RE TBS

HCMH 51/2019

[2019] HKCFI 2919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 51 OF 2019

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REASONS FOR DECISION

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1.  On 19 August 2019 (“1^st Hearing”), upon conducting an inquiry including meeting with TBS (“Mother”) in the presence of the Official Solicitor, this Court has declared that Mother is incapable by reason of mental incapacity, as defined in the Ordinance, of managing and administering her property and affairs. Leave was then granted to the Intervenor to intervene in these proceedings to oppose the appointment of the Applicants as committee of Mother. A hearing was fixed on 19 November 2019 (“2^nd Hearing”) for the substantive arguments as to the issue of the appointment of the Committee.

2.  At the 2^nd Hearing, with the consent of the Official Solicitor, the parties agreed that Official Solicitor be appointed as the Committee for Mother.  The powers of the Committee have also been agreed.

3.  At the 1^st Hearing, interim arrangements for Mother in relation to her residence, access and care were agreed (“1^st Interim Arrangements”).  Although at the 2^nd Hearing, there were disputes about the updated interim arrangements, eventually this Court made an order in relation to the revised interim arrangements set out in a schedule (“2^nd Interim Arrangements”).

4.  Counsel Ms Yanky Lam appeared for the Applicants at the hearings, Mr Christopher Chain and Mr Vincent Chiu appeared for the Intervenor.  The Official Solicitor is represented by Mr Philip Cheng (“OS”).

The jurisdictional issue

5.  At the 1^st Hearing, the Court was informed by OS that there has been no case law in Hong Kong on the issue of whether the court has the jurisdiction or power to make any interim access or care arrangements, or whether the parties will need to make an application for guardianship, for Mother to the Guardianship Board under Part IVB of the Ordinance.

6.  Mr Chain on the other hand has argued that there is inherent protective jurisdiction or otherwise there is power under section 10A of Part II of the Ordinance to make an order incorporating the 1^st Interim Arrangements. 

7.  There were no submissions made by Ms Lam on this court’s jurisdiction.

8.  At the 2^nd Hearing, this Court was informed by OS that there is another ongoing case under Part II of the Ordinance where the issue of whether the court has any inherent jurisdiction to make interim arrangement orders in light of Part IVB, and that this issue has been fixed for a substantive hearing before Lok J in February 2020.

9.  It is, however, OS’s position that he agrees with Mr Chain’s submissions that this Court does have inherent jurisdiction, or alternatively section 10A of the Ordinance would be wide enough for the Court to make an order incorporating the 1^st Interim Arrangements or the 2^nd Interim Arrangements.  Ms Lam also adopted the same position.  At the end of the 2^nd Hearing, this Court is satisfied that it does have jurisdiction in the interim and pending the appointment of a guardian by the Guardianship Board on the basis that the 2^nd Interim Arrangements are not to fetter the discretion and/or the decision of the Guardianship Board in any way.  Accordingly, this Court made an order incorporating the terms of the 2^nd Interim Arrangements. 

10.  My brief reasons are set out hereinbelow.

The brief background

11.  Mother is an elderly lady now aged about 92.  Her husband (“Father”) of some 70 years passed away earlier this year.  Mother and Father had 5 children.  The 2^nd child (the eldest of 3 sons) passed away in 1987. The remaining 4 children are the 3 Applicants (two daughters and the youngest of the 3 sons) and the Intervenor, the 2^nd of the 3 sons.

12.  Mother is a registered owner or has interest in 6 properties, one of which is a flat in Kwai Chung (“Kwai Chung Flat”), purchased some 28 years ago in November 1991 in the joint names of Mother and the Intervenor.  Since the purchase, Mother and Father had been residing together at the Kwai Chung Flat, and after Father passed away, Mother continued to reside there, save in circumstances described later.  

13.  In 2001, the Intervenor and his family emigrated to Canada, and since then the Intervenor and his wife would return to Hong Kong regularly to visit Mother and Father.

14.  On about 23 December 2013 Mother employed a domestic helper Lily who is Indonesian and who is capable of communicating with Mother, and at that time, Father, in Cantonese.  It was the Intervenor’s case that since her employment, Lily has been one of the day-to-day primary carers of Mother (and Father).  Lily is now on her 3^rd contract.

15.  In 2016, the Intervenor and his wife returned from Canada.  They were scheduled originally to return to Canada in about April 2016.  Suffice to say, they decided to stay and since then they have been living in the Kwai Chung Flat with Mother (and Father until his death) save for a period described later.  According to the Intervenor, they did not return to Canada and remained living in the Kwai Chung Flat in order to take care of Mother and Father in light of their old age and ailing health.

16.  It was the Applicants’ case that in about late 2016, when Mother and Father were taken for a medical examination at the Hong Kong Baptist Hospital, a Dr Dai there advised Mother’s family that she was diagnosed as having early Alzheimer’s disease.  According to the Applicants, although Mother and Father did see Dr Dai regularly for medical treatment, such treatment stopped after August 2017 as they declined to go to see Dr Dai any further.  It would appear that since December 2018 Mother had undergone regular monthly examinations by a Dr Yip instead.

17.  It was not disputed that in June 2019, Father did not feel well and an ambulance was called by the 2^nd Applicant for Father to be taken to hospital.  There were different versions as to what happened at the hospital, but suffice to say at this stage, Father passed away on 20 June 2019.

18.  Mother was taken by the Applicants to two psychiatrists for examinations on the same day Father passed away.  The Applicants explained that those examinations had been pre-arranged earlier.

19.  On 26 June 2019, the Applicants issued the ex parte originating summons herein under Part II of the Ordinance for themselves to be appointed as Mother’s Committee.

20.  It was the Applicants’ case that on 5 July 2019, when the 1^st Applicant and her husband visited Mother at the Kwai Chung Flat, they discovered that Mother was suffering from pains in her legs.  It was also the Applicants’ case that subsequent thereto they were told that the Intervenor did not take Mother to see a doctor and further the 1^st Applicant was prevented by the Intervenor to take Mother to see a doctor.  The 1^st Applicant then called for an ambulance on 8 July 2019 and Mother was taken to the Princess Margaret Hospital (“08.07.19 Incident”). 

21.  Mother was discharged the next day on 9 July 2019, but after discharge, the Applicants took Mother to live with the 3^rd Applicant at his home in Tseung Kwan O (“Tseung Kwan O Flat”).

22.  In the Certificate of Family and Property filed by the Applicants, Mother was stated to be residing at the Kwai Chung Flat and there was no disclosure of the 08.07.19 Incident or that upon discharge from hospital, Mother had been taken to reside at the Tseung Kwan O Flat.  This was only revealed in the Applicants’ correspondence with the Official Solicitor.

23.  On 5 August 2019, this Court ordered a hearing be fixed for the enquiry and that notice of the hearing should be served on, amongst others, the Intervenor.

24.  On 14 August 2019, the Intervenor issued a summons to intervene and sought that pending the appointment of the Committee, there be interim care arrangements.  That Mother is a mentally incapacitated person under Part II of the Ordinance was not disputed.  In his summons, the Intervenor was seeking either himself or alternatively an independent professional to be appointed as the Committee.  More importantly, he was seeking interim care arrangements, in particular, that Mother be returned to the Kwai Chung Flat. 

25.  Mother was brought to the 1^st Hearing by the Applicants, and after meeting with Mother in the presence of the OS, this Court indicated that it would be in the best interests and welfare of Mother for her to return to reside at the Kwai Chung Flat which has been her home of 28 years, and to continue to be cared for by Lily.  The parties then agreed to the 1^st Interim Arrangements, upon the agreement of the Intervenor and his wife not residing in the Kwai Chung Flat in the interim pending the appointment of the Committee.

26.  On 19 August 2019, in the afternoon of the 1^st Hearing, the Intervenor’s solicitors wrote to the Guardianship Board in relation to making an application for the appointment of the Intervenor as “guardian” of Mother.  7 days later, the Applicants also wrote to the Guardianship Board to inform them that they would make an application to be appointed as guardians of Mother.

27.  The Intervenor then suggested that he and the Applicants to make a joint application, but it would seem that the Applicants were told by the Guardianship Board that every application could only be submitted by one person.  Further, without further notice to the Intervenor, the 3^rd Applicant lodged an application for guardianship of Mother on 28 August 2019 (“Guardianship Proceedings”).  This was only discovered by the Intervenor on 1 September 2019.  The Intervenor had suggested that either himself or the Director of Social Welfare to be the guardian of Mother, and had strongly objected to the appointment of the 3^rd Applicant as guardian.

28.  As an application by the 3^rd Applicant has been lodged, the Guardianship Board replied on 13 September 2019 to the Intervenor to indicate that the Intervenor may write to seek a pre-hearing review and inter alia, to apply to be added as a party to the Guardianship Proceedings.

29.  There had been no further update of the Guardianship Proceedings by the time of the 2^nd Hearing.

30.  At the 2^nd Hearing, as the parties have agreed to the appointment of OS as the Committee who was then duly appointed by this Court, the Intervenor wanted to move back into the Kwai Chung Flat, which he owns with Mother as joint tenants and where he and his wife have been living since about April 2016 until their voluntary agreement to move out temporarily pending the determination of the appointment of the Committee.

31.  As said earlier, the Kwai Chung Flat was bought some 28 years ago in the joint names of Mother and the Intervenor.  There was no dispute to the joint ownership of the Intervenor and Mother, and thus the Intervenor has both a legal and a beneficial interest in the Kwai Chung Flat.  There was also no evidence that his moving back would be contrary to Mother’s best interests or welfare.

32.  Having considered the submissions and the evidence, I could see no reason why the Intervenor and his wife should not be allowed to move back into the Kwai Chung Flat.  Upon that indication, the parties then discussed further relating to access and care arrangements pending the appointment of the guardian and subsequently, the 2^nd Interim Arrangements were arrived at.

The 1^st and 2^nd Interim Arrangements 

33.  The 1^st Interim Arrangements provided for essentially the following: -

(i) Residential arrangements of Mother and installation of video cameras;

(ii) Care for Mother by Lily;

(iii) Detailed contact/visiting/access arrangements for the parties, including provision of Wi-Fi network to the Applicants during their contact/visiting/access, taking Mother to necessary medical appointments, examinations or treatments and not taking Mother to any banks, financial institutions or lawyers’ office;

(iv) Provision of living expenses for Mother;

(v) Non-removal of Mother from Hong Kong.

34.  The 2^nd Interim Arrangements provided for essentially the following: -

(i) Residential arrangements for Mother;

(ii) Care arrangements by Lily;

(iii) The Intervenor and his family be allowed to reside at the Kwai Chung Flat;

(iv) Detailed contact/visiting/access arrangements by the Applicants, with free access to the Wi-Fi network;

(v) Mother not to be taken to any banks, financial institutions, or lawyers’ office without the consent of the OS;

(vi) Taking of Mother for medical appointments, examinations or treatments by the parties;

(vii) Provision of living expenses for Mother;

(viii) Non-removal of Mother from Hong Kong.

The Court’s jurisdiction

35.  Mr Chain has submitted that the court has very broad powers in relation to a MIP under s10A of the Ordinance and/or its inherent protective jurisdiction.

Section 10A of the Ordinance

36.  Section 10A of the Ordinance provides for the general functions of the court with respect to property and affairs of a mentally incapacitated person as follows:

“(1) The Court may, with respect to the property and affairs of a mentally incapacitated person, do or secure the doing of all such things as appear necessary or expedient—

(a) for the maintenance or other benefit of that person;

(b) for the maintenance or other benefit of members of that person’s family;

(c) for making provision for any other person or purposes for whom or for which the mentally incapacitated person might be expected to provide if he were not mentally incapacitated; or

(d) otherwise for administering the mentally incapacitated person’s property and affairs.

(2) In the performance of the functions under subsection (1) the Court shall have regard—

(a) as a paramount consideration, to the requirements of the mentally incapacitated person;

(b) subject to paragraph (c), to the interest of creditors;

(c) to the rules of common law which formerly restricted the enforcement by a creditor of rights against the property of a mentally incapacitated person under the control of the Court or other judicial authority (if any), which rules shall apply to property under the protection and management of the Court; and

(d)  to the desirability of making provision for obligations of the mentally incapacitated person notwithstanding that those obligations may not be legally enforceable.”

37.  Lam J, as he then was, has said in Re Madam L [2004] 4 HKC 115 , that section 10A(1) is clearly drafted in a manner to confer the widest possible power upon the court in the management and administration of a patient’s property and affairs[1]. This was further seen in Re LWO [2005] 3 HKC 174, where Lam J approved the instalment repayment proposal by the MIP’s brother to the Suitor’s Fund for the benefit of MIP.  The brother had used part of the MIP’s monies for the purchase of a flat in the brother’s name.  The flat was said to be purchased by the brother to cater for the accommodation needs of the MIP.  Lam J held that amongst other things, subject to certain undertakings by the brother, that in the exercise of the court’s power under Part II of the Ordinance with respect to the property and affairs of mentally incapacitated person, the court should not look at the matter purely from a monetary point of view[2]. 

38.  The comments made by Lam J were towards the approach to be taken by the court in relation to the exercise of its powers in performing the functions under section 10A and I do not think those comments were intended to widen the scope of the word “affairs” of a MIP in Section 10A.

39.  Section 10A of the Ordinance is almost identical as the previous section 95 under Part VII of the Mental Health Act 1983 in England.  It has been held by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; [1989] 2 FLR 376 that “affairs of patients” under Part VII of the 1983 Act were, on their true construction, limited to legal transactions and other business matters. 

40.  Thus, in my view, even if the words “property and affairs” of a MIP under section 10A may be wide enough to cover residential arrangements for Mother in a property of which Mother has interest and to cover her interim financial provision or maintenance, it does not appear that the other interim care/access arrangements can be said to be within the ambit of that section.

The Court’s inherent protective jurisdiction

41.  Mr Chain had submitted that whilst matters of a mentally incapacitated person’s care and wellbeing were normally matters for his/her guardian, the Court had a concurrent power to put interim care arrangements in place. 

42.  Mr Chain had in particular referred to Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867.  In this case, a 17 year girl was profoundly deaf and unable to speak and although she could communicate by British sign language, neither of her parents could communicate with her using British sign language and the girl had no ability to lipread Punjabi, the language spoken at home.  The concern of the local authority was that the family might take her to Pakistan to be married there to some unknown person contrary to her wishes.  The girl just turned 18 years old when the matter came before Munby J, as he then was.

43.  As she was still under 18 years old, the girl could be made a ward of court, but the main issue in the proceedings was what would happen to her once she was an adult as both local authority and her guardian took the view that even as an adult the girl would need some element of continuing protection by the court, in relation to the specific issue of a marriage being arranged.  Although the girl was said to be very vulnerable, she did nonetheless have capacity to marry.

44.  Munby J, as he then was, had said in Re SA that the case raised novel questions about the court’s inherent jurisdiction in relation to vulnerable adults, in that while she was still a child the court had exercised its inherent parens patriae and wardship jurisdictions to protect her from the risk of any unsuitable arranged marriage, but the question was whether the court had jurisdiction to continue that protection when the girl became an adult.

45.  As pointed out by Munby J, the jurisdiction in relation to incompetent adults in UK has developed very significantly since its rediscovery by the House of Lords in In Re F (Mental Patient: Sterilisation), supra.  Munby J has said that, in his judgment, it is clear that the substance and reality of the court’s jurisdiction in relation to incompetent adults is for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children and that the court exercises a “protective jurisdiction” in relation to vulnerable adults just as it does in relation to wards of court[3].  

46.  As further said by Munby J, it is well known that the jurisdiction was first exercised in relation to issues of surgical, medical and nursing treatment but that it is now clear that the jurisdiction is exercisable not merely in relation to matters of that nature but also in relation to a wide range of other questions[4]. The circumstances set out by Munby J in which the jurisdiction was exercisable included:

(i) The question of where an incompetent adult should live, who he should see, and the circumstances of such contact;

(ii) To restrain the publication of matter damaging to a vulnerable adult;

(iii) Cases involving marriage including forced marriage.

47.  As said by Munby J, the above was far from being an exhaustive description of the potential reach of the jurisdiction and that he further said at paragraph 45 “New Problems will generate new demands and produce new remedies.  As Singer J put it, the jurisdiction must evolve in accordance with social needs and social values.  I agree. Indeed, there is probably no theoretical limit to the jurisdiction”

48.  It was held by Munby J in Re SA, amongst other things, that (1) the court’s inherent protective jurisdiction can be exercised in relation to a vulnerable adult, who, even if not incapacitated by mental disorder or mental illness is, or is reasonably believed to be, either : (i) under constraint; or (ii) subject to coercion or undue influence; or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent; and (2) that in the context of the inherent jurisdiction, a vulnerable adult can be described (rather than defined) as someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or, who is substantially handicapped by illness, injury or congenital deformity and that the principle that the court should seek to prevent damage to children that it could not repair is equally applicable in relation to vulnerable adults.

49.  Munby J was clearly of the view that the  ambit of the “protective” inherent jurisdiction in England could be extended further after analysing those authorities gone through by him[5].

50.  So far as this Court is aware, the Mental Capacity Act 2005 came into effect in England and Wales on about in 2005.  Further, the earlier Court of Protection in England and Wales governed by the Mental Health Act 1983 dealt exclusively with financial matters, but the new Court of Protection established through the Mental Capacity Act 2005 (Commencement No 2) Order 2007 was granted powers to deal with health and personal welfare issues of the incompetent individual.

51.  In re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No 2) [2012] EWCA Civ 253, the focus of the appeal was a single point of law, namely the extent to which the inherent jurisdiction of the High Court may be deployed following the implementation of the Mental Capacity Act 2005 for the protection of adults who were perceived to be vulnerable.  As said by McFarlane LJ (now President of the Family Division), the issue did not concern those cases that would fall within the 2005 Act which would proceed in the Court of Protection.

52.  It was held by the Court of Appeal in re L, amongst other things, that in the absence of any expression provision in the Mental Capacity Act 2005 with respect to individuals who lacked capacity for a reason other than an impairment or disturbance in the functioning of the mind or brain, such inherent jurisdiction as the High Court had in respect of such individuals prior to the passing of the 2005 Act continued to exist[6].

53.  As pointed out by McFarlane LJ in re L, amongst the matters developed within his analysis in Re SA, Munby J drew attention to the description of the use of the common law as “the great safety net” which was necessary to fill gaps where it was necessary to do so[7].  In particular, Davis LJ has said in re L:

“Where cases fall precisely within the ambit of the Mental Capacity Act 2005 and are capable of being dealt with under its provisions there is no room for- as well as no need for- invocation of the inherent jurisdiction. However, even in the case of an adult who lacks capacity within the meaning of the 2005 Act, it appears that the inherent jurisdiction remains available to cover situations not precisely within the reach of the statute…[8]”

54.  In Hong Kong, in a wardship matter CLP and CSN CACV 255/2015; [2016]5 HKLRD 530, Lam VP has also said :

“The flexibility of the common law can permit developments of the law which may not have been envisaged in earlier cases. A good example can be found in terms of development of the protective jurisdiction over vulnerable adults as in Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867.”

55.  Mr Chain has submitted that there is parallel inherent jurisdiction in that if there are circumstances not covered by statute, the court has powers under its inherent jurisdiction to make protective orders.  In the present case, Mother has been declared to be a mentally incapacitated person within Part II of the Ordinance and although there are statutory provisions in the Ordinance for Mother’s protection, the provisions in the interim arrangements do not fall entirely within the ambit of section 10A of the Ordinance.

56.  Having regard to Re SA and In Re L, I am prepared to accept Mr Chain’s submissions that where there are circumstances not covered by statute ie the Ordinance, the court can invoke its inherent protective jurisdiction.

Conclusion

57.  For the above reasons, I am of the view that I have the jurisdiction/power to make the orders which I did, and which in my view, were/are for the bests interests and welfare of Mother in the interim pending the appointment of a guardian for her.

58.  Unless there is written objection received within 7 days hereof, these Reasons will be published and uploaded to the Legal Reference System.