RE ALLEGED MENTALLY INCAPACITATED PERSON, CS

HCMP 230/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 230 OF 2005

____________

____________

______________

J U D G M E N T

______________

1.  The Director of Social Welfare applied under Part II of the Mental Health Ordinance for appointing the Official Solicitor as the Committee of the estate of Mr CS [“the Patient”]. Directions were given for an inquiry to be held and in accordance with such directions, the inquiry came before A Cheung J on 4 March 2005. On that day, solicitor acting for the wife of the Patient opposed the appointment of the Official Solicitor and asked for her to be appointed instead. Similar stance was taken by CSK, a daughter of the Patient. The inquiry was adjourned to 6 May 2005 to enable the wife and  CSK to file evidence.

2.  The matter came before me on 6 May 2005. The stance of the wife and CSK remained the same. On the other hand, at least three other children of the Patient, viz. CSY, CTM and CCK, supported the application by the Director.

3.  On the medical evidence before me, I am satisfied that the Patient is incapable, by reason of mental incapacity, of managing and administering his property and affairs. Since this is not a subject of dispute, I do not propose to go into the details of the medical reports. Suffice to say that the Patient has been suffering from Alzheimer’s Disease from around 1995 and the condition is irreversible. He also has Parkinson’s disease, benign prostatic hypertrophy, Thalassemia triat, Vitamin B12 deficiency, old pulmonary tuberculosis, amongst other problems. In November 2003, he underwent a burr hole operation due to right frontoparietal subdural haematoma. According to Dr Wat, an approved doctor for the purposes of Section 2(2) of the Mental Health Ordinance, the Patient has significant disorientation and behavioural problems and very poor memory and cognitive function. He has no insight into his physical and mental illness. Further, he has no idea of the extent of his assets and has very poor concepts on the handling of even small amount of cash. He depends on others for his self-care.

4.  On 24 August 2004, the Guardianship Board appointed the Director as the guardian of the Patient.

5.  The real dispute is who is the more appropriate person to be appointed as committee, the Official Solicitor or the wife. Mr Kwok in essence advanced three points in advocating that the wife should be appointed,

(a) the wife has been taking care of the Patient and managing his affairs all along and he was well looked after;

(b) the wife and the Patient had a good relationship and the Patient had made a will leaving all his estate to the wife upon his death;

(c) the Official Solicitor would charge a fee for managing the affairs of the Patient and the fee would have to be borne by the estate.

6.  Mr Kwok also contended that the present application was precipitated by actions taken by some children of the Patient who had not cared for him over the years. In this connection, he referred to the guardianship application which culminated in the order of 24 August 2004. The wife and CSK strenuously disagreed with many findings by the Guardianship Board. They had sought to set aside the order of the board in HCMP 15 of 2005. That application came before me on 28 January 2005. On that occasion, I had reservations about whether any ground is made out under Section 59O of the Mental Health Ordinance.  It transpired that the major concern of the Wife was that the means of support of the family had not been sufficiently taken care of. To alleviate her concern in that regard, I made an order on 28 January 2005 appointing the Director as the interim receiver under Section 10D with the power to pay to the wife a monthly sum of $14,500 for the maintenance of the Patient and his family. That order is still in place. The application was adjourned sine die, not to be restored without leave of this court. The parties had not applied for leave to restore that application.

7.  On the other hand, the Director has put forward evidence, most of them had been presented to the guardianship board and relied upon by the board, to show that the wife is not a suitable person to be appointed as the Committee. I do not think it is profitable for me to go into the particulars of such evidence in this judgment. Such evidence, if believed, does present some causes for concern.

8.  I would not go so far as saying that this court must accept the findings by the Guardianship Board as to what happened prior to the making of the guardianship order. Without hearing any submissions, I do not feel confident to say that the doctrine of issue estoppel applies in proceedings of this nature. However, the point remains that in order to resolve such conflicts on what had happened in the past, the court must hear viva voce evidence and persons affected must be given the chance to cross-examine witnesses. Having regard to the nature of disputes as emerged from the materials before me, that would entail a lengthy trial and the legal costs involved would be significant. Mr Kwok accepted this as a correct analysis of the situation and he told me he had already explained all these to his client as well as CSK. Despite that, the Wife and CSK insisted on such a course to be adopted.

9.  The Patient is now 81 years old. His estate comprised of cash in bank accounts (two of which were held in joint names with the Wife) and two pieces of landed property, one of which is currently used as the residence of the Patient, the Wife and CSK. Although the Director was appointed as guardian (and pursuant to my order dated 28 January 2005, the guardianship order shall continue to take full effect notwithstanding the application to set aside had been adjourned), I understand that the primary carer of the Patient is still the Wife. It seems that the Director has not deemed it necessary to interfere with that arrangement.

10.  Given that the Wife does not appear to have any substantial independent finance on her own, it is quite plain to me that the legal costs pertaining to the protracted legal proceedings occasioned by a trial for the purpose of resolving the conflicts as to what happened in the past is likely to come out of the estate. I also reckon that such costs would constitute a substantial burden on the estate. I do not think it is in the interest of the Patient to allow that exercise to take place unless it is absolutely necessary.

11.  It must be pointed out that upon finding that a patient is incapable, by reason of mental incapacity, of managing and administering his property and affairs, this court has an unfettered discretion in deciding which person to be appointed as the committee. Although this court will naturally take into account the wishes of the relatives and the Patient, no person could claim any right to be appointed. Section 10A(2) of MHO makes it clear that the paramount consideration in the exercise of the court’s discretion is the requirements of the patient. In other words, the welfare of the patient must be safeguarded.

12.  In the present context, I have to ask what benefit the Patient could derive from the course proposed by the Wife and CSK.  If this court accepts the evidence of the Wife and CSK at the end of the trial, it would be a vindication of the Wife and CSK. The Patient would not derive any tangible benefit out of that. Also, as Mr Kwok pointed out, the appointment of the Wife as the committee might save the costs of management of the estate chargeable by the Official Solicitor.  Bearing in mind the nature of assets, I do not think the costs of management would be large. On the other hand, the estate would be substantially depleted by the legal costs pertaining to the trial and in my view, that would almost certainly be a much higher sum than the charges of the Official Solicitor in managing the estate.

13.  My view is that it is wholly disproportionate to allow such a course to be adopted and it simply cannot be in the interest of the Patient to do so. The insistence of the Wife and CSK to do that despite explanation by Mr Kwok as to the costs implications also cast doubt in my mind as to whether the Wife is a suitable person to be appointed as the committee in the present circumstances.

14.  As to the other points advanced by Mr Kwok, I must point out that the appointment of the Official Solicitor as the Committee does not mean that the Wife cannot continue to remain as the primary carer of the Patient. To the contrary, based on what I have read and heard, I believe most likely she would remain so. The Official Solicitor has much experience in dealing with this sort of situation and I have every confidence that provided the Wife and CSK adopt a positive and co-operative attitude in the future, they would find the service of those in the Official Solicitor office a help rather than a hindrance in handling the affairs of the Patient. I am also sure that those in the Official Solicitor office would try their best to ensure the Patient received sufficient care and attention and that his property will be utilized in a manner consistent with the need of the Patient and his household. In fact, if the parties could co-operate in providing for the care and need of the Patient and his family satisfactorily, the Official Solicitor may feel that he could support an application for the Wife to replace him as the Committee, say in one year’s time.

15.  I therefore come to the firm conclusion that at this stage the Official Solicitor should be appointed as the Committee despite the objection from the Wife and CSK. I hope Mr Kwok can clearly explain to the Wife and CSK that in coming to this conclusion, I am not implicating that they have been guilty of any misconducts in the past. Nor do I uphold the findings of the Guardianship Board. The only point I made is that it is not in the interest of the Patient to investigate into the past in the present circumstances. I sincerely hope they could try their best to co-operate with the Official Solicitor and if they could get the support of the Official Solicitor, the court may reconsider the person to be appointed as the Committee pursuant to Section 26B.

16.  There will be an order in terms of the draft placed before the court by the Applicant.

17.  I propose to release this judgment for publication and if any party has any comments, they should be sent to this court in writing within 5 days.