direction, all the Court directed was that if the parties agreed, referral should also be made to the YMT Child Service, and if no agreement, the parties were to issue proper application. As mentioned earlier, this then led to the June 2018 Order. Neither the 03.01.18 Direction, nor the June 2018 Order stipulated as to who was to pay for N’s ongoing psychiatrists’ fees, whether Dr Lam’s or those of the YMT Child Service.

34.  It was open to Father to seek an order or direction to clarify  or to vary the December 2017 Order, rather than simply refusing to pay both Dr Lam’s fees and even those of Dr Ho and the YMT Child Service until at least around 25 October 2019[8]. In particular, those fees of Dr Ho at the YMT Child Service amounting HKD 80 per consultation and HKD 15 per medicine, and totalling HKD 420 outstanding in October 2019 were really de minimis, compared to the legal fees and counsel fees the Father was prepared to spend on this matter, and also considering it was Father who sought an order that N should receive treatment at the YMT Child Service. 

Whether N should continue to receive “parallel treatment”

35.  Mother’s position is that “parallel treatment” from Dr Lam and YMT Child Service is necessary for N.  Mr Li referred the Court to the following paragraphs of Dr Lam’s two reports dated respectively 16 November 2019 and 4 June 2020:

Report dated 16 November 2019

“She has reported to have emotional outbursts during consultations at YMTPC on many occasions, thus requiring counselling by me on the next day. She also described herself as being reluctant to talk to Dr Ho of YMTPC, withholding important information including exacerbation of her OCD symptoms, or some of her recent stressors which were usually the most distressing ones. She has mentioned she felt comfortable talking about those to me but not to Dr Ho.

As [N] has yet to form a good therapeutic relationship with Dr Ho, it is impossible for Dr Ho to fully understand her situation and treat her optimally.  A parallel treatment by Dr Ho and I together would be necessary until [N] fully trusts Dr Ho.”

Report dated 4 June 2020

“Regarding her therapeutic relationship with Dr Ho at YMT Psychiatric Centre (YMTPC), [N] has reported less reluctance to communicate with Dr Ho. She started to express more of her feelings to Dr Ho. However, she still does not feel totally comfortable with Dr Ho. As [N] has yet to conform a good therapeutic relationship with Dr Ho, it is impossible for Dr Ho to fully understand her situation and treat her optimally. A parallel treatment by Dr Ho and I together would be necessary until [N] fully trusts Dr Ho.”

36.  Mr Li submitted that in light of Dr Lam’s above reports, it would be rather risky at this stage to completely cut off Dr Lam from N’s treatment programme, and that there was no medical evidence suggesting that keeping the status quo would have any adverse impact of N’s well being.

37.  The Official Solicitor had sent a letter dated 4 June 2020 to Dr Ho setting out the queries he sought Dr Ho’s updated feedback and/or input on.  Dr Ho’s replies were :

“1. The prognosis [of N] would be influenced by her communication and relationship with her family.

2. the patient [ N] is not on any medication.

3. [N] is mentally stable in the last follow-up appointment on 7 April 2020.

4. The therapeutic relationship is building.

5. [parallel treatment] not necessary.”

38.  Although Dr Ho did not provide detailed information, her answers were quite direct, clear and to the point.  It was thus submitted on behalf of the Father that there was simply no need for what was called “parallel treatment”.

39.  First of all, I would refer to the following paragraphs in my decision of 20 June 2018 which resulted in the June 2018 Order:

“24. Having read the parents’ respective affirmations, I do not see sufficient evidence as to why N cannot see both a private psychiatrist and a Government psychiatrist at the YMY Child Service, or why it should be either one or the other.

25. I do not see the parents’ attitude is in the best interests of N and it is clear that N is much disturbed by being the focus of the prolonged parental disputes and being trapped in between for years, as observed by Ms Chan.

26. Although N’s condition is observed to have improved after receiving treatment from Dr Joanna Lam, there is no evidence as to when she will fully be recovered, and as pointed out by Ms Chan, so long as the parental disputes continue to put N in a stressful position, there is a real possibility that N would require psychiatric treatment from time to time. As further pointed out by Ms Chan, as N does not have her own means and needs to rely on the Father for financial support, and in view of the protracted disputes between her parents, which are still in high conflict and ongoing, it will be in N’s best interest for an appointment to be secured with YMT Child Service, as not only would it provide professional and affordable psychiatric services to N when in need, it will also serve as a medical safety net for N, and the proposed appointment will not deprive N the right to seek private psychiatric treatment if required.

27. The first available appointment from YMT Child Service is likely to be after December 2019.

28. I agree with the views put forward by Ms Chan, that the appointment with YMT Child Service should not be regarded as a means to replace the current treatment that N is receiving from Dr Joanna Lam.”

40.  As seen in the above paragraphs, and as correctly pointed out by the Official Solicitor, the Court simply took a pragmatic approach at the time, and this Court had never directed any “parallel treatment” in the way as referred to by the parties.  Mother had lodged a table of appointments of N from 1 October 2019 until 12 November 2019, as directed by this Court at the Hearing (“Table of Appointments”).  It can be seen in the Table of Appointments the Mother had brought N to see Dr Lam after each session N had with the YMT Child Service, and in fact initially, it was on the same day.  Between 5 October 2018 – 30 October 2019, N had attended the same number of sessions with Dr Lam as with Dr Ho.

41.  When Dr Lam wrote her report of 16 November 2019, N had only just started consulting Dr Ho, N’s 1^st session being in early October 2019. 

42.  Mr Chan of the Official Solicitor in paragraph 7 of his submissions has set out the timeline of the N’s treatment process and the progress.  It can be seen therein, that N started to consult Dr Lam in February 2018, and as said earlier N started to consult Dr Ho in early October 2018.  N also started to consult the clinical psychologist at the YMT Child Service, Dr Mark, in early December 2019, at the referral by Dr Ho.

43.  By the time of Dr Lam’s report of 4 June 2020, this was some 6 months later.  By June 2020, N had attended approximately over 11 sessions with each psychiatrist.  Although Dr Lam was of the view that N still did not feel totally comfortable with Dr Ho, Dr Ho had said their therapeutic relationship was building.  Further, both psychiatrists confirmed in June 2020 that N was at that time “not on any medication”. 

44.  Dr Mark had provided a report dated 13 August 2020 to the Official Solicitor who reported that N was referred to Dr Mark by Dr Ho in early December 2019 for Cognitive Behavioural Therapy (“CBT”) for N’s  obsessive compulsive symptoms, and by August 2020, N had received a total of 6 CBT sessions from her and that in her report Dr Mark stated that on a psychiatric level, N has reached a relatively stable condition ready for ending the current course of psychological treatment and it is expected that the case will be closed by end of this year if N’s obsessive compulsive condition remains stable.

45.  The Official Solicitor (Mr Chan) also reported that he had chances of attending and observing the access sessions at the Parent-Child Connect Support Central of the Hong Kong Family Welfare Society in May and June 2020.  Mr Chan said he had a brief conversation with N at the end of one session in June 2020 and that N said she still found it not entirely comfortable to talk to Dr Ho, but her communication with Dr Mark was much more comfortable and relaxed.

46.  It was Mr Chan’s observation that there was a good therapeutic rapport between N and Dr Mark.

47.  Mr Chan also reported that at the joint conference held at YMT Child Service on 2 July 2020 which was attended by the treating doctors as well as the Co-Parenting Social Worker and the Coordinator at the Parent-Child Connect Support Centre (“Joint Conference”), it was concluded that, amongst other things :

(i)  N has become stable and that reliance on medications is no longer necessary and the progress is promising, and it is expected that the case will be closed if N’s condition remains stable;

(ii)  On the other hand, the psychiatric treatment at YMT Child Service will not explore or deal with the roots or causes of the thoughts and compulsions or how the family dynamics and relationship would affect the same. For family oriented treatment, the doctors will have to leave to other experts and this will depend on the parents’ motivation and intention to strive for the best interests of N, and that the Co-Parenting Social Worker at the Hong Kong Family Welfare Society will assist aligning the parents’ agreement to treatment/family therapy and identifying the appropriate therapist. (emphasis added)

48.  As seen in Mr Chan’s submissions, he is of the opinion that:

(i)  Dr Ho and Dr Mark work together in a collaborative and supplementary fashion, and the psychiatric condition of N is currently stable and well taken care of by the YMT Child Service;

(ii)  the pattern of N’s appointments with Dr Lam appears to suggest sort of “soothing” role for Dr Lam, and that against the present stable condition of N, and the progress of the psychological treatment, the therapeutic value of the sessions with Dr Lam is currently minimal;

(iii)  With the treatment regime that YNT Child Service is capable of rendering N, by now, the continuation of the “parallel treatment” is no longer necessary.

This Court’s views 

49.  Having considered the reports, I agree with Mr Chan’s opinion that Dr Lam has been taking more of a “soothing” role, or of a facilitative role, to assist N in building up a therapeutic relationship or rapport with Dr Ho, which has been helpful.  Although, even by June 2020, N still has not found it entirely comfortable to talk to Dr Ho, her communication with Dr Mark is much more comfortable and relaxed even though N had only met Dr Mark a few times.  

50.  In any event, it can be seen that pursuant to the June 2019 Order, the team at the YMT Child Service was to have a free hand in formulating a treatment plan for N and the treatment plan formulated seems to have worked well so far and N’s mental condition has been considered stable since, in fact, April 2020 which appeared to be the last occasion N saw Dr Ho followed by Dr Lam.  However, according to Father, N had a total of 6 sessions with Dr Mark since 13 May 2020 and the following appointment should have been on 8 September 2020.  In any event, Dr Ho is of the firm view that “parallel treatment” is not necessary.

51.  Further, provided that N’s condition remains stable, it seems that by end of this year, or in 3 months’ time, she may no longer need any treatment at the YMT Child Service, whether from Dr Ho or from Dr Mark. This is indeed positive news.  If this is the case, there is no need for N to receive any further “parallel treatment” from Dr Lam.  In my view, this also accords with N’s best interests.  As seen earlier in the conclusions at the Joint Conference, to explore or deal with the roots or causes of N’s thoughts and compulsions, this will need other experts for family oriented treatment, and this will depend on the parents’ motivation and intention to strive for the best interests of N.  Thus, at this stage, with N’s psychiatric condition remaining stable, what is required for her is family oriented treatment, rather than N continuing to receive psychiatric treatment on her own.

Conclusion

52.  Having regard to all said above, I have come to the view that as from the date of this Order, N no longer needs any parallel treatment from Dr Lam. 

53.  As for payment, I will order that Father will only need to pay for Dr Lam’s fees for N’s sessions which have taken place prior to the date of this Order, or reimburse Mother for all fees paid by her upon her production of receipts/evidence of payments.  As for N’s sessions at the YMT Child Service, Father has already agreed to pay for those and he should continue to pay until further order.

Costs of the Reimbursement Summons

54.  There was no concession from the Father until just prior to the Hearing and that it was only then that Father had confirmed that he would pay all N’s fees at the YMT Child Service either direct or to reimburse Mother upon provision of receipts.  I have pointed out earlier, that it was open to Father to take out a summons earlier to seek an order or direction to clarify the December 2017 Order rather than simply refusing to pay both Dr Lam’s fees and even those fees incurred at the YMT Child Service. 

55.  Having said this, I am of the view that Mother’s attitude in this matter has also been rather inflexible.  There seemed to be no indication on her part that she was willing to gradually reduce the frequency of N’s sessions with Dr Lam notwithstanding there being signs of improvement of N’s therapeutic relationship with Dr Ho as time went on.   

56.  In light of all said above, and in the circumstances of this case, I have come to the view there should be no order as to costs of and incidental to the Reimbursement Summons.  Mother’s own costs will be taxed in accordance with Legal Aid Regulations.

57.  The above are costs orders nisi, which shall be final after 21 days.