HO WAI YEE v. THE MEDICAL SUPERINTENDENT OF THE PAMELA YOUDE NETHERSOLE EASTERN PSYCHIATRIC OBSERVATION UNIT AND OTHERS

HCAL 818/2025

[2026] HKCFI 4111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 818 OF 2025

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J U D G M E N T

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A. Introduction

1.  The Applicant asserts that she has been “left in limbo” within the mental healthcare system since 2005 and was specifically adversely affected by the decision made by the Mental Health Review Tribunal (“MHRT”) on 19 December 2024 (“MHRT Decision”).

2.  In brief, the Applicant was diagnosed with delusional disorder in 2005, which was revised to paranoid schizophrenia in 2006, and was further revised to schizoaffective disorder in 2020.  She has been treated by the Hospital Authority (“HA”) for around twenty years.  Materially, on 9 August 2024, she was conditionally discharged from Pamela Youde Nethersole Eastern Hospital (“PYNEH”) under an order made by the Medical Superintendent (“Superintendent”) requiring her, among other things, to take her prescribed medications and to attend regular follow-up appointments (“CD Order”).  The Applicant took the matter to the MHRT, leading to the MHRT Decision.  Subsequently, there was a review (“2025 MDCC”) conducted by a Multi-Disciplinary Case Conference (“MDCC”), leading to its decision (“MDCC Decision”).

3.  I think it can be said that the essential “target” of the present proceedings – commenced by Form 86 dated 3 April 2025, but later in amended form (“AF86”) dated 18 July 2025 – is as to whether there was proper compliance with the MHRT Decision, in the form of the review by the MDCC.

4.  On 8 April 2025, I granted leave to apply for judicial review on paper.  I gave directions for the filing of evidence, and to bring the matter to a substantive hearing, which was fixed for 20 March 2026.  Prior to the hearing, four affirmations were filed by the Applicant and two affidavits were filed by or for the Superintendent and HA.

5.  By way of Summons dated 4 March 2026, the Superintendent and the HA filed an application for leave to rely on the Affidavit of Dr Kan Chui Kwan in the substantive hearing, which I will deal with below.

6.  At the hearing, the Applicant was represented by Mr Albert NB Wong and Ms Sabina Sui of Counsel.  The Superintendent and the HA were represented by Mr John Cheung and Mr Alex Chan, of Counsel.  The MHRT was not represented and, as is usual, the MHRT was excused from attendance.

7.  At the hearing, some of the relief sought in the AF 86 was no longer pursued.  The main relief which was pursued was an order seeking to quash the MDCC Decision, and an order compelling the Superintendent and/or the HA to review and/or direct a proper review of the Applicant’s mental conditions and diagnosis.

8.  At the end of the hearing, I reserved my decision to be handed down later, in light of and with the benefit of the materials previously filed by the parties and the oral submissions made by Mr Wong and Mr Cheung.

9.  This is my Judgment.

B.  Background

10.  The background, much of which has been helpfully summarised in the skeleton submissions and affirmation/affidavit evidence, can be set out as follows.

B.1  Applicant’s medical history from February 2005 to December 2009

11.  The Applicant was born in 1980.  She has a long and complex history of mental illness.  Between February 2005 and December 2009, she had self-referred to a psychiatric hospital twice and was compulsorily admitted to a psychiatric centre once for various reasons.  Since 2009, her inpatient history shows a recurring pattern of compulsory and voluntary admissions to at least four different psychiatric hospitals, triggered by threats of violence and along with breaches of discharge conditions and episodes of instability.

12.  Due to her mental health conditions, the Applicant was conditionally discharged several times under section 42B of the Mental Health Ordinance Cap 136 (“MHO”).

B.2  Applicant’s treatment at PYNEH from December 2023 to September 2024

13.  After her conditional discharge from Kwai Chung Hospital on 18 December 2021, the Applicant started her treatment in around December 2023 at PYNEH, which became her designated hospital with Dr Chan Yan Yan Cynthia (“Dr Chan”) as her treating doctor until around April 2025.  The Applicant’s first consultation at the Psychiatric Specialist Out-patient Clinic (“Clinic”) of PYNEH was conducted on 13 May 2024.

14.  On 4 June 2024, in reliance on two medical reports provided by Dr Cheung Ngo (“Dr Cheung”), a private psychiatrist, the Applicant filed an application to the MHRT for termination of the conditions of her discharge.  The opinion of Dr Cheung was that the Applicant ought instead to be diagnosed with Obsessive Compulsive Disorder (“OCD”), and it was considered that the Applicant had recovered.

15.  At the follow-up at PYNEH on 4 June 2024, the Applicant informed Dr Chan that she had commenced proceedings before the MHRT to apply for cancellation of her conditional discharge order imposed when she left Kwai Chung Hospital, and also expressed disagreement with her medication.

16.  The Applicant did not attend a further appointment arranged for two weeks later.  She was recalled to PYNEH on 21 June 2024 and remained an inpatient until 9 August 2024, during which the clinical team found that (1) she had stopped all medication, having a belief that the aripiprazole depot was a poison causing irritability and anxiety, and (2) she denied psychotic symptoms but demonstrated poor insight, insisting that a diagnosis of neurosis did not warrant antipsychotic treatment.  Her diagnosis of schizoaffective disorder was reaffirmed.

17.  To assess whether the Applicant’s six-year-old son was at risk of maltreatment, a MDCC with the participation of professionals from health, social welfare, and education was convened.  It was concluded that the child was at high risk of neglect and recommended a 24-month Care or Protection Order.

18.  On 6 August 2024, a further MDCC was convened to consider the Applicant’s conditional discharge.  On 9 August 2024, the Applicant was discharged under the CD Order with the following conditions requiring her to:

(1)  reside at her address as provided;

(2)  attend follow-up treatment on 29 August 2024 and subsequent dates as specified by the Clinic;

(3)  take medications as prescribed on conditional discharge, and later by her treating doctor;

(4)  be under the supervision of the Director of Social Welfare; and

(5)  receive Community Psychiatric Services (“CPS”).

19.  During the follow-up on 29 August 2024, the Applicant made complaints about the side effects from Clopixol Depot (also known as zuclopenthixol depot) and requested discontinuation of oral medication or switching back to Abilify depot.  The advice of Dr Chan was that a change of depot medication should occur in an inpatient setting as it would allow the Applicant’s condition to be closely monitored, which was refused by the Applicant, who preferred to remain on Clopixol Depot so as to avoid inpatient admission.  Dr Chan then adjusted the Applicant’s medications accordingly by increase of Benzhexol to address the side effects and prescriptions of Propranolol to reduce anxiety and restlessness.

20.  At the next appointment on 26 September 2026, the Applicant did not raise any complaint.  Clopixol Depot was continued.  As her effects had been resolved, Benzhexol was reduced.  To address the risk of constipation associated with long-term use of antipsychotics, Senna was prescribed.

B.3  The MHRT hearing and subsequent consultations from November to December 2024

21.  As the Applicant was dissatisfied with the diagnosis and the course of treatment, the Applicant commenced proceedings before the MHRT.  As Mr Wong put it in submission, and which I accept, the MHRT has a supervisory role over the exercise of powers by the Superintendent.  In the MHRT at the hearing conducted in the morning of 21 November 2024, the Applicant claimed that she suffered from bipolar disorder rather than schizoaffective disorder, and an absolute discharge (i.e. entire lifting of the CD Order) or, in the alternative, a direction requiring the Superintendent to conduct reassessment of her mental condition was sought.

22.  In support of her claim, the Applicant submitted two reports dated 15 April 2024 and 21 November 2024 prepared by her private psychiatrist, Dr Cheung, whose opinion in the latter report was that (1) the Applicant did not suffer from any psychotic disorder but instead from OCD, which was considered to have resolved, and that (2) patients with OCD generally do not require conditional discharge, compulsory admissions, or injectable antipsychotics.

23.  Both the Applicant and Dr Chan attended and they were interviewed separately and together.  I accept that the Applicant certainly engaged with the MHRT.

24.  The Applicant attended a follow-up at the Clinic in the afternoon of 21 November 2026.  Dr Chan was aware of the two reports of Dr Cheung submitted by the Applicant to the MHRT and took those views into consideration.  On examination, Dr Chan reduced the Applicant’s Clopixol Depot dosage from 200 mg to 100 mg every four weeks, reflecting the Applicant’s stable presentation of normal mood and sleep, no psychosis or mania, and no reports of self-harm or aggression.

25.  At the Applicant’s next follow-up on 19 December 2024, the Applicant did not raise any complaint.  Dr Chan made adjustment to the Applicant’s medications in three aspects, being increase of Aripiprazole from 5 mg to 10 mg daily in light of the reduced depot dosage, prescription of Lorazepam to address anxiety, and arrangement for blood tests after the Applicant reported weigh gain.

B.4  The MHRT Decision

26.  The parts of the MHRT Decision as relevant for present purposes are as follows:

At the hearing, the Tribunal confirmed the receipt of the skeleton submission prepared by the patient’s legal representatives, as well as the updated medical report from Dr CHEUNG Ngo, the private psychiatrist as invited by the patient, dated 15 April 2024.  The Tribunal considered that more details on the preparation of the updated medical report by Dr CHEUNG would be necessary for the Tribunal’s consideration.  The Tribunal then, at its direction, received the 3-page supplementary information from the patient’s legal representative with an index of documents referenced by Dr CHEUNG for the preparation of his updated medical report on 21 November 2024 after the hearing.

At the hearing, the patient and the case medical officer Dr Cynthia YY CHAN were separately and jointly interviewed in the presence of Consultant Psychiatrist Dr Charles WH CHAN with due considerations given to the reports from Dr Cynthia YY CHAN, Dr CHEUNG Ngo and Ms LAU Lee, the medical social worker, the bundle of documents and medical reports submitted by the patient.

…

The patient further shared that she had visited several private psychiatrists in recent years, and repeatedly endorsed that she was suffering from a kind of Affective Disorder, which is Bipolar I Disorder starting in 2019.  During the hearing, the patient also referred to Dr Charles WH CHAN who had treated her during one of the previous psychiatric admissions to PYNEH on her clinical need to use sodium valproate, a mood stabilizing psychotropic medication, for her affective state.  She also shared her belief that the depot injection had adversely affected her dopamine level, which led to extrapyramidal symptoms and worsened her mental condition and might have led to her son’s dyslexia problem.  She further expressed her wish to lift her Conditional Discharge (“CD”) order so as to resume a “normal” mindset.  She expressed her willingness to continue receiving psychiatric treatment from private practice even after the CD order was lifted.  She also aspired to lead a more proactive attitude towards life with her son, alongside the support from her friends.

The patient’s counsel, Mr Jeffery TAM (instructed by Benny Kong & Tsai LLP), was then invited to deliver an oral submission based on the skeleton submission made on behalf of the applicant dated 18 November 2024.  Mr TAM supplemented that with the patient’s consent, he wished to clarify to the Tribunal that the patients’ boyfriend had passed away in 2023.  He further reiterated that the patient’s ultimate request was to have correct diagnosis on her mental illness with a view to receiving the most suitable treatment.  Mr TAM also submitted that a reassessment of the patient’s mental conditions would be feasible based on, inter alia, Dr CHEUNG’s report.

According to Dr Cynthia YY CHAN, the patient had limited insight into the course and severity of her mental health issues.  She sometimes exhibited disinhibited behaviors suggesting of a hypomanic state during psychiatric follow-up session and had history of defaulting psychiatric follow-up sessions.  She showed strong psychological resistance to receiving depot injections.  She refused home visit request from the community psychiatric nurse.  Dr Cynthia YY CHAN was of the opinion that the patient’s compliance with psychiatric medication management and follow-up remained doubtful and unmanageable should the CD order be lifted having considered her past history of long periods of defaulting on treatment before CD was posed, which may in turn be harmful to her.

The Tribunal noted that during the hearing, the patient considered herself suffering from Bipolar I Disorder based on diagnosis reached by private psychiatrists previously, and had acknowledged her need to continue receiving treatment for her mental illness for her own sake in the rehabilitation journey, which the Tribunal appreciates.  The Tribunal also noted that the patient had been highly self-motivated to have a fruitful living together with her son who is now under temporary residential care by Po Leung Kuk.  Having perused the medical report from Dr CHEUNG, it appears that while he was supplied with all clinical information and medical records by the legal representatives of the patient, his report appears to be general in nature, and there was no reference made to the relationship between the past criminal offenses and the underlying mental state, as well as the clinical presentations of Bipolar Affective Disorder that was diagnosed by other specialists in psychiatry from the private sector whose opinions were documented in various places of the clinical records of the Hospital Authority.  In any case, the patient also endorsed the symptoms attributable to Bipolar Affective Disorder during the hearing.  The medical member of the Tribunal, who is an independent psychiatrist, and had reviewed the medical records of the patient and conducted medical examination with the patient individually prior to the hearing, opined that there were evidently strong associations between past violent acts and the abnormal mental states (attributable to manic state) in the relapsing course of illness in this patient and the evidence-based pharmacotherapy regimes for schizophrenia spectrum disorder and bipolar affective disorder have significant overlap in their indications for acute episode and maintenance treatment.  The medical member further alluded that maintenance pharmacotherapy is an indispensable component for the symptomatic management and functional recovery of patients suffering from bipolar affective disorder and schizophrenia spectrum disorder based on the most updated treatment standards.  The Tribunal thus considered that the CD order had effectively provided a safety net for the patient in preventing serious mental relapse in recent years for the patient’s overall well-being.  At the hearing, the Tribunal also understood that based on the patient’s current clinical presentation, the clinical team would consider having a further updated diagnosis for the patient that might facilitate the refinement of a personalized care in terms of medication management and psychosocial rehabilitation, and engage the patient in a collaborative care built on a trusting therapeutic relationship.

After considering the application related to the above-named patient and in view of the patient’s partial insight, her self-acknowledged need to receive psychiatric treatment and for the sake of the patient’s mental well-being and health as a whole, the Tribunal directs the Medical Superintendent of the Pamela Youde Nethersole Eastern Hospital that the patient shall continue to be discharged conditionally subject to the existing terms and conditions as it is necessary for the safety and health of the patient and for the protection of other persons.  Nevertheless, the Tribunal invites the clinical team to consider reviewing the mental conditions and diagnosis of the patient as may be necessary and if it is clinically suitable to do so for further rehabilitation and well-being of the patient as a whole, considering her role as a mother and her motivation to re-integrate into the community.  The Tribunal also suggests the clinical team to provide further psychoeducation to the patient on the multifactorial causations of mental illness, the importance of relapse prevention through maintaining treatment compliance with effective and tolerable medication regime, with a view to preventing re-emergence of risky acts under abnormal affective states as well as optimizing the level of psychosocial functioning in the long run.

27.  The gist of the MHRT Decision as summarised in Mr Cheung’s skeleton submissions (in a way with which I agree) is as follows:

(1)  The views of Dr Cheung were rejected by the MHRT, noting that Dr Cheung’s report “appears to be general in nature” and failed to address key matters, including the relationship between the Applicant’s past criminal conduct and her underlying mental state, as well as the clinical features of bipolar affective disorder documented by other private psychiatrists in the HA records.

(2)  The MHRT was of the view that the CD Order served as an important safeguard.  The medical member of the MHRT, an independent psychiatrist who had reviewed the records and conducted an examination with the Applicant, identified strong associations between her past violent acts and abnormal mental states attributable to manic episodes, noting that:

(a)  evidence-based pharmacological treatments for schizophrenia-spectrum and bipolar disorders substantially overlap; and

(b)  maintenance medication is essential to symptom control and functional recovery in both conditions.

(3)  The conclusion of the MHRT was that the CD Order had effectively provided a safety net against serious relapse.  In light of the Applicant’s current presentation, the clinical team would consider whether an updated diagnosis might assist in refining her care and strengthening a collective therapeutic relationship.

(4)  Upon consideration of all the circumstances of the Applicant (including her “partial insight, her self-acknowledged need to receive psychiatric treatment and for the sake of the patient’s mental well-being and health as a whole”), the MHRT made the direction that the Applicant continue to be conditionally discharged under the existing terms as necessary for her safety and health and also the protection of others.

(5)  The MHRT invited the clinical team of the PYNEH to consider reviewing the Applicant’s mental condition and diagnosis where clinically appropriate, with a view to supporting the Applicant’s rehabilitation, role as a mother, and reintegration into the community.  The MHRT also made the suggestion that the team provide additional psychoeducation on the causes of mental illness, the importance of treatment compliance, and strategies to prevent relapse and promote long-term psychosocial functioning.

B.5  Events after the MHRT Decision

28.  Between December 2024 and February 2025, the Applicant attended follow-up appointments at the Clinic and received home visits.  She expressed her disagreement with the MHRT Decision and an intention to file an “appeal” to the High Court.  During this period, Dr Chan and Dr Dunn Lai Wah Eva (“Dr Dunn”), Dr Chan’s supervisor, reviewed the MHRT Decision, and in light of the MHRT’s invitation, resolved to convene a MDCC, i.e. the 2025 MDCC, to undertake a review of the Applicant’s mental condition, diagnosis and treatment, to address her complaints, and to plan the way forward.

29.  On 13 March 2025, in preparation for the 2025 MDCC, the Applicant was recalled to the Clinic for a consultation.  She attended it with a legal representative.  During that consultation, the following requests were made:

(1)  In reliance on Dr Cheung’s reports, the Applicant requested a review of her diagnosis and maintained that she suffered only from neurosis.  She displayed paranoid ideation toward the staff of HA, alleging that female doctors had altered her medical records out of spite.

(2)  The Applicant’s legal representative asked for a specific date to be fixed for diagnostic review.  Dr Chan explained that any change in medication would need to occur in an inpatient setting, which was declined by the Applicant.

30.  On 17 March 2025, a letter seeking details of any upcoming review was issued to the Superintendent by the Applicant, who did not receive any response.

31.  On 26 March 2025, the 2025 MDCC was held, with the attendance of Dr Chan, Dr Dunn, a CPS nurse, and a medical social worker.  After review of the Applicant’s medical history, the team decided to reaffirm the established diagnoses of the Applicant and continued necessity of the CD Order.  The following conclusions were reached:

(1)  The Applicant’s diagnosis of schizoaffective disorder was reaffirmed.  She continued to believe that her medical records had been altered.  It was considered that continued medication was clinically necessary for the Applicant’s own safety and that of others.

(2)  Dr Cheung’s reports were considered but not accepted, as Dr Cheung’s views were considered to be formed retrospectively after limited contact with the Applicant, whereas the Applicant’s diagnoses within the HA had been established over years of independent and continuous review.

(3)  The team recommended that:

(a)  The Applicant’s “Special Care” status continue; and

(b)  The Applicant be referred to a clinical psychologist for support, and to a psychiatric day hospital for updated assessment, particularly to monitor any effects arising from the recent reduction in her Clopixol Depot dosage.

32.  On 10 April 2025, the PYNEH informed the Applicant that the 2025 MDCC was conducted on 26 March 2025.

B.6  The MDCC Decision

33.  The substantive part of the decision made in the 2025 MDCC, i.e. the MDCC Decision, as relevant for present purposes is as follows:

The diagnosis of schizoaffective disorder remains unchanged.  Her symptoms are largely in remission while under treatment, although currently she still has suspicious beliefs that past psychiatrists have altered her medical records.  Past diagnoses based on independent psychiatric assessments whilst in an acute unstable mental state at different inpatient psychiatric units with multidisciplinary observation and collateral information from carers, cannot be negated by Dr Cheung’s retrospective assessment of whether beliefs were shakable in 2005.

The following recommendations were made:

1.  Continuation of special care status and conditional discharge, and current outpatient psychiatric treatment.

2.  Referral to clinical psychologist for intervention and support.

3.  Referral to psychiatric day hospital for updated mental condition, rehabilitation, evaluation of possible side effects due to recent decrease in dose of depot injection.

C.   Grounds of Review

34.  Before identifying the grounds of review themselves, I expressly note some of Mr Wong’s ‘headline’ submissions, which he canvassed at the hearing.  Although I shall not list them all, the ‘headlines’ included that (1) the care and treatment of patients are the overarching duties of the Superintendent and the MHRT, (2) the vulnerability and illness of a patient should point to a higher level of patience and sensitivity in the relevant process, rather than high-handedness and condescension, (3) a review of the CD Order should not be confused with the conducting a medical assessment, (4) procedural fairness requires the making of worthwhile representations, and (5) a fair procedure should respect the dignity of the person affected, recognise the rights affected, and respect the integrity of the process.  I also accept Mr Wong’s point that patients, including the Applicant, might be said to have ‘good days’ and ‘bad days’, and this might be taken into account in the context of how a patient behaves or performs when given a “platform” – Mr Wong’s word – to present him or herself, perhaps at a time when feeling most pressured.

35.  I understand the grounds of review to have been advanced in part in the context of those various points, which I have kept in mind to the extent which seems to me to be appropriate.  I have also kept in mind Mr Cheung’s point that though recognition should be given to the difficulties faced by the Applicant, her judicial review application must be dealt with on its legal merits.

36.  As set out in the AF86 and Mr Wong’s skeleton submissions, the following four grounds of review have been put forward by the Applicant:

(1)  Ground 1:  The MHRT Decision dated 19 December 2024 was made in breach of rule 23(4) of the Mental Health Review Tribunal Rules Cap 136C (“MHRTR”) and is therefore illegal.

(2)  Ground 1A:  By failing to give notice of the 2025 MDCC and to afford the Applicant an opportunity to be heard, the 2025 MDCC was held in breach of natural justice, which is procedurally unfair.

(3)  Ground 2:  By subjecting the Applicant to different prescriptions, including injection medication(s), as a condition under the CD Order, without having conducted any or any proper review of the Applicant’s mental health conditions, the Superintendent and/or the HA have acted in violation of the Applicant’s freedom against inhuman and degrading treatment and right to privacy under Article 3 (“BOR 3”) and Article 14 (“BOR 14”) of the Hong Kong Bill of Rights (“BOR”) under the Hong Kong Bill of Rights Ordinance Cap 383.

(4)  Grounds 3 and 3A:  In failing to conduct any or any proper review of the Applicant’s mental health condition, the Superintendent and/or the HA have failed to take into account the relevant considerations of Dr Cheung’s reports and the recommendations made by the MHRT in the MHRT Decision.  Meanwhile, the MDCC Decision has failed to take into account Dr Cheung’s Reports.

(5)  Ground 4:  In failing to conduct any or any proper review and re-assessment of the Applicant’s mental health conditions, the Superintendent and/or the HA have acted unreasonably in the public law sense.

37.  As is apparent, the above grounds are intertwined, or at least have a degree of overlap between them.  It seems to me to be logical to deal with Grounds 1, 1A and 4 first, and then Grounds 2, 3 and 3A.

D.  Relevant Provisions of the MHRTR and the BOR

38.  Before turning to deal with the individual grounds of review, it is helpful first to set out the material applicable provisions of the MHRTR and the articles of the BOR.

39.  MHRTR rule 23 concerns the communication of decisions by the MHRT, as follows:

23.  Communication of decisions

(1)  The decision by which the tribunal determines an application may, at the discretion of the tribunal, be announced by the chairman immediately after the hearing of the case and, subject to subrule (2), the written decision of the tribunal, including the reasons, shall be communicated in writing within 7 days of the hearing to all the parties.

(2)  Where the tribunal considers that the full disclosure of the recorded reasons for its decision to the mentally incapacitated person in accordance with subrule (1) would adversely affect the health or welfare of the mentally incapacitated person or others, the tribunal may instead communicate its decision to him in such manner as it thinks appropriate and may communicate its decision to the other parties subject to any conditions it may think appropriate as to the disclosure thereof to the mentally incapacitated person:

Provided that, where the applicant or the mentally incapacitated person was represented at the hearing by a person to whom documents would be disclosed in accordance with rule 11(3), the tribunal shall disclose the full recorded grounds of its decision to such a person, subject to any conditions it may think appropriate as to disclosure thereof to the mentally incapacitated person.

(3)  Subrules (1) and (2) shall apply to decisions with recommendations as they apply to decisions by which applications are determined.

(4)  Where the tribunal makes a decision with recommendations, the decision shall specify the period at the expiration of which the tribunal will consider the case further in the event of those recommendations not being complied with.

40.  MHRTR rule 24 sets out the possibility of further consideration by the MHRT in relation to rule 23(4), as follows:

24.  Further consideration

Where the tribunal has made a decision with recommendations and, at the end of the period referred to in rule 23(4), it appears to the tribunal after making appropriate inquiries of the responsible authority that any such recommendation has not been complied with, the tribunal may reconvene the proceedings after giving to all parties not less than 14 days’ notice (or such shorter notice as all parties may consent to) of the date, time and place fixed for the hearing.

41.  BOR 3 provides for the prohibition of torture, inhuman treatment and experimentation without consent:

Article 3

No torture or inhuman treatment and no experimentation without consent

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

42.  The right to privacy, amongst other matters, is protected under BOR 14:

Article 14

Protection of privacy, family, home, correspondence, honour and reputation

(1)  No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2)  Everyone has the right to the protection of the law against such interference or attacks.

E.  The Superintendent’s/HA’s New Evidence Summons

43.  By way of Summons dated 4 March 2026 (“New Evidence Summons”), the Superintendent and the HA applied for leave to rely on the Affidavit of Dr Kan Chui Kwan (“Dr Kan”) at the substantive hearing, which according to Mr Cheung, was filed solely to discharge the duty of candour and out of fairness to the Applicant and it was not intended to rely on any of the newly disclosed materials to advance their case.

44.  The gist of the Applicant’s ground in opposition to the application is that it involves unexplained delay which is unjustified and unreasonable.

45.  As pointed out by Mr Wong, it is fair to say that the delay is not insubstantial in view of the fact that the Applicant’s 4^th Affirmation was filed on 25 September 2025, and that the HA’s guideline on conditional discharge and the consultation record (as intended to rely on) were dated 22 December 2023 and 15 January 2026 respectively.

46.  Nonetheless, noting that the nature and usefulness of the two categories of new materials attached to Dr Kan’s Affidavit – namely, the Applicant’s updated medical records and an internal HA guideline, I accept Mr Cheung’s submission that they could assist in providing the Court with a complete and up-to-date picture of the clinical management and understanding the circumstances for an appropriate change of medication for the Applicant.

47.  As those materials are relevant to the issues of the present case and there is no prejudice to the Applicant, I make an order that leave be granted for the Superintendent and the HA to rely on the Affidavit of Dr Kan.

F.  Ground 1 – Error of Law

48.  Ground 1 is solely directed at the MHRT, i.e. the 3^rd Respondent.

49.  Mr Wong referred to rules 23(4) and 24 of the MHRTR.  Where the MHRT makes a decision with recommendations, the decision shall specify the period (“Stipulated Period”) at the expiration of which the MHRT will consider the case further in the event of those recommendations not being complied with.  Where it appears, after the MHRT making appropriate inquiries of the responsible authority, that the recommendations have not been complied with within the Stipulated Period, the MHRT may reconvene the proceedings.

50.  He emphasised that by making a decision with recommendations for the clinical team to “consider reviewing the mental conditions and diagnosis of the patient as may be necessary and if it is clinically suitable to do so” without specifying the Stipulated Period, there was an error of law in the MHRT Decision, which is material.  With the non-compliance with rule 23(4), the MHRT cannot carry out its supervisory role to monitor whether its recommendation has been observed, let alone exercise the discretion to reconvene the proceedings between all parties.  If there is failure on the part of Superintendent and/or the HA in reviewing the Applicant’s diagnosis, the MHRT may reconvene the proceedings, which will give the Applicant a right to participate and to present her opinions again.

51.  The main thrust of the Applicant’s challenge in the present proceedings, as Mr Wong submitted, is that the Applicant was not provided with the chance of engaging in a meaningful dialogue with the Superintendent and/or the HA in relation to her conditional discharge and mental conditions.

52.  With respect, I do not think that Mr Wong’s analysis is correct.  Although Mr Cheung in his skeleton submissions stated that the Superintendent and the HA do not address Ground 1, I agree that the safeguard under rule 23(4) has been properly complied with, for the following reasons:

(1)  The allegation against the MHRT is its failure in setting a deadline for PYNEH’s clinical team to act.

(2)  The team has acted without a deadline.  When the MHRT made an invitation for review, a MDCC was convened on 26 March 2025, and the diagnosis was reaffirmed.

(3)  The Applicant’s treating doctor continued to review her condition through regular consultations.

(4)  The purpose of fixing a period under rule 23(4) is to allow the MHRT to revisit a case if its recommendation is not followed.  In the present case, the MHRT’s invitation was in fact followed.

53.  As is obvious, there is no factual basis to suggest that the MHRT has committed the error of law as alleged by the Applicant.

54.  Ground 1 is rejected.

G.   Grounds 1A and 4 – Procedural Impropriety and Wednesbury Unreasonableness

55.  Mr Wong provided a combined analysis of Grounds 1A and 4.  The main thrust of his submissions are twofold:

(1)  At the core of Ground 1A (together with Grounds 3, 3A and 4), there is concern over whether the Superintendent and/or the HA have fulfilled their duty to conduct a proper review and re-assessment of the Applicant’s mental health conditions, in which procedural fairness and the Applicant’s genuine participation ought to be ensured.

(2)  Hence, under Ground 4, in the overall context of the present case, it is Wednesbury unreasonable.

56.  It is trite that in a Wednesbury unreasonableness or irrationality challenge, it is settled law that the hurdle is high.  That hurdle is sometimes described as requiring the decision to be shown to be so unreasonable that no reasonable authority could ever have come to it.  A simpler formulation of the test is simply whether the decision is outside the range of reasonable decisions open to the decision-maker.

57.  Another aspect of irrationality – though merely another way of applying the same overarching test – may look at the process by which the impugned decision was reached, to see whether there was significant reliance placed on an irrelevant consideration, or whether there was an unexplained evidential gap or leap in the reasoning which fails to justify the conclusion, or whether the reasoning involved a serious logical or methodological error.

58.  Mr Wong correctly pointed out that the process of judicial review does not mean that the Court would in this case make a merits-based or medical assessment.  The task of the Court is to examine whether the decision of the Superintendent and the HA was made lawfully, with sufficient procedural fairness, reasonably, and proportionally.  Mr Wong further elaborated these principles at some length in his skeleton submissions, which I have taken into account but need not rehearse here.

59.  As regards the issue of ascertaining the bounds of what procedural fairness entails in the present case, Mr Wong submitted that it is necessary to find out the nature and purpose of the 2025 MDCC, including looking at the following matters:

(1)  According to Dr Dunn, the purpose of the 2025 MDCC was to ensure that the decisions regarding conditional discharge are informed, proportionate, and reflect the patient’s best interests as well as the safety of the community.

(2)  It was not confined to reviewing the Applicant’s medical diagnosis, but included other aspects relevant to the exercise by the Superintendent of the power under section 42B of the MHO.  Other than the diagnosis of the Applicant, the participants of the 2025 MDCC reviewed the suitability of her then current treatment plans and prescriptions, and further discussed her social, familial and personal circumstances, which included a medical social worker.

60.  Mr Wong further criticised that the Applicant “was taken by surprise” in the following two stages:

(1)  First, on 10 April 2025, when the Applicant was informed that the 2025 MDCC had taken place.  She was not provided with the information of the 2025 MDCC, including the fact that the 2025 MDCC was held (both before and after it was convened).  She was not informed at the Meeting Session on 13 March 2025, nor after the issuance of the letter to the Superintendent on 17 March 2025, and nor when she attended the regular treatment session on 10 April 2025.

(2)  Secondly, when the Applicant understood from the Affidavits of Dr Chan and Dr Dunn that other than her medical conditions, her social, familial, and personal circumstances, and treatment plans were considered in the 2025 MDCC.  From the MDCC Decision and the contemporaneous record, it is not possible to ascertain whether procedurally, the other circumstances of the Applicant were taken into account.  There are very limited matters as recorded in the MDCC Decision.

61.  Mr Wong emphasised that the nature of the 2025 MDCC was different from the usual biennial MDCCs as the genuine participation of the Applicant was of particular importance in relation to two aspects, including that the 2025 MDCC was arranged in light of the MHRT Decision, and that the Applicant had actively disputed her CD Order, the conditions of it and her treatment plans.

62.  The reasons for the Applicant’s need to participate in the 2025 MDCC, as further suggested by Mr Wong, were as follows:

(1)  The participation of a patient in a MDCC must be decided on a case-by-case basis.

(2)  The participation of the Applicant in the 2025 MDCC would have been crucial to afford her a chance to facilitate the consideration of her conditional discharge and her mental conditions.

(3)  The Applicant was prejudiced by the loss of chance to advance her own case and respond to the concerns raised at the 2025 MDCC, including that:

(a)  Regarding the medical opinions discussed during the 2025 MDCC, the Applicant was not provided with the medical evidence relied upon and had no chance to seek responses and clarifications from Dr Cheung, who had provided a contrary expert opinion on her medical conditions: see Re Shiao Kwok Wai Sunny [2016] 5 HKLRD 177 at §14.

(b)  As the Applicant was never made aware of her social, familial and personal circumstances being considered in the 2025 MDCC, she could not address such matters at all.

(4)  The other venues, being designed as a part of the Applicant’s treatment and care plan, cannot displace the importance of the 2025 MDCC as a formal and consolidated venue to review the Applicant’s conditional discharge order and the conditions imposed.

(5)  The duty to give prior notice cannot be defined solely by the utility of any possible representations made by and/or on behalf of the Applicant.

63.  Regarding the issue of rationality, Mr Wong submitted that as the heightened scrutiny test ought to be applied in the present case, the 2025 MDCC, which was conducted without giving any prior notice to the Applicant and without her genuine participation, must be Wednesbury unreasonable.

64.  After careful consideration, I do not accept the Applicant’s argument that the 2025 MDCC was tainted by any procedural impropriety, nor by the alleged breach of natural justice.  Nor was there any irrationality.

65.  I accept Mr Cheung’s submission that the procedural unfairness in the conducting the 2025 MDCC as alleged by the Applicant rests on a basic misunderstanding of the nature and function of an MDCC, which is not an adversarial hearing, nor a forum for a patient to make representations or submissions, and is instead an internal clinical discussion among multidisciplinary professionals.  This is the context for what fairness requires.  The various authorities relied upon by Mr Wong do not advance the Applicant’s case because they only illuminate that procedural fairness is highly fact-specific, meaning that there is no necessary wholesale transplant of their outcomes into a different statutory and factual setting, such as the present case.

66.  On the facts of the present case, contemporaneous record and the affidavit/affirmation evidence, I do not think the Applicant’s complaint of her being “taken by surprise” by the 2025 MDCC can be substantiated.

67.  First, the nature of a MDCC is such that no separate right to be heard arises.  A key factor is whether the process is adversarial or intended to determine legal rights: see N v Secretary for Security [2024] 4 HKLRD 105 at §156 and R (Wilkinson) v Broadmoor Hospital Authority at §84.  But a MDCC is not a hearing to determine the legal rights of a patient – or any civil rights or liabilities.

68.  As Dr Dunn explained, a MDCC is intended to review and reassess the mental condition and diagnosis of a patient through internal discussion among psychiatry, nursing, social work, education, and community services professionals.  During that process, the discussion is based on the clinical history and assessments of the patient, and the patient’s own stated views (which are all collated by the treating doctor beforehand).  It is not adversarial or accusatorial in nature, and it is not customary for patients to attend or make representations.  It is conducted in a way that a patient faces no allegation, no charge, and no “case” to answer.  The purpose is to reach a determination as to the most appropriate clinical way forward.

69.  Hence, the Applicant’s complaint of denial of legal representation at the MDCC is unfounded.  Fairness did not require or entail the right to legal representation at a MDCC, which is an internal clinical discussion between professionals rather than an adjudicative process.

70.  Secondly, during the Applicant’s many Clinic follow-ups, home visits, and telephone consultations under the CD Order, she had ample opportunity to express her concerns and was asked about her physical and mental state.  Her medication was repeatedly adjusted in response to her concerns.  In the 45-minute consultation just two weeks before the 2025 MDCC, the Applicant and her legal representative were expressly told that a MDCC would be convened to review her condition and she was given the opportunity to raise any side effects or worries, and she provided Dr Cheung’s reports and asked Dr Chan to consider them, which Dr Chan did.

71.  At the prior MHRT hearing, the Applicant was fully represented by a two-member Counsel team and she relied on Dr Cheung’s opinions in support of her case of misdiagnosis and absolute discharge.  The MHRT hearing was not conducted in anything other than a fair and impartial manner.  If the Applicant remained dissatisfied with her treatment or circumstances, there was nothing to prevent her from seeking a further MHRT review.  Hence, it is misconceived that the 2025 MDCC was the Applicant’s only (or central) opportunity for review, or that her condition had gone unreviewed until then.  The Applicant was fully aware of the other avenues available to her to raise concerns, and indeed used them.  In my view, there was no unfairness arising from her absence in the 2025 MDCC.

72.  Further, as Mr Cheung emphasised, the non-adversarial nature of the 2025 MDCC and the Applicant’s freedom to ask Dr Cheung, as her own psychiatrist, to supplement his reports make it unclear what practical difference the Applicant’s attendance at the MDCC would have made.

73.  As regards the Applicant’s contention that fairness required disclosure of the MDCC’s medical evidence so that she could seek responses from Dr Cheung, the “medical evidence” considered by the MDCC was the Applicant’s clinical history, diagnoses, and consultation notes, which are materials fully disclosed in the present proceedings.  The Applicant was at liberty to invite Dr Cheung to revise or supplement his views, though he has not done so.

74.  The Applicant’s complaint that Dr Chan’s non-consultation note fails to record any of the 2025 MDCC’s considerations of the Applicant’s circumstances other than the Applicant’s medical diagnosis does not advance her case further.  At least by the stage of these proceedings (which do not involve a ‘reasons’ challenge in any event), the Applicant can understand what conclusions were reached, and the reasons for them.

75.  Regarding the Application’s assertion that her non-participation in the 2025 MDCC was Wednesbury unreasonable, I agree with Mr Cheung’s analysis that as argued it is a conflation of two distinct grounds of review – irrationality and procedural impropriety.  In the AF86, the Wednesbury ground is directed at the alleged failure to review, rather than at the breach of natural justice as later advanced by Mr Wong.  I have dealt with the issue of irrationality in the above context, and I conclude that there was no unreasonableness in the Wednesbury sense as alleged by the Applicant.

76.  Grounds 1A and 4 are rejected.

H.  Ground 2 – Violation of Freedom against Inhuman and Degrading Treatments and Breach of Right of Privacy

77.  The starting point of Mr Wong’s submissions was that the legal context of the present case is effectively set out in Ground 2, which involves the supervisory jurisdiction of the Court to protect unlawful interference with the privacy of vulnerable persons and prevent any risk of inhuman or degrading treatment.  He said that the underlying constitutional context is of great significance as to the proper role and duties of both the Superintendent and the HA, whose decisions in the MDCC process did not allow genuine participation, resulted in confusion, distrust, or resentment, and failed to safeguard against a disproportionate or oppressive method of treatment.

78.  Mr Wong further submitted that if the Superintendent and/or the HA fails to conduct a review, or conducts a review that is procedurally unfair, and/or unreasonable, and/or disproportionate, the continued mandatory treatment and the “unconvincingly shown” medical necessity would be in breach of BOR 14 and BOR 3.

79.  As accepted by Mr Wong, in the present proceedings, the task of the Court exercising its judicial review jurisdiction is not to review the merits of the Superintendent’s and/or the HA’s medical decision, nor is to refute the medical professional’s opinions (including Dr Cheung’s).

80.  Mr Wong reiterated that what the Applicant seeks is procedural fairness in ensuring the basis of establishing medical necessity for proper consideration, and he also relied on the reasons provided by him under Ground 1A and his further analysis under Ground 2 to show that the alleged procedural impropriety makes it not possible to ascertain whether it can be “convincingly shown” that the prescription medications and Injection medications are necessary in view of the seriousness of the conditions of the Applicant, which I have taken into account.

81.  As regards the issue of right to privacy, the gist of Mr Wong’s contention is that the failure properly to review the Applicant’s conditions in observation of procedural fairness was a breach of her BOR 14 right.

82.  With respect, I do not find the submissions made by Mr Wong above convincing, as they are more or less repackaging of Grounds 1A and 4.

83.  More convincing is the crux of Mr Cheung’s response to Ground 2, namely that, as shown in the objective evidence, there were repeated and routine reviews of the Applicant’s condition, and that the BOR 3 and BOR 14 rights as invoked by the Applicant are not remotely – he said not remotely – engaged on the facts, being far away from the narrow circumstances in which compulsory medical treatment was found to trigger those protections.

84.  Mr Cheung provided his analysis at some length in respect of the argument whether there was “no failure to review” and “no breach of constitutional rights”.  I do not think it necessary to repeat it in great detail, nor engage in a review of the authorities cited by him.  The gist of his submissions, which I accept and summarise, is as follows:

(1)  There was no failure in reviewing the Applicant’s mental condition:

(a)  As shown in the objective evidence, the Applicant’s condition was reviewed regularly and appropriately, with detailed and responsive treatment plans and medication adjustments made in light of her presentation at each encounter.  At least 25 reviews in various forms (including consultations at the Clinic, home visits and telephone contacts by CPS nurses, MDCCs, and the routine assessments conducted before each depot injection) were undertaken by PYNEH between December 2023 and April 2025, which was approximately one review every few weeks.

(b)  The Applicant’s contention of no proper reviews could not be substantiated where that is an attack on the clinical quality and professional adequacy of the reviews without medical or expert evidence to prove that any review was improper as a matter of psychiatric practice.

(c)  The Applicant had ample opportunities to raise her concerns during the regular Clinic follow-ups and the home and telephone consultations required under the CD Order, including in the period between the MHRT hearing and the 2025 MDCC.  Between 20 May 2020 and 13 February 2025, the Applicant’s medication regime was under continuous review, with specific adjustments made in response to her presentation and complaints.

(d)  The 2025 MDCC was conducted with professionals of different expertise to review the Applicant’s diagnosis and treatment plan in full, which ensured that the Applicant’s care was not examined by just one doctor, but by a team with input from several angles.

(2)  As regards the alleged violation of BOR 3:

(a)  The Applicant’s claim of failure to review is an assertion of a breach of a positive obligation, specifically an ex ante procedural duty on the respondents to ensure that proper reviews of her mental condition are carried out before requiring her to undergo medical treatment.  Article 8 of the European Convention on Human Rights “contains no explicit procedural requirements”, but it does require a decision-making process that respects the interests the Article protects.

(b)  Public authorities are afforded a wide margin of appreciation in determining how such obligations are to be met.  In complex areas demanding specialised and continuous professional judgment, the margin is at its broadest.  Mental health care is one example where clinicians see the patient, speak with him or her and track his or her progress in real time.  In the present case, even assuming a positive duty to ensure the Applicant is not subjected to medically unnecessary treatment, the Superintendent and the HA retain a broad discretion in how that duty is discharged.

(c)  Taking into account clinical judgment, available resources, and operational considerations, decisions about the mode, nature, and frequency of review fall within that discretion.  It is permissible to structure care so that patients are reviewed at regular follow-ups, supplemented where appropriate by additional mechanisms such as MDCCs.

(d)  Even if a case of “negative” obligation challenge is advanced, it is untenable.  On the facts of this case, it is fair to say that BOR 3 is not engaged because the treatment complained of does not approach the high threshold of severity required, nor does it exhibit any of the features (i.e. humiliation, debasement, contempt for dignity, or gross disproportionality) which characterise inhuman or degrading treatment, in view of the repeated reviews provided to the Applicant by various means, adjustment to her prescriptions to reflect her evolving presentation, and the offer of the option in switching depot medications through inpatient admission on multiple occasions (though she did not accept).

(e)  The disagreement with a patient’s diagnosis or treatment cannot establish a violation of BOR 3.  The evidence does not suggest that the Superintendent and/or the HA acted in deviation from the ordinary motives of medical professionals, i.e. seeking to stabilise a patient, protect her well-being, and prevent harm.

(f)  Dr Cheung’s reports do not assist the Applicant in advancing her case that she was misdiagnosed, or that her treatment including the injections was medically unnecessary.  The MDCC considered those reports but did not accept the conclusions.  The Applicant’s diagnoses in the HA were formed through years of independent, continuous, and multidisciplinary psychiatric evaluation across multiple hospitals and units.  By contrast, Dr Cheung saw the Applicant only 3 times between 2023 and 2024.  It is fair to say that his views cannot retrospectively displace more than a decade of longitudinal clinical assessment.

(3)  Regarding the alleged violation of BOR 14:

(a)  The Applicant’s privacy complaint is also misconceived.  The Respondents have discharged any positive duty to safeguard her privacy rights by conducting ongoing reviews and reassessments of her condition (an area on which they are entitled a wide margin).  The Applicant’s treatment cannot amount to a disproportionate interference with her privacy, as it is ex hypothesi treatment regarded as medically necessary for her own protection and for the protection of others.

(b)  The Applicant’s diagnosis has been in place since 2010 and has been reaffirmed repeatedly by multiple treating psychiatrists and by the MHRT.  Save for the two Dr Cheung reports which were rejected by the HA doctors and the MHRT, the Applicant has not demonstrated any medical evidence to substantiate the complaint of misdiagnosis.

85.  Ground 2 also fails.

I.  Grounds 3 and 3A – Failure to Take into Account Relevant Considerations

86.  Mr Wong submitted that this ground is to supplement Ground 1A, whereby the Applicant alleged that the requirements of procedural fairness for the Applicant have not been met.

87.  As is obvious, for the Applicant to succeed on this ground, it hinges upon that of Ground 1A, which has been rejected.  Therefore, so does this ground, and it is not necessary to embark on any further discussion.

J.  Result

88.  I would respectfully echo the positive comments made by the MHRT.  I also accept that patient such as the Applicant should be treated with dignity, and in a way which respects the integrity of the process.  However, all grounds as raised by the Applicant are rejected on the substantive application for judicial review.

89.  As to the main relief still pursued by the Applicant at the hearing, I see no basis to interfere with or quash the MDCC Decision as being in breach of any natural justice or tainted by procedural impropriety.  Nor is there any basis to make any order to compel the Superintendent and/or the HA to review and/or direct a proper review of the Applicant’s mental conditions and diagnosis.  In any event, I would note that there has been continuous review of the Applicant’s diagnosis and appropriate treatment, and it remains open to the Applicant to pursue further applications or appeals to the MHRT.

90.  As to costs, it seems to me that the costs should follow the event and the costs of the Superintendent and the HA should be payable by the Applicant, to be taxed if not agreed.  I make that order on a nisi basis, to become absolute after 14 days unless any party makes an application for variation of the nisi order.  Any variation application will be dealt with on paper.