BHATTI BHUPINDER SINGH v. HOSPITAL AUTHORITY

HCMP 334/2019

[2020] HKCFI 530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 334 OF 2019

__________

__________

__________

DECISION

__________

1.  The applicant commenced an action in the District Court for alleged personal injury arising out of his compulsory detention at the hospital pursuant to the Mental Health Ordinance, Cap 136 (“MHO”) back in 2015. This is his application for leave to commence such an action, which is required under the MHO.

Procedural background

2.  On 8 October 2018, the applicant commenced DCPI 2159/2018 (“the DC Action”).  The Hospital Authority (“HA”) was named as the defendant and served with the writ.  The HA acknowledged service and indicated intention to defend.  According to his “Amendment on Statement of Claim” (“SOC”) filed subsequently, the applicant alleges that it was, amongst other things, the wrongful diagnosis of the Tuen Mun Hospital (“TMH”) that led to his compulsory detention from 12 October to 6 November 2015.  This allegedly caused pain and suffering to him and his family.  He claims a sum of HK$75,000 being damages for alleged personal injury plus various other heads of special damages.

3.  Taking the view that the claim in the DC Action falls to be governed by section 69 of the MHO, the HA put the District Court on notice that the action was commenced without leave under section 69(2).  The master therefore stayed the proceedings in the DC Action pending an application to be taken out by the applicant for leave in the Court of First Instance of the High Court.

4.  On 12 March 2019, the applicant took out the present application effectively for retrospective leave to commence the DC Action.  As action has actually been commenced against the HA as the defendant, this court directed the applicant to serve the application on the HA, and gave directions for the filing of affidavit evidence, if the HA so required.  As the parties opted, the application was fixed for an oral hearing.

Section 69 of the MHO

5.  Section 69 of the MHO reads:

“Protection of persons carrying out the provisions of this Ordinance

(1)  Where a person has made application for the removal or detention of any person under the provisions of this Ordinance, or signed or carried out, or done any act with a view to signing or carrying out, an order purporting to be an order for removal or detention, or any report, application, recommendation, or certificate purporting to be a report, application, recommendation, or certificate under this Ordinance, or has done anything or given any advice in a professional capacity in pursuance of this Ordinance, he shall not be liable to any civil or criminal proceedings whether on the ground of want of jurisdiction or any other ground unless he has acted in bad faith or without reasonable care.

(2)  No proceedings, civil or criminal, shall be brought against any person in any Court in respect of any such matter as is mentioned in subsection (1), without the leave of the Court, and leave shall not be given unless the Court is satisfied that there is substantial ground for the contention that the person, against whom it is sought to bring the proceedings, has acted in bad faith or without reasonable care.

(3)  Notice of any application under subsection (2) shall be given to the person against whom it is sought to bring the proceedings, and that person shall be entitled to be heard against the application.”

6.  The heading of the section says it.  The section is there for the protection of the persons, medical staff and hospitals in particular, who have done things in connection with the making and the carrying out of the removal or detention order pursuant to the MHO from unreasonable and groundless claims.  Such things covered by subsection (1) are:

(1)  the making of an application for an order for removal or detention of a patient;

(2)  the signing of such an order;

(3)  the signing of any report, application, recommendation or certificate under the MHO;

(4)  the carrying out of an order for removal or detention;

(5)  the doing of anything in pursuance of the MHO; and

(6)  the giving of any advice in a professional capacity in pursuance of the MHO.

7.  The scope is wide and covers acts done by the staff of hospitals in discharge of their day to day duties in control of the patients: see 陳碩謙對醫院管理局, CACV 189/2012 (16 October 2014) at §46.

8.  The case cited in the preceding paragraph also set the test for granting leave pursuant to the section.  By adopting a remedial interpretation of the threshold for giving leave pursuant to the section, the Court of Appeal ruled (at §64) that the test ought to be the same for leave to apply for judicial review, namely “reasonably arguable” ground instead of “substantial” ground as worded in the subsection.

9.  Following the explanation of the Court of Final Appeal in Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the test of “arguability” is not potential “arguability”, and therefore only a claim that enjoys a realistic prospect of success would be considered as reasonably arguable for leave to be given.

10.  In the present case, the question is whether the applicant manages to demonstrate to the satisfaction of this court that he has in the DC Action a reasonably arguable case that the HA has acted in bad faith or without reasonable care in his detention and management pursuant to the MHO.

The applicant’s detention

11.  At all material times, the applicant resided at Sherwood Court, Kingswood Villas, Tin Shui Wai, Yuen Long.  Since about the second quarter of 2013, the applicant had been complaining about repeated tapping noise from the unit above his, often during late night and the small hours of the day.  The alleged nuisance allegedly caused him and his mother distress and sleep deprivation.  His mother eventually had to leave for India.  According to the applicant, he had since complained to the management office of the estate and eventually also the police, Office of the Chief Executive, the Ombudsman, Home Affairs Bureau, Social Welfare Department, District Council and Legislative Councillors, but met with what he described as indifference.  He had tried to confront his upstairs neighbour but in vain.  He also admitted having taken the matter into his own hands once by creating similar nuisance to the above unit in what he described as counter-attack.

12.  According to the applicant, there were meetings with, amongst others, the management office in August 2015. Despite repeated requests, the management office has failed to provide him with the minutes of those meetings or report verifying his complaint.

13.  On 9 or 10 October 2015, while he was at the management office, he threw a stapler onto the floor as, in his own words, his patience was wearing thin after suffering for years.

14.  On 12 October 2015, the applicant attended the management office again.  He admittedly felt unhappy about the content of the letter from the office to him regarding his complaint, and threw the letter to a staff of the office.  Police was therefore summoned

15.  On the same day, the applicant was escorted by the police to the Accident and Emergency Department of Tuen Mun Hospital (“TMH”).  The management office representatives accompanied.  One female staff member of the management office, who felt scared as a result of the applicant’s conduct, also attended the hospital.

16.  At the TMH, the applicant was assessed by the consultation-liaison psychiatric team.  He was seen by nurse Cheung Nga Ling APN (psy).  The consultation summary recorded that the applicant was referred to the team for his unstable behaviour, and the observation at ward was that the applicant was agitated.

17.  Detailed background information was obtained from the applicant, including his complaint about the alleged nuisance and his frustration mentioned above.  The contrary version given by the management office representative was also recorded in detail, including the applicant’s alleged verbal threats and displays of unstable emotion.  The police also reported the incidents mentioned in §§13 and 14 above.  The consultation summary also recorded that the applicant refused to contact his girlfriend.  Nor was the team able to contact the social worker whom the applicant had consulted.

18.  Mental state examination was conducted.  The provisional diagnosis was psychosis.  In view of the provisional diagnosis and the report of the active display of violence by the applicant, the nurse recommended consideration by psychiatrist of whether psychiatric inpatient treatment would be needed to prevent the potential risk of the applicant harming the others and to ensure safety.

19.  On 13 October 2015, an application for compulsory detention of the applicant was made pursuant to sections 35A(1) and 31(1) of the MHO.  The application was made in the name of a public officer in the Social Welfare Department, as no relative of the applicant in Hong Kong could be contacted and it was impracticable to delay making an order until a relative could be found.

20.  In the prescribed application form (Form 1), the applying officer stated pursuant to section 31(1) that there was reason to believe that the applicant:

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

(2)  ought to be so detained (i) in the interests of his own health or safety; and (ii) with a view to the protection of other persons.

21.  The officer continued to state her reasons for the above belief.  Referring to the applicant’s conflict with the management office and display of unstable emotion, the officer pointed out that no evidence was found to support the applicant’s complaint about the alleged nuisance.  He was suspected to have psychotic symptoms, as he heard the “non-existence noise” and conflicted with his neighbour and the management office with verbal threat and unstable emotion.  Psychiatric admission was recommended in view of the potential risk of his harming the others.

22.  The application was supported by a certificate of Dr Wong Ho Tung of the TMH (Form 2) pursuant to section 31(1A). The doctor summarized the incidents reported, and opined that the applicant demonstrated uncontrollable violent behaviour with potential to cause bodily harm to others when he felt that he had not been fairly treated.  For the presumptive diagnosis of psychosis, the applicant was recommended to be admitted to the Castle Peak Hospital (“CPH”) for observation and management.

23.  Pursuant to section 31(3) of the MHO, Magistrate Ms Winnie Lau attended the TMH.  After seeing the applicant and considering the papers, the Magistrate made the order on the same day authorizing the removal of the applicant to the CPH for detention and observation for a period of not exceeding 7 days (Form 3).

24.  While hospitalized, the applicant had been examined by Dr Liu Ching Yung, Amy and Dr Tang Yuen Yee Dorothy of the CPH.  Both were impressed that the applicant suffered from delusional disorder, and they recommended a further detention period of 21 days for the purpose of observation, investigation and treatment pursuant to section 32 of the MHO. An order was made and countersigned by H H Judge Alex Lee (as he then was) on 19 October 2015 (Form 4).

25.  The discharge summary concerning the applicant prepared by Dr Tang recorded the principal psychiatric diagnosis was paranoid personality disorder.  It also recorded that collateral information has since been obtained from the applicant’s family members, the management office staff and police.  The applicant’s family opined that he had had stable mood and had temper tantrum at times.  They confirmed the applicant’s version of noises from the unit upstairs.  They did not think the applicant had any paranoia or mental problem.  On the other hand, the management office and the police observed that the applicant was irritable and appeared to be very distressed about the noises.  He was observed to have stable condition if the issue of the noises was not brought up.  The applicant was considered to likely have personality problem and might have delusional disorder.  Medication was prescribed.

26.  The discharge summary recorded that the application for extension of his detention was made in view of the need for observation and treatment.  Medication treatment continued, which the applicant accepted with reluctance.  The applicant’s mental condition was observed to have become stable in the ward.  No abnormal behaviour was noted. His attitude was manipulative at times but no aggression was reported.  He became not emotionally charged when talked about his upstairs neighbour or the incident that brought him to the hospital.  He was eventually discharged home on 6 November 2015 with further stress coping and anger management skills counselling recommended.  Appointment was made for follow-up.

27.  By naming the HA as the defendant in the DC Action and the respondent in the present application, the applicant targets the nurse and the doctors who were involved in the making and carrying out of the orders for his detention and extended detention mentioned above. The ground of complaint is wrongful diagnosis, which, as the applicant sees it, was attributed to their having chosen to believe the management office and the police that the noises from his upstairs unit did not exist, and hence the so-called “non-existence noise”.  The applicant contends that such nuisance did exist as a matter of fact, and therefore the diagnosis of his delusional disorder or paranoid must be wrong.  It follows, he contends, that the detention was all wrongful.

Whether the applicant has a reasonably arguable case

28.  The question of whether the applicant has a reasonably arguable case that the nurse or doctors acted in bad faith or without reasonable care in acting pursuant to sections 31 and 32 of the MHO must be answered in the circumstances of the case prevailing at the material times.

29.  When the applicant was brought to the TMH, the nurse was faced with conflicting versions of the existence of the noises that the applicant complained about.  As recorded, no one from the applicant’s side could be contacted at the time.  On the other hand, there was the information from not just the management office representative but also the police.  The nurse was in those circumstances entitled, if not actually required by her duty, to act on the basis of the information available there and then.

30.  Amongst the documents produced by the applicant, there is his statement of claim filed in DCCJ 1174/2019, which is his action against the management office.  Such action or documents are not relevant for the present purpose.  However, it is interesting to note that amongst others allegations in that action, the applicant alleges that it was the management office that misinformed the nurse and the doctors of the facts.  If that was indeed the case, it would be difficult to see how the nurse and the doctors should be to blame for being so allegedly misled at the material times.

31.  Importantly, the assessment was not merely the nurse’s personal preference between two conflicting versions of events.  The nurse considered the report of the incident and observed the irritable state of the applicant before concluding that the case called for urgent referral for assessment by psychiatrist for the purpose of considering if an application under section 31 should be made.  That was her exercise of professional judgment, which she has trained to do.  She did so in the circumstances known and apparent to her at the time.

32.  Form 1 was signed with the support of Form 2, the certificate of Dr Wong, after his assessment of the applicant upon referral by the nurse.  The forms clearly recorded that it was upon consideration of the presumptive diagnosis of psychosis and potential risk of the applicant harming others against the history of the matter that recommendation for psychiatric admission for observation and management was made.  Again, that was professional judgment on the basis of the information available to the doctor and his observation then and there.

33.  The applicant produced the community notes of the community psychiatric service of CPH dated 16 November 2015 and 31 March 2016.  They recorded that during home visits to the applicant after discharge, the case manager and her supervisor did hear noises from the upstairs unit.  However, as those were discovery after his discharge, and therefore were not available prior, they could not serve to discredit or undermine the professional assessment of the nurse and the doctors, which was based the information available to them at the material time.

34.  The applicant argues that there was in any event no basis for the extension of his detention (after the first 7 days) at the CPH once his family members were subsequently contacted and that his version about nuisances from the upstairs unit was confirmed. However, it was not that the doctors at the CPH were not aware of that.  As mentioned, it was recorded by Dr Tang in the discharge summary.  Yet it was the doctors’ professional assessment of the condition of the applicant in coping with the subject of the alleged nuisance.  The application to extend his detention was made in view of his need for observation and treatment.  As recorded in the discharge summary, the condition of the applicant did improve with the treatment.

35.  The claim of wrongful diagnosis, albeit in the context of sections 31 and 32 of the MHO, is no different from that of medical negligence.  The law is trite that in order to bring a claim for medical negligence, the plaintiff must adduce medical expert evidence to substantiate the alleged breach of duty and that such alleged breach caused the alleged injury – the so called Bolam test, after the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; see also Practice Direction 18.2, G(5).  The applicant produced a medical certificate by Dr Cheung Hung Kin (“Dr Cheung”) dated 4 January 2018.

36.  Dr Cheung’s certificate does not contain a declaration pursuant to O38, r37C of the Rules of the District Court, Cap 336H.  Nor was it verified by a statement of truth pursuant to O41A. There is strictly admissibility issue.

37.  Dr Cheung was instructed after the applicant has consulted Mr Edward MH Chan, barrister and lecturer at the University of Hong Kong participating in the campus free legal advice scheme. As stated in the letter of instruction prepared by Mr Chan to Dr Cheung dated 27 December 2017, the applicant was advised to obtain a report from a psychiatrist on his mental condition.  The doctor was not instructed to give any opinion in respect of: (i) the assessment and diagnosis by the nurse and the doctors at the material times for the purpose of sections 31 and 32 of the MHO; (ii) the clinical management of the applicant during the applicant’s detention; and (iii) consequentially whether what the nurse or any of the doctors did at the material times fell short of what was reasonably expected of them in their professions, and whether the same caused the applicant damage.

38.  On the basis of what he was instructed to do, Dr Cheung produced his medical certificate.  The certificate recorded that Dr Cheung examined the applicant on 29 November 2017 and 4 January 2018.  He stated that he was unable to find at these two interviews any evidence of mental disorder “at this moment”.  As submitted on behalf of the HA, a negative finding on the basis of examination some two years after the episode cannot serve as evidence of wrongful diagnosis at the material times that the applicant is alleging.

39.  Dr Cheung stated that he could not find any substantive ground to support the diagnosis of paranoid disorder or delusional disorder which had been considered before in the clinical records of the HA.  Insofar as that referred to his two interviews with the applicant, the preceding paragraph is repeated.

40.  Dr Cheung continued to state that the noises complained about by the applicant were in fact also audible to his relatives, estate manager and the community psychiatric nurses, and no other paranoid delusions or psychotic features could be established.  Insofar as Dr Cheung relied on what the applicant argues to be subsequent verification of his complaint by his relatives and, after his discharge, the community psychiatric nurses, the discussion in the above paragraphs refers.  As Dr Cheung fairly described it, the hallucinations of the applicant observed by the nurse and doctors at the material times were putative, in view of the conflicting versions. However, even assuming his complaint was subsequently verified, that does not therefore render the assessment of the nurse or any of the doctors deficient in terms of good faith or reasonable care.

41.  In line with his instruction mentioned above, Dr Cheung actually expressed no opinion on the clinical management of the applicant during the applicant’s detention or consequentially whether what the nurse or any of the doctors did at the material times fell short of what was reasonably expected of them or whether the same caused the applicant damage.  As mentioned, Dr Cheung merely expressed his opinion on the applicant’s current condition on the basis of the applicant’s complaint as well as information and examination available after the applicant’s discharge from the CPH.  He actually commented that the applicant remained mentally normal since discharge.

42.  In the circumstances, Dr Cheung’s report lacks relevance.

43.  Apparently as his answer to the above query, the applicant submitted that the Bolam test has been replaced with the test promulgated in the subsequent UK Supreme Court case of Montgomery v Lanarkshire Health Board [2015] 2 WLR 768.  I disagree.

44.  The Supreme Court in Montgomery did not replace but merely distinguished the Bolam test as being inapplicable in the context of that case.  The peculiarity of such context is that an adult patient of sound mind is entitled to decide which, if any, of the available forms of medical treatment to undergo, and her consent had to be obtained before such treatment is undertaken.  In such context, it is the reasonable duty of a medical practitioner to advise the patient of the material risks of a particular treatment in order to obtain the latter’s informed consent to such treatment.

45.  I agree with the submission on behalf of the HA that the Bolam test remains applicable in the context of medical negligence based on alleged wrongful diagnosis.  As mentioned, the applicant has problems in relying on the expert evidence of Dr Cheung in such context.

46.  The applicant refers to his complaint to the Medical Council.  The relevant correspondence between him and the Council in October 2018 and April 2019 show that the Council is still seeking information from the applicant in relation to his complaint. This is nowhere near the stage of a case being established for reference to a formal inquiry under section 21 of the Medical Registration Ordinance, Cap 161.  The complaint to the Council per se adds nothing material to the consideration of the present application.

Conclusion

47.  Having carefully considered all the materials, including the above, and submissions, I am not satisfied that the applicant manages to establish that he has reasonably arguable grounds for saying that the nurse or any of the doctors, and thus HA, had acted in bad faith or without reasonable care in carrying out the matters in connection with his detention pursuant to the MHO.  Accordingly, the present application for leave under section 69(2) is dismissed.

48.  Costs ought to follow the event.  For that, the HA has submitted its statement of costs, which the applicant had the opportunity of addressing during the hearing.  He asked for the costs to be discounted by one third.  I now summarily assess the HA’s costs of and occasioned by the present application at the sum of HK$70,000, which the applicant shall pay within 14 days.