ZHONG SHICAN CHET v. THE MEDICAL SUPERINTENDENT, KWAI CHUNG HOSPITAL

1996, No. HCMP 1892

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an application for judicial review. It arises in this way. Mr Zhong wrote to me personally because he may have seen my name in connection with other judicial review cases, and he wrote a long letter setting out the problems he was having by being detained in a hospital. Although it was an unusual and slightly rambling letter, I thought that as a matter of fairness he should have an opportunity of making a formal application to me for judicial review, setting it out on an affidavit so that I could see whether or not he should be given leave.

2. He did this and if I may say so, set the matter out very clearly and I decided to give him leave. The actual words that I used - as it was done on paper - was that "this case merits further consideration", because he had set out a number of points saying that he had been wrongly refused a discharge.

3. It is proper, when people are mentally ill, for a friend or relative to make an application in writing to the Medical Superintendent saying that the patient should be delivered over to the person and that that person will receive proper care and be prevented from doing injury to himself and to others.

4. Mr Zhong unfortunately in his life has suffered from schizophrenia since the 1970s and there has been recorded a number of unfortunate episodes which it is not necessary for me to go into.

5. The Medical Superintendent has a duty, within 48 hours after receipt of an application under s.42 of the Mental Health Ordinance (Cap.136), either to discharge the patient or to refuse to discharge him on the grounds that he is satisfied that the patient is dangerous or unfit to be at large or that he is not satisfied that the patient will receive proper care, and if refusing a discharge must give to the applicant a Form 11 certifying his refusal.

6. There were three occasions when these applications were made and each time the medical authority refused permission for Mr Zhong to go home. It is not necessary to go through all of them, but they did not think that he was in a sufficient mental condition to be permitted to go home. I will deal with the last one in date. This was in March 1996. Mr Kwong, a solicitor, who has very kindly turned up in court today, has been helping him for which I am sure Mr Zhong and others are grateful. It is important to note that sometimes solicitors are criticised for charging a lot of money but some solicitors do take on cases properly at great cost to themselves to help other people, and it appears to me that Mr Kwong has been trying as best he can to help Mr Zhong.

7. The form made it clear that Mr Zhong had been a known schizophrenic since 1973, had suffered relapses of psychotic illnesses and he was unstable, he had no insight in his mental illness and he was unfit to be discharged. The form that was given on 27 March is signed by Dr Lau Ying-kit and contains some words which are slightly odd to understand. He said "Currently, he was reported to suspicion at home." "What that means" Mr Zhong said "I have no idea." But Dr Lau said he refused to be monitored during his drug consumption, poor insight towards his illness and he needs further in-patient treatment.

8. That is a medical opinion and I am not permitted in any way to go into that. The Ordinance entrusts these matters to doctors and not to judges. The only ground therefore which the court can interfere is if in some way this gentleman has been treated unlawfully. For example, if a person is detained against his will and without the proper procedures being adopted, he would be entitled in fact to come before a court to apply for a "habeas corpus".

9. It appears to me that Mr Zhong has been treated perfectly lawfully by the doctors. He takes the point, however, which I thought may have been of interest in that he says "Under the Ordinance, the medical superintendent has the duty to deal with these matters but under s.6, he can delegate it. What has happened here is that it has been delegated to different doctors and it was not the decision of the medical superintendent."

10. Since giving leave, there have been disclosed affidavits and there is an affidavit which comes in from Dr Shum Ping Shiu. He is a Member of the Royal College of Psychiatrists, a Fellow of the Royal College of Psychiatrists; he has been practising medicine since 1970; he has been a qualified psychiatrist since 1974, so he is obviously a very experienced person. He was appointed Medical Superintendent by the Governor in March 1995. He is the Hospital Chief Executive appointed by the Hospital Authority. He is obviously a very senior person and what he has disclosed is the procedure for dealing with these applications and he sets out that he passed this to the case medical officer as one would expect. But it is clear from what he has exhibited that he personally has considered this matter. He wrote on 28 March saying :

"A copy of application for discharge of the abovenamed before recovery was received on 26.3.96. Dr Y.K. Lau of this hospital had assessed the case and enclosed please find completed certificate of refusal to discharge a patient concerned for your information."

He signed this letter personally.

11. In my judgment, he had properly considered the application and I cannot find that Mr Zhong has been in any way unlawfully treated.

12. There is another problem he faced, because under the Ordinance there is a right to go to the Mental Health Tribunal which is an appeal body. It comprises apparently a District Court Judge and other doctors and the Mental Health Tribunal is a complete appeal procedure where they can examine all matters, such as medical matters, whether there has been an irrational decision, or whether a patient had been wrongly dealt with. Again the Ordinance has entrusted this review tribunal with those powers. The normal rule in judicial review is that when there are appeal procedures, this court will not interfere. However, Mr Zhong told me he did not like this because apparently the judge had tea with persons who had an interest and he did not trust this Tribunal. I can understand his position.

13. The other problem is that this decision happened over a year ago and he is currently at home having now been discharged on what is called a "conditional discharge". In other words, he has to abide by the wishes of a doctor as to treatment and as to care. I can find nothing in any shape or form which would justify the court doing anything for Mr Zhong.

14. As I said I think it is right that the matter was investigated. I think people are entitled, when they have been locked away in whatever form it is, that the court on occasions might have to examine that, which I have done, but I cannot find that this has in any way been unlawful.

15. As I have said it is very kind for solicitors to have turned up, and apparently they had a Legal Aid certificate for counsel's opinion and an application for adjournment was sought which I have refused. I have looked at all the papers, it seems to me that there is no ground whatsoever for the court interfering in this sort of case and I, therefore, in the exercise of my discretion, consider it wrong to grant any adjournment. I do not think it causes any unfairness to Mr Zhong. I myself have looked at all of the matters to see whether or not there is any ground which he can put forward. Unfortunately at the present time, Mr Zhong is living with his brother who apparently is also a schizophrenic and an elderly mother. I just hope that Social Welfare Department will ensure that he is regularly visited so that if there are any problems, they can be sorted out.