THE HOSPITAL AUTHORITY v. A DISTRICT JUDGE

HCAL1372/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1372 OF 2001

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J U D G M E N T

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Introduction

1. Part III of the Mental Health Ordinance, Chapter 136 ('the Ordinance'), regulates the manner in which persons suffering or appearing to be suffering from mental disorders may be received into suitable medical facilities in Hong Kong ('mental hospitals') and held there for the purposes of treatment. Part III provides for persons to volunteer to enter mental hospitals but also provides for the reception, detention and treatment of persons who do not volunteer or who, because of their state of mind, are incapable of so doing.

2. This application for judicial review focuses on the second category of persons. In particular, it focuses on the statutory scheme contained in Part III of the Ordinance which aims to ensure that such persons suffer the loss of their liberty only in terms of a process that is judicially supervised and at all times founded upon medical opinion.

3. The applicant in this matter is the Hospital Authority, a body corporate established by statute to manage and control public hospitals. Such hospitals include mental hospitals, one of those hospitals being the Castle Peak Hospital ('Castle Peak').

4. In April of this year, two doctors signed a certificate saying that a patient being held at Castle Peak for observation in terms of an order for his temporary committal made under Part III of the Ordinance should be further detained in the hospital for treatment. The certificate was forwarded to a District Court judge for countersignature. In terms of the Ordinance, the judge was obliged to countersign provided he was satisfied that the certificate was 'in order' and that there were 'no grounds for rejecting it'. The judge, however, was not so satisfied. Having heard representations, the judge, His Honour Judge Z.E. Li, handed down a written judgment ('the judgment under review'). In that judgment, he concluded that it was not appropriate - on either medical or legal grounds - to countersign the certificate.

5. The applicant contends that neither the medical nor legal findings were correct in the judgment under review. The applicant is concerned that, if those findings are allowed to stand, they will undermine the orderly working of the statutory scheme contained in Part III of the Ordinance in so far as the scheme provides for the reception, detention and treatment of persons who do not or are incapable of volunteering to undergo such a process. The applicant therefore seeks an order of certiorari to quash the judge's findings and a declaration that his statement of the law is incorrect.

6. No provision is made for an appeal from the decision of a District Court judge made under the provisions of Part III of the Ordinance. Proceedings under Part III, while they vest the judge with a discretion which is of course to be exercised judicially, are essentially administrative. What is challenged, therefore, is an administrative decision. That being the case, I consider that the matter has properly been brought before this Court by way of judicial review. I am further satisfied that the applicant is an interested party.

7. The District Court judge has chosen not to be legally represented. His judgment speaks for itself. In the result, however, while I believe the judge was quite proper in his approach, I have had the benefit of oral submission from one counsel only, namely, Mr Fung who appeared for the applicant.

The background

8. On 22 March of this year, proceedings under Part III of the Ordinance were commenced in respect of an adult male ('Patient O') who had a history of mental illness and who was residing in a hostel : as I understand it, a sheltered environment of some kind. Complaints were made that Patient O had become violent, biting people and throwing furniture. He was also refusing to eat. As a result, an application was made by his mother for his removal to a place designated under the Ordinance as a mental hospital. The application was made so that Patient O could be held at the hospital for a limited period of up to seven days, observed for the purpose of diagnosis and, if appropriate, given some treatment. The application by the mother was made under section 31 of the Ordinance which reads (in 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) ....

(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."

9. The purpose of an order made under section 31 is twofold; first, it is protective of the patient himself and/or others with whom he may come into contact; second, it is diagnostic in the sense that the patient is to be observed so that his mental disorder, if any, may be ascertained. Diagnosis is, of course, a preliminary to treatment but treatment itself, in terms of section 31 is essentially a contemplated measure. The statutory scheme contained in Part III of the Ordinance - for I am satisfied there is such a scheme - makes provision elsewhere for substantive or prolonged treatment.

10. Section 31 operates to deprive persons of their liberty, often no doubt against their will. The section therefore contains a number of provisions aimed at preventing what I will describe in general terms as wrongful detention. First, all applications are to be founded on the written opinion of a registered medical practitioner ('a doctor') who has examined the patient within the previous seven days and who is able to assert - and support that assertion with brief reasons - that the patient meets the criteria specified in subsection (1) of section 31. In respect of Patient O, a doctor at Tuen Mun Hospital completed the prescribed form, stating that in his opinion Patient O should be removed to Castle Peak for the purpose of 'detention and observation'. The grounds for the doctor's opinion were recorded as follows :

"Known case mental illness, follow up Kwai Chung hospital.Live in hostel. Notice violence (sic) behaviour for one month. Violence (sic) behaviour uncontrollable. Frequently biten (sic) up other people in hostel. Bite hostel staff today. Throw away furniture. Throw away meal and refused to eat. ..."

11. Section 31(3) of the Ordinance states that, where a patient requests to see the District Court judge or magistrate by whom an application under that section is to be determined, the judge or magistrate shall not make an order until the patient has been seen. Patient O, however, made no such request, a fact confirmed in writing by the doctor who supported the application for his committal.

12. The mother's application made in terms of section 31 was placed before a magistrate, Mr Joseph Yau, who, in the exercise of his discretion, authorized the removal of Patient O to Castle Peak.

13. On 26 March, Patient O was examined by a doctor who was a member of staff at Castle Peak, Dr Siu Wei Man. The following day, he was examined by a second member of the hospital's professional staff, Dr Cheng Koi Man. Both doctors agreed on what was, in the short term at least, the recommended course of action : Patient O should be kept at Castle Peak for a more prolonged period of time so that he could undergo a course of treatment. Accordingly, the doctors completed a certificate in terms of section 36 of the Ordinance, a section contained within Part III.

14. Before moving to consider proceedings under section 36, it should be noted that Part III of the Ordinance contemplates a situation where it is recommended that, after the initial detention for a maximum of seven days, a patient should be detained for a further limited period of time for 'observation, investigation and treatment'. No doubt this is because in many cases the seven days allowed under section 31 may not be sufficient for a confident diagnosis of difficult cases or it may be that, in the professional opinion of the doctors, treatment for a further limited time may be sufficient, at least to allow the patient to resume life outside of confinement. In this regard, section 32 commences :

" (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."

15. Any extension authorized by a District Court judge under section 32 is limited to a maximum of 21 days. In this regard, subsections (3) and (4) read :

" (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."

16. Accordingly, as I read sections 31 and 32 of the Ordinance, a patient who has not (for whatever reason) volunteered to enter a mental hospital, shall be confined for no longer than 28 days : a maximum of 7 days under a section 31 application and a maximum of 21 days by way of an extension of his confinement under a section 32 application. This confinement, however, is subject to the provisions of section 36.

17. As indicated, in respect of Patient O, the decision was made to bypass proceedings under section 32 and to proceed direct to proceedings under section 36. What came before the judge, therefore, was a certificate completed in accordance with that section.

18. The interpretation of section 36 lies at the heart of these judicial review proceedings. For it is the interpretation of the meaning and effect of that section made by the District Court judge which the applicant contends is wrong in law. Those portions of section 36 which are relevant to the present matter read as follows :

" (1) If-

(a) a patient liable to be detained in a mental hospital (otherwise than under this section) or in the Correctional Services Department Psychiatric Centre; or

(b) a voluntary patient 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-

(i) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital; and

(ii) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained 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 section (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."

19. Section 36 which concerns persons requiring treatment (as opposed to observation or investigation) makes no provision for a limitation of time. Subsection (3) says only that :

" 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."

20. In short, a patient who is confined to a mental hospital in terms of an order made under section 36 may be confined indefinitely. By 'indefinitely', I mean until a decision is made for his release or until, in terms of section 59 (contained in Part IVA of the Ordinance), that patient's case must be referred to the Mental Health Review Tribunal, a period of some 12 months after confinement. For the avoidance of doubt, it must be emphasized that mechanisms do exist in the Ordinance to ensure that regular consideration is given to the release of patients back into society.

21. As I have said, an application to a District Court judge made in terms of section 36 must contain a certificate completed by two doctors. In the case of Patient O, those two doctors were the ones who had examined him at Castle Peak. Both doctors certified in the prescribed form that in their opinion Patient O was suffering from a mental disorder of a nature or degree which made it appropriate for him to receive medical treatment in hospital. Dr Siu said that her opinion was founded on the following :

" [Patient O] was known to have moderate grade mental retardation with significant impairment of behaviour. He was admitted this time because of unprovoked disturbing behaviour with increasing frequency in hostel. He bit and spit towards other residents in hostel and twisted their hands unprovokedly. He also attacked a social worker in hostel resulting in bleeding over the social worker's forearm. He needs further management in hospital for his aggressive behaviour."

Dr Cheng said :

" [Patient O] has moderate grade mental retardation with significant behavioural problems. He was admitted because of repetitive aggression towards other residents in hostel including biting, throwing furniture and even attempting to twist other's arm. Mentally he could not be engaged in meaningful communication."

22. Both doctors certified that in their opinion Patient O was abnormally aggressive, that his conduct was seriously irresponsible and that it was necessary for his health or safety and for the protection of others that the treatment he received be within the confines of a mental hospital. In this regard, Dr Siu said :

" [Patient O] was suffering from moderate grade mental retardation. He still appeared preoccupied in ward with incomprehensible speech. It is difficult for him to make decisions for himself because of his low intelligence. He needs further stay in hospital for treatment."

Dr Cheng's opinion was based on the following :

" His mental state remains unpredictable in ward. He is mentally unfit to make consent. In view of his dangerous aggressive behaviour, further in-patient management is mandatory."

23. On 28 March, the application made in terms of section 36 was placed before the District Court judge who made what I will call a provisional order in the following terms :

"No evidence of patient liable to be detained. Application to be heard in open court on a date to be fixed. Request assistance of Official Solicitor as amicus curiae or as representative of patient at hearing. Advise Hospital Authority to seek Counsel's assistance."

24. The afternoon of 12 April was fixed for the hearing of representations, this being several days after the expiration of the original order for Patient O's confinement made in terms of section 31 of the Ordinance. Having heard representations, the judge reserved his decision, handing down the judgment under review on 7 May.

25. As for Patient O, nothing appears in the judgment under review to indicate what steps, if any, were taken between 28 March, when the application was made, and 7 May, when it was refused, to ensure his welfare. Absent his volunteering to remain in hospital, there would have been no grounds in law for his further confinement. Presumably, he was released but into what set of circumstances is unclear.

The medical issues

26. Where matters of medical opinion are required under Part III of the Ordinance, those matters are entrusted by the legislature to doctors and not to judges or magistrates. The principle was described by Sears J in Z v. The Medical Superintendent, Kwai Chung Hospital (HCMP No.1892 of 1996) in the following terms :

"This 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 on which the court can interfere is if in some way this gentleman has been treated unlawfully. ..."

27. It is to be remembered that proceedings under sections 31, 32 and 36 are administrative not adversarial. The judge or magistrate is, of course, much more than a rubber stamp. But that does not mean that he is entitled to question the medical validity of opinions expressed if those opinions comply, on their face, with the relevant section of the Ordinance.

28. Nor is a judge or magistrate entitled to assess compliance by employing the technical rules of admissibility applicable in legal matters. In order to make a diagnosis, doctors no doubt must rely on a great many matters including, for example, hearsay histories. It is for them to decide what matters are relevant and the weight they should give to them in reaching their decision as to diagnosis and/or treatment.

29. The District Court judge, however, appears to have challenged the validity of the medical opinion and, in so doing, appears, to a degree at least, to have rejected that opinion on the grounds that it was "hearsay upon hearsay". In respect of the factual (that is, the medical) issues, he said :

" Patient O, according to the doctors, is not exactly mentally disordered as defined by the Ordinance. He is only moderately retarded. He was said to have exhibited aggressive behaviour before being detained for initial observation. But this can be hearsay, if not hearsay upon hearsay. If these allegations are in fact untrue and made up by some 'normal, sane' person in order to get rid of a burdensome retarded charge, there is no clear way under existing laws for a countersigning judge to find out and, I suppose, the doctors are not better judges of fact. In any event, the alleged aggressive behaviour did not manifest during the time he was detained in Castle Peak Hospital for observation. The worst that the hospital doctors could say about Patient O was that he could not be engaged in meaningful conversation during the observation period. ...."

30. The judge says that Patient O was not mentally disordered as defined but only moderately retarded. The Ordinance, however, defines 'mental disorder' as including a state of arrested or incomplete development 'which amounts to a significant impairment of intelligence and social functioning which is associated with abnormally aggressive or seriously irresponsible conduct'. The doctors in their reports spoke of moderate grade mental retardation with significant behavioural problems. This included the observation that Patient O had been violent and could not be engaged in "meaningful communication". Clearly, the doctors were of the view that moderate grade mental retardation in respect of Patient O involved a significant (that is, a telling or notable) impairment of intelligence and social functioning.

31. But it there was some doubt on the part of the judge, surely amplification of the point from the doctors themselves would have been the prudent administrative step, not a delayed hearing and then a refusal to countersign with the sure consequence that Patient O, whether it was or was not in his best interests, would be released.

32. The judge was also swayed by the fact that Patient O had not displayed his earlier aggressive tendencies during his confinement. But the doctors had a history upon which they could rely and clearly felt that they were entitled to rely on it. Again, if there was some concern about this matter, surely a request for amplification was required. Such a request could have been dealt with in a short span of time and the patient's welfare protected.

33. Finally, the judge noted that all the doctors could say was that Patient O could not be engaged in meaningful "conversation" during the observation. But that is not correct. The doctor spoke of "communication" not "conversation", a more fundamental matter entirely.

34. Of course doctors must, in stating their medical opinions, comply with the requirements of the Ordinance. If they do not then lawful process has not been followed and the judge or magistrate can refuse to grant the required order or countersign the required certificate. But a detailed brief is not mandated : a succinct diagnosis and recommendation is sufficient provided only, as I have said, that it meets the requirements of the Ordinance.

35. In my judgment, the District Court judge was wrong to reject the medical opinions of the two doctors on the grounds he did, certainly without first seeking amplification of those opinions.

The interpretation of section 36 contained in the judgment under review

36. The essential findings of law in the judgment under review, that is, the findings under challenge, have been identified by the applicant in the following terms :

"(a) while being detained in hospital under section 31 and/or section 32 of the Ordinance, Patient O was not 'a patient liable to be detained' within the meaning of section 36 of the Ordinance.

(b) liability for the detention for treatment under section 36 could not be derived from the liability for detention under section 31 and/or 32." [my emphasis]

37. In the judgment under review, the interpretation of section 36 turns on the meaning of the phrase : 'a patient liable to be detained in a mental hospital'. In order to place that phrase in context, I cite the relevant portion of section 36 again :

" (1) If-

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

(b) ....

has been examined by 2 registered medical practitioners either separately or together and the 2 registered medical practitioners are of the opinion that-

(i) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital; and

(ii) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section,

they may complete a certificate in the prescribed form and forward it to a District Judge.

...." [my emphasis]

38. In respect of that phrase, the following question is posed in the judgment under review :

" Section 36 (1) of the Ordinance commences with an 'If'. Doctors may certify their opinion under this subsection if the patient is liable to be detained. It is quite clear from the wording of this subsection that if a patient is not 'liable to be detained', doctors cannot even begin to complete a certificate. The question then arises: who is a patient liable to be detained? Or, when is a patient liable to be detained?"

The following is the answer :

"Prima facie, a patient liable to be detained is not a patient who is already lawfully detained. A patient liable to be detained, on a literal interpretation, should be one in circumstances wherein the law authorizes steps to be taken to hold him or her in detention."

39. In short, it was held that 'a patient liable to be detained in a mental hospital' could not include a patient already detained under section 31 or 32. As Patient O was already in detention at the time the certificate made pursuant to section 36 was placed before the District Court judge for signature, he could not therefore be a patient liable to be detained.

40. The District Court judge, who applied considerable scholarship to the judgment under review, was clearly perturbed at what he saw as a real potential for the derogation of a patient's rights unless section 36 was read in a restrictive and what he described as a 'purposive' manner. He expressed his fears in the following terms :

".... So, it would seem that Patient O or any other patient in the same situation can be detained for an unspecified period of time in a mental hospital on the signatures of two doctors and the judge against his wishes and without the chance of getting or making representation."

41. This led the judge - in my view, in error - to reject the submission that sections 31 and/or 32 were to be read together with section 36. Indeed, he went so far as to say that such a reading would amount to a 'contortion' of the intention of the legislature. In this regard, he said :

" I cannot accept for a moment, that if an application can be made under section 31 or 32 to detain a patient, the patient becomes a patient liable to be detained for the purposes of section 36. .... It would be a contortion of legislative purpose to force a patient to accept treatment for a prolonged period under section 36 if the application under section 36 is mounted on the basis that the patient is liable to be detained for a short period for observation."

42. I find the logic difficult to follow : surely treatment (under section 36) follows observation and investigation (under sections 31 and 32). But as I have read the judgment under review, in essence it is not to the effect that a patient should be deprived of treatment after diagnosis, it is rather that he should not then be forced to have treatment in terms of a system in which he can be detained for up to a year, as the judge expressed it : "on three signatures obtained through a paper mill."

43. With respect, to employ the description a 'paper mill' is unjustifiably pejorative. The proceedings contemplated under sections 31, 32 and 36 are administrative proceedings founded upon the considered, professional opinion of doctors and monitored by judges or magistrates who ensure the integrity of the process.

44. How then, in the judgment under review, is it contemplated that proceedings under section 36 are to be invoked? In this regard, unless a patient is capable of volunteering for treatment and does so, the provisions of Part IVB of the Ordinance, which concerns the appointment of guardians for mentally incapacitated persons, is drawn into the proceedings. The judgment under review concludes that :

" In order to invoke section 36 procedure for long term detention in a mental hospital for treatment of a patient who is not liable for detention by virtue of any provision other than section 36 of the Ordinance, the patient must qualify as a voluntary patient. A patient who would not or cannot give consent to treatment may become a voluntary patient on account of consent given on his or her behalf by a guardian appointed under Part IVB of the Ordinance. Advisedly, as soon as a patient is detained under 31, a relative or social worker should be contacted as potential guardian. When a patient is being detained under section 32 of the Ordinance for 28 days observation and it becomes apparent that detention for long term treatment in a mental hospital is justified, emergency application can be made to the Guardianship Board for appointment of the relative or social worker earlier identified as guardian. Where the appointed guardian gives consent for treatment, two medical doctors may sign a certificate citing the patient as a voluntary patient under section 36(1)(b) for countersigning by a district judge." [my emphasis]

45. With respect to the judge, I believe it is far too bold a leap of interpretation to import the guardianship provisions of Part IVB into section 36 proceedings. There is simply no basis for it. I am at a loss to find anything in the Ordinance which suggests that is the legislative intent.

The statutory scheme encompassed in Part III of the Ordinance

46. In my judgment, a statutory scheme is manifestly created in Part III of the Ordinance. Sections 31, 32 and 36 are integral to that scheme, proceedings under the one section linked to proceedings under the others. In simple terms, as concerns the three sections, it may be described as follows :

(a) In terms of section 31, a patient may be detained in a mental hospital for a short period of observation, just seven days. In respect of the patient's mental health (as opposed to physical safety), the predominant purpose of that short detention, as the section makes plain, is for observation; in short, so that a diagnosis can be made.

(b) In terms of section 32, if the doctors are of the opinion that further limited time is required for a diagnosis or for treatment decided upon to become sufficiently effective to allow the patient's early release, the patient may be detained for a further short period of time, that period of time not to exceed 21 days. In respect of the patient's mental health, the purpose of that extension is to allow for 'a further period of observation, investigation and treatment'.

(c) In terms of section 36, if the doctors, having made their diagnosis, are of the opinion that the patient should undertake an extended period of treatment in confinement, the patient may be detained in a mental hospital for that purpose. Section 36 does not speak of confinement for the purpose of observation or investigation; those procedures are catered for in the two earlier sections. Section 36 speaks only of 'medical treatment in hospital'.

47. As I have said, diagnosis, if it identifies a mental disorder, is of no value unless it can be followed with treatment. That is why section 36 is to be read as being the practical fulfillment of the essentially diagnostic opportunities provided by the implementation of sections 31 and 32. On an ordinary reading of the sections, that meets with the norms of medical practice and, in my judgment, equally plainly, reflects the intention of the legislature.

48. Concerning the intention of the legislature, some assistance is to be obtained from the words of the Secretary for Health and Welfare who, in July 1987, moved the second reading of a bill to amend the Ordinance (see Hansard, 1 July 1987, pages 1854-1858). The amendments, he said, were intended "to improve and expand the provisions of the Mental Health Ordinance which govern the reception, detention and discharge of mentally disordered persons ....". In respect of Clause 7 of the bill (now section 36 of the Ordinance) he said :

" Clause 7 sets out the grounds on which a patient in a mental hospital may be detained for treatment beyond the initial period of detention for observation. Two doctors must certify that it is necessary for the health and safety of the patient or for the protection of other people that he should receive this treatment and that it cannot be provided unless he is detained under this section; and this certificate must be countersigned by a district judge."

49. Clearly, what is contemplated under section 36 is, as I have outlined, a procedure in terms of which a patient detained initially for observation may be further detained for treatment. No suggestion is made by the Secretary for Health and Welfare that proceedings under section 36 may only be instituted if a patient volunteers or is represented by a guardian.

The illustration of section 32

50. To illustrate the manner in which the legislature intended sections 31, 32 and 36 to be linked sequentially, one needs only to refer to the wording of section 32. Section 32 refers to patients already under observation in mental hospitals and makes provision for their further detention. Subsection (3) limits that further extension by stating :

" 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."

51. Proceedings under section 32 are intended, therefore, to qualify proceedings already undertaken under section 31. Section 32, however, contains a further limitation which is contained in subsection (4) and is to the following effect :

" 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." [my emphasis]

52. Subsection (4) limits the period that a patient may be detained in terms of proceedings taken under sections 31 and 32. The maximum period would be 28 days. But that time limitation is specifically made subject to the provisions of section 36. Subsection (4) clearly, therefore, draws section 36 into the sequential scheme in that it provides that a patient may be detained further than 28 days if proceedings are brought under section 36.

'A patient liable to be detained'

53. Section 36, of course, refers to 'a patient liable to be detained in a mental hospital' and not specifically to one already detained. In the judgment under review, the phrase 'liable to be' was given a meaning that implies only the future tense; hence the finding in the judgment that " a patient liable to be detained is not a patient who is already detained".

54. In my judgment, however, in the context of the Ordinance, the phrase 'liable to be detained' does not preclude a state of present detention. The word 'liable', as it is defined in the New Shorter Oxford Dictionary (4th Edition), includes 'bound or obliged by law' and 'subject or subservient to'. The phrase 'liable to be detained' may, therefore, in context, properly be understood to mean 'bound by the terms of this Ordinance to be detained' or simply 'subject to detention'.

55. The phrase 'liable to be detained' appears in several places in the Ordinance. It is a phrase therefore to be read in a number of different contexts. For example, still within Part III, section 42A(1) reads :

" Subject to section 42B a patient who is for the time being liable to be detained shall cease to be so liable if there is made in accordance with the section an order in writing discharging him from detention (referred to as an 'order for discharge' in this section and section 42B, but subject to subsection (6) of that section)."

56. The phrase 'liable to be detained' as it appears in the context of that section can only be read as referring to a patient already confined in a mental hospital. Why else would the section speak of 'discharging him from detention'?

57. The phrase 'liable to be detained' is taken from the English Mental Health Act 1983 where it also appears in a number of different contexts. In R. v. Hallstrom and Another, ex parte W [1986] 2 All ER 306, McCullough J referred to the fact that the terms 'detained' and 'liable to be detained' appeared in a number of different contexts in the 1983 Act and recognized that in a few instances "it maybe that the less apt term has been used". In respect of the Act, he commented by way of general observation :

" There is a distinction between being 'detained' in a hospital and being 'liable to be detained' in a hospital. Someone on leave of absence from a hospital cannot be regarded as detained in a hospital, whether or not a bed is reserved for him there in case it is necessary to revoke his leave of absence and recall him. Ignoring the position of a patient in respect of whom authority to detain has come into existence but who has not yet been brought under detention and of those patients absent without leave, those 'liable to be detained' are, therefore, those who are detained and who have been granted leave of absence." [my emphasis]

 

Conclusion

58. I accept the canon of construction that the legislature is presumed not to make laws which interfere with the liberty of the subject unless its intention in that regard is clear. In respect of section 36, however, when it is read with the other sections contained in Part III of the Ordinance, I believe that the intention of the legislature is plain. It is that a patient already detained under section 31 or 32 for observation and/or investigation may be further detained for treatment in terms of section 36 provided the requirements of that section are met.

59. I am therefore satisfied that both factually and in law the District Court judge was wrong to refuse to countersign the certificate presented to him in terms of section 36 of the Ordinance. His decisions in regard thereto must be set aside.

Costs

60. An order for costs has been sought by the applicant. However, the matter under challenge is a decision made by a judicial officer in terms of his obligations under statute. If costs are to be awarded, from which source of public funds are they to be drawn? I have not heard submissions on the matter and will therefore reserve the question of costs.

61. My Orders, therefore, are as follows :

(i) That there be an order of certiorari to bring up and quash the decision of the District Court judge made on 7 May 2001 to refuse to countersign a certificate placed before him in terms of section 36 of the Mental Health Ordinance, Chapter 136.

(ii) That there be a declaration that section 36 of the Ordinance does apply to persons already detained in a mental hospital in terms of section 31 or 32 of that Ordinance.

(iii) That the matter of costs is reserved.