LWY v. GUARDIANSHIP BOARD AND ANOTHER

HCMP 953/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 953 OF 2008

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REASONS   FOR   JUDGMENT

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1.  In the performance of its function under Part IVB of the Mental Health Ordinance [“MHO”] Cap. 136, does the Guardianship Board have the power to confer authority on a guardian to restrict access to a mentally incapacitated person?  This is the issue which calls for determination in this appeal.

2.  The Appellant brought an appeal against the decision of the Guardianship Board on 21 April 2008 in respect of her mother Madam Lee, a 78 years old lady who, unfortunately, suffered from mental incapacity.  Madam Lee has 5 children.  More specifically, the Appellant was aggrieved by the condition laid down by the Board regarding access to her mother.  As a special condition to the Guardianship order, the Board provided,

“In discharging a general statutory duty to act for the interests of welfare of the subject, the guardian may only allow access to her by any family member or relatives in a place and on such terms and conditions to be decided at the guardian’s absolute discretion.”

3.  Given that the Appellant is not legally represented, and the point in issue is one of general application, apart from asking the Official Solicitor to represent the interest of Madam Lee in the appeal, the court also appointed Mr Chow as amicus to assist the court.  Mr Tavares, appearing on behalf of the Director of Social Welfare, also conducted a very comprehensive research into the relevant law.  The chairman of the Board had put in a written submission though he did not appear at the hearing.  The Appellant also made an oral submission at the hearing.  I am grateful to all the parties who made submissions before me.

4.  On 6 January 2009, this court allowed the appeal and set aside the special condition.  The following are my reasons.

5.  The Board is created by statute and its power can only be derived from statute.  Sections 59K and 59O of the MHO give the Board the power to make guardianship orders.  In the present context, the following legislative provisions are relevant.  Section 59K(1)(d) provides that the Board shall

“give directions to guardians as to the nature and extent of guardianship orders made under section 59O appointing those guardians, including directions as to the exercise, extent and duration of any particular powers and duties of those guardians contained in such terms and conditions (if any) that those guardianship orders may be subject under subsection (2) of that section”.

6.  Section 59O(2) provides again that,

“Any guardianship order … shall be subject to such terms and conditions as the Guardianship Board thinks fit, including terms and conditions (if any) as to the exercise, extent and duration of any particular powers and duties of the guardian.”

7.  These provisions do not set out specifically what aspects of a mentally incapacitated person [MIP]’s livelihood can be dealt with by a guardian under a guardianship order.  In the light of the history leading to the enactment of Part IVB, which I shall discuss below, it is quite clear that these general provisions do not mean to give the Board authority to confer on a guardian a general and unrestricted power in dealing with the livelihood of a MIP by the making a guardianship order.

8.  Section 59R sets out the terms and effect of guardianship order.  In particular, Section 59R(3) prescribes specifically the power that can be conferred upon a guardian under such order.

“… a guardianship order may confer on the guardian appointed under this Part, to the exclusion of any other person one or more of the following powers, namely ---

(a)     the power to require the mentally incapacitated person to reside at such place as may be specified by the guardian;

(b)     the power to convey, or to arrange the conveyance of, the mentally incapacitated person to the place so specified by the guardian, and such reasonable force may be used as is necessary for the purpose;

(c)     the power to require the mentally incapacitated person to attend at places and times so specified by the guardian for the purpose of treatment or special treatment (within the meaning of section 59ZA) or occupation, education or training;

(d)     the power to consent to that treatment (other than special treatment) on behalf of the mentally incapacitated person but only to the extent that the mentally incapacitated person is incapable of understanding the general nature and effect of any such treatment;

(e)     the power to require access to the mentally incapacitated  person to be given, at any place where the mentally incapacitated person is residing, to any registered medical practitioner, approved social worker, or other person (if any) specified in the order;

(f)      the power to hold, receive or pay such monthly sum (within the meaning of section 44B(8)) specified in the order on behalf of the mentally incapacitated person for the maintenance or other benefit of that person as if the guardian were a trustee of that monthly sum. ”

9.  At this juncture, it is convenient to refer to the history of mental health legislation in Hong Kong.  In this connection, much had been said by Blair-Kerr J in Re ShangKiang-yuen [1968] HKLR 192.  Up to 1997, there was a dual system in force in Hong Kong, one regime under our Mental Health Ordinance (enacted since 1962) together with another regime under the then English legislation by reason of Section 8(2) of the Supreme Court Ordinance and Section 77 of the Interpretation and General Clauses Ordinance.  In 1997, the amendments to the Mental Health Ordinance replaced this dual system with a single regime under the MHO.

10.  One facet of the dual system in Hong Kong was based upon Section 8(2) of the Supreme Court Ordinance conferring on the Supreme Court the jurisdiction exercisable in England by the Lord Chancellor or other judges under English mental health legislation.  It had no application to guardianship proceedings.  Guardianship proceedings were not proceedings before the court.  Instead, under the English Acts they were applications forwarded to the local health authority or since 1983 the local social services authority.  There was no need for an order to be made.  It could be acted upon if it appeared to be duly made and founded on the necessary medical recommendations (see Section 34(3) of the 1959 Act and Section 8(3) of the 1983 Act).  Guardianship application naming a person other than a local authority as guardian had to be accepted before it took effect (Section 33(3) of the 1959 Act and Section 7(5) of the 1983 Act).  A patient could apply to a Mental Health Review Tribunal for review.

11.  Under the 1959 Mental Health Act, the effect of a guardianship application was to confer upon the guardian all such powers as would be exercisable in relation to the patient as if the guardian were the father of the patient and the patient were under the age of 14, see Section 34(1) of the 1959 Act.

12.  Given the wide power conferred upon such a guardian, he could determine and restrict access to the patient.  Thus, Regulation 6 of the Mental Health (Hospital and Guardianship) Regulation 1960 specifically provided that subject to certain regulations, “the guardian may restrict to such extent as he thinks necessary the making of visits to the patient and may prohibit visits by any person who the guardian has reason to believe may have an adverse effect on the patient.”

13.  The 1959 Act was replaced by the Mental Health Act 1983.  The 1983 Act was the result of a review of mental health legislation in England.  In that review, one conclusion was that the power given to a guardian under the 1959 Act was too wide.  In the Command Paper 8405 presented to Parliament in 1981, the following was said at para. 43,

“The guardian … is given the powers that a father has over a child under 14.  These powers are therefore very wide, as well as somewhat ill-defined, and out of keeping, in their paternalistic approach, with modern attitudes to the care of the mentally disordered.  The 1978 White Paper … suggested that further consideration was needed and put forward three possible options.  One option was to retain guardianship powers in more or less their present form with some minor changes … The second option was to introduce a range of community care orders to parallel existing compulsory hospital powers … The third was to introduce new specific powers to restrict the liberty of the individual only as much as is necessary to ensure that he receives medical treatment and social support and training --- the ‘essential powers’ approach.”

14.  The British Government, after consultation, adopted the third option.  Thus, at para. 44 of the paper, it was stated,

“The Government … has decided that the third option, which was widely supported, most closely meets current needs.  The Bill therefore provides that guardianship powers should be retained, but that the guardian should have only the ‘essential powers’ rather than all the powers of the father of a child under 14 as at present.”

Then three essential powers were enumerated and they did not include a general power to restrict access to the patient.  Para. 44 continued,

“The Bill proposes that guardianship will be required to be ‘in the interest of the welfare of the patient or for the protection of other person’ rather than ‘in the interests of the patient …’ as at present; this will clarify the purpose of guardianship and ensure that the power is not so wide.”

15.  These conclusions were implemented by the 1983 Act.  Section 7(2)(b) prescribed that a guardianship application may be made on the ground that “it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received”.

16.  The same wordings appeared in our current MHO Section 59M(2)(b).

17.  Section 8(1) of the 1983 Act set out the three essential powers to be conferred upon a guardian.  They are almost identical to the powers set out in our current MHO Section 59R(3)(a), (c) and (e).

18.  Regulation 6 of the Mental Health (Hospital and Guardianship) Regulation 1960 was not retained after the enactment of the 1983 Act.

19.  This remained the position in England when the MHO in Hong Kong was amended in 1988 and 1997.

20.  In Hong Kong, the MHO was first enacted in September 1960 (and first came into operation in 1962).  At that stage, our MHO did not have any provision for appointment of guardian.  Guardianship was introduced into Hong Kong by the 1988 amendments of the MHO.  The 1988 scheme was modeled upon the English regime under the 1983 Act.  There was no need to have an order.   The application was forwarded to the Director of Social Welfare and took effect upon acceptance by the Director, see Section 34(1).  There was an avenue for seeking a review by the Mental Health Review Tribunal, see Section 59B(2)(c).

21.  More pertinently in the present context, under the 1988 amendments, Section 33(2)(b) of the MHO was in the same terms as Section 7(2)(b) of the 1983 Act.  The powers of a guardian were set out in Section 34(1) and were in substantially the same terms as the essential powers under Section 8(1) of the 1983 Act.

22.  Thus, at its inception, guardianship under the MHO in Hong Kong only conferred upon the guardian the essential powers.

23.  There was a review and amendment of the MHO in 1997.  A new Part IVB was added to deal with Guardianship proceedings before the Guardianship Board.  In the new regime, the legislature continued to adopt the essential powers approach in defining the powers to be conferred upon a guardian, see Section 59R(3).  There is nothing to suggest that the legislative intent was to enlarge the power of a guardian as regards access to a MIP.  Though the Secretary for Health and Welfare referred to additional powers being conferred on guardians in the second reading of the 1997 Bill, he was obviously referring to the three specified additional powers added to Section 59R(3) instead of additional powers in terms of general unspecified powers impliedly granted under other sections.

24.  In fact, if one were to examine the additional powers, the essential power approach is confirmed.  If a guardian has been granted power necessary to foster the welfare of a MIP in general by implication from other sections in the ordinance, there is no need to have explicit reference to the power to convey under Section 59R(3)(b), the power to consent to treatment under Section 59R(3)(d) and the power to receive and pay money for the maintenance of the MIP under Section 59R(3)(f).  Hence, as matter of construction, the addition of these powers to Section 59R(3) negates the force of any submission that there were implied powers conferred on a guardian under other provisions in the MHO.

25.  Thus, the only power conferred on a guardian under the MHO relevant to access remains that set out in Section 59(3)(e).  It is a power to require access to be given to certain specified personnel or persons at the place of residence as opposed to a power to restrict access.

26.  Whilst there are differences between the English legislation and our MHO, there cannot be any doubt that our legislature had adopted the English preference for the essential power approach in prescribing the powers that can be conferred upon a guardian.  In respect of the three specific powers taken from English legislation, English authorities on the limits of those powers are therefore highly persuasive for our purposes.

27.  On the question of a guardian’s power to restrict access, my attention was drawn to a number of English authorities.  I find great force in the succinct summary of Hale J (as she then was) in Cambridgeshire County Council v R (An Adult) [1994] 2 FCR 973 at p. 979B to C,

“Although Section 8(1)(c) [of the 1983 Act, the equivalent of our Section 59(3)(e)] also gives the guardian the right to decide positively who must be allowed to see the patient, it does not in terms give the right to decide who should not be allowed to do so.  But there are … various means of protecting [a MIP] available under the general law, including of course the right of the occupier of the place where she lives to control who is allowed to be there and in what circumstances. ”

28.  One can gather from the English cases that it is precisely due to the inadequacy of the statutory guardianship regime that there are gaps to be filled by the exercise of the inherent jurisdiction of the High Court under the common law doctrine of necessity.  Thus, Thorpe LJ said in Re F (Adult) [2000] 2 FLR 512 at p. 527H, a case also dealing with the question of access,

“Of course regimes of guardianship whether statutory or inherent in their foundation can be operated so as to impinge upon or deny the rights of the individual.  To minimize that risk powers contained in the 1959 Act were drastically reduced and both in statutes and in codes of practice safeguards are declared for the protection of the individual against error, abuse or excess in the protector.  In my judgment it cannot follow that that reduction intended to benefit patients must operate consequentially to deny patients the protective aspects of guardianship which the common law is able to furnish through the application and, if necessary, the extension of declaratory relief justified by the common law doctrine of necessity.”

29.  In the same case, Sedley LJ expressed similar sentiment when identifying the issue in the case at the beginning of his judgment at p. 528D,

“The critical question is whether the space created by the … 1983 Act represents a legislative policy which the courts must respect or a lacuna which they may fill.”

30.  I was also referred to the unreported first instance and Court of Appeal decisions in 1997 in R v Kent County Council, ex p Marston CO/1819/96.  It is clear from the following passages in the judgments that it was accepted both by counsel and the court that the 1983 Act did not empower a guardian to restrict access.  In the first instance judgment of Owen J,

“Mr Gordon comments that nothing in the statutory powers gives any power to limit or prohibit contact with others against John’s wishes … This contention, which is agreed by Mr Clarke, cannot be gainsaid.”

In the Court of Appeal, Simon Brown LJ said,

“True, as the judge below accepted, s 8 of the 1983 Act … does not confer upon the guardian any express powers or duties to act in the best interests of the patient.   It can be seen in this regard to present a marked contrast, no doubt an intended contrast, with the legislative regime which it replaced.  That point, indeed, was well made by Hale J in Cambridgeshire County Council v R (An Adult)  [1995] 1 FLR 50.”

31.  Whilst the court in R v Kent County Council, ex p Marston did go on to say the necessary implication of Section 7 of the 1983 Act was that the guardian had a duty to act for the welfare of a patient, it was also observed that the extent and consequences of that duty were not clear.  Owen J did not take the view that a power to restrict access was impliedly granted.  Instead, His Lordship said,

“The correct approach is that the local authority has no power to restrict contact …unless they have a court order.  The duty to act for John’s welfare might demand such an application.”

32.  In Hong Kong, the duty of a guardian to act for the welfare of the patient is explicitly spelt out under Section 59S(3) of the MHO and, in the case of private guardian, Regulation 3(1)(j) of the Mental Health (Guardianship) Regulations.  But I cannot see how these provisions, reading together with the welfare criterion under Section 59O(3)(d), can be relied upon to expand the powers that can be conferred upon a guardian beyond those set out under Section 59R(3) when the legislative history and the contents of that sub-section itself (in particular the powers added in 1997) clearly indicated an essential power approach being adopted by the legislature.

33.  Therefore, English jurisprudence supports the view that Section 59(3) does not confer on a guardian the power to restrict access.  Further, even though there is a duty on the part of a guardian to act in the interest and welfare of the MIP, the duty is still confined to what can be done within the powers conferred upon a guardian and the other remedies available under the general law.  Given that no power to restrict access can be conferred, a guardian who encounters problems in that regard has to make an application to the court for declaratory relief.

34.  My conclusion in the light of the legislative history, the scheme of the statutory provisions in the MHO and the relevant case law is that the Board cannot give direction (whether by way of conditions or otherwise) to a guardian that purported to confer a power on the latter to restrict access to a MIP.

35.  For these reasons, the special condition purporting to confer the power on the guardian to restrict access cannot be sustained.  The appeal was allowed accordingly.

36.  Having disposed of the appeal, I cannot say it is a satisfactory state of affairs.  I understand that the Board quite frequently faced with situations where access is a problem.  Since the Board does not have the power to deal with that issue effectively and comprehensively in the current legislation, the matter will have to be resolved by proceedings in the High Court seeking coercive declaratory relief under the inherent jurisdiction of this court based on the doctrine of necessity to regulate access to mental patient[1].  This is the course that the guardian (the Director of Social Welfare) in the present case will adopt.  But that course may not be the best solution in other cases.  To start with, in cases where a private guardian is appointed, he may not have the knowledge or resource to take the matter to the High Court.  Whilst legal aid may be available (and in an appropriate case the court may appoint the Official Solicitor to represent the MIP), the proceedings could still be exhaustive in terms of the time and energy of those concerned with the MIP, not to mention the possibility of greater damage being done to relationships.

37.  My attention was drawn to the situation in New South Wales where a guardianship order confers the custody of the person of a MIP on a guardian under Section 21 of the Guardianship Act 1987.  In K v K [2000] NSWSC 1052, it was held that with such power, the guardian could legitimately deal with question of access.  That is a model which our administration may wish to consider in a review of our MHO.  The Guardianship Board in Hong Kong has been operating since 1997 and the nature of guardianship applications has changed over the years.  The demand for guardianship is also growing enormously due to the increase in dementia cases in our population.  I believe it is high time that a review of the system is called for.

38.  I would also take this opportunity to comment on some other legal aspects in relation to access.  Although a guardian does not have the power to restrict access under the terms of a guardianship order (as it does not fall under one of the specified powers in Section 59(3), the judgment in Cambridgeshire County Council v R (An Adult) [1994] 2 FCR 973 suggested the same result may be achieved by the exercise of the specific power under Section 59(3)(a) to determine the place where the MIP is to reside together with the power of the occupier under the general law in relation to trespass.

39.  I say the same result may be achieved because it depends on,

(a)     The Guardianship Board conferring the power under Section 59(3)(a) on the guardian;

(b)    The occupier of the specified place of residence is willing to act in accordance with the instruction of the guardian;

(c)     The MIP is incapable of leaving the place of residence without the consent of the guardian or the occupier.

40.  Contingency (a) is not significant.  In most cases where the Board deems fit to confer the power under Section 59(3)(e) on the guardian it is likely that the power under Section 59(3)(a) would be conferred.  In cases where that power is not conferred, should there be a need to do so, the guardian can invite the Board to consider making a supplementary order.

41.  Contingency (b) may arise in cases like the present one when the MIP is residing with a relative other than the guardian.  The relative may have his or her own reasons for giving or restricting access of his or her premises to the person specified by the guardian.  In this connection, it should be noted that the power under Section 59(3)(e) is confined to access to be given at the place of residence, not any other places specified by the guardian.

42.  Since the guardian is not the owner or occupier of the premises, he has no right to dictate to the owner or occupier how the latter’s control over the premises should be exercised.  One solution seems to be the removal of the MIP from that premises (if necessary armed with a warrant obtained under Section 71A of the MHO for that purpose[2]) and to specify another place of residence.

43.  However, if the guardian is of the view that to remove the MIP to another place of residence may not be in the MIP’s interest, he may have to commence proceedings in the High Court.

44.  Contingency (c) requires some serious consideration.  Though a guardian may have the power to require the MIP to reside at specified place under Section 59R(3)(a), it does not necessarily follow that such MIP is detained at the place of residence.  So long as the MIP does not object to the arrangement, there is no detention: see R v Bournewood Community and Mental Health NHS Trust [1998] 3 All ER 289.  But if the MIP has the physical ability and the wish to move around on his own accord, there is no express provision in the MHO to authorize the guardian to restrict his freedom of movement subject to the requirement that the MIP has to reside there.

45.  Section 59V gives the power to the guardian or the Director of Social Welfare to use reasonable force to take the MIP in custody and return him to the specified place of residence if the MIP absents himself from the place of residence without permission.  This may suggest that the MIP can in effect be detained at the place of residence.  I do not propose to come to any definite conclusion without the benefit of full argument on this issue.  But assuming that this constitutes detention, there could be human rights implications.

46.  In Re F (Adult) [2000] 2 FLR 512 Sedley LJ highlighted the human right dimension in the context of the treatment of MIP.   At p. 531-2, His Lordship referred to Articles 5 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

47.  Article 5 protects a person’s right to liberty.  Even though a person of unsound mind can be deprived of his liberty by lawful detention, it has to be done in accordance with a procedure prescribed by law.  Sedley LJ referred to the requirements that the procedure must be prescribed by law (meaning that the law must be principled and predictable) and the law itself must in turn accord the respect due under Article 8 to private and family life.

48.  In connection with Article 8, Sedley LJ said at p. 531H to 532A,

“The family life which Article 8 requires respect is not a proprietary right vested in either parent or child: it is as much as interest of society as of individual family members, and its principal purpose, as least where there are children, must be the safety and welfare of the child.  It needs to be remembered that the tabulated right is not to family life as such but to respect for it.  The purpose, in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life.  It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardize their welfare.”

49.  In another case cited by counsel, R (on the application of Ann S) v Plymounth City Council [2002] EWCA Civ 388 Hale LJ (as she then was) also gave consideration to Article 8 implications in dealing with mental patients.  At para. 46, Her Ladyship said,

“But the right to respect for family life goes deeper than that: the state is not permitted to interfere with that right unless this is (1) in accordance with the law, (2) in pursuit of a legitimate aim, and (3) proportionate to that aim.  The protection of the health and welfare of a young man who is unable to make decisions for himself must be a legitimate aim for this purpose.”

50.  Article 28 of our Basic Law protects the freedom of person of Hong Kong residents.  No resident shall be subjected to unlawful detention.  Article 39 of the Basic Law endorsed the application of the International Covenant on Civil and Political Rights [“the ICCPR”] to Hong Kong by the Hong Kong Bill of Rights Ordinance.

51.  A person's right to liberty is safeguarded by Article 9(1) of the ICCPR.  Further, under Article 17(1) of the ICCPR, a MIP, as much as an ordinary person, is protected against arbitrary or unlawful interference with his family.

52.  The human rights implications of conferring upon a guardian absolute discretion in restricting access in guardianship proceedings have not been fully debated before me.  As presently advised, I can see much force in an argument that the regulation of access is an interference with family and as such has to be determined by a lawful process in accordance with legal rules that are principled and predictable, aiming at the protection of the welfare of the MIP concerned and proportionate in its operation.  An absolute discretion conferred upon a guardian may not fit easily into these requirements.

53.  All these will have to be addressed in any future review of the MHO.

54.  I intend to release this judgment for public circulation.  But the name of the Appellant will be anonymised to protect her privacy.  If any party has any comment on such a course, he or she can send the same to me in writing within 7 days.