FRANCIS JACQUELINE v. THE SUPERINTENDENT OF KWAI CHUNG HOSPITAL

HCAL 69/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 69 OF 2016

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REASONS FOR DECISION

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A.   INTRODUCTION

1.  By way of a letter dated 17 February 2016, the applicant made an application to this court for habeas corpus.  This is supported by the applicant’s unsworn affidavit of the same date.

2.  The applicant’s case in gist is that she was seized by police at a building in Mong Kok in January and has then subsequently been detained in Kwai Chung Hospital (“the Hospital”).  She says the seizure and the detention at the Hospital are both made against her will and thus unlawful.  She has therefore made the present application.[1]

3.  By a letter dated 4 March 2016, this court directed the applicant to issue a writ of habeas corpus to require the respondent to attend the court on 15 March 2016.

4.  The respondent was served by the applicant this application and the writ of habeas corpus on 10 March 2016.

5.  The respondent filed and served an affirmation of Dr Lu Wan Yin, Vivien, setting out the circumstances of the applicant’s admission to and continued stay at the Hospital.

6.  After hearing the parties, I discharged the writ of habeas corpus.  I indicated that I would give my reasons later.  This is what I do now.

B.   THIS HABEAS CORPUS APPLICATION – IS THE DETENTION UNLAWFUL

7.  The question I have to consider in this application (where the writ of habeas corpus has been issued) is whether the respondent can demonstrate on a balance of probabilities that the detention is lawful: Re W [2006] 1 HKC 468 at paragraphs 51 - 53.  The standard of proof is the civil standard but the degree of probability is high: Hong Kong Civil Procedure 2016 at paragraph 54/3/1, citing Khawaja v Secretary of State for the Home Department [1984] AC 754.

B1.   The respondent’s position

8.  In the Return to Writ of Habeas Corpus, it is the respondent’s position that the detention is lawful, as the applicant is suffering from mental disorder of a nature or degree which makes it appropriate for her to receive medical treatment in the Hospital, and thus justifying compulsory detention under sections 31, 32 and 36 of the Mental Health Ordinance (Cap 136) (“MHO”) for that purpose and for the applicant’s health and safety as well as for the protection of other persons.

B2.   The relevant procedures for the issue of detention orders under the MHO

9.  The procedure for obtaining a detention order is provided under Part III of the MHO.  The relevant statutory provisions provide for the maximum period that a person can be obtained under each section, and the formal requirement for obtaining such orders.

10.  An application can first be made under section 31 of the MHO for an order that a patient be detained for a period not exceeding seven days for observation. Section 31 of the MHO provides, in relevant part:

“(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.”

11.  Section 32 also allows for an application for an extension of the period of detention for a period not exceeding 21 days.  Section 32 of the MHO states that:

“(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.”

12.  Section 36 further provides for a detention order to be made in respect of a patient, and states that:

“(1) If-

(a) a patient liable to be detained in a mental hospital (otherwise than 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...

(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. ...

...

(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.”

13.  The application must be made in the prescribed forms, as provided in the Mental Health Regulations (Cap 136A).

14.  A patient liable to be detained in a mental hospital can make an application to review the detention order.  The review application is to be made to the Mental Health Review Tribunal, which is established by section 59A of the MHO “for the purpose of dealing with applications and references by and in respect of patients under this Ordinance...”.  Section 59B(1) of the MHO provides, relevantly that, “an application may be made to the tribunal for the review of the case of any patient liable to be detained in a mental hospital...”

15.  The powers of the Mental Health Review Tribunal upon review are set out in section 59E of the MHO:

“(1) Where application is made to the tribunal under section 59B(1) or (2)(a) or (b) or a case is referred to it under section 59C(1) or 59D(1), the tribunal may-

(a) direct that a patient be discharged, and where it does so the patient shall be discharged in accordance with its direction; and

(b) make such recommendations in the matter as it thinks fit including recommendations to the Chief Executive and to any public officer as to the exercise of their powers under this or any other Ordinance.”

B3.   The respondent’s evidence concerning the detention of the applicant

16.  It is the respondent’s evidence that the applicant was compulsorily admitted to the Hospital via Kwong Wah Hospital on 20 January 2016, where she has since been treated.  The applicant was brought to Kwong Wah Hospital and was accompanied by police because of aggressive behaviour.

17.  Upon admission to Kwong Wah Hospital, the applicant was assessed by various medical practitioners who came to the view that the applicant should be admitted, compulsorily if necessary, for further observation and treatment.  The observations and diagnosis recorded by the relevant medical practitioners, and the basis for seeking the application’s detention order, are set out in the psychiatric notes exhibited to Dr Lu’s Affirmation.

18.  The application for compulsory detention was made in line with the prescribed statutory procedure under Part III of the MHO, which deals with the reception, detention and treatment of patients.  The following steps were taken, in line with the prescribed statutory procedure:

(1)   On 20 January 2016, an application was made under sections 35A(1) and 31(1A) of the MHO by Dr Tseng and Dr Chung respectively, for the detention of the applicant for observation.  Section 31(1B) requires that the application be countersigned by a magistrate or district judge, and that the detention not exceed seven days: see Form 1 and Form 2 (signed by Dr Tseng and Dr Chung) and Form 3 (signed by Ms Veronica Heung, Magistrate).

(2)   On 22 January 2016, Dr Lu and Dr Choi had after their examination of the applicant, made an application pursuant to section 32 of the MHO to extend the period of compulsory detention of the applicant for a further 21 days.  Section 32(2) requires that the order be countersigned by a district judge, and section 32(3) requires that only one extension of not more than 21 days: see Form 4, signed by Dr Choi, Dr Lu and countersigned by District Judge G Lam.

(3)   On 5 February 2016, after Dr Lu and Dr Choi had re-assessed the applicant’s condition and come to the view that she required further observation and psychiatric treatment, they applied to certify her as a patient with a mental disorder and thus applied for a detention order under section 36(2) of the MHO.  Section 36(2) of the MHO requires that the order be countersigned by a district judge, see: Form 7 signed by Dr Choi and Dr Lu, and countersigned by Deputy District Judge To Ho-shing.

(4)   The applicant is currently receiving treatment in the Hospital and has been assessed, by Dr Choi and Dr Lu, as requiring continuous detention and treatment.

19.  The respondent has exhibited to Dr Lu’s affirmation copies of (a) the detention orders respectively made by the Magistrate pursuant to section 31(1B) of the MHO dated 20 January 2016, District Judge Lam dated 22 January 2016 and Deputy District Judge To dated 11 February 2016 (respectively pursuant to sections 32 and 36 of the MHO); and (b) the relevant supporting medical reports and admission summary.

B4.   Court’s view

20.  The applicant submits that she is of sound mind and suffers no mental illness.  In particular, she emphasises that the composed and clear way she is making submissions in court (as the court could observe) shows that she is not suffering from any psychiatric conditions.  She therefore asks this court not to accept the respondent’s evidence and says that the detention is unlawful.  Implied in these submissions must also be the applicant’s contention that the above detention orders were wrongly issued.

21.  I am unable to accept the applicant’s contentions because:

(1)   First, the applicant’s assertions are not based on or supported by any relevant medical reports.  As such, I am unable to prefer her mere assertions to the respondent’s evidence, which is well supported by objective documentary evidence, including the expert medical opinions provided by psychiatrists and the relevant detention orders issued by the courts.

(2)   Second, and in any event, if she is dissatisfied with the detention orders, she should make an application to review them by the statutory specialist tribunal under section 59B(1) of the MHO.

22.  In my view, the respondent has clearly satisfied me with the above credible and objective evidence that the applicant’s detention at the Hospital is and has been a lawful one made pursuant to the relevant provisions under the MHO and valid orders issued by the courts.

23.  I therefore discharged the writ of habeas corpus with no order as to costs.

24.  Lastly, I would also like to thank Ms Souza, counsel for the respondent, who has rendered helpful assistance to this court.