HA CHE WAI v. MEDICAL SUPERINTENDENT OF THE PAMELA YOUDE NETHERSOLE EASTERN PSYCHIATRIC OBSERVATION UNIT AND OTHERS

HCAL 2374/2023

[2025] HKCFI 5681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2374 OF 2023

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J U D G M E N T

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A. Introduction

1.  It is of no use to talk about human rights in vague terms.  Individuals affected by such rights need to know of and understand them, or have someone to ensure that those rights are afforded to them.

2.  This case concerns the rights of a “patient”, as defined in section 2 of the Mental Health Ordinance Cap 136 (“MHO”)  to mean a person suffering from or appearing to suffer from mental disorder.  The Applicant was such a patient.  He had a long history of mental illness having been first diagnosed with paranoid schizophrenia with referential delusion in 1995, for which he had been privately treated.

3.  In 2010, the Applicant was detained at the Pamela Youde Nethersole Eastern Hospital (“Hospital”), under section 31, then section 32, and later section 36 of Part III of the MHO.  The Applicant was subsequently conditionally discharged (“2010 CD”), under section 42B of the MHO, subject to potential recall to detention and with the conditions that (1) he should attend and follow up treatment and take medication as directed, (2) he should be under the supervision of a Community Psychiatric Nurse, and (3) he should be under the supervision of the Director of Social Welfare.

4.  In 2014, the Applicant heard from a social worker of his right to apply for a review of his case, and thereafter made almost annual applications to the Mental Health Review Tribunal (“Tribunal”)  seeking a discharge. On each occasion the Applicant was unrepresented.  Four decisions went against him in 2015, 2016, 2017 and 2019, before the Applicant lodged a fifth unrepresented application in March 2020. Before it could be heard, the Medical Superintendent (“Superintendent”)  decided to discharge him absolutely, and issued an ‘Amendment or Cancellation of Hospital Discharge Notice’.

5.  At issue in this case is whether – in the period between 2010 and his first application to the Tribunal in 2014 – the Applicant was ever told or should have been told of his right to apply to the Tribunal in respect of the 2010 CD, or his detention under section 42B, or for his discharge.

6.  The Applicant’s intended judicial review challenge made by his Amended Form 86 (“AF 86”)  can be broadly described as a challenge to the failures on the part of the Intended Respondents to take any steps to ensure that the Applicant (and other patients)  and their relatives understand their rights to representation, legal representation and legal aid on applications to the Tribunal for the review of their cases and in respect of their detention, contrary to the statutory duties imposed by the MHO and in breach of the Applicant’s (and other patients’)  common law and constitutional rights to liberty, procedural fairness and a fair hearing.  Because it is said that the Applicant’s case is not isolated, it is said on behalf of the Applicant that the intended challenge is a systemic one.

7.  I gave directions to bring the matter to a rolled-up hearing of (1) the question of any extension of time for the Applicant to bring the application, (2) the application for leave to apply for judicial review, and (3) any substantive review.

8.  At the hearing the Applicant was represented by Mr Nigel Kat SC, leading Mr Azan Marwah and Ms Christie Lee of Counsel.  The 1^st Intended Respondent (i.e. the Hospital)  and the 2^nd Intended Respondent (“HA”)  were represented by Mr Jenkin Suen SC, leading Mr Michael Lok of Counsel.  The 3^rd Intended Respondent (i.e. the Tribunal)  was excused from attendance.

9.  At the end of the hearing, I reserved my decision.  This is my Judgment.

B.  Further Background

B.1  Detention, Discharge and Applications to the Tribunal

10.  As stated above, the Applicant has a history of mental illness, involving some violence towards others.  For present purposes, it is unnecessary to recite any of the particular detail.

11.  Between 5 March 2010 to 6 May 2010, the Applicant was detained at Hospital, under the provisions of the MHO cited above, namely sections 31, 32 and 36. 

12.  The Applicant says in his evidence that on several occasions before 6 May 2010 he mentioned to the medical officers that he did not want to be detained, and insisted that he wished to be discharged.  I note this is to an extent corroborated by the evidence of Dr Chan Yee Joyce, the case medical officer of the Applicant during his period of detention.  He was, he says, not told how to apply to the Tribunal, nor given an application form to the Tribunal.

13.  However, on a number of occasions, the Applicant was provided with a ‘Notice to Involuntary Patient’, which provided the updated legal basis of the Applicant’s detention. The Notices also notified the Applicant that he and/or a relative could apply to the Tribunal for review of the detention pursuant to section 59B of the MHO.

14.  On 6 May 2010, the Applicant was conditionally discharged under section 42B of the MHO (i.e. the 2010 CD).

15.  Conditions attached to conditional discharge orders commonly include a residential requirement pursuant to section 42B(2)(a), and the four deponents who have filed evidential material on behalf of the Applicant in these proceedings were each required to live in a ‘halfway house’ as a condition of their discharge under section 42B.  No residential requirement was imposed upon the Applicant by the 2010 CD, and in fact he was free to move to Beijing and started working there.  He was instead discharged on conditions that (1) he should attend and follow up treatment and take medication as directed, (2) he should be under the supervision of a Community Psychiatric Nurse, and (3) he should be under the supervision of the Director of Social Welfare.

16.  At the time of the making of the 2010 CD, the Applicant was given a form HA 2098(S)  (“CD Form”), informing him of the making of the CD order under section 42B, and the conditions with which he was to comply.  The CD Form also reminded the Applicant that his discharge was subject to compliance with those conditions, failing which he might be recalled to the Hospital under section 42B(3).  The CD Form also noted that the conditions imposed may be varied under section 42B(5)  by the medical superintendent (“Superintendent”)  from time to time.

17.  The Applicant placed his initials and the date in a box applied by chop to the CD Form (i.e. it was not a printed part of the form)  which contained the words in both Chinese and English “I understand and accept the above conditions”.  In his evidence, the Applicant explained that he only signed with initials, and not his usual signature, because he did not understand all that was happening, and because he was told he needed to sign the document in order to be able to leave the Hospital.

18.  The CD Form did not make any reference to the right of appeal to the Tribunal, or any surrounding rights such as the right to representation before the Tribunal and that legal aid might be available.  This is so, notwithstanding (as will be seen below)  section 59B(2)(b)  of the MHO specifically provides that an application may be made to the Tribunal for the review of any case of a conditionally discharged patient within the meaning of section 42B.

19.  The Applicant says that he did not fully understand the meaning and conditions of the 2010 CD.  He also did not know, and so far as he recalls, he was not otherwise informed of his statutory right to apply to the Tribunal for review of the 2010 CD and for an absolute discharge.  He says that he was not told of his right to legal representation on an application to the Tribunal, nor was he directed to any resources or organisations that might assist him (including the Legal Aid Department), or provided with independent legal advice or representation.

20.  Under the 2010 CD as it continued, the Applicant was to remain subject to potential recall – and to the other conditions attached relating to treatment and medication, and being under the supervision of a community psychiatric nurse and the Director of Social Welfare – for a further 10 years.

21.  In June 2014, the Applicant was reclassified by the HA as a patient requiring conventional care, needing to attend for a depot (lasting)  injection at four-week intervals, and the 2010 CD was continued.

22.  The Applicant made his first unrepresented application to the Tribunal in 2014, after hearing from a social worker of his right to apply for a review of his case.  It was heard and determined against him on 20 April 2015.  Three further unrepresented applications were also unsuccessful, with determination dates of 18 July 2016, 30 October 2017, and 31 January 2019.  As a result, the 2010 CD continued.

23.  It has been accepted that the Applicant was not advised of his right to representation at any time, or when making the appeals/applications to the Tribunal.

24.  As will be seen below, the target of the intended judicial review challenge, and the relief sought, is primarily the circumstances relating to the fourth application.  It is said that the Applicant merely disputed the facts which appear in the medical and social welfare reports and claimed freedom.  He did not address the individual criteria in section 59E of the MHO, which guide and govern the exercise of the Tribunal’s powers (see below).  This was so, notwithstanding that the Applicant is a graduate who has held down a number of jobs.  It is said this demonstrates that the Applicant needed to have been told that he could be legally represented, and told that he was able to obtain legal aid, as a matter of effective practice.

25.  However, it may also be of some interest that there was a dissenting view expressed in the 31 January 2019 Decision of the Tribunal not to lift the 2010 CD.  The doctor holding the dissenting view thought there was no indication that the Applicant would cause immediate and serious harm to himself or to others; the probability and risk of aggression was very low; the Applicant posed no threat to society; and continued coerced treatment would mean taking away his fundamental freedom and basic human rights for autonomy and self-determination.  The doctor’s conclusion was that conditional discharge did not best serve the Applicant’s interests, and was in fact detrimental to his mental well-being.

26.  The Applicant made a fifth unrepresented application in March 2020.  But, before it could be heard, the Superintendent decided to discharge him absolutely on 18 June 2020.

B.2  Subsequent Events

27.  The remainder of the further background matters essentially relate to the question of whether there should be an extension of time granted for the bringing of the application for leave to apply for judicial review.

28.  The Applicant was both confused and disgruntled by the absolute discharge, because his application had not been heard. Correspondence between the Applicant and the Tribunal continued from 10 June 2020 to 20 November 2020.  The Applicant first wrote to the Tribunal concerning his application, and was told that the application was deemed to have been withdrawn and that the Tribunal had no jurisdiction as he had been absolutely discharged by Hospital.  Ultimately, no further explanation was given.

29.  On 26 June 2020, the Applicant also wrote to the Hospital to complain that he had been maltreated during his detention and during his 2010 CD, and of his absolute discharge.  The Hospital replied on 25 March 2021, saying amongst other things that it had no further information to provide.

30.  On 13 April 2021, the Applicant wrote to the HA Public Complaints Committee, making similar requests.  In May 2021, the Applicant lodged a formal complaint using the HA’s formal complaints procedure.  But it was unsuccessful, in that on 16 July 2021 the Applicant was told the committee could not handle the Applicant’s complaint further.

31.  On 10 November 2021, the Applicant applied for legal aid to challenge his CD on judicial review.  Though he satisfied the means test, the application was not determined until its refusal on 22 June 2022.  His legal aid appeal to the Registrar was dismissed on 23 March 2023. 

32.  On 9 June 2023, the Government announced that the HA would review the CD mechanism and would report the findings on the review to the Advisory Committee on Mental Health (“ACMH”).

33.  On 21 June 2023, the Applicant’s solicitors wrote to the HA, asking for copies of its policies, guidelines and operational instructions in respect of CDs.  By its reply on 11 July 2023, the HA stated that it did not have any corporate-wide policy, guidelines or operational instructions regarding conditional discharge.

34.  On 28 July 2023, the ACMH issued a press release indicating that the HA was to take the CD mechanism forward for directions, including that it was to revise the guidelines provided to front-line psychiatrists with a view to improving the CD mechanism.

35.  On 17 October 2023, the Applicant’s solicitors wrote to the Health Bureau to seek information in relation to the scope and the timetable of the preliminary review of the CD mechanism.

36.  On 24 November 2023, the Applicant’s solicitors sent a letter before action to the Secretary for Justice, canvassing the complaints and grounds subsequently set out in the Form 86, and indicating the Applicant’s intention to apply for judicial review of the CD mechanism and the Tribunal system if the government did not commit to remedying those defects.

37.  On 14 December 2023, Government Counsel replied to deny any role in the matter and directing the Applicant to approach the relevant policy bureau.

38.  These proceedings were commenced by the Form 86 dated 28 December 2023 – with the later amendment application to make the AF 86 advanced on 12 March 2024.

C.  The Amendment to the Form 86

39.  The Applicant’s summons, seeking leave to amend the Form 86 in the form of the AF 86, was opposed by the Hospital and the HA, on the basis that:

(1)  The “accidental errors and omissions” or “referencing” put forward by the Applicant as justifying the amendment, are neither necessary nor on their own justify the amendment application (not least because many amendments proposed do not fall within that category).

(2)  There is no explanation as to why the relevant “details” were not conveyed in the original version (especially as they were known to and set out by the Applicant in his affirmation or chronology).

(3)  The reference to other officers and authorities at the newly-inserted §105A is problematic, and allegations made against non-parties are clearly inappropriate, if it would necessitate the joinder of those named parties to the proceedings to afford them the right to respond.

(4)  The amendments do not add substance, whether to the substantive application or regarding the issue of delay.

40.  I reject this opposition.  Precisely because the amendments cover ground previously covered in the affirmation evidence and/or chronology identifies why there is no prejudice to their being permitted.  In so far as they cure merely minor errors, amendment is appropriate.  The new §105A identifies correspondence put forward as to the chronology, which is said to be relevant to the consideration of delay and an extension of time, but I do not think the references are such as to make allegations as such, or to require any joinder or right of response.  Whether the amendments do or do not add substance is a matter that can be addressed on the merits of the judicial review application as a whole.

41.  I have, therefore, allowed the amendments, and the case has proceeded on the basis of what is set out in the AF 86.

D.  The Target of the Challenge

42.  In the AF 86, the ‘judgment, order, decision, or other proceedings in respect of relief is sought’ is identified as follows (adopting the definitions used in this Judgment):

(1)  The decision of the Superintendent of the Hospital Psychiatric Observation Unit in or about October 2018 not to take such steps as were reasonably practicable to ensure the Applicant and a relative understood his right to effective representation on his application to the Tribunal for discharge and for a review of his case, pursuant to sub- sections 68A(a)  and (c)  of the MHO and at common law, or the Superintendent’s failure to do so.

(2)  The decision of the Tribunal, taken upon receipt of the Applicant’s application for discharge and for the review of his case between 1 November 2018 and 31 January 2019, not to advise the Applicant of his right to legal or other effective representation or of the availability of legal aid for those proceedings and not to ensure that he was so represented, or the failure of the Tribunal to do so.

(3)  The continuing failure of the HA to ensure that patients subject to such an order and their relatives and authorised representatives are advised on a timely basis of their right to legal or other effective representation and of the availability of legal aid on an application to the Tribunal for discharge or for review of their case.

43.  It is said that this is a systemic challenge both to the failures in the Hospital/HA and in the Tribunal.  In order to make good the nature of the challenge as being systemic, the Applicant has filed evidence from four other patients who have given consistent evidence about (1) their lack of understanding of their rights, and (2) the absence of any advice that they might be represented or obtain legal aid for representation before the Tribunal.

44.  During the hearing, Mr Kat referred to an article to identify that between 2011 and 2015, 721 individuals were made subject to a CD Order, of which 152 were conditionally discharged in 2015 alone.  In that year 66 of patients had been on conditional discharge for 3 to 5 years, and 11 of them had been on conditional discharge for more than 10 years.  Mr Kat also referred to some statistics to show that the Tribunal dealt with hundreds of cases in the period between 2015 and 2019.  Where it is accepted that patients under CD Orders are not advised that they may be represented, or legally represented or may obtain legal aid, Mr Kat submitted that those numbers identify the systemic issue.

E.  The Relief Sought

45.  In the AF 86, the relief sought – in addition to the requested extension of time in which to bring the application – is a series of declarations, phrased as follows:

1.  Declarations that: -

1.1  (a)  The Medical Superintendent of the Pamela Youde Nethersole Eastern Psychiatric Observation Unit was, in about October 2018, in breach of the duty imposed by s.68A(a) and (c) of the Mental Health Ordinance, Cap.136 and of her duty at common law to take such steps as were reasonably practicable to ensure that the Applicant and a relative understood his right to effective representation and of the availability of legal aid on the Applicant’s application to the Mental Health Review Tribunal for discharge and for a review of his case, prior to or on the making that application.

(b)  That on or prior to considering the conditional discharge of a patient under s.42B of the Mental Health Ordinance, Cap. 136 a Medial Superintendent of a mental Hospital declared under s.3(1) of the Mental Health Ordinance, Cap.136 is under a duty to take such steps as are reasonably practicable to ensure that, the patient and a relative or authorized representative are advised on a timely basis and understand the patient’s rights to legal or other effective representation and of the availability of legal aid on an application to the Mental Health Review Tribunal for discharge or for a review of their case.

1.2  The Mental Health Review Tribunal is under a continuing duty to advise applicants for discharge or for the review of their cases of their right to legal or other effective representation and of the availability of legal aid and to ensure that, in an appropriate case, they are represented in the conduct of those proceedings.

1.3  The Mental Health Review Tribunal was, between 1^st November 2018 and 31^st January 2019, in breach of its duties to advise the Applicant of his right to legal or other effective representation and of the availability of legal aid for his application to the Tribunal for discharge and for the review of his case and to ensure that he was represented in the conduct of those proceedings.

1.4  The Hospital Authority is under a duty to advise and ensure that patients detained or subject to an order for conditional discharge under s.42B MHO (and their relatives or authorized representatives)  understand their right to apply to the Mental Health Review Tribunal for discharge or review and of their rights to legal or other effective representation in the Mental Health Review Tribunal and of the availability of legal aid, on a timely basis no later than upon the receipt of that application.

46.  However, at the hearing, Mr Kat suggested that, if I were to be satisfied that the Applicant is entitled to some relief but that the declarations as phrased are too broadly drawn, then they might be recast (if necessary with the parties’ further assistance).

F.  The Grounds of Review

47.  The AF 86 provides a summary of the two ‘umbrella’ grounds of judicial review as being:

(1)  Ground 1: Breach of statutory duty under section 68A of the MHO and section 4 of the Hospital Authority Ordinance Cap 113 (“HAO”)  / Illegality.

(2)  Ground 2: Procedural unfairness / impropriety, breach of natural justice.

48.  The AF 86 also identifies that Ground 1 is aimed at the acts or omissions on the part of the Hospital and the HA, whereas Ground 2 is additionally aimed at the acts or omissions of the Tribunal.

49.  In the Applicant’s skeleton submissions, the grounds relied upon were summarised as being:

(1)  the failure of the Hospital/Superintendent and the HA to take any steps to advise the Applicant and other patients of their rights to representation, legal representation and of the availability of legal aid, as procedurally unfair at common law and a breach of their constitutional rights to liberty, access to the Tribunal and to a fair hearing, and in breach of section 68A of the MHO; and

(2)  in like breach (save for section 68A), the Tribunal likewise failed to ensure that the Applicant was appropriately represented.

50.  As advanced in the AF 86, the Applicant’s argument on Ground 1 can be summarised as follows:

(1)  The HA (through its medical superintendents)  is under the express statutory duty in section 68A of the MHO to take such steps as are reasonably practicable to ensure that every patient and their relatives understand the basis of their detention, their rights of application to the Tribunal, and their rights to apply for discharge, as soon as practicable after their detention.

(2)  The section 68A duty is additional to, and to be interpreted with, the HA’s general duty under section 4 of the HAO to educate and train persons involved in the provision of hospital services.

(3)  There is no evidence to suggest any relevant policy or training.

(4)  The duties must be interpreted so as to take account of the BOR 5 right to liberty, and the fair trial and access to justice provisions in the BOR and BL.

(5)  The requirement in section 68A should be interpreted purposively, where the affected patients cannot realistically be expected effectively to protect their own interests.

(6)  What is reasonably practicable is to be determined by what is practicable to achieve the statutory purpose of ensuring understanding of the procedures and rights concerned.

(7)  Without being informed of the rights, patients are effectively denied the substantive rights under BOR 5(4)  and/or patients have no effective rights of access to the Tribunal or to challenge their detention or CD.

(8)  The failure to give the required information under section 68A is a continuing breach of the duty imposed by that section as well as those under BOR 5 and the common law, rendering detention or CD arbitrary and unlawful.

51.  As advanced in the AF 86, the Applicant’s argument on Ground 2 can be summarised as follows:

(1)  The circumstances of patients such as the Applicant appearing before the Tribunal are unique among litigants whose liberty is at stake.

(2)  They require assistance to understand their legal status and to be heard fairly and to engage meaningfully with the Tribunal, or to understand that they may avail themselves of legal aid.

(3)  With patients whose capacity is in question, the statutory and constitutional and common law requirements dictate the safeguarding of rights, so that the HA and the Tribunal must ensure patients and their relatives or representatives are given the appropriate information for the rights to be effective.

(4)  None of the safeguards was observed when the Applicant was given the CD Form in October 2018, or when he applied to and appeared before the Tribunal in 2018 and 2019.

(5)  Nor was he informed of any of those rights thereafter prior to the decision of the Superintendent in May 2020 to discharge him absolutely.

(6)  Hence, the Applicant was denied a fair procedure and fair hearing before the Tribunal.

(7)  The breach is systemic, as the evidence of other witnesses advanced for the case shows.

52.  In his submissions, Mr Kat emphasised that the Court could decide this case on the common law, as applied to the statutory scheme.  As he put it, in this case, the common law position and the constitutional position are essentially the same in their approach to the rights and how they are affected.

53.  Mr Suen’s response in summary is that:

(1)  The declaratory relief sought is relatively narrow relating to (a) whether a CD patient should be informed of the right to legal representation and legal aid, and (b) whether there is a positive duty owed by the Tribunal and the HA and Superintendent.

(2)  The legal issues to be determined are:

(a)  Does the proper construction of section 68A apply to CD patients, and if so what is the content or extent of the statutory duty imposed?

(b)  To the extent that either section 68A does not apply to CD patients, or properly construed it does not include the duties claimed by the Applicant, does the common law fill any gap?

(c)  Do the claimed constitutional rights fill any gap?

(3)  The reported cases cited by the parties rarely touch on the contents of the duty as alleged in this case.

(4)  There may be some superficial attraction in saying that adding the two points of which the Applicant says patients must be informed is not difficult.  But the proper question to ask is whether, if that is not done, that renders the process unfair.

(5)  It is important to recognise the distinction between detained patients and CD patients.

(6)  Patients subject to CD Orders, at least those not with a condition as to a particular residence, are not detained patients, and at the material time the Applicant was not in detention.

(7)  In any event, neither section 68A nor the common law nor constitutional principles provide a proper legal basis for superimposing the alleged positive duty on the HA or Superintendent to inform patients or their relatives of their rights to representation or legal representation and the availability of legal aid on an application to the Tribunal.

54.  Before delving further into the argument, it is appropriate to look at the statutory regime.

G.  The Statutory Regime

G.1  Detention and Discharge

55.  Detention is in mental hospitals, which are the places declared under section 3 of the MHO.  They include the Hospital.  All mental hospitals declared under section 3(1)  are the property of the Government and are run by the HA.

56.  It is helpful to set out the material provisions of the MHO, Part III ‘Reception, Detention and Treatment of Patients’.

57.  Section 30 relates to voluntary patients, and has no particular relevance for present purposes. 

58.  However, section 31 provides as follows:

31.  Detention of a patient under observation

(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)  An application for an order for the detention of a patient for observation shall be founded on the written opinion in the prescribed form of a registered medical practitioner who has examined the patient within the previous 7 days, which opinion shall include—

(a)  a statement that in the opinion of the practitioner the conditions set out in subsection (1)  are satisfied;

(b)  such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in subsection (1)(a); and

(c)  a statement of the reasons for that opinion so far as it relates to the conditions set out in subsection (1)(b).

(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.

(2)  Every such order shall have the effect of authorizing the applicant and every public officer with such assistance in each case as may be necessary, to use such reasonable force as may be necessary in order to remove to a mental hospital the patient and if for any reason it is not practicable forthwith to remove him to a mental hospital to detain him in a place of safety for a period not exceeding 48 hours.

(3)  Where the patient has requested to see the District Judge or magistrate before such Judge or magistrate determines whether or not to make an order under subsection (1B)—

(a)  the District Judge or magistrate shall not make the order until he has seen the patient; and

(b)  a certificate by the registered medical practitioner who furnished the opinion for the purposes of subsection (1A)  as to whether or not the patient has made such a request shall be sufficient evidence of the fact thereof.

(4)  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 or under section 32.

59.  Section 32 provides for the extension of period of detention of a patient under observation.

60.  Section 36 provides for the detention of certified patients.  If a patient liable to be detained in a mental hospital (otherwise than under section 36)  or a voluntary patient in a mental hospital has been examined by two registered medical practitioners who are of the opinion that (1) 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 (2) 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, they may complete a certificate in the prescribed form and forward it to a District Judge.  The District Judge may then countersign the certificate, if satisfied that it is in order and there are no grounds for rejecting it.  Once countersigned, the certificate is sent to the Superintendent of the mental hospital in which the person is detained.

61.  Section 42 relates to discharge of patient before recovery, to a person into whose care the patient might be placed.  But present focus should be on sections 42A and 42B, the terms of which identify that they should be read together.

62.  Section 42A relates to absolute discharge and provides as follows (bold and italics in original):

42A.  Discharge of patient

(1)  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 this section and 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).

(2)  An order for discharge may be made in respect of a patient –

(a)  where the patient is liable to be detained in a mental hospital, by the medical superintendent;

(b)  [repealed]

63.  Hence, section 42A makes provision for a patient who is liable to be detained to cease to be so liable, if there is an order in writing discharging him from detention (whether absolutely, or subject to conditions imposed under section 42B).  As a matter of ordinary language, as well as the proper statutory interpretation, there is a clear distinction drawn between (1) detention of a patient who is liable to be detained, and (2)  the discharge of a patient from detention, because he ceases to be liable to be detained.

64.  Section 42B enables the medical superintendent to order the conditional discharge of a patient from a mental hospital or the Psychiatric Centre of the Correctional Services Department.  It provides (bold and italics in original):

42B.  Conditional discharge of patients with propensity to violence

(1)  Where –

(a)  it appears to the medical superintendent that a patient has a medical history of criminal violence or a disposition to commit such violence; but

(b)  the medical superintendent is of the opinion that the patient may safely be discharged subject to conditions to be specified in an order for discharge,

the medical superintendent may, in the exercise of his powers under section 42A, but subject to any restriction on such power imposed by any provision of Part IV, make an order for discharge subject to compliance by the patient discharged (in this section and section 43 called the conditionally discharged patient)  with conditions.

(2)  Without prejudice to the power of the medical superintendent in the exercise of his powers under subsection (1)  to impose such conditions as he thinks fit on an order for discharge, being conditions reasonable in the circumstances, such conditions may require the conditionally discharged patient—

(a)  to reside at a place specified by the medical superintendent;

(b)  to attend at an out-patient department of a hospital or at a clinic specified by the medical superintendent;

(c)  to take medication as prescribed by a medical practitioner; or

(d)  to be under the supervision of the Director of Social Welfare.

(3)  In any case where –

(a)  it appears to a medical superintendent that a conditionally discharged patient has failed to comply with any condition to which his order for discharge is subject; and

(b)  the medical superintendent is of the opinion that it is necessary in the interests of the patient’s health or safety, or for the protection of other persons, to recall the patient to a mental hospital,

the medical superintendent may, by notice in writing in the prescribed form to the conditionally discharged patient or to the person in charge of the conditionally discharged patient, recall the patient to the mental hospital and, upon the giving of the notice to the patient, or at such subsequent time as may be stated in the notice, the patient may be detained and section 43(5)  shall apply accordingly.

(4)  Any conditionally discharged patient recalled to a mental hospital under subsection (3)  shall, upon admission to that Hospital, be deemed to have been detained therein under section 31 and, for the purposes of that section, the patient shall be deemed to have been detained in that hospital in pursuance of an order under section 31(1B)  made at the time of admission.

(5)  The medical superintendent may at any time by notice in writing to the conditionally discharged patient vary the conditions of his discharge.

65.  Hence, section 42B(1)  invokes section 42A by providing that the Superintendent may, in the exercise of his powers to discharge a patient from detention under section 42A, make an order for discharge with conditions (“CD Order”).  The two sections read together again emphasize the distinction between (1) a patient who is detained because he is liable to be detained, and (2) a patient who is discharged from detention because he has ceased to be liable to be detained.

66.  Amongst the conditions which might be imposed under section 42B is that the conditionally discharged patient reside at a place specified by the Superintendent. The list of conditions at section 42B(2)  is non-exhaustive.

67.  Further, the two elements necessary for the exercise of power under section 42B(1)  of the Ordinance are: (a) where it appears to the Superintendent that a patient has a medical history of criminal violence or a disposition to commit such violence; but (b) the Superintendent is of the opinion that the patient may safely be discharged subject to conditions to be specified in an order for discharge (i.e. a CD).

68.  A conditionally discharged patient is subject to simple notice to recall under section 42B(3), where the Superintendent takes the view that there has been a failure to comply with any condition imposed and recall is necessary.  Upon the giving to the patient of the notice of recall, the patient may be detained.  Similarly under section 42B(4), after a conditionally discharged patient has been recalled, he shall upon admission to the hospital be deemed to have been detained there under section 31.  These two subsections also seem to me to identify a clear distinction between detention and discharge, including by possible revocation of the discharge to reinstate detention.

69.  Under section 42B(5), the conditions imposed may be varied by the Superintendent at any time.

70.  Section 43 materially provides as follows:

43.  Detention and recapture

(1)  Every patient received into a mental hospital under the authority of this Ordinance may, subject to this Ordinance, be detained therein until he is removed or discharged in accordance with this Ordinance.

(2)  Where a patient who is for the time being liable to be detained in a mental hospital under this Ordinance escapes, he may, subject to the provision of this section, be taken into custody and returned to the mental hospital by the medical superintendent, any officer or servant of such hospital, person authorised by the medical superintendent or any police officer.

(3)  Where a person who is for the time being liable to be detained under this Ordinance –

(a)  fails to return to the mental hospital on any occasion on which, or at the expiration of any period for which, permission to be absent was granted under section 39, or upon being recalled under that section; or

(b)  absents himself without permission from anyplace where he is required to reside in accordance with conditions imposed on the grant of leave of absence under that section,

he may, subject to this section, be taken into custody and returned to the mental hospital by the medical superintendent, any officer or servant of such hospital, or any person authorised by the medical superintendent.

(4)  [repealed]

(5)  Where a conditionally discharged patient –

(a)  fails to return to the mental hospital upon being recalled under section 42B(3)  or there under section 42B(6)(d); or

(b)  absents himself without permission from anyplace where he is required to reside in accordance with conditions imposed on his discharge under section 42B,

may be taken into custody and returned to the mental hospital by the medical superintendent, or any officer or servant of the hospital, or any other person authorised by the medical superintendent …

71.  Subsections 42B(3)  and (5)  again seem to emphasise the difference between a patient who is liable to be detained and a conditionally discharged patient (who has been discharged because he was no longer liable to be detained, albeit who is subject to recall if he again becomes liable to be detained).

G.2  The Tribunal

72.  The Tribunal is a statutory tribunal, introduced in 1988.  Its purpose is to deal with applications and references for review by and in respect of patients under the MHO, including in respect of detention and conditional discharge under Part III.  The Tribunal provides an independent review of decisions on and orders for detention, including CD Orders.

73.  The provisions of the MHO relating to the Tribunal are to be found in Part IVA, with the material provisions for present purposes including the following:

59A.  Mental Health Review Tribunal

(1)  There shall be a tribunal known as the “Mental Health Review Tribunal” for the purpose of dealing with applications and references by and in respect of patients under this Ordinance or mentally handicapped persons to whom Part IIIA or IIIB applies, as the case may be, (relevant persons).

(2)  The tribunal shall consist of –

(a)  a chairman appointed by the Chief Executive and having such legal experience as the Chief Executive considers suitable;

(b)  persons (referred to in this Part as the medical members)  being registered medical practitioners appointed by the Chief Executive on the recommendation of the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap. 113)

(c)  persons (referred to in this Part as the social work members)  appointed by the Chief Executive who have such experience and knowledge of social work as the Chief Executive considers suitable; and

(d)  persons appointed by the Chief Executive and having such experience and knowledge of administration, clinical psychology, or such other qualifications or experience, as the Chief Executive considers suitable.

(3)  The members of the tribunal shall hold and vacate office under the terms of the instrument under which they are appointed, but may resign office by notice in writing to the Chief Executive.

(4)  Any members of the tribunal who ceases to hold office shall be eligible for re-appointment.

(5)  Subject to the rules referred to in Section 59G, the members who are, with the chairman, to exercise the functions of the tribunal for the purposes of any proceedings or class or group of proceedings under this Ordinance shall be appointed by the chairman, and of the members so appointed –

(a)  one or more shall be appointed from the medical members;

(b)  one or more shall be appointed from the social work members; and

(c)  one or more shall be appointed from the members who are neither medical members nor social work members.

(6)  Subject to the rules referred to in Section 59G, the jurisdiction of the tribunal may be exercised by the chairman and 3 of its members, and references in this Ordinance to the tribunal shall be construed accordingly.

(7)  The Registrar of the High Court may defray the expenses of the tribunal to such amount as he may, with the consent of the Financial Secretary, determine.

(8)  There shall be a secretary to the tribunal who shall be appointed by the Chief Executive.

(9)  The persons recommended to the Chief Executive by the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap. 113)  under subsection (2)(b)  shall be persons who, in the opinion of the Director, have relevant experience in psychiatry.

59B.  Applications to the tribunal

(1)  An application may be made to the tribunal for the review of the case of any patient liable to be detained in a mental hospital or the Correctional Services Department Psychiatric Centre; but nothing in this section shall apply to any person who is serving a sentence of imprisonment in pursuance of the order of any court during the period within which he is liable to be detained in pursuance of that sentence other than a person detained at the discretion of the Chief Executive.

(2)  An application may be made to the tribunal for the review of any case of –

(a)  a patient permitted to be absent on trial under section 39;

(b)  a conditionally discharged patient within the meaning of section 42B;

(c)  a person admitted to guardianship under Part IIIA;

(d)  a supervised person within the meaning of Part IIIB.

(3)  An application under subsection (1)  or (2)  may be made by –

(a)  the person to whom those subsections apply; or

(b)  his relative,

and, subject to subsection (5)  and to any rules made under section 59G, may be made at any time.

(4)  An application under subsection (1)  or (2)  may be brought for the purpose of reviewing any direction or decision of a medical superintendent under this Ordinance and, when so brought, shall specify the grounds for applying for the review.

(5)  Except with the leave of the tribunal, no application may be made under subsection (1)  or (2)  –

(a)  by a patient liable to be detained under a hospital order or transfer order, within a period of 12 months after he is first liable to be so detained; or

(b)  within 12 months of the determination of a pervious review unless it is for the purpose of reviewing any direction or decision of the medical superintendent under this Ordinance which could not have been considered at the previous review.

59D.  Duty to refer cases to tribunal

(1)  Whenever a patient (other than a voluntary patient)  or his relative does not exercise his right to apply to the tribunal under section 59B(1)  for a period of 12 months after the right first became available to him –

(a)  the medical superintendent, if the patient is liable to be detained in a mental hospital; or

(b)  the Commissioner of Correctional Services, where the patient is liable to be detained in the Correctional Services Department Psychiatric Centre,

shall, at the expiration of the period for making the application, refer the patient’s case to the tribunal.

(2)  For the purpose of furnishing information to the tribunal for the purposes of any reference under this section, any registered medical practitioner authorized by or on behalf of the patient may, at any reasonable time, visit and examine the patient in private and require the production of and inspect any records relating to the detention or treatment of the patient in any Hospital and relevant to the reference.

(3)  For the purposes of subsection (1), a person who applies to the tribunal but subsequently withdraws his application shall be treated as not having exercised his right to apply, and where a person withdraws his application on a date after the expiration of the period mentioned in that subsection, the medical superintendent or as the case may be, the Commissioner of Correctional Services shall refer the patient’s case as soon as possible after that date.

(4)  A medical superintendent or the Commissioner of Correctional Services may, in the event of an application being made to the tribunal by any other person under section 59B(1), with the leave of the tribunal, discontinue any review proceedings brought under this section.

59E.  Powers of the tribunal

(1)  Where application is made to the tribunal under section 59B(1)  or (2)(a)  or (b)  or a case is referred to it under section 59C(1)  or 59D(1), the tribunal may –

(a)  direct that a patient be discharged, and where it does so the patient shall be discharged in accordance with its direction; and

(b)  make such recommendations in the matter as it thinks fit including recommendations to the Chief Executive and to any public officer as to the exercise of their powers under this or any other Ordinance.

(2)  In the exercise of its power under subsection (1)(a), the tribunal shall direct that a patient be discharged, either absolutely or subject to the imposition of conditions under section 42B, if it is satisfied –

(a)  that he is not then suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a mental hospital for medical treatment; or

(b)  that it is not necessary for the health or safety of the patient or for the protection of other persons that he should be so detained to receive such treatment.

(3)  In determining whether to direct the discharge of a patient, the tribunal shall have regard –

(a)  to the likelihood of medical treatment alleviating or preventing a deterioration of the patient’s condition; and

(b)  to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation.

(4)  The tribunal may under subsection (1)  direct the discharge of a patient on a future date specified in the direction; and where the tribunal does not direct the discharge of a patient under that subsection the tribunal may –

(a)  with a view to facilitating his discharge on a future date, recommend that –

(i)  he be granted leave of absence;

(ii)  he be transferred to another mental Hospital;

(iii)  a guardianship application under section 59M(1)  be made to the Guardianship Board (within the meaning of section 59I)  for the purposes of the Board determining whether or not he should be received into guardianship under Part IVB, and, in such a case, recommend the terms of the appropriate guardianship order that may be made by the Board under that Part; and

(b)  further consider his case in the event of any such recommendation not being complied with.

(5)  Where application is made to the tribunal under section 59B(2)(c)  or (d)  the tribunal may in any case direct that the person to whom those paragraphs apply be discharged, and shall so direct if it is satisfied that it is not necessary in the interests of the welfare of that person, or for the protection of other persons, that that person should remain in guardianship under Part IIIA or remain as a supervised person within the meaning of Part IIIB.

(6)  The tribunal may under subsection (5)  direct the discharge of the person to whom section 59B(2)(c)  or (d)  applies on a future date specified in the direction, and where the tribunal does not direct the discharge of that person the tribunal may –

(a)  with a view of facilitating his discharge on a future date, recommend that a guardianship application under section 59M(1)  be made to the Guardianship Board (within the meaning of section 59I)  for the purposes of the Board determining whether or not he should be received into guardianship under Part IVB, and, in such a case, recommend the terms of the appropriate guardianship order that may be made by the Board under that Part; and

(b)  further consider his case in the event of any such recommendation not being complied with.

59G.  Procedure of the tribunal

(1)  Rules may be made by the Chief Justice with respect to the making of applications to the tribunal and with respect to its proceedings and matters incidental to or consequential on such proceedings.

(2)  Rules made under subsection (1)  may in particular make provision –

(a)  for enabling the tribunal to dispose of an application without a formal hearing where such a hearing is not requested by the applicant or it appears to the tribunal that such a hearing would be detrimental to the health of the relevant person;

(b)  for enabling the tribunal to exclude members of the public, or any specified class of members of the public, from any proceedings of the tribunal, or to prohibit the publication of reports of any such proceedings or the names of any persons concerned in such proceedings;

(c)  for regulating the circumstances in which, and the persons by whom, applicants and relevant persons in respect of whom applications are made to a tribunal may, if not desiring to conduct their own case, be represented for the purposes of those applications;

…

74.  The sections, therefore, deal with matters including:

(1)  the constitution of the Tribunal;

(2)  the circumstances in which applications may be made by a patient to the Tribunal (including by a conditionally discharged patient within the meaning of section 42B);

(3)  the need for the applicant applying for review to specify the grounds of the application (language which is at least consistent with the potential involvement of legal advice or representation);

(4)  the need for automatic referral to the Tribunal where the patient does not himself apply within the period of 12 months starting from when he might first do so;

(5)  the powers given to the Tribunal (including the power to direct an absolute or conditional discharge, which is mandatory in certain circumstances); and

(6)  the power given to the Chief Justice to make rules (leading to the MHRT Rules, to which I shall turn below).

75.  Section 59B identifies that that an application made to the Tribunal under it may be brought for the purpose of reviewing any direction or decision of the medical superintendent made under the MHO. Section 59D mandates a reference of the patient’s case to the Tribunal at the end of a period of 12 months after the patient’s right of application to the Tribunal first became available to him, whenever the patient has not exercised that right in that period.  Section 59E identifies that when an application is made, or a patient’s case is referred to it, the Tribunal may direct that the patient be discharged, and the patient shall be discharged in accordance with that direction.  The discharge may be absolute or subject to the imposition of conditions under section 42B. Alternatively, the Tribunal may make such recommendations in the matter as it thinks fit including recommendations to the Chief Executive and to any public officer (including the Superintendent)  as to the exercise of their powers.  It seems that the potential recommendations would include, for example, a recommendation that a patient who is subject to a CD Order should in fact be detained (though this may seem highly unlikely in most cases).

76.  As the provisions set out above also identify, the Tribunal is a quasi-judicial body.  It is chaired by a lawyer appointed by the Chief Executive, and is otherwise composed of medical, social work and other persons with appropriate experience and knowledge of administration, clinical psychology, or other relevant qualifications appointed by the Chief Executive. Further, the power to make a set of procedural rules identifies the intended broad structure of applications made to the Tribunal.  The envisaged rules specifically include regulating the circumstances in which, and the persons by whom, applicants may be represented for the purposes of applications made to the Tribunal.  The Tribunal normally sits in public hospitals.

77.  The importance of the decisions of Tribunal is reflected in the requirement for the chairman to have such legal experience as the Chief Executive considers suitable.

78.  Indeed, it is fair to say that issues before the Tribunal are amongst the most important issues decided by any tribunals.  The Tribunal makes decisions as to the compulsory detention and treatment, and thus the liberty, of the individual.  An incorrect decision may lead on the one hand to the unnecessary detention of a patient, and at the other extreme to the release of a patient who is a danger to himself and/or who may present a risk to the public.  A patient will be the victim of a wrongful decision to detain him.  Conversely, however, he may also suffer from a mistaken decision to direct his discharge.

79.  In the context of the proper interpretation of section 68A of the MHO (see below), reference can be made to section 59E, which makes provision for the powers of the Tribunal.  Section 59E(1)  and (2)  together empower the Tribunal to direct that a patient be discharged, either absolutely or subject to the imposition of conditions under section 42B, if satisfied that the detained person is not still suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a mental hospital for medical treatment.

80.  In other words, the Tribunal may direct that a patient be discharged, when it is satisfied that he is no longer liable to be detained.  This is connected to the provisions in sections 42A and 42B, which I have set out and commented upon above.

G.3  The MHRT Rules

81.  The Mental Health Review Tribunal Rules Cap 136C (“MHRT Rules”)  were made pursuant to section 59G of the MHO.  Amongst other provisions, they contain the following provisions, insofar as is material for present purposes:

3.  Making an application

(1)  An application shall be made to the tribunal in writing, signed by the applicant or any person authorized by him to do so on his behalf.

(2)  The application shall wherever possible include the following information –

(a)  the name of the mentally incapacitated person and the number of any current identity card issued to the mentally incapacitated person under the Registration of Persons Ordinance (Cap. 177);

(b)  the mentally incapacitated person’s address, which shall include –

(i)  the place where the patient is detained; or

(ii)  the name and address of the mentally incapacitated person’s private guardian, and the number of any current identity card issued to the guardian under the Registration of Persons Ordinance (Cap. 177); or

(iii)  in the case of a conditionally discharged patient or a patient to whom leave of absence from hospital has been granted, the place where the patient was last detained or is liable to be detained, together with the patient’s current address and the address of any psychiatric out-patient clinic that he is required to attend;

(c)  where the application is made by the mentally incapacitated person’s relative, the name and address of the applicant, the number of any current identity card issued to the applicant under the Registration of Persons Ordinance (Cap. 177), and the relationship of the applicant to the mentally incapacitated person;

(d)  the section of the Ordinance under which the patient is detained or is liable to be detained;

(e)  the name and address of any representative authorized in accordance with rule 9 and the number of any current identity card issued to him under the Registration of Persons Ordinance (Cap. 177)  or, if none has yet been authorized, whether the applicant intends to authorize a representative or wishes to conduct his own case.

(3)  If any of the information specified in subrule (2)  is not included in the application it shall, in so far as is practicable, be provided by the responsible authority.

5.  Preliminary and incidental matters

As regards matters preliminary or incidental to an application, the chairman may, at any time up to the hearing of an application by the tribunal, exercise the powers of the tribunal under rules 4, 7, 9, 11, 12, 14, 18, 25 and 27.

9.  Representation, etc.

(1)  Any party may be represented by any person whom he has authorized for that purpose, not being –

(a)  a person liable to be detained, or subject to guardianship (including guardianship under Part IVB of the Ordinance), under the Ordinance or who is a supervised person; or

(b)  a person receiving treatment for mental disorder at the same mental hospital as the patient; or

(c)  in the case of a patient liable to be detained at the Correctional Services Department Psychiatric Centre, a person liable to be detained there.

(2)  Any representative authorized in accordance with subrule (1)  shall notify the tribunal of his authorization and postal address.

(3)  As regards the representation of any mentally incapacitated person who does not desire to conduct his own case and does not authorize a representative in accordance with subrule (1)  the tribunal may appoint some person to act for him as his authorized representative.

(4)  Without prejudice to rule 11(3), the secretary shall send to an authorized representative copies of all notices and documents which are by these rules required or authorized to be sent to the person whom he represents and such representative may take all such steps and do all such things relating to the proceedings as the person whom he represents is by these rules required or authorized to take or do.

(5)  Any document required or authorized by these rules to be sent or given to any person shall, if sent or given to the authorized representative of that person, be deemed to have been sent or given to that person.

(6)  Unless the tribunal otherwise directs, a mentally incapacitated person or any other party appearing before the tribunal may be accompanied by such other person or persons as he wishes, in addition to any representative he may have authorized.

11.  Disclosure of documents

(1)  Subject to subrule (2), the secretary shall, as soon as practicable, send a copy of every document the tribunal receives which is relevant to the application to the applicant, and (where he is not the applicant)  the mentally incapacitated person, the responsible authority and any of those persons may submit comments thereon in writing to the tribunal.

(2)  As regards any documents which have been received by the tribunal but which have not been copied to the applicant or the mentally incapacitated person, including documents withheld in accordance with rule 6, the tribunal shall consider whether disclosure of such documents would adversely affect the health or welfare of the mentally incapacitated person or others and, if satisfied that it would, shall record in writing its decision not to disclose such documents.

(3)  Where the tribunal is minded not to disclose any document to which subrule (1)  applies to an applicant or a mentally incapacitated person who has an authorized representative, it shall nevertheless disclose it as soon as practicable to that representative if he is –

(a)  a barrister or solicitor;

(b)  a registered medical practitioner; or

(c)  in the opinion of the tribunal, a suitable person by virtue of his experience or professional qualification:

Provided that no information disclosed in accordance with this subrule shall be disclosed either directly or indirectly to the applicant or (where he is not the applicant)  to the mentally incapacitated person or to any other person without the authority of the tribunal or used otherwise than in connection with the application.

12.  Directions

Subject to the provisions of these rules, the tribunal may give such directions as it thinks fit to ensure the speedy and just determination of the application.

82.  It can also be noted that rule 21 ‘Hearing procedure’ permits the Tribunal to conduct the hearing in such manner as it considers most suitable bearing in mind the health and interests of the mentally incapacitated person, and that it shall (insofar as it appears to it appropriate)  seek to avoid formality in its proceedings.  In practical terms, the rule permits and requires an assessment of the ability of the patient to represent himself.

83.  In the particular circumstances of this case, a focus has included the provisions in rules 9(3)  and 11(3), which tend to emphasise the importance of the possibility of proper representation for the applicant patient, including by legal professionals or by a person appointed by the Tribunal itself.  That is entirely consistent with the seriousness of the issues which arise on applications to the Tribunal.

84.  These are matters which the Tribunal has the power to consider when it gives directions under rule 12 (likely, or potentially, at an early stage of the application process, but available throughout).  Those directions are intended to ensure not just a speedy determination of the application to the Tribunal, but a just determination.  Hence, as the exercise of the power has been conferred for the purpose of enforcing or making good the right to a just determination, I think that triggers a duty on the Tribunal to exercise the power for that purpose.

85.  Indeed, where the MHO apparently intends that the Chief Justice should make rules, those rules created must be taken to have the relevant and necessary provisions so that the rights conferred can be effectively pursued.  To put it another way, where a person such as the Applicant has the statutory right to make an application to the Tribunal, the MHRT Rules are plainly intended to ensure (amongst other things)  that the right can be exercised effectively – and to enable the ultimate determination to be just.

86.  Reference can be made to the case of Lam Siu Po v Commissioner of Police (2009)  12 HKCFAR 237 at §138, where it was stated that at common law and in the absence of inconsistent legislative intervention, administrative and domestic tribunals are generally regarded as masters of their own procedure possessing a flexible discretion to take whatever procedural course may be dictated by the requirements of fairness.

87.  Though I recognise the principle, however, I do not think there is really any necessity to resort to it, or to any default principle – see, for example, S, T, P v London Borough of Brent [2002] EWCA Civ 693 at §14 – that the common law will supplement such procedures as are set out in rules, to the extent necessary to ensure that they operate fairly.  Of course, I also accept that rules must be operated to ensure fairness for constitutionality purposes.  However, the requirement for fairness seems to me to be evident in the MHRT Rules themselves, and the circumstances in which those rules operate.

88.  The powers set out in the MHRT Rules must be exercised in the manner intended to ensure fairness in the applicable circumstances.  Those circumstances may vary from case to case, but in applications to the Tribunal the seriousness of the potential consequences are obvious (including impacting liberty), and the capacity of the individual to present his own case will be affected to a greater or lesser extent by the fact that the individual is a patient within the meaning of the MHO.

G.4  Section 68A: Duty to give information

89.  Central to the consideration in this case is section 68A of the MHO, found in Part V ‘General Provisions’.  Section 68A provides as follows:

68A.  Duty to give information to detained patients

The medical superintendent of every medical hospital, and the Superintendent of the Correctional Services Psychiatric Centre, shall take such steps as are reasonably practicable to ensure that every patient in the hospital or the Centre, as the case may be, and every relative of every patient, understand –

(a)  under which of the provisions of this Ordinance the patient is for the time being detained and the effect of that provision;

(b)  what rights of applying to the tribunal are available to the patient in respect of his detention under that provision; and

(c)  what rights are available to the patient to apply for his discharge,

and those steps shall be taken as soon as practicable after the commencement of the patient’s detention under the provision in question.

90.  Obviously, that section requires the information in all of (a)  and (b)  and (c)  to be given.  Further, to make sense of them both, paragraphs (b)  and (c)  must both have some independent purpose.  As I understand it, paragraph (b)  relates to the rights of applying to the Tribunal (which may include an application for discharge), and paragraph (c)  relates to any other rights as are available to the patient to apply for his discharge (such as under sections 27 and 42).

91.  But the information given to detained patients is not the mere giving of information.  Rather, it encompasses the requirement that the Superintendent takes such steps as are reasonably practicable to ensure that every patient, and every relative of every patient, actually understands the information which is given.

92.  Indeed, together with the provisions under the MHRT Rules set out above, it also seems to me to be obvious that there are intended special procedural safeguards, which are or may be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.  This is consistent with the need – also arising under constitutional requirements – for securing rights that are “practical and effective” rather than “theoretical and illusory”.

G.5  Legal Aid

93.  Schedule 2 to the Legal Aid Ordinance Cap 91 identifies the proceedings for which legal aid may be given under section 5.  Part 1 §6 identifies that legal aid may be given in respect of an application to the Tribunal.

94.  Hence, an applicant to the Tribunal may be legally represented with the benefit of legal aid, if eligible.

G.6  The HA

95.  The HA is a statutory body established under the HAO. 

96.  Its functions are set out in section 4 of the HAO, and amongst other things include: (1) managing the public health system in ways conducive to achieving certain objectives including the provision of hospital services of the highest possible standard, (2) improving efficiency, (3) ensuring accountability to the public, and (4) promoting education and training of persons involved in hospital services or other services relevant to the health of the public.

G.7  The Basic Law and the Bill of Rights

97.  Though not strictly part of the governing statutory regime, reference can be made to the surrounding constitutional rights, upon which some reliance was placed by the Applicant.

98.  Reference was made to Articles 4, 28, 35 and 39 of the Basic Law (“BL 4”, “BL 28”, “BL 35”, and “BL 39” respectively), which provide as follows:

Article 4

The Hong Kong Special Administrative Region shall safeguard the rights and freedoms of the residents of the Hong Kong Special Administrative Region and of other persons in the Region in accordance with law.

Article 28

The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong residents shall be subjected to arbitrary or unlawful arrest, detention or imprisonment.  Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited.  Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

Article 35

Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of that lawful rights and interests or for representation in the courts, and to judicial remedies.

Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.

Article 39

The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.  Such restriction shall not contravene the provisions of the preceding paragraph of this Article.

99.  Reference was also made to Articles 5 and 10 of the Hong Kong Bill of Rights (“BOR 5” and “BOR 10” respectively), enacted under the Hong Kong Bill of Rights Ordinance Cap 383, which provide as follows:

Article 5

Liberty and security of person

(1)  Everyone has the right to liberty and security of person.  No one shall be subjected to arbitrary arrest or detention.  No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

(2)  Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any changes against him.

(3)  Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

(4)  Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

(5)  Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right compensation.

Article 10

Equality before courts and right to fair and public hearing

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.  The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public)  or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

100.  It is settled Hong Kong law that orders for detention under the MHO restrict both the constitutional and common law rights to liberty.  BOR 5(4)  reflects and gives constitutional force to the common law requirements of procedural fairness or due process, appropriate to the type of deprivation of liberty in question. What is less clear is whether the rights under BOR 5 are engaged regarding the class of persons liable to or the subject of a CD Order.

H.  The Material Documents

101.  It is helpful next to traverse some of the available documentation, and to make comments upon it in passing. 

102.  As I indicated above in the context of the chronology of subsequent events, the Applicant asked the ACMH whether it would take positive steps to produce and act on guidelines for advising CD patients of their rights.  He received no response to that letter.  However, in the evidence filed for the Hospital and the HA, disclosure has now been given of several more documents than were previously available to him, including recent guidelines. I can run through some of the documents disclosed, without reference to or comment on the timing of the disclosure of any particular document.

103.  The Hospital had an internal guideline document ‘Duty To Give Information MHO 68A’ (endorsed on 19 December 2007).  Step 2 of the procedure set out in that document identified that the Reception Nurse should:

Sign and deliver the “Notice to Involuntary Patient” (TF9111/PY)  to patient and his/her relative upon involuntary admission, e.g. F1/2/3. Explain the content of the notice to the patient and relative if he or she is illiterate.

104.  Notwithstanding that, Dr Wu Ying King, the Superintendent at the Hospital, stated in her affirmation evidence that it was the usual practice to explain the content of the Notice, including the legal basis of the detention and the right to apply to the Tribunal for review, irrespective of whether patients were literate or illiterate.  That is why, she believes, the reference to the explanation (only)  to the illiterate was deleted in the 2013 revision of the document.  Of course, by 2013, the Applicant himself had already been conditionally discharged, so this revision made no difference to his position.  There have also been further revisions, but the content is probably not material for present purposes except as outlined below.

105.  There is a ‘Report on the Audit on Duty to give information to detained patients’ for the audit period of October 2008. Audit Standard no. 4 in the document is headed “Explain the content of the Notice to patient and relative if he or she is illiterate”.  Some of the cases were ticked “Yes”; none of them were ticked “No”; and some of them were ticked “N/A”.  The compliance rate to applicable cases was said to be 100% across-the-board, but there were some observations as to the low or zero % of applicable cases.  It was also noted that “In cases applicable, it was found that some [patients] were actually not illiterate”.

106.  I have already briefly described the ‘Notice to Involuntary Patient’ form (“NIP Form”)  which was provided to the Applicant on a number of occasions during his detention between 5 March 2010 and 6 May 2010.  The NIP Forms provided to him were in the Chinese language version, but using the first one I shall quote the English language translation (bold and italics in original):

1.  You are admitted to Pamela Youde Nethersole Eastern Psychiatric Observation Unit, Pamela Youde Nethersole Eastern Hospital for observation / treatment pursuant to the following section of the Mental Health ordinance, Cap. 136, Laws of Hong Kong

(The following are summaries of the provisions.  The Original text shall prevail.)

□	Section 26	(Order for admission by Court upon inquiry.)
☑	Section 31	(Admission for observation / investigation / treatment for a period not exceeding 7 days.  Application endorsed by a District Judge / Magistrate.)
□	Section 32	(Extension of period of observation / investigation / treatment for not more than 21 days.  Application endorsed by a District Judge.)
□	Section 36	(Involuntary patient certified to be suffering from mental disorder of a nature or degree which makes it appropriate and necessary for him / her to receive medical treatment in hospital. Application endorsed by a District Judge.)
□	Section 42B(3)	(Recall of a conditionally discharged patient by the Medical Superintendent back to a mental hospital for observation / investigation / treatment for a period not exceeding 7 days.)
□	Other Section: ______________________________

2.  According to the following provision of the Mental Health Ordinance, the right of applying to the Mental Health Review Tribunal for review is as follows:

□

Section 59B

Any person admitted under the sections mentioned in paragraph 1 of this form or his relative may apply to the Mental Health Review Tribunal for review of the admission.  No application may be made for another review within 12 months of the determination of a previous review.

3.  The following sections of the Mental Health Ordinance provide the rights of applying for discharge:

□	Section 27	Any person admitted under Section 26 or any other person acting on his behalf may apply to Court.
□	Section 42	A Patient’s relative or friend may make the application in writing in the prescribed form to the Medical Superintendent on the patient’s behalf.

4.  □  I have explained the content of this Notice to the patient who is illiterate.

107.  As the NIP Form itself identifies, it contained only summaries of the relevant statutory provisions, and it seems to have required the person filling out the form on behalf of the Superintendent to have ticked the various boxes as might be appropriate. 

108.  As shown above, on the NIP Form dated 5 March 2010 – i.e. the first such form provided to the Applicant upon his detention – the only box ticked was that next to the reference to section 31.  On the NIP Form dated 12 March 2010, the only box ticked was that next to the reference to section 32.  On the NIP Form dated 29 March 2010, the only box ticked was that next to the reference to section 36.

109.  None of the forms had a tick in the box next to the reference to section 59B.  Though the preamble to paragraph 2 referred to a right of applying to the Tribunal for review, it is also stated that was possible in relation to persons admitted under the sections mentioned in paragraph 1.

110.  None of the forms had a tick in the box against the reference to the explanation having been given to the patient.  That may be because the Applicant is plainly not illiterate, or it may be because the medical practitioners signing for the Superintendent simply failed to tick the box.  Either of those possibilities will suggest that it is difficult to be confident that the content of the Notice was in fact explained to the Applicant.

111.  I also think it fair to say that a recipient of an NIP Form – such as the Applicant – would likely only have paid any attention to the boxes ticked on the form given to him, and/or might legitimately have thought that unless a box had been ticked it was of no relevance to him.

112.  I acknowledge that the tick boxes for paragraphs 2 and 3 might seem inappropriate, and that seems to have been recognised by the December 2011 revision (and in subsequent revisions)  of the NIP Form.  From that revision, instead of a box to be ticked there is a different symbol “※”.  This better demonstrated that the matters did not need to be ticked to be thought relevant.  Of course, this revision was made after the Applicant was given the 2010 CD, and was therefore inapplicable to his position.

113.  The NIP Form went through further revisions in 2012, 2013, 2014, and there is a further version in present use (apparently a revision made in September for the Hospital or November 2020 for the HA). That version has boxes seeking the name and signature of the patient or patient’s relative against the text “Acknowledged and understood by”, also recognizing that the patient or relative may refuse to sign or be unable to sign.  There is a further box for internal use only with various boxes to tick on action taken by the staff signing for the Superintendent.  One of the boxes reads “I have explained the related content of this form to the *patient/patient and relative”.

114.  It can be seen that – though there is no express reference to section 68A – the information on the NIP Form (somewhat clearer in the later versions)  broadly matches the information required to be provided by section 68A, namely (a) the identification as to under which of the provisions of the MHO the patient is for the time being detained, and its effect, (b) what rights of applying to the Tribunal are available to the patient in respect of his detention under that provision, and (c) what rights are available to the patient to apply for his discharge from detention.

115.  As an aside, having said that, the only rights to apply for discharge that are identified on the NIP Form (all versions)  is by reference to sections 27 and 42 of the MHO.  Section 27 relates to an application to annul an order for detention made under section 26.  Section 42 is where another person makes an application on behalf of the patient (before recovery)  to take the patient under his own care.  But that may not be the only right relevant to discharge, because of the possibility of absolute or conditional discharge under sections 42A and 42B.  I, therefore, raised the question why those two sections are not referenced – not least when section 68A(c)  refers to “rights” (plural)  available to the patient to apply for his discharge.

116.  Mr Suen’s explanation – given after taking instructions – was that the powers under sections 42A and 42B are given to the Superintendent, which powers may be exercised from time to time whenever the Superintendent has formed the opinion that it is appropriate to make an order for discharge (whether with or without conditions).  The exercise of those powers does not arise upon, nor is there any necessary trigger from, an application made by the patient.  The powers are simply exercised by the Superintendent at any appropriate time, as part of the overall care of the patient, who does not need to seek the exercise of the powers.  This is why those two sections are not referenced on the NIP Form.  I accept that explanation.

117.  Of course, the NIP Form does reference the possibility of applications to the Tribunal made under section 59B.  Because section 59B itself specifically identifies that an application may be made to the Tribunal for review of any case of a conditionally discharged patient within the meaning of section 42B, the ground is necessarily already covered.  But perhaps this point does not add to the analysis as to whether section 68A is applicable to patients who are not detained, but have been discharged under a CD Order.

118.  However, it can be noted that any person who has been given the information that he has the right to apply to the Tribunal can go to look at section 59B.  If he does so, he will see that such applications may be brought for the purpose of reviewing any direction or decision of the Superintendent.  He will also see that the application may be made by the patient or his relative and, subject to the MHRT Rules, may be made at any time.  A person looking at that section 59B may also find section 59E, which sets out the powers of the Tribunal and look to see what rules have been made under section 59G.

119.  In her affirmation evidence, the Superintendent invited the Court to note that, throughout the evolution of the NIP Form, the legal status of a patient’s detention, the right to review by the Tribunal and the confirmation that explanation has been given have remained in all versions.

120.  However, it can be noted that none of the versions of the NIP Form have any reference to involuntary patients who are made the subject of CD Orders under sections 42B(1)  and (2)  – except for the reference only to a potential recall under section 42B(3).  On its own terms, the NIP Form does not seem to be applicable to a situation where the patient is made subject to a CD Order.

121.  I have already briefly referred above to the form HA 2098(S)  (“CD Form”), provided to patients who are conditionally discharged, at or shortly before the time of that discharge.  The CD Form informs the patient of the making of the CD order under section 42B, and the conditions with which he is to comply.  The CD Form also reminds the patient that his discharge is subject to compliance with those conditions, failing which he might be recalled to the Hospital under section 42B(3).  The CD Form also notes that the conditions imposed may be varied under section 42B(5)  by the Superintendent from time to time.  However, the CD Form does not refer to the right to, or possibility of, an application to the Tribunal for review.

122.  In her affirmation evidence, the Superintendent stated that the patient and/or carer would be given an explanation of the terms of the CD Order, in addition to the explanations given to them before.  The patient and/or carer would be advised that the CD Order is a legal document which is issued by the Hospital exercising power vested by the MHO. The conditions would be explained.  If the patient agrees to the conditional discharge, he would be asked to sign on the CD Order to acknowledge the nature of the conditional discharge and the specific conditions set out therein.  If the patient disagrees to the conditional discharge, staff would remind him of his right to apply to the Tribunal for review and may give him the appropriate form. 

123.  For example. there is also form headed ‘Application to Mental Health Review Tribunal (MHRT)’.  The Superintendent said in her affirmation evidence that the case medical officer would advise the patient to apply to the Tribunal for review if the conditional discharge is not agreeable to them and that form would be provided to the patient and/or carer.

124.  Indeed, it seems to be common ground that at least prior to 27 December 2023 – see below – the Applicant and other similar patients would not have been told of the right to apply to the Tribunal upon the making of a CD Order, unless the patient disagreed to the conditional discharge.

125.  In her affirmation evidence, the Superintendent stated that patients made subject to a CD Order would have been hospitalised previously, and would therefore have been repeatedly made aware of the right to apply to the Tribunal.  But, with respect, it seems to me that they would only have been made aware at best of the right to apply to the Tribunal in respect of their involuntary admission under one of the sections for which there is a box to be ticked on the NIP Form.  I would think it far from obvious – in particular to a patient who is a mentally incapacitated person – that the previous notification of a right to apply to the Tribunal for that purpose would extend to a situation where the patient is being discharged, albeit on a conditional basis.

126.  I also think the approach which the Applicant says was taken by him to the 2010 CD is also not an unlikely response by any person who is detained but given a CD Order.  Many patients would be glad simply to be discharged, even if conditions are to be attached.  It would not be surprising if such patients are left with the impression that unless they agree to the conditions, they would not be discharged.  I do not think it obvious that they would think that there might be an application to the Tribunal in relation either to those conditions or to not having been discharged absolutely (instead of conditionally).

127.  Indeed, this seems to me to be a clear situation where the patient and/or his relative may well be simply unaware of the rights of application to the Tribunal in those circumstances.  If the patient is not aware of the rights, let alone the full extent of them, it can be argued that they are practically worthless.

128.  In December 2023, the situation was updated.  On 22 December 2023, the HA Working Group on Review of Conditional Discharge Mechanism issued the first HA ‘Guidelines on Conditional Discharge’ (“2023 CD Guidelines”), which came into effect on 27 December 2023.  The 2023 CD Guidelines are an internal document, as the distribution list makes clear (hence, it is not given to patients or to their relatives).  In fact, the distribution list does not include the medical superintendents or hospital staff, though the content would of course not be effected without that distribution.

129.  In the introduction section, there is reference to a safeguard mechanism being in place, including a regular review by the Multi-Disciplinary Case Conference and appeals to the Tribunal to review the CD status.  The objectives are identified as (1) to provide detailed information on principles and procedures of CD, and (2) to ascertain standardisation in handling all legal procedures and documents.  As to scope, the 2023 CD Guidelines document has to be followed by all clinical staff in the HA.

130.  Under the section headed ‘Practical Points’, §2.3.9 states:

The principles and procedures of CD, regular review practice, the conditions set in the CD Order and appeal rights should be explained to patient and carer(s)  by case medical officer, in addition to psychoeducation of the importance of follow-up and drug adherence, relapse signs and multiple ways of help-seeking.  The above should be documented in the clinical notes.  A pamphlet with information on CD should be provided to the patient and carer(s).  (Appendix X)

131.  Appendix X is the pamphlet, which sets out some information under headings posed as questions: What is a conditional discharge?  When and how can I be conditionally discharged?  What is the recall process?  What is the review and appeal process?  How can I initiate an appeal?  The last two questions are answered in the following way:

What is the review and appeal process?

有什麽評估和覆核的機制？

■  Each conditional discharge case undergoes regular review by the Multidisciplinary Case Conference (MDCC)  every 12 to 24 months.

■  You and your carer’s opinions, concerns, and each condition in the CD order are evaluated in the MDCC.

■  You can appeal to the Mental Health Review Tribunal (MHRT)  every 12 months to review your conditional discharge status.

■  通過現行的跨專業個案會議機制，至少每一至兩年會爲病人進行專業評估。

■  跨專業個案會議會考慮你和你的照顧者的意見和顧慮，以及評估有條件釋放的條件。

■  每一年你也可以向精神健康覆核審裁處提出申請，要求覆核你的個案。

How can I initiate an appeal?

我可以如何提出覆核?

■  If you wish to appeal to the Mental Health Review Tribunal (MHRT), you can seek guidance from your case medical doctor, community psychiatric service worker, or medical social worker regarding the application procedures.

■  如果你想向精神健康覆核審裁處提出覆核，你可以向你的主診醫生、社區精神科服務個案經理、或醫務社工查詢申請程序。

132.  Therefore, the pamphlet clearly identifies the possibility of making an appeal to the Tribunal for a review of conditional discharge status, every 12 months.  It also identifies that the patient who wishes to appeal to the Tribunal can seek guidance.  But it seems to me to be significant that the pamphlet does not suggest guidance could be sought from a solicitor or the Department of Legal Aid, and it is not clear from the 2023 CD Guidelines or any workflow identified in them that whatever guidance is provided by those named in the pamphlet would include advice that the patient can be legally represented in an appeal to the Tribunal, and might be entitled to legal aid.

133.  Amongst the Appendices to the 2023 CD Guidelines are:

(1)  Appendix I – the text of section 42B of the MHO;

(2)  Appendix V – the text of section 59B of the MHO; and

(3)  Appendix VI – the text of section 59E of the MHO.

134.  Nowhere in the 2023 CD Guidelines is there any specific reference to section 68A of the MHO, nor is there any appendix setting out the text of that provision.

135.  Appendix II to the 2023 CD Guidelines is the pro forma for the CD Order.  It is similar to the earlier versions, including the requirement for the patient to sign against an acknowledgement of the conditions set out in it (or the possibility of ticking the box that the patient refused to sign). There is no reference on the CD Order to the right of appeal or application to the Tribunal.  The same is true in relation to Appendix IV, which is the pro forma Notice of Varying or Terminating Conditions of Discharge.

136.  In her affirmation evidence, the Superintendent also explained her understanding as to what would happen after a conditionally discharged patient applies to the Tribunal for a review of that status.  The Tribunal would issue a ‘Notice to Patient of Receipt of Application’, acknowledging receipt of the application for review and stating that the Tribunal would confirm the time, date and place at which it would meet.  But, it can be noted that there is no reference to potential representation.  The patient would also be given a ‘Notice of hearing’ specifying the fixed hearing date and time, and enclosing all documents and reports from reference purposes.  But, again, it can be noted that there is no reference to potential representation at the hearing.

137.  In the meantime, the Tribunal will also issue notices to the relevant hospital notifying the date of the hearing and seeking a statement containing the facts and reports of each case (no later than eight weeks from the receipt of the notice).  It can be noted that in the Notice seeking the statement of facts and reports, there is a reference to Rule 11(3)  of the MHRT Rules, reminding that all documents must be disclosed to the patient’s representative if he is a barrister, solicitor, registered medical practitioner or in the Tribunal’s opinion otherwise suitably qualified.

138.  It is of some note – and somewhat incongruous – that, in correspondence sent to the patient and the hospital about the patient’s application or appeal to the Tribunal, the Tribunal makes reference to the possibility of representation, but only does so to the hospital, and not to the patient.  Indeed, the question arises as to how the hospital would know if the patient is legally or otherwise represented, unless informed directly by the patient or by the Tribunal.  Not only has the Tribunal not advised the patient of that possibility, it has not requested from the Tribunal the identity of the legal or other representative acting for the patient, if there is one.

I.  Interpretation of Section 68A

I.1  Introduction

139.  The question to be determined in relation to section 68A of the MHO is a question of statutory interpretation.

140.  The relevant applicable principles are well known, and need not be rehearsed at any great length.  Words are construed in their context and purpose.  They are given their natural and ordinary meaning with context and purpose to be considered alongside the express wording from the start, and not merely at some later stage when an ambiguity is thought to arise.  However, taking a purposive and contextual interpretation does not mean that the actual words used in the statute can be disregarded.  To the contrary, the Court is to ascertain the intention of the legislature as expressed in the language of the statute.  A provision cannot be given a meaning which the language of the statute, understood in the light of its context and purpose, cannot bear.

141.  As already stated, the contest in this case is in essence:

(1)  To which patients must the information be provided?  In this regard, the point of distinction between the parties is as to whether patients subject to a CD Order fall within the section.

(2)  What is the the extent or scope of information which is to be provided, and what does the reference to “rights” encompass?  In this regard, the point of distinction between the parties is as to whether the information to be provided extends to notification of the right to representation, legal representation and the ability to obtain legal aid.

I.2  The Patients to whom section 68A applies

142.  Both parties sought to rely upon the legislative history.  The researches of the parties identify that section 68A was inserted into the MHO by the Mental Health (Amendment)  Bill 1987 (“1987 Bill”).

143.  From the relevant Legislative Council Brief, it appears that the 1987 Bill was intended to remedy perceived principal defects of the then existing MHO in five main areas: (1) the absence of a mandatory requirement for a medical assessment before a patient is detained in a mental hospital for observation; (2) the lack of provision for guardianship of mentally disordered adults; (3) the absence of arrangements for the conditional discharge of mental patients; (4) the absence of a channel for appeal against detention by non-offender patients; and (5) the lack of clear legal authority to help suspected mentally disordered persons who are in immediate need of care and control.

144.  It was to address the third of those items that what became section 42B was introduced. 

145.  Specifically in relation to the CD Order regime, the amendments were intended to resolve problems then faced by a mental hospital in considering the release of ordinary patients with a disposition to violence, because without such a mechanism the lack of a means to ensure sustained follow-up medical treatment for those patients had inhibited the making of a discharge decision.

146.  The Legislative Council Brief described Clause 26 (which became section 68A)  as a new provision requiring the taking of “such steps as are practicable to ensure that every patient in a mental hospital and every relative of every patient are informed of the patient’s rights under the Ordinance”.

147.  The Explanatory Notes to the 1987 Bill merely state, at §2(p), that “Patients and their families are required to be informed of the patient’s rights (Clause 26)”.

148.  During the First Reading of the 1987 Bill on 1 July 1987, only the Secretary for Health and Welfare made any reference to Clause 26, stating:

Clause 26 introduces a new provision which requires the medical superintendent of every mental hospital or the Superintendent of the Correctional Services Department’s psychiatric centre to take such steps as are practicable to ensure that every patient being detained, and also one of his relatives, is informed of the patient’s rights under the Ordinance.

149.  There was no reference to the clause during the Second and Third Readings, nor any indication as to the relevant duty intended to arise.

150.  But it can be kept in mind that what became section 68A was introduced into the MHO at the same time as the new provision relating to conditional discharge under section 42B was introduced. Hence, it can be argued that the legislature decided to introduce the CD regime at the same time as it introduced the requirement for information to be provided to patients who have been detained (and not to patients who have been discharged, even on a conditional basis).  By my reference above to sections 42A, 42B and 59E, I have already identified the distinction apparently clearly drawn in the legislation between (1) detention, and (2) discharge, whether absolute or conditional.  As stated, the Tribunal may direct that a patient be discharged, when it is satisfied that he is no longer liable to be detained.  If he is discharged, he is not detained – even if a CD Order retains elements of compulsion and interference with the patient’s liberty (including potentially a residential requirement).

151.  I have taken into account the reference made by Mr Kat to the Scottish case of Scottish Ministers v Mental Health Tribunal for Scotland (JM) (2012)  SC 225, at §25, where it was stated that properly construed, the concept of detention in the Mental Health (Care and Treatment)  (Scotland)  Act 2003 has to be flexible enough to extend, for example, to a patient who has been conditionally discharged into the community but who is liable to recall to hospital in the event of non-compliant with a condition or conditions.  However, it seems to me that was a decision on the specific terms of the relevant statute, and was expressly contrasted with the approach of the appeal court in the context of the MHA 1983 in a named English case.  I do not think the Scottish Ministers case is of any real help in the question of interpretation of the Thames “detention” and/or “detained patients” in the material sections of the MHO.

152.  However, it is also common ground that section 68A of the MHO is modelled after section 132 of the Mental Health Act 1983 (“MHA 1983”).  Section 132 provides as follows:

132.  Duty of managers of hospitals to give information to detained patients

(1)  The managers were hospital or registered establishment in which a patient is detained under this Act shall take such steps as are practicable to ensure that the patient understands –

(a)  under which of the provisions of this Act he is for the time being detained and the effect of that provision; and

(b)  what rights of applying to a tribunal are available to him in respect of his detention under that provision

and those steps shall be taken as soon as practicable after the commencement of the patient’s detention under the provision in question.

(2)  The managers of a hospital or registered establishment in which a patient is detained as aforesaid shall also take such steps as are practicable to ensure that the patient understands the effect, so far as relevant in his case, of sections 23, 25, 56 to 64, 66(1)(g), 118 and 120 above and section 134 below; and those steps shall be taken as soon as practicable after the commencement of the patient’s detention in the hospital or establishment.

153.  Despite the agreement that section 68A of the MHO is modelled after section 132 of the MHA 1983, the parties to these proceedings did not refer me in argument to the parliamentary discussions leading to the enactment of section 132.  Having looked at those materials for myself, I think it may assist to set out a brief summary of that process. It is clear that section 132 was an amendment to the then existing Act, as was put forward in the Mental Health (Amendment)  Bill debated in Parliament between 1979 and 1982.

154.  The Bill itself essentially followed from a 1978 White Paper, which recommended (amongst other things)  that patients should be given information about their rights, and the limitations of those rights, at the time they enter hospital, and about any change in legal status.

155.  In a Second Reading of the Bill in March 1982, what became section 132 was summarised as “the duty of the hospital managers to give information to detained patients on the grounds for their detention, the ways in which they can be discharged and their rights of appeal”.  Indeed, from the totality of the legislative discussion, it seems to me fair to say that:

(1)  The Bill was treated as something of a ‘Bill of Rights’ for mental patients, with a strong emphasis on human rights.

(2)  Amongst the rights referred to were rights of appeal (not merely a right to appeal), perhaps better described as rights in relation to mental health review tribunal applications.

(3)  Any type of detained patient, formally or informally admitted to hospital, should have the same right to be informed of all his rights under the statute.

(4)  The content of such rights was deliberately worded in broad terms.

(5)  The rights include those rights provided for in subsidiary legislation.

(6)  The way to increase the rights of a detained patient was to ensure he is first informed of them, without which the rights might become toothless.

(7)  The duty continues until the patient understands his rights.

156.  In fact, these matters seem to me to be likely obvious from the proper construction of the wording of the statutory provisions themselves (which is why I have not invited any further submission on these points).

157.  Mr Suen did refer me to the fact that at the time when section 132 was enacted, the MHA 1983 did not contain any mechanism similar to the CD Order.  Instead, the later Mental Health Act 2007 introduced a regime for Community Treatment Orders (“CTO”), which provides for the discharge of detained patients from hospital subject to community treatment and conditions.  Hence the CTO is similar to the CD Order, in that a patient will be discharged subject to conditions and liable to be recalled if the conditions are not complied with.  Notably, when the CTO regime was introduced, the 2007 Act correspondingly enacted a provision – section 132A – stipulating that managers of hospitals should take such steps as are practicable to ensure that a community patient understands (a) the effect of the provisions of the Act applying to community patients, and (b) what rights of applying to a tribunal are available to him in that capacity.

158.  This suggests at least that the UK Parliament did not think that section 132 was applicable to persons not liable to be detained in a hospital but instead made the subject of a CTO, and that if a duty were to be placed upon hospital managers to give information to CTO patients, that duty would have to be statutorily created by the new section 132A.  That point is perhaps in favour of Mr Suen’s invited construction of our section 68A.

159.  Ultimately, my conclusion on the first point of contest between the parties – namely the patients to whom section 68A applies – is that its application is to patients in detention, and not to patients who are not in detention because they have been discharged absolutely or discharged conditionally.

160.  I acknowledge the argument that, because a patient who is made the subject of a CD Order will remain in detention until he is actually discharged under that order, therefore he can be considered a “detained patient” for the purposes of section 68A.  But I reject that argument, because it does not seem to me to be consistent with the logic of the section as a whole, nor does it make ready sense to suggest that the patient should be provided with information about his detention (including the right to apply for discharge)  immediately before that detention is to end by virtue of the decision already made to effect a discharge.

161.  Drawing the strings together from above, the reasons for that conclusion are as follows:

(1)  The MHO as a whole draws the distinction between (a) a patient who is detained, or who is liable to detention, and (b) a patient who has been discharged from detention, or who is no longer liable to detention.

(2)  This is evident in particular from the terms of sections 42A, 42B, and 59E of the MHO, read in overall statutory context.

(3)  That distinction is consistent with the ordinary meanings of the words detain/detention and discharge.

(4)  A patient may only be detained if he is liable to detention, and if he is no longer liable to detention he must be discharged.

(5)  This reflects the fact that a person’s liberty may only be restricted by detention if there is good reason to justify or make him liable for that detention, and once that good reason goes, the detention must end by way of discharge.

(6)  Section 42B(1)  and (3)  is in language making clear that a CD patient is regarded as a patient discharged, unless and until he may be detained again.  It does not make sense to construe a conditionally discharged person as a “detained patient” within the meaning of section 68A.

(7)  The legislative materials identify that the purpose and intent of section 68A was to seek to ensure that every patient “being detained”, and one of his relatives, is informed of the patient’s rights under the MHO.  That language is inapposite to a patient who is not being detained, but being discharged.

(8)  That legislative purpose and intent is also found in the wording of the section itself.

(9)  Under section 68A(a), the first matter which the medical superintendent is under an obligation to take such steps as seek to ensure is understood is the particular provision of the of the MHO under which “the patient is for the time being detained”.

(10)  That wording is inapposite to a patient who is being discharged, and the envisaged provisions cannot include section 42B, except its subsection 42B(3)  which encompasses the power to recall to detention.

(11)  Similarly, under section 68A(b), the second matter which the medical superintendent is under an obligation to take such steps as seek to ensure is understood is what rights of applying to the Tribunal are available to the patient in respect of his detention under the provision identified under section 68A(a).

(12)  That wording focuses on an application to the Tribunal in respect of the detention under the power used to justify that detention.

(13)  Further, under section 68A(c), the third matter which the medical superintendent is under an obligation to take such steps as to seek to ensure is understood is what rights are available to the patient to apply for his discharge (i.e. from the detention on the basis already identified).

(14)  As a matter of the statutory logic, as well as common sense and ordinary meaning, that cannot envisage an application by a patient who has already been discharged.

(15)  Lastly, the steps to be taken by the medical superintendent are to be taken “as soon as practicable after the commencement of the patient’s detention under the provision in question”.

(16)  Again, that ties the provision of information to the earliest practically possible point in time during the detention, and does not logically fit the suggestion that the information is to be provided at or immediately before the period of detention is to end.

162.  These points are given practical effect by the use of standard forms (see above).

163.  There is also force in Mr Suen’s submission that what the Applicant is really seeking is for the Court to import a new section 132A-style provision into the MHO.  But there is significant and relevant difference between the type of information given to a community patient under section 132A and that to a detained patient under section 132.  This is because a community patient is regarded as having been discharged from detention.

164.  As my conclusion is that section 68A is not applicable to the circumstances of CD patients, it is strictly unnecessary to decide the scope of information that would need to be provided to such CD patients under the section.  However, I shall of course go onto that consideration below.

I.3  The Extent of the Information to be Provided

165.  As to the second point of contest between the parties – namely what information is to be provided with the intention that it be understood – Mr Kat submitted that the only substantial issue was whether the scope of the duty encompasses a duty to take reasonably practicable steps to ensure that a patient and his relative understand the rights to representation, including legal representation and legal aid on a Tribunal review.  He submitted that the answer must be ‘yes’, both as a matter of statutory construction (and if the right is to be effective as required by the common law and the constitutional provisions – as to which see below).

166.  Mr Kat sought to emphasise that the Tribunal is concerned with mental patients, whose capacity is by definition diminished, so that the Tribunal must take extra care to ensure a fair hearing for the applicant.  He submitted that a hearing would not be fair if a person who lacks the capacity to conduct proceedings on their own is left to do so.

167.  Even if a patient has the capacity to make an application or to instruct lawyers, he may not have the capacity to conduct proceedings without assistance.  Even the appointment of lawyers may be problematic, if the patient challenging his detention does not have insight into his mental health condition.  That is why, Mr Kat said, the MHRT Rules, introduced at the same time as the foundation of the Tribunal, duly makes express provision for representation through lawyers and for appointment by the Tribunal itself.

168.  Mr Kat made reference to the criminal context, by reference to a South African case of S v Redebe, S v Mbonani (1988)  (1)  SA 191 at 196, where it was pointed out that the availability of legal representation for impecunious accused persons had been considerably broadened, and it was stated:

If there is a duty upon judicial officers to inform unrepresented accused of their legal rights, then I can conceive of no reason why the right to legal representation should not be one of them.  Especially where the charge is a serious one which may merit a sentence which could be materially prejudicial to the accused, such an accused should be informed of the seriousness of the charge and of the possible consequences of a conviction. Again, depending upon the complexity of the charge, or of the legal rules relating thereto, and the seriousness thereof, and a Q should not only be told of this right but he should be encouraged to exercise it.  He should be given a reasonable time within which to do so.  He should also be informed in appropriate cases that he is entitled to apply to the Legal Aid Board for assistance.  A failure on the part of a judicial officer to do this, having regard to the circumstances of a particular case, may result in an unfair trial in which they may well be a complete failure of justice.  I should make it clear that I am not suggesting that the absence of legal representation per se or the absence of the suggested advice to an accused person per se will necessarily result in such an irregularity or an unfair trial and the failure of justice.  Each case will depend upon its own facts and peculiar circumstances.

169.  Mr Kat also referred to the position in Scotland, by reference to the case of McGowan v B [2011] 1 WLR 3121 at §75, which traverses the information that might be provided to a suspect about the right of access to a solicitor.

170.  Mr Kat submitted that:

(1)  The statutory duty in section 68A is not limited to a bare recital of the existence of the Tribunal or of the right to apply for review and for discharge.  The Superintendent must give, and patients must receive, advice sufficient to understand, in order to be able to exercise those rights.

(2)  There is reference in section 68A to “rights of applying”.  The right to be represented (legally and otherwise)  before the Tribunal is a right which may be best exercised in making the application itself, where the form calls for detailed grounds.  Likewise the right to legal aid.

(3)  That reading is consistent with the purpose of the legislation.

(4)  It is also consistent with what was said in the legislative Explanatory Memorandum at §2(p), where the reference to the patient’ rights under the MHO would include the right to representation under section 59G and rule 9 of the MHRT Rules, for which legal aid is available.

(5)  The argument may also be tested by turning it on its head, because the failure to give advice and make representation available renders ineffective section 59G(2)(c)  of the MHO and rule 9 of the MHRT Rules read with the provisions of the LAO.

171.  Mr Kat also submitted that it can be noted that in R(H)  v Secretary of State for Health [2006] 1 AC 441, the Supreme Court looked at the question by reference to the position in the United Kingdom, and the similar statutory provision there found in section 132 of the MHA 1983.  At §25 of the R(H) case, what is required was described in the following terms:

Patients and nearest relatives have to be told how to apply to a tribunal, how to contact a suitably qualified solicitor, that free legal aid may be available, and how to contact any other organisation which may be able to help them make an application.  In other words, the hospital managers have to do the best they can to make the patient’s rights practical and effective.

172.  Hence, Mr Kat sought to point out that a provision very similar to section 68A was construed as requiring not just telling the patient that he can apply to the Tribunal, but how to apply and how to obtain suitable available assistance, including legal assistance and legal aid.

173.  In the same case, at §26, it was also held that mental health review tribunals were designed with that object in mind (i.e. the object of ensuring the patient’s rights are practical and effective), and that though the procedures had become more formal since the advent of legal assistance for patients, they were designed to be user-friendly and to enable the patient and his or her relative to communicate directly with the tribunal.

174.  These points about doing the best possible to ensure that the patient’s rights are given practical effect seem to me to dovetail with the comments and findings that I have already made in relation to the terms of the MHRT Rules themselves.  But I am not sure that of itself adds much to the proper interpretation of the scope of information to be provided under section 68A.

175.  Mr Suen submitted that, on the face of section 68A itself, there is no requirement that the patient or his relative need be informed of any such rights of legal representation or availability of legal aid.  The English and Chinese versions of section 68A(b)  make clear that the “rights” concerned of the statutory rights for the making of an application to the Tribunal, as opposed to additional rights of the patient in respect of steps which may or may not be taken by patient in the proceedings pertaining to an application.  Those rights are themselves potentially extensive, including the right to seek discovery of documents, the right to request for an oral hearing, the right to call witnesses, as well as the right to make representations.

176.  Mr Suen also submitted that:

(1)  Section 68A(b)  follows logically from section 68A(a), which concerns giving information as to the provision under which the patient is for the time being detained.

(2)  Under section 59B(2), the patient’s right to apply for review before the Tribunal is spelt out with reference to the specific detention basis, and section 59B(3)  identifies that the patient has a right to make the application by himself or by his relative.

(3)  The NIP Form elaborates the rights of applying to the Tribunal as: “Any person admitted under the sections mentioned in paragraph 1 of this form or his relative may apply to the Tribunal for review.  But no application may be made for another review within 12 months of the determination of a previous review”.

(4)  There is no basis to require HA staff (who are not legally trained or qualified to practice law)  to explain to a detainee the proper procedures and mechanisms of an application to the Tribunal, which are covered by the MHRT Rules.

(5)  There would be uncertainty in the application of the section if specific attention were required to be drawn to the right to representation and the possibility of legal aid.

(6)  As the MHO and the MHRT Rules together provide for numerous procedural rights potentially engaged, there is no good reason why notification should be given of only some if not all of them.

(7)  Logically, Mr Suen submitted, the conclusion should be that no particular individual right need be notified (beyond the right to a review or appeal, or to apply for discharge, under the relevant identified sections of the MHO, which can be read for themselves).

177.  Mr Suen also submitted that the section 68A requirement of taking “such steps as are reasonably practicable” is a ‘target duty’.  To impose the positive duty advanced by the Applicant – of being advised on legal and other procedural rights which might arise in the course of an application to the Tribunal – would frustrate the broad discretion which is intended to be conferred by section 68A.  Further, as shown in the HA’s evidence, it has taken reasonably practicable steps to ensure a patient’s understanding of his rights to make the application to the Tribunal.

178.  Mr Suen also pointed out that what was said in the R(H) case was based on a UK Code of Practice (which has not been promulgated in Hong Kong)  which “develops” and “advises” steps which can be taken to perform the target duty.  In other words, what was said in §25 of the case was not the Court’s own observation on the expected manner in which the statutory duty under section 132 of the MHA 1983 should be discharged.  Rather, it was the standard laid down in the Code.  As the Code itself makes clear, it is beneficial but not statutory guidance, and not all of its content reflects legal obligations coming from legislation or case law which must be followed. It can also be noted that the MHA 1983 mandated the making of a relevant code of practice, where there is no such requirement in the MHO.

179.  Ultimately, I prefer and accept the submissions made by Mr Suen.  My conclusion is that on its proper construction section 68A does not impose a positive duty on the Hospital or HA to inform patients or their relatives of the patient’s rights to representation, to legal representation and the availability of legal aid on an application to the Tribunal.

J.  Common Law / BOR 5

180.  The Applicant’s case proceeds with reliance on “procedural fairness” and like principles under the common law and BOR 5.  Hence, Mr Kat submitted that the Applicant need not succeed on section 68A.  The Applicant need only succeed in establishing that advice as to the rights of representation on an application to the Tribunal as required by the common law or constitutional provision in order to ensure procedural fairness.

181.  Mr Kat submitted that the legislature should be taken to have legislated with knowledge of the common law, and that the common law will fill a gap where the legislation does not preclude the rights or duties arising. One way of looking at it would be that section 68A expressly creates the protection of rights for persons subject to detention, which would be the same as those conferred by the common law.  Therefore, if section 68A does not extend to patients made subject to CD Orders, then the common law will step in to protect the same rights to the same extent, not least because patients subject to CD Orders are also entitled to appeal to the Tribunal in relation either to the conditions imposed, or to seek an absolute discharge.

182.  In either context, Mr Kat argued that the patient simply needs to be told not just that he could appeal, but how to go about it, and that he could be represented on the appeal and that he might obtain legal aid for that purpose.  As he put it, that is all that is asked for, and it is not burdensome to provide that information, without which the rights are not likely able to be exercised effectively.  Accepting it is a ‘target duty’, it is one easy to establish, and the discretion is left to the authority as to the steps taken as to how to do it so long as they are reasonable.

183.  Mr Kat also submitted that the provision of the information sought might well be supplementing the statutory scheme, but it is to give effect to the patient’s rights under that scheme.  By that not happening, the statute and the rights it confers are obstructed or frustrated.

184.  Mr Suen submitted that the legislature has chosen that in so far as detained patients are concerned there have to be positive steps taken to inform them of their rights.  But the legislature must be taken to have chosen that the same is not the case as regards patients who have been discharged, for example under a CD Order.  That is not a lacuna of the sort which might be filled by the common law, when section 68A was enacted at the same time as the conditional discharge regime under section 42B.  The Court will be slow, he said, to add a duty not strictly necessary.

185.  Secondly, Mr Suen relied on the difference between the situation faced by persons who are detained and those who have been discharged.  A patient made subject to a CD Order, if compliant with the conditions imposed, cannot be recalled under section 42B(3).  Though, in theory, if an application is made to the Tribunal, the Tribunal can recommend the detention of the patient, it cannot direct detention and in any event such a recommendation is not really likely.  Hence, the patient subject to a CD Order who makes an application to the Tribunal is likely to be seeking either variation of conditions or more probably an absolute discharge.  But, precisely because such a patient is not detained, but is living in the community (even if subject to certain conditions), that patient will likely be in much better position than a detained patient to find out and exercise the various rights available to him.  This is against the background that the patient will have previously been informed whilst detained about the rights of application to the Tribunal.  Therefore, Mr Suen submitted, in light of the valid difference between the type of patient, it is understandable that the legislature chose to distinguish between them.

186.  As to BOR 5, Mr Suen submitted that it is not engaged, at least in respect of patients under a CD Order which does not include a residential requirement.  This is because the notion of deprivation of liberty within the meaning of BOR 5 requires the objective element of a person’s confinement to a certain limited place for a not negligible length of time (as well as the absence of consent to that confinement).

187.  In Ng Chun Kuen v HKSAR [2021] 5 HKLRD 166 at §27, Chow J (as Chow JA then was)  held that section 42B of the MHO (which empowers the medical superintendent to make an order requiring a discharged mental patient to reside at a specified place)  prima facie restricts that person’s personal liberty (although the right to personal liberty is not absolute, and the lawfulness of the restriction of such right may be justified by the four-step proportionality test).  But in Wong Tze Yam v Commissioner of Police (No 2) [2011] 3 HKLRD 369 at §§20-22, the Court of Appeal held that there may be a distinction between “deprivation of liberty” and “restriction on liberty”, but it was probably one of degree and may not be one of substance depending on the particular circumstances of the case.  BOR 5 applies only where there is a deprivation of personal liberty, but not where there is a restriction of personal liberty (where only BL 28 might apply).

188.  Therefore, Mr Suen submitted, even a CD Order with a live-in requirement would only (at most)  amount to a restriction of liberty.  Conditions can come in many forms and the live-in requirement may for example be moderated by the permission of home leave.  Further, a blanket categorisation of CD Orders as a deprivation of liberty is neither justified nor warranted.  I agree.

189.  I also do not think there is any arbitrariness in the situation of CD patients such as the Applicant.  They are not subject to arbitrary detention, and in fact have been discharged from detention, albeit made subject to conditions individually designed for each patient, and in the medical opinion of the Superintendent thought justified for that patient, in a way which is perhaps the antithesis of being arbitrary.

190.  It also seems to me that previous cases, where the facts related to a person under compulsory detention, are unhelpful by way of analogy to the situation of a person subject to a CD Order.  It may be obvious that in the former situation the right to liberty was considered to be engaged, but that does not translate to the latter.

191.  Mr Suen further submitted that there is, in any event, no relevant deprivation of liberty if the condition is agreed to by the patient.  The patient’s agreement would negate any arbitrariness of any deprivation of liberty, and the Applicant accepts that he signed the CD Form on 6 May 2020 by which she agreed to the conditions of his discharge prior to that discharge.  There is no evidence to suggest that the Applicant lacked the capacity to agree to the CD Order for its conditions.  On the evidence of the HA, had he disagreed to the conditional discharge, he would have been reminded of his right to apply to the Tribunal.  On this point, I have already expressed my significant doubts above.

192.  But I accept Mr Suen’s submission that there is a missing link in the Applicant’s case as to how the common law or BOR 5 can translate into a positive duty to give the information as sought by the Applicant.  It is indeed not generally for the Courts to superimpose additional procedural safeguards to those already provided in a statutory scheme which includes procedural rules.  I also accept the distinction drawn by Mr Suen between a duty not to impede access to justice and the contrasted positive duty advanced on behalf of the Applicant.  But that does not seem to me to mean that there cannot be superimposed any additional procedural safeguard at all – even if they will not be imposed to the extent sought by the Applicant.

193.  Indeed, I think it is sufficiently clear that where fairness demands it, the common law will intervene to supply or make good the omission of the legislature.  Only if the statutory scheme precludes the application of this principle, such as if to do so would frustrate the purpose of the statute, will the principle not apply.  Here, I accept that the statutory purpose of the MHO or that of the HAO will not be frustrated.  I also accept that there is no principle that provisions of the legislative scheme or its prescribed functions will exclusively provide the public authority’s duties under the scheme, if fairness requires some other or further procedural rights.

194.  In the statutory regime under review, it is important to the analysis to keep in mind that the Applicant is not suggesting that there is an absence from the procedural rules which may permit unfairness.  Rather, he is suggesting that not being specifically told of some (but not all)  procedural rights and rules of which he might take benefit is what gives rise to the claimed procedural unfairness.  It might be put in the following way: the Applicant apparently accepts that the MHO and the MHRT Rules can provide and ensure appropriate procedural fairness on applications to the Tribunal, but that will only be truly effective if he is informed of his rights to representation, legal representation and the possibility of the grant of legal aid.

195.  There are of course a number of procedural safeguards in any event built into the regime, with the Tribunal and the MHRT Rules, including the power given to the Tribunal to appoint a representative for a patient in circumstances when it thinks that necessary and appropriate.  These points indicate sufficient statutory protection to achieve fairness and justice.  But, I accept that these can only have proper or sufficient effect if the patient in question at least knows that he can make an application to the Tribunal under a specific legal provision.

196.  Ultimately, I accept that if section 68A does not extend to patients made subject to CD Orders – as I have held to be the proper construction – then the common law will step in to protect the same rights to the same extent, not least because patients subject to CD Orders are also entitled to appeal to the Tribunal in relation either to the conditions imposed, or to seek an absolute discharge.

197.  I do not accept that the common law will step in to require the provision of information as advanced by the Applicant, either in the context of section 68A or the common law. However, I do think that the common law will ensure fairness to the position of CD patients by at least requiring the provision by the relevant mental hospital or the HA of the same or equivalent information as the legislature has expressly recognised must be given to detained patients.

198.  In other words, it seems to me that when a patient is made subject to a CD Order or is given notice of variation of the conditions attached to the CD Order, he must also be told that he has the right to make an application to the Tribunal pursuant to section 59B of the MHO.

199.  The reference to section 59B is important, because it identifies a legal right, which of itself may trigger a realisation that legal assistance might be appropriate.  Further, reference to the specific section is important in that the patient so referred (or a relative)  is directed to read that legal provision, and likely the surrounding legal matters including the MHRT Rules.

200.  As I have already pointed out above, I do not think it follows that simply because a patient has been given previous notices which identify the ability to make an application to the Tribunal in respect of his detention, that the patient will understand that he has similar or equivalent rights to apply to the Tribunal in respect of his conditional discharge.

201.  To that end, it seems to me that even the current relevant forms – found at Appendices II and IV to the 2023 CD Guidelines (see above)  – require amendment so that the patient receiving those forms is expressly informed on the forms of the right to apply to the Tribunal pursuant to section 59B(2)(b)  of the MHO.  I acknowledge that Appendix X to the 2023 CD Guidelines is the pamphlet made available upon a conditional discharge, which gives some information about the review and appeal process and the possibility of seeking guidance from medical or social welfare workers.  But I do not think the pamphlet as currently drawn is specific enough.  Anyway, the required information is best given on the CD Form.

202.  As I have indicated, the common law will fill the gap vis-a-vis the relevant mental hospital and the HA.  However, I reject the submission that a similar gap needs to be filled as regards the position of the Tribunal itself.  Rather, the MHRT Rules sufficiently provide for the fairness of the procedures.

203.  There is obviously some potential tension between the recognition that a person suffers from a degree of mental health incapacity and inability to provide for his own needs, at the same time as suggesting that the person might be legally capable of acting on his own behalf or on his own volition.  But it seems to me that there is recognition that there is a particular obligation to protect vulnerable persons, including the mentally impaired.  That is why the statutory provisions in the MHO and in the MHRT Rules specifically envisage that the patient may be assisted or represented in a way sufficient to safeguard his rights throughout relevant proceedings, to the extent that the Tribunal itself is empowered to appoint a representative when it thinks that necessary.

204.  In the Hong Kong statutory regime, it is clearly intended that there should never be an occasion where an individual’s mental health is so impaired that, so as to avoid harm to the individual or others, there could be issuance or continuation of detention orders (and CD Orders)  without assistance or representation sufficient to safeguard his rights.

205.  Logically, therefore, the Tribunal will ask itself the relevant question in every application brought before it, where the patient is not represented by a barrister, solicitor or other relevant person. It also seems to me to be logical that if the patient is not represented and the Tribunal thinks that the patient’s interest require representation, the Tribunal might first suggest to the patient that he obtain representation, failing which the Tribunal would exercise its powers to appoint a representative.

206.  There is force in the submission that if it is thought that there is an obligation on the Tribunal to provide this information to an applicant patient, that makes it less likely that there would be any need to impose the same or a similar duty on the Hospital or the HA.  But, I suppose, the position is the same vice versa.  In any event, where the Tribunal has been given a power, it will logically consider whether to exercise that power.

207.  However, I do not think there is any positive duty on the Tribunal to advise applicants to it of the possibility of being represented, legally represented or the chance of obtaining legal aid. Fairness is sufficiently achieved through the power given to the Tribunal itself to appoint a representative in circumstances where it considers that is necessary and appropriate to achieve a just determination.  There is also nothing to prevent the Tribunal, as a matter of practice when fixing the hearing date, to enquire of the applicant patient whether he is or will be represented at the hearing. 

K.  Delay and Possible Extension of Time

208.  Mr Suen first relied on the academic nature of the present application.  It is trite that, save in exceptional circumstances, the Court would not entertain applications for judicial review if the proposed judicial review deals with issues which are or have become academic and would serve no practical purpose.  In this case, the Applicant’s CD Order had been cancelled more than three years before the commencement of the application.  Therefore, even if there was any procedural unfairness and/or illegality, that would have no relevance to or bearing on the Applicant’s circumstances.  Hence the challenge is either academic or hypothetical in nature and of no practical utility.

209.  I see the force in those submissions.  But it seems to me that there is utility in the Court identifying the proper interpretation of section 68A, both as to the type of patient to whom the section is applicable and as to the scope of the information which is to be provided under this section.

210.  More problematic for the Applicant is the significant delay in commencing the proceedings.  In this context, and in the decision whether or not to grant an extension of time for the application, the Court will take into account all the circumstances of the case, including the non-exhaustive list of factors such as (1) the length of the delay, (2) the explanation for the delay, (3) the merits of the substantive application, (4) prejudice, and (5) whether any questions of general public importance raised in the application. In shorthand, the Applicant must establish a good reason for the extension.

211.  I acknowledge that the decisions under the intended challenge were in 2018/2019, around five years before the commencement of these proceedings, and the alleged systemic challenge or continuing breach is not such as would ordinarily excuse the Applicant’s delay.  The delay is significant, and does not seem to me to be fully explained by the individual steps taken by the Applicant.  It may be that the Applicant did not adopt a ‘wait-and-see’ approach, in that he engaged with attempts to resolve the problems by extra-judicial activity and did not simply deliberately delay. After failing to obtain redress in that form, time was taken in the attempt to obtain legal aid for judicial review (though delay taken for that purpose is not of itself usually weighty in the balance).

212.  As to the merits, the intended challenge has given rise to plainly arguable grounds of review, and it seems to me that there are questions of general public importance raised in the application.  This is particularly so in relation to effective access to an independent review of detention, or release from detention upon the imposition of certain conditions, where the patients affected are intrinsically likely to suffer some degree of incapacity in the procedural process.  Indeed, in the public law context, there are often other rights and obligations in play, and matters potentially (perhaps usually)  affecting far more parties than merely the applicant to the particular case.  This is one such situation.

213.  I am satisfied that good reason has been shown in this case to justify the extension of time.

L.  Summary of Result

214.  Following a full argument at a rolled-up hearing, there is perhaps some sterility in deciding whether any ground advanced in support of the application was sufficiently arguable that leave to apply for judicial review would have been granted.  Nevertheless, in this case, it seems to me that the grounds were indeed reasonably arguable with a realistic prospect of success, as would have properly led to the grant of leave to apply.

215.  However, I have also gone on to make the following findings:

(1)  This case is an appropriate case to grant the (admittedly lengthy)  extension of time within which to have commenced the proceedings, and the proceedings have some utility.

(2)  The determination of the judicial review challenge in these proceedings does not turn on any particular disputed factual circumstances, because what is or is not done in the provision of information to patients such as the Applicant is accepted to be common ground.

(3)  Instead, the determination of the judicial review challenge in these proceedings turns on the proper construction of statutory provisions and/or findings as to what are the effects of the common law or constitutional provisions.

(4)  The proper construction and the effects of the common law or constitutional provisions are applicable to the Applicant as an individual, and to any other person in his category of being a patient conditionally discharged under section 42B of the MHO.

(5)  For that reason, it seems to me to be of no great import whether the challenge is regarded as an individual challenge or a systemic one.

(6)  On the proper construction of section 68A of the MHO, patients conditionally discharged under section 42B do not fall within the class of patients to whom the provisions of section 68A are applicable.

(7)  On the proper construction of section 68A of the MHO, there is no positive duty placed on the Superintendent to inform patients or their relatives of their rights to representation, legal representation and the availability of legal aid on an application to the Tribunal.

(8)  Neither the common law nor any constitutional provision require a positive duty to provide further information as to the ability for an applicant to the Tribunal to be represented, or legally represented, or to the possibility of obtaining legal aid for the Tribunal hearing.

(9)  However, because section 68A has no application to patients conditionally discharged under section 42B, such patients are materially disadvantaged in comparison to detained patients as to their rights to make an application to the Tribunal.

(10)  In those circumstances, the common law will fill the gap, and require like or equivalent information to be provided by the mental hospital or the HA to CD patients, i.e that there is a right to apply to the Tribunal under section 59B of the MHO for a review of the CD Order or for discharge.

(11)  The information required by the common law to be provided outside the application of section 68A – i.e. to CD patients – does not require a positive duty to provide further information as to the ability for an applicant to the Tribunal to be represented, or legally represented, or to the possibility of obtaining legal aid for the Tribunal hearing.

(12)  There is no positive duty on the Tribunal to advise applicants of their right to be represented, legally represented, or to the possibility of obtaining legal aid.

(13)  The MHRT Rules which govern the procedure of the Tribunal provide sufficiently for the fairness of the process before it.

(14)  No constitutional provision changes the above analysis.

216.  In the circumstances, it seems to me that the Superintendent and the HA were in breach of the common law requirement to take such steps as were reasonably practicable to ensure that the Applicant and a relative understood his right to make an application to the Tribunal for discharge or for review of his case. 

217.  The appropriate relief to grant seems to me to be a declaration that the HA and the medical superintendents of mental hospitals are under a duty to take such steps as are reasonably practicable to ensure that patients the subject of an order for conditional discharge under section 42B of the MHO understand their rights under section 59B of the MHO to make an application to the Tribunal for discharge or review.

218.  Though at the hearing, I was invited to make a costs order nisi, it seems to me that it is more appropriate for there to be short written submissions from the parties as to costs.  I leave it to the parties to agree a sensible timeframe for the provision of those submissions, but I impose a page limit of 10 pages for each party’s submission.  I will then deal with the question of costs on paper.