RE CML

HCMH 23/2018

[2020] HKCFI 1232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 23 OF 2018

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REASONS FOR DECISION

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1.  This application raises a matter of some importance: whether the Court of First Instance (“CFI”) has jurisdiction to make an order granting access to a mentally incapacitated person (“MIP”) by her family members or even some other persons.

2.  The Applicant and the 1^st Intervener are the 2^nd and 4^th daughters of CML who is an elderly woman aged 92.  CML has 5 daughters and her husband passed away in 2016.  The parties have accepted that CML is a MIP within the meaning of the Mental Health Ordinance, Cap 136 (“MHO”). 

3.  These proceedings first started off with an application by the Applicant for medical examination of CML under the provisions in MHO.  On 16 November 2018, DHCJ M Ng (as she then was) made an order allowing the Applicant to amend the Application by adding the applications for inquiry and appointment of committee for CML under Part II of MHO and order for access by the Applicant to CML for the purpose of conducting the medical examination.

4.  In the hearing before me on 1 August 2019, the issue relating to medical examination was resolved and all the interested parties accepted that CML is a MIP under the meaning of MHO.  Upon such finding, I also made a recommendation under s 26A of MHO for the Applicant to make an application for a guardianship order under Part IVB of MHO.  The remaining part of the inquiry was adjourned to 7 July 2020.

5.  By a summons filed on 4 October 2019 (“the Access Summons”), the Applicant applies for an order, inter alia, that she will have regular access to CML at her residence (“the Residence”) for the purposes of family gatherings as well as health and wellbeing activities.

6.  The Applicant’s case is that the 1^st Intervener and CML’s third daughter (“the 3^rd Daughter”) did not allow her to visit CML at the Residence, and that she was only permitted to meet with CML in restaurants under unreasonable supervision by the Intervener and the 3^rd Daughter.  On the other hand, the 1^st Intervener contends that the Applicant and CML’s first daughter (“the 1^st Daughter”) had assaulted the 3^rd Daughter and her on 10 October 2017, and it is therefore reasonable for the 3^rd Daughter not to have allowed the Applicant and the 1^st Daughter to enter the Residence in order to avoid any further confrontation.  The 1^st Intervener opposes any proposal of access to CML at the Residence while other access arrangements are open to negotiation.

7.  The Residence is situated in North Point.  It is an apartment jointly owned by CML and the 3^rd Daughter.   CML, the 1^st Intervener and the 3^rd Daughter are residing in the Residence.  Since the 3^rd Daughter is one of the co-owners of the Residence, she refused to allow the Applicant to enter the Residence and the building in which the Residence is situated (“the Building”).

8.  The Access Summons first came before me on 18 October 2019.  The access issue has been haunting the parties since the commencement of the present proceedings.  I have all along encouraged the parties to resolve the matter through negotiation but without any success.  By then, I had some queries as to whether the CFI has jurisdiction to make such kind of access order.  According to my experience in handling mental health proceedings, access to MIP is a common and yet sensitive issue between the family members.  Lack of proper care is always a serious concern.  Further, being denied access to their vulnerable parents, they are afraid that the elderly parents would be subject to undue influence by the other family members. Because of the implication of the Access Summons, I decided to set the application down for formal argument on the jurisdiction issue.  I have also sought the assistance of the Official Solicitor (“OS”) in order to get a more independent view on the issue.  In this regard, I am grateful to Mr Cheng of the OS’s Office for all the assistance he has provided to this court.  With the benefit of the detailed research conducted by the parties in this area of the law, I hope that the question of jurisdiction to make access order, which is a common issue in mental health proceedings, can be resolved once and for all.

9.  In the hearing for substantive argument on 3 April 2020, the Applicant, the 1^st Intervener and the OS all agreed that the CFI has inherent jurisdiction to make access order, and so the jurisdiction issue is no longer a contentious one.  However, for the benefit of the development of local jurisprudence, I feel obliged to set out the legal principles as to why the CFI has such jurisdiction.  I have also obtained the consent of the interested parties for this Reasons for Decision to be handed down in open court.

JURISDICTION TO MAKE ACCESS ORDER

10.  I first start with the statutory regime.  If there is no power to make access order under the statutes, I will then discuss the position under the inherent jurisdiction of the court.

(i)  Jurisdiction of the CFI under Part II of MHO

11.  Before the Mental Health (Amendment) Bill 1997 (“the Bill”) was passed in June 1997, the High Court in Hong Kong had dual jurisdiction on management of the property and affairs of MIPs both under: (i) Part II of MHO; and (ii) the now repealed Part VII of the English Mental Health Act 1983 (c 20) (“MHA 1983”) by virtue of the now repealed s 12(4) of the Supreme Court Ordinance, Cap 4.  The Bill amended Part II of MHO by introducing the provisions contained in Part VII of MHA 1983, particularly the now ss 10A and 10B of MHO which are the equivalent of ss 95 and 96 of MHA 1983.  Since then, Part VII of MHA has ceased to apply in Hong Kong.  S 10A of MHO, the equivalent of s 95 of MHA 1983, has become the only statutory provision for the general functions and powers of the CFI with respect to the property and affairs of MIPs.

12.  Under s 10A(1) of MHO, the CFI has power to make orders or give directions for all such things as appear necessary or expedient: (a) for the maintenance or other benefit of a MIP; (b) for the maintenance or other benefit of the MIP’s family; (c) for making provision for any other person or purposes for whom or for which the MIP might be expected to provide if he were not mentally incapacitated; or (d) otherwise for administrating the MIP’s property and affairs.  This sub-section is drafted in a manner to confer the widest possible power upon the court in the management and administration of the property and affairs of MIPs.[1]  Nonetheless, its scope does not extend beyond financial matters.  It has been held by the House of Lords that the expression “the affairs of a patient” in s 95(1) of MHA 1983, which is equivalent to “the affairs of a [MIP]” in s 10A(1) of MHO, must not be construed as including any matters other than business matters and legal transactions.[2] It is therefore settled that the jurisdiction of the CFI under Part II of MHO does not cover any arrangement of access to a MIP.

(ii)  Jurisdiction of the Guardianship Board under Part IVB of MHO

13.  The Bill in 1997 also added the statutory provisions for establishing the Guardianship Board and consolidating the powers to make guardianship orders to the now Part IVB of MHO.  In LWY v Guardianship Board & Anor[3], Lam J (as he then was) held that the Guardianship Board may only confer upon a guardian the six essential powers stipulated in s 59R(3) of MHO under the statutory guardianship regime.[4] The only power relevant to access is that set out in § 59R(3)(e), which provides for “the power to require access to the [MIP] to be given, at any place where the [MIP] is residing, to any registered medical practitioner, approved social worker, or other person (if any) specified in the order”.

14.  In LWY, the Guardianship Board made a special condition in the guardianship order to the effect that the guardian had power to “only allow access to [the MIP] by any family member or relatives in a place and on such terms and conditions to be decided at the guardian’s absolute discretion”. Lam J ruled that with reference to the persuasive English authorities and on a proper construction of s 59R(3) and other relevant provisions in Part IVB of MHO, s 59R(3)(e) only provides for the positive right to decide who must be allowed to see a MIP but not the power to restrict access to the MIP.[5]

15.  Two observations can be made here.  First, the power under s 59R(3)(e) refers to the guardian’s power to require access to be given to a person, which is different from that person’s right to have access to the MIP.  Second, an order made under s 59R(3)(e) is confined to access to the MIP at his place of residence.

16.  The access orders prayed for by parties in contentious mental health cases often concern issues far more than the guardian’s right to decide who must be allowed to meet the MIP at his place of residence.  An access arrangement may concern the following issues:

(i)  the applicant’s right to contact, visit or otherwise have access to the MIP;

(ii)  the duty of the carer and any third party not to prevent or obstruct the contact, visit or access of other kinds;

(iii)  restrictions on the date, time, frequency and place of access;

(iv)  restrictions on the persons who may be present during access; and

(v)  restrictions on the activities during access.

17.  Hence, the Guardianship Board has no jurisdiction to make an order that a family member, a relative or other person be granted access to a MIP, because it can only confers the powers specified in s 59R(3) of MHO under the guardianship regime and neither s 59R(3)(e) nor the other five subsections cover such kind of access order.

(iii)   Inherent jurisdiction of the CFI

18.  If the CFI does not have power under the statutes to make access order in general, the question then arises is whether the CFI has inherent jurisdiction to make access order, or indeed any other order relating to the welfare of MIPs, if it is not covered in the provisions in MHO.  The issue here is whether the court still has the inherent jurisdiction to protect the interests and welfare of MIPs after the passing of statutes such as Mental Health Act 1959 (c72) (“MHA 1959”) in England and MHO in Hong Kong.

19.  The inherent jurisdiction of the CFI is derived from s 12(2)(a) of the High Court Ordinance, Cap 4 (“HCO”), which provides that the “civil jurisdiction of the [CFI] shall consist of original jurisdiction and authority of a like nature and extent as that held and exercised by the Chancery, Family and Queen’s Bench Divisions of the High Court of Justice in England”.

20.  After the enactment of the mental health statutes in England, there was some uncertainty as to whether the High Court of Justice still retained the inherent jurisdiction to deal with various other welfare matters of MIPs which were not covered by the statutes.

21.  In the case of In re F (Mental Patient: Sterilisation)[6] decided in 1989, the House of Lords in England recognised the inherent jurisdiction of the High Court of Justice to grant declaratory relief relating to medical issues for adults under mental disability, which is an important common law doctrine for protecting the interests and welfare of incompetent adults after the parens patriae jurisdiction in relation to adults came to an end upon the enactment of MHA 1959.[7]

22.  This development was described by Munby J (as he then was) as a “rediscovery” of the inherent jurisdiction of the High Court of Justice in relation to incompetent adults[8], and “was greeted with relief”[9]. Since In re F (Mental Patient: Sterilisation), that jurisdiction “has developed very significantly”[10].

23.  Given it was a developing jurisdiction, there was initially uncertainty over its ambit.[11] Further, the jurisdiction was at first said to be governed by the common law doctrine of necessity, but the subsequent cases seem to suggest that the jurisdiction is based on the wider principle of the best interests and welfare of the incompetent adults.[12]

24.  In Re F (Adult: Court’s Jurisdiction)[13], the English Court of Appeal, in 2000, ruled that the exercise of the inherent jurisdiction has not been excluded by the statutory framework of the mental health legislation, i.e. MHA 1959 and its subsequent amendments.  As pointed out by Dame Elizabeth Butler-Sloss P, the English mental health legislation does not cover the day-to-day affairs of MIPs and the doctrine of necessity may properly be invoked side by side with the statutory regime.[14]

25.  In Re SA (Vulnerable Adult with Capacity: Marriage)[15], Munby J, in 2005, reviewed the development of the inherent jurisdiction since its “rediscovery” in In re F (Mental Patient: Sterilisation)[16] and explained its legal basis as well as the circumstances in which it was exercised:[17]

(i)  The inherent jurisdiction is a “protective jurisdiction” on the welfare of incompetent adults.  It is used as the safety net to fill gaps left by the mental health legislation and for all practical purposes indistinguishable from the parens patriae or wardship jurisdiction in relation to children.[18]

(ii)  The jurisdiction was first exercised in relation to medical issues.  It has been extended to questions of residence, contact, publication of matter damaging to a vulnerable adult and marriage.  It must evolve in accordance with changing social needs and social values.  In theory, it touches on everything that conduces to the incompetent adult’s welfare and happiness.[19]

26.  In St. Helens Borough Council v PE[20], Munby J, in 2006, also traced the development of the inherent jurisdiction on incompetent adults and held that “matters had moved on” and “the jurisdiction was exercisable in relation to a wide range of other questions, including, crucially, question where the doctrine of necessity was simply not engaged at all”.[21] Hence, it is now settled in England that the jurisdiction is not based on the doctrine of necessity but on the wider principle of the best interests and welfare of the incompetent adults.  The relief to be granted is also not limited to declaration, and the court may make different order depending on the particular circumstances of the case.[22]

27.  I agree with Mr Cheng that the same principles should also apply in Hong Kong.  Similar to MHA 1959, MHO is neither comprehensive nor exhaustive and does not cover a multitude of everyday activities in which decisions are made on behalf of MIPs.  In particular, MHO is silent on the issue of access to MIPs.  To protect their interests and welfare, the CFI should therefore have inherent protective jurisdiction over a wide range of MIP’s welfare matters not covered by MHO, and it should have the power to make orders or grant declaratory relief in circumstances where the best interests of MIPs so require.

28.  On 1 October 2007, the Mental Capacity Act 2005 (“MCA”) came into force in England and established the new Court of Protection.  Under §16 of MCA, the new Court of Protection has jurisdiction on both the personal welfare and the property and affairs of a person lacking mental capacity.  Under §66 of MCA, Part VII of MHA was repealed.  In In re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No 2)[23], the English Court of Appeal held that the High Court’s inherent jurisdiction to protect incompetent adults survived the implementation of MCA.[24] 

29.  In Hong Kong, there is no equivalent of the new Court of Protection.  The statutory regime still involves parallel inquiries on property and financial matters under Part II of MHO and health and welfare matters under Part IVB of MHO, as the previous arrangements under Parts VII & II of MHA 1983 in England.  In any event, the implementation of MCA in England in 2007 should not affect the existing legal framework in Hong Kong, which by and large has remained unchanged since June 1997.   Hence, the CFI should still have the inherent protective jurisdiction by virtue of s 12(2)(a) of HCO.

30.  Such view is supported by the obiter dicta of Lam J in LWY v Guardianship Board & Anor[25].  He made the observation that under the existing statutory framework for the care of MIPs, the issue of access will have to be resolved by proceedings in the CFI seeking coercive declaratory relief under the inherent jurisdiction of the court based on the doctrine of necessity.[26]  The only qualification I make here is that the CFI’s protective jurisdiction should now be based on the wider principle of best interests and welfare of MIPs.[27]

31.  That is also the position taken by B Chu J in the recent case of Re TBS[28]. The intervener there sought an order in relation to the interim care and access arrangement for a MIP aged 92 pending determination of the parties’ concurrent guardianship applications.  B Chu J might not have received the same level of assistance as that provided in the present case, and yet the judge made the same ruling on the jurisdictional issue regarding access order:

(i)  the power under §10A of MHO does not cover the interim care and access arrangements[29]; and

(ii)  where there are circumstances not covered by MHO, the CFI may invoke its inherent protective jurisdiction to make orders for the best interests and welfare of the MIP in the interim and pending the appointment of a guardian.[30]

32.  The court also has the power to make different orders for the best interests and welfare of the MIPs depending on the facts of each individual case.[31] In Re TBS[32], B Chu J made an order which provided that, inter alia, the intervener’s camp shall have defined access to the MIP to the exclusion of the applicants’ camp, and that neither parties may take the MIP to any banks, financial institution or lawyers’ office without the consent of the OS.[33]

33.  For the above reasons, I am satisfied that the CFI has inherent protective jurisdiction over a wide range of matters relating to welfare of MIPs which are not covered by statutes including access arrangements.

CONSIDERATIONS IN THE MAKING OF ACCESS ORDER

34.  In the hearing on 3 April 2020, I exercised such jurisdiction and made an order granting access to certain family members to visit CML at the Residence at specified times.

35.  The paramount consideration in the exercise of such inherent protective jurisdiction is always the best interests of the MIP. It should not be considered as the right of the family members to have access, but whether it would be in the best interest and welfare of the MIP for the family members or other persons to have access to the MIP concerned.  In my experience, many family members are trying to make use of mental health proceedings to advance their own interests in the distribution of family wealth.  The court should guard against such abuse.

36.   In Re S (Hospital Patient: Court's Jurisdiction)[34], two parties claimed the right to look after an elderly MIP, a dispute which is similar to that in the present case.  Sir Thomas Bingham MR observed that in cases involving MIPs, there is no competing rights or interests.  The right belongs to the MIP alone, and no one else (not even the next of kin) has any “right” as such.[35]  Millet LJ went on to explain that the task of the court is to ascertain the MIP’s wishes, or “if they cannot be ascertained, by determining what is in his best interest and inferring that that is what he would wish?”[36]   The court, therefore, has to place itself in the position of CML, to act as “her surrogate decision-maker”[37], and to infer what she would have wanted.

37.  There is no serious dispute that CML, prior to her incapacity, used to enjoy, to say the least, “normal” relationship with all her daughters and their families.  CML is an elderly woman who is in the late stage of her life, and family bonding is always considered to be a virtue treasured by a decent elderly person.  Under such circumstances, the court can safely say that what CML would want now, if she still has the mental capacity, is to enjoy the company of all her family members.  Hence, it would be appropriate for the court to make access order for the best interests and welfare of CML.

38.  I would imagine that there may be some circumstances that it would not be in the interest of the MIP for certain family members to have access to him or her, for examples, if there is a real risk that the access may adversely affect the health condition of the MIP or the relationships between the MIP and the family members concerned were very poor prior to the MIP becoming mentally incapacitated.  I cannot provide an exhaustive list of such circumstances and much have to left to the judge in individual cases to consider what would be in the welfare and best interests of the MIP concerned.

39.  The 1^st Intervener and the 3^rd Daughter have no objection for the Applicant and other family members to have access to CML.  However, they are afraid that access for them at the Residence would create further conflicts amongst the siblings, something that CML would not like to see.  They also allege that access to the Residence would amount to an intrusion into their private lives, and so they submit that access should be granted in places outside the Residence.

40.  However, Hong Kong is still living under the fear of the COVID-19 pandemic and the Government has issued health regulations restricting gatherings in public places.  Under such circumstances and given CML is an elderly person, it would certainly be in her best interest for these visits to take place in the Residence and not other public places such as restaurants.  Furthermore, there are a few rooms in the Residence and so the visits can take place in one of these rooms not in the presence of the 1^st Intervener or the 3^rd Daughter.   To facilitate the visitation, I also give consent on behalf of CML as co-owner of the Residence to allow the family members to enter the Building and the Residence for the purpose of gaining access to CML.

FINAL OBSERVATIONS

41.  Before leaving the present Reasons for Decision, I would repeat once again the observations I have made in the case of SPLP v Guardianship Board[38] about the problems of the existing regime.  It is highly undesirable to have parallel inquires touching upon different welfare matters of the MIPs, ie property and financial matters to be dealt with by the CFI under Part II of MHO and other specified health and welfare matters to be dealt with by the Guardianship Board under Part IVB of MHO.  In addition to these parallel jurisdictions, there is now also the inherent jurisdiction of the CFI to deal other welfare matters not covered in the statutes.  One has to bear in mind that medical care and access issues are often interrelated, and there is also overlap between the power given to a guardian under s 59R(3)(e) of MHO and the protective jurisdiction to make access order by the CFI.  By having separate inquires conducted in different forums, the court or the tribunal cannot take a holistic approach in considering all the different and yet interrelated welfare matters of the MIP.  This is highly unsatisfactory.

42.  On most occasions, multiplicity of proceedings may result in delay and misunderstanding.  At one stage in the present proceedings, I expressed the view that the access issue could be dealt with in the guardianship proceedings and I made a recommendation for referral under s 26A of MHO.  These cross-referrals can be avoided if all the welfare matters of a MIP can be considered together by one single court or tribunal.  Further, multiplicity of proceedings may cause additional costs and stress to the family members which may not be necessary.

43.  I note that Lam J had made similar observations back in 2009 in the case of LWY v Guardianship Board & Anor[39].  It is regrettable that no attempt has been made to follow-up on these recommendations over the years.