In re Patient O

DCMP000959/2001

Headnote

Mental Health - Form 7 - Procedure - Patient liable to be detained - sections 31, 32, 36, 42A and 43 of the Mental Health Ordinance, Cap. 136 - Parts II, III, IVB and IVC of the Mental Health Ordinance, Cap. 136 - Guardianship of mental patients.

Patient O was certified on a Form 7 by two doctors as moderately retarded and a patient for health and safety reasons should be detained under section 36 of the Mental Health Ordinance, Cap. 136. In the Form 7, the doctors cited the patient as a patient "liable to be detained". At the time of submission of the Form 7, the patient was being detained under 31 of the Mental Health Ordinance, Cap. 136 for 7 days for observation.

Held : (1) Since the doctors certified that patient O exhibited aggressive and irresponsible behaviour before admission for observation but was placid duration observation, and section 365 (b) provides that in the case of persons who are not mentally disordered, that section only applies to such persons who are abnormally aggressive or seriously irresponsible, Patient O does not fall within section 36 and the procedure seeking his detention under that section was misconceived; (2) in addition, since section 36 (1) provides that doctors may invoke the procedure under this section if the patient is (a) a patient "liable to be detained (otherwise than under this section) or (b) a voluntary patient, section 36 does not create liability or authority for detention. Liability for detention must be derived from some other provision or authority obtained from the patient or the patient's guardian; (3) liability for long term detention for treatment pursuant to section 36 cannot be derived from liability for detention under sections 31 or 32 because liability for detention under sections 31 or 32 is for short term observation only. (4) since patient O was not a voluntary patient, and since no statutory provision other than section 36 has been shown to impose liability on Patient O for long term detention for treatment, section 36 procedure should not have been undertaken; (5) the legislature has by major amendments to the Mental Health Ordinance since 1988 created a scheme for guardianship of patients in similar situations like Patient O, steps should have been taken to have a guardian appointed under Part IVB who can give consent for treatment on behalf of Patient O, with such consent, Patient O becomes a voluntary patient within the meaning of section 36 (1) (b) and the procedure under section 36 can then be undertaken to have the patient hospitalized for long term.

For Reference

DCMP959/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 959 OF 2001

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In re Patient O

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Reasons for Decision

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On 22 March 2001 a magistrate signed a proforma order ("Form 3") pursuant to section 31 (1B) of the Mental Health Ordinance, Cap. 136 ("the Ordinance") whereby Patient O was detained at Castle Peak Hospital for not more than 7 days for observation. On 28 March 2001 a Certificate of medical practitioners as to mental disorder ("Form 7") relating to Patient O completed by two doctors pursuant to section 36 (1) of the Ordinance came to me for countersigning. As far as I can recall this was the second time ever since I became a District Judge in 1995 I had been requested to countersign a Form 7. The day before, i.e. 27 March 2001, I had my first case of Form 7 in relation to another patient - Patient L. I refused to countersign the Form 7 relating to Patient L because I did not think it was legally proper to do so. On this second occasion relating to Patient O, I saw the same legal problems. Rather than to refuse outright to countersign, I thought it would be prudent and fair to call for representation from the Hospital Authority which had care and management of Patient O and the Castle Peak Hospital and for assistance from the Official Solicitor as amicus curiae. An open court hearing was held on 12 April 2001 to receive representation and assistance. At the close of the hearing, I reserved my decision. I now render my decision and the reasons therefor.

2. The Form 7 is in these terms:-

To: *The Medical Superintendent,

Castle Peak Hospital

We, [names and addresses of two medical practitioners], registered medical practitioners, both of whom have been approved for the purpose of section 2(2) of the Mental Health Ordinance by the Hospital Authority within the meaning of the Hospital Authority Ordinance 1990 (68 of 1990) have separately examined [name of patient and identity card number] who is a patient liable to be detained in a mental hospital or in the Correctional Services Department Psychiatric Centre.

In pursuance of section 36 (1) of the Mental Health Ordinance we hereby certify as follows:

I, [name of first practitioner] last examined the patient on 26.3.2001.

In my opinion this patient is suffering from mental disorder of a nature or degree which makes it appropriate for *him/her to receive medical treatment in hospital. This opinion is founded on the following:

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

I am of the opinion that:

(a) the patient is abnormally aggressive; and

(b) the patient's conduct is seriously irresponsible.

I am of the opinion that it is necessary:

(a) for the health or safety of the patient; and

(b) for the protection of other persons,

that the patient should receive such treatment and it cannot be provided unless he/she is detained under section 36 of the Mental Health Ordinance of the following reasons:-

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

	............[Signed]............... Registered Medical Practitioner
	Date 26.3.2001

I, [name of second practitioner] last examined the patient on 27.3.2001.

In my opinion this patient is suffering from mental disorder of a nature or degree which makes it appropriate for *him/her to receive medical treatment in hospital. This opinion is founded on the following:

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

I am of the opinion that:

(a) the patient is abnormally aggressive; and

(b) the patient's conduct is seriously irresponsible.

I am of the opinion that it is necessary:

(a) for the health or safety of the patient; and

(b) for the protection of other persons,

that the patient should receive such treatment and it cannot be provided unless he/she is detained under section 36 of the Mental Health Ordinance of the following reasons:-

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

	............[Signed]............... Registered Medical Practitioner
	Date 27.3.2001

3. A number of matters in or absent from the Form 7 struck me as odd. First, there was no applicant who had conduct of or who could be held answerable for the initiation of the procedure. Secondly, the age of the patient was not given. Because the doctors referred to the patient as mister, I could only assume that Patient O is an adult male. Thirdly, there was no mention of the patient's family background, e.g. whether he had any next of kin or relative who could look after him or represent his interest. Fourthly, there is no mention of whether the patient had had the implications of the Form 7 explained to him or whether he would like to make any representation to the judge expected to countersign the Form 7. The Ordinance is silent on all these matters. Nor is there provision for the judge to ask to see the patient before he or she shall countersign. So, it would seem that Patient O or any other patient in the same situation can be detained for an unspecified period of time in a mental hospital on the signatures of two doctors and one judge against his wishes and without the chance of getting or making representation.

The Legislative Regimes

4. For reasons that will become apparent, I set out below in tabular form the legislative regimes for compulsory detention of mental patients under the English Mental Health Act 1983, under the Ordinance before it was substantially amended in 1988 to its present mode and under the current Ordinance. Then I will deal with the issues and counsel's arguments under separate headings. Finally, I will explain the reasons leading to my decision.

The Medical Issue

5. Patient O, according to the doctors, is not exactly mentally disordered as defined by the Ordinance. He is only moderately retarded. He was said to have exhibited aggressive behaviour before being detained for initial observation. But this can be hearsay, if not hearsay upon hearsay. If these allegations are in fact untrue and made up by some "normal, sane" person in order to get rid of a burdensome retarded charge, there is no clear way under existing laws for a countersigning judge to find out and, I suppose, the doctors are not better judges of fact. In any event, the alleged aggressive behaviour did not manifest during the time he was detained in Castle Peak Hospital for observation. The worst that the hospital doctors could say about Patient O was that he could not be engaged in meaningful conversation during the observation period. Mrs. Williams of the Official Solicitor's Office has pointed out that the court might justifiably query whether in the circumstances Patient O is an appropriate case for prolonged detention in hospital for treatment. But query does not mean power to hold an inquiry. A judge has to decide solely on the Form 7 and associated documents. Having regard to section 36 (5), in the absence of necessary medical opinion that Patient was abnormally aggressive or seriously irresponsible, I do not think section 36 can be applied to Patient O.

The Liability Issue

6. Leaving aside the specific psychiatric or psychological conditions of Patient O, there is a legal problem which I saw as fundamental and of general significance.

7. Section 36 (1) of the Ordinance commences with an "If". Doctors may certify their opinion under this subsection if the patient is liable to be detained. It is quite clear from the wording of this subsection that if a patient is not "liable to be detained", doctors cannot even begin to complete a certificate. The question then arises: who is a patient liable to be detained? Or, when is a patient liable to be detained? Prima facie, a patient liable to be detained is not a patient who is already lawfully detained. A patient liable to be detained, on a literal interpretation, should be one in circumstances wherein the law authorizes steps to be taken to hold him or her in detention. Granted for argument's sake that the state of the mental health of Patient O was such that he ought to be detained in a mental hospital for treatment, I could not see which law authorizes detention because section 36 (1) stipulates that the liability for detention must be otherwise than under this section. Moreover, according to section 32 (4), Patient O may not be detained after the expiration of the period (i.e. 7 days) of the order made on 22 March 2001 pursuant to the Form 3. Since Patient O being detained under section 31 could not be further detained when the period of detention under section 31 expires, he was conceptually not a patient liable to be detained.

8. Mr. Fung, counsel for the Hospital Authority, advanced a number of ingenious arguments. First, counsel pointed out that section 32 (4) is expressly "subject to section 36". Hence, if I understand the argument correctly, the procedure under section 36 per se renders the patient a patient liable to detention.

9. Secondly, counsel suggested that in the circumstances of Patient O, an application under section 32 to extend the observation period by a further 21 days or a fresh application under section 31 for observation for 7 days anew could be made, hence Patient O can be regarded as a patient liable to be detained.

10. Thirdly, according to counsel, it is settled law in England that when the managers [of a mental hospital] admit the patient to hospital, the patient becomes "liable to be detained" for the period specified. See : Mental Health Service - Law and Practice by Larry Gostin 1986 ed. para. 11.01. "In other words", counsel said, "so long as there is an existing order for detention of a patient under section 31 or 32, that patient is a patient liable to be detained".

11. Fourthly, one must read and consider other relevant sections in the Ordinance. To this end, counsel contended that sections 42A and 43 clarify the meaning of "liable to be detained" in section 36. On this point, Mrs Williams of the Official Solicitor's Office shared with Mr. Fung the same view. I think she put the "joint" argument most succinctly:-

'Section 2 (1) defines "certified patient" to mean a person who is detained in a mental hospital in accordance with the provisions of section 36. Section 39 refers to permission for a "certified patient" or a "patient under observation" to be absent from the mental hospital. Section 42A refers to "a patient who is for the time being liable to be detained" shall cease to be so if there is an order in writing discharging him from detention. Section 43 (1) states "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." Section 43 (2) provides "where a patient who is for the time being liable to be detained in a mental hospital under this Ordinance, escapes ......" Section 43 (3) provides "where a person who is for the time being liable to be detained under this Ordinance" then goes on to describe those who are absent on trial or on conditional discharge.

Reading the Ordinance as a whole, the legislative intent appears to be that persons who are "liable to be detained" are those who are detained and those who have been granted leave of absence under sections 39 and 42B.

This interpretation is reinforced by section 36 (4) which provides that "the procedures described in subsections (1) and (2) may be undertaken notwithstanding that the patient is detained under a hospital order or because he has been sentenced to imprisonment or is detained by an order of a court ......"

In other words, so long as there is an existent order of court for detention of a patient under either sections 31 or 32, that patient is a "patient liable to be detained".

Also refer to page 312 of R v. Hallstrom (No. 2) [1986] 2 All ER 306.'

Subject to section 36

12. The section 32 (4) "subject to section 36" argument, in my view, does not resolve the liability issue because section 36 is not self-efficacing. I accept that a patient who by virtue of section 32 (4) should no longer be detained at the expiration of the observation period can be further detained if a Form 7 is submitted under section 36 (and countersigned by a judge). But a section 36 procedure can only be undertaken if the patient is liable to be detained (otherwise than under this section). If a section 36 procedure cannot be undertaken because the patient is not liable to be detained under a provision other than section 36, the words "subject to section 36" in section 32 (4) is not operative and one is back to the main clause in section 32 (4) which stipulates that the patient must be released upon expiry of the observation period and so renders the patient no longer liable to be detained.

Liable to detention under sections 31 or 32

13. I cannot accept for a moment that if an application can be made under section 31 or 32 to detain a patient the patient becomes a patient liable to be detained for the purposes of section 36. By definition, an application under section 36 envisages detention of a patient for treatment and for unspecified (in fact prolonged) period. Detention under section 31 or 32 is meant to be for specific short period of observation. Of course sections 31 and 32 permit treatment but there is no doubt that the primary purpose of these two sections is detention for observation. It would be a contortion of legislative purpose to force a patient to accept treatment for a prolonged period under section 36 if the application under section 36 is mounted on the basis that the patient is liable to be detained for a short period for observation. Ex hypothesis, when an application under section 36 is being made, the need for observation has evaporated and is already substituted by the need for treatment.

14. I derive support for purposive interpretation from the judgment of McCullough J. in R v. Hallstrom at 315-6:-

"During the argument attention was focused on the word "detained" in the phrase "such treatment ...... cannot be provided unless he is detained under this section" in s. (3)(2)(c). Counsel for the applicants relied on the fact that "detained" was used rather than "liable to be detained", whereas counsel for the doctors submitted that "detained" could be regarded as the equivalent of "liable to be detained". It depends on how one reads the phrase. If one reads it as "such treatment cannot be given unless he is then under detention" it is possible without violation to the meaning of words to embrace those then liable to be detained but not then detained. However, if one reads it as "such treatment cannot be given unless he has first been detained under the section (or is first detained under the section)", the submission of counsel for the doctors is realistic. The submission of counsel for the applicants is, in my judgment, preferable, not so much because of the wording of s. (3)(2)(c) itself, but because it is consistent with the meaning of "admission for treatment" and of "treatment in a hospital" and with the intention of the section as a whole.

Reference to two other sections in the 1983 Act assists. One is s. 13. Section 13 (1) obliges an approved social worker to make an application for admission to hospital where he is satisfied that one should be made and that it is proper for him to make it. Section 13 (2) requires him, inter alia, first to -

"...... satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stand in need."

The "detention" there referred to cannot realistically include a purely nominal period before leave of absence is given, after which the treatment of which the patient stands in need is to begin. Parliament must have been directing the social worker's attention to the patient's need for in-patient treatment.

The other is s. 2 of the 1983 Act, which deals with 'Admission for assessment' and enables a patient to be detained for up to 28 days. One of the necessary requirements of s. 2 is that the patient's condition warrants his detention in a hospital 'for at least a limited period' (see s. 2 (2) (a)). No corresponding phase appears in s. 3. Since s. 3 is the provision dealing with longer term detention (six months initially as against 28 days), the omission is only explicable on the basis that it never occurred to Parliament that it needed to be said. Here again is an indication that Parliament intended s. 3 to be for those who needed treatment as in-patients.

I am reinforced in my view of the construction of s. 3 of the 1983 Act by a comparison between it and the corresponding provision of the 1959 Act, s. 26. Under s. 26 the mental disorder had to warrant the detention of the patient in a hospital for medical treatment. Under s. 3 (2) (a) it has to be appropriate for him to receive medical treatment in a hospital. Under s. 26 (2) (b) it had to be necessary that the patient should be so detained, i.e. detained in a hospital for medical treatment. Under s. 3 (2)(c) this second requirement is split into two: it must be 'necessary that he should receive such treatment' (i.e. treatment in a hospital) and it has to be shown that it (i.e. the treatment) cannot be provided unless he is detained under the section. Parliament must have made the changes advisedly. I conclude that Parliament wished to emphasise that the justification for the detention is the need for the treatment which is to be provided during the detention. (Emphasis added).

The point made by McCullough J. is quite clear : one cannot justify prolonged detention for treatment by relying on statutory authority for interim detention for observation.

Settled English Law

15. The passage in Mental Health Service - Law and Practice relied upon by Mr. Fung reads:-

'It is only when the managers admit the patient to hospital that he becomes liable to be detained for the period specified in Part II - i.e. 72 hours (s. 4), 28 days (s. 2), or six months subject to periods of renewal (s. 3). Once a person is liable to be detained he can be retaken within a period of 28 days if he escapes (s. 138) or is absent without leave (s. 18) ......'

16. It will be remembered that the term 'liable to be detained' is nowhere to be found in sections 4, 2 or 3 of the English Mental Health Act 1983. The term appears in, for instances sections 138 and 18 of that Act in the context of patients still the subject of a detention order but is for the time being either lawfully or unlawfully at large. The expression 'liable to be detained' is used in sections 138 and 18 of the Mental Health Act 1983, instead of simply 'detained', because those patients who are for one reason or another not actually under detention cannot be regarded as being 'detained'. See the judgment of McCullough J. at 312 quoted post. Patient O is actually being detained. Hence he is not a patient "liable to be detained" in the context of sections 138 and 18 discussed by the learned author of Mental Health Services - Law and Practice.

17. Incidentally, this (third) argument somewhat overlaps the fourth argument of Mr. Fung that is supported by Mrs. Williams.

"Liable to be detained" explained by sections 42A, 43, etc.

18. I have already pointed out that the expression "liable to be detained" in section 43 of the Ordinance (the equivalent of sections 138 and 18 of the Mental Health Act 1983), according to McCullough J., refers to a patient who is not actually under detention. That section authorizes recapture of a patient but only if that patient is still liable to be detained. This is what McCullough J. in fact said at 312:-

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

Each term appears many times in the 1983 Act. In a very few places it may be that the less apt term has been used but, reading the Act as a whole, the distinction between them and their meaning are clear and, unless there are strong indications to the contrary. Parliament must be taken to have been deliberate in its choice of the one term rather than the other.

19. Because McCullough J. observed at the end of the first paragraph quoted that "those 'liable to be detained' are, therefore, those who are detained and those who have been granted leave of absence", one may be tempted to think that the learned judge had in mind four types of patients who are 'liable to be detained':-

(1) a patient in respect of whom authority to detain has come into existence but who has not yet been brought under detention;

(2) those patients absent without leave;

(3) those who are detained and

(4) those who have been granted leave of absence.

20. However, reading the two quoted paragraphs together and other parts of his judgment to be quoted hereafter, it is abundantly clear that McCullough J drew a careful distinction between "liable to be detained" and "detained". I think the learned judge meant that the word "and" in the last clause of the first paragraph quoted should be read conjunctively so that there are only three types of patients "liable to be detained".

21. Mr. Fung contended that because in section 42A(1) of the Ordinance "an order in writing discharging him from detention" can be made in respect of a patient who is for the time being "liable to be detained", a patient "liable to be detained" must also include a patient being "detained". The equivalent provision in the Mental Health Act 1983 is section 23. In this regard, McCullough J has already defused Mr. Fung's argument by two short sentences. But, to illustrate the peculiar hazards of relying on the terms "liable to be detained" and "detained" in other so-called relevant provisions in the Mental Health Act 1983 as aids to interpretation, the pertinent part of the judgment of McCullough J at 316-7 is reproduced in extenso below:-

"Section 20 of the 1983 Act

Counsel for the applicants submits that the renewal provisions of s 20 can have no application to patients who have been detained but who are on leave of absence (except perhaps those who are coming to the end of a finite period of leave). He submits that it cannot be said of such a patient that he needs treatment which cannot be provided 'unless he continues to be detained' (which is a requirement of s 20(4)(c), nor in the case of such a patient could be responsible medical officer furnish a report to the managers of 'the hospital where the patient is detained' (which is a requirement of s 20(3)(b)).

Counsel for the doctors and counsel for the hospital managers, on the other hand, submit that the word 'detained' in each of these cases should be read as 'liable to be detained' and they point to the fact that the first few lines of s 20(3) require the responsible medical officer to examine not merely those detained but those 'liable to be detained'. In support of their argument that 'detained' should not be read literally in the second and third places where it appears, counsel point to other places in the 1983 Act where the inapt phrase appears to have been used. If there, why not here? Take, for example, s 23(1), which deals with discharge. This says that

'a patient who is for the time being liable to be detained ... shall cease to be so liable ... if an order in writing discharging him from detention ... is made ...'

The word 'detention' is inappropriate. It clearly means 'liability to detention'. Section 72 also deals with discharge. As s 72(1) shows, it concerns those 'liable to be detained', but in s 72(2) the only reference is to a patient 'detained'. Presumably this is to be taken as covering one on leave of absence and only 'liable to be detained', for discharge means not merely discharge from hospital but discharge from the authority to detain. Counsel for the hospital managers suggested that s 117 (which deals with after-care) was another place where 'detained' meant 'liable to be detained'. I am not convinced of this. But, given that there are places where the less apt phrase may have been used, the question remains why should 'detained' not bear its ordinary meaning in s 20(3)(b) and in s 20(4)(c)?

The predecessor of s 20 was s 43 of the 1959 Act. This was a shorter but similar provision. In it 'liable to be detained' appeared in all three places. Those to be examined in the last two months were those 'liable to be detained'. The responsible medical officer had to see whether it was necessary from the patient's health or safety, or for the protection of others, that the patient should 'continue to be liable to be detained' and, if so, he had to furnish his report to the managers of the hospital where the patient was 'liable to be detained': s 43(3) of the 1959 Act. So Parliament advisedly altered the phrase at the second and third places where it had appeared. This must be a strong indication that Parliament intended 'detained' to mean what it said in s 20(3)(b) and (4)(c). Add to this the fact that s 20 is a provision which infringes the liberty of the subject and it becomes virtually impossible to construe 'detained' in any other sense.

There is a further reason for saying that this is correct. The criteria for the renewal of authority to detain, as set out in s 20(4), are substantially the same as those for the initial authority to detain in s 3(2). (Such differences as there are concern the need to show that the necessary treatment is likely to alleviate or prevent a deterioration of the patient's condition. This varies according to the category of mental disorder. I need not spell out these differences, as an examination of them does not help to resolve the point in issue. It is enough to say that for those suffering from psychopathic disorder and mental impairment the test is the same in the two sections; for those suffering from mental illness it is somewhat harder to obtain an authority to renew under s 20 than an authority to detain initially under s 3, and for those suffering from severe mental impairment the reverse in the case.) Section 20(4)(a) exactly matches s 3(2)(a), i.e. the mental disorder must be of a nature or degree which makes it appropriate for the patient to receive medical treatment 'in a hospital'. Section 20(4)(c) exactly matches s 3(2)(c), save for a difference in the last four or five words occasioned by the fact that the two sections are concerned with different times. Section 3, as I have held, is concerned with patients whose mental condition is believed to require in-patient treatment. The similarity of language between it and s 20 suggests that it too is concerned with those who are believed to require in-patient treatment. This tends to confirm that Parliament did not intend that the provisions for renewal should embrace those liable to be detained but not in fact detained.

These considerations demonstrate that, whatever may be the explanation for the fact that 'liable to be detained' was not changed in the first place where it appears in s 20(3) of the 1983 Act, the submission of counsel for the applicants on the meaning of the word detained' in s 20(3)(b) and (4)(c) is good." (Emphases added)

22. In as much as the terms "liable to be detained" and "detained" have been used less aptly in some provisions in the Mental Health Act 1983 and the Ordinance, McCullough J has made it quite clear that the two expressions should not be confused and they represent different concepts. If I may elaborate, "detained" refers to the physical circumstances in which the patient is placed, "liable to be detained" refers to the legal status of the patient. Perhaps in some cases a patient being detained is also a patient liable to detention, but that would be due to the patient's physical circumstances as a result of the operation of one law coincidental with his or her legal status on account of another law. However, in the instance where McCullough J read "detention" as "liability to detention", it was a correction of faulty diction leaving no doubt that the terms are not even partially interchangeable.

23. Contrary to the view taken by Mr. Fung and Mrs. Williams, I derive support from section 36(4) of the Ordinance for the proposition that patients "liable to be detained" do not include those being detained. That subsection provides that application under section 36 can be made "notwithstanding that the patient is detained under a hospital order ...." If "liable to be detained" includes simply "detained", there would be no need to have section 36(4) enabling patients already being detained under, say, a Hospital Order to be made subject of section 36 procedure. But I hasten to add that section 36(4) does not create liability for detention; all that provision says is that section 36 procedure may be undertaken for patients already detained under a hospital order, etc. Those patients still have to be a patient "liable to be detained (otherwise than under this section)" before the section 36 procedure can be undertaken.

The legislative intention of the Ordinance

24. I am well aware that I have adopted a restrictive interpretation of section 36 by insisting that it is a procedural provision rather than a provision creating liability. I think a narrow interpretation is justified. In R.v. Hallstrom, McCullough J at 314 said :-

" Alternatively, counsel for the doctors submits, if the meaning of s 3 is ambiguous, the construction for which he contends should be adopted because it enables doctors in such a situation to do what is, in accordance with good modern psychiatric practice, in the best interests of patients like Miss W, i.e. treat them in the community, but compel them to accept the medication which their condition requires, but which, because of their illness they do not think they need and therefore refuse.

There is, however, no canon of construction which premises that Parliament intended that people should, against their will, be subjected to treatment which others, however professionally competent, perceive, however sincerely and however correctly, to be in their best interests. What there is is a canon of construction that Parliament is presumed not to enact legislation which interferes with the liberty of the subject without making it clear that this was its intention.

It goes without saying that, unless clear statutory authority to the contrary exists, no one is to be detained in hospital or to undergo medical treatment or even to submit himself to a medical examination without his consent. This is as true of a mentally disordered person as of anyone else."

25. Mr. Fung for the Hospital Authority assured me that there are safeguards against abuse of section 36 procedure. The court should have no fear that, in the worst case scenario, persons who are perfectly sane would be put away on the pretence that they are mad. Again, McCullough J has anticipated such argument for the learned judge further observed at 314-5 that:-

" In support of the interpretation for which he contends, counsel for the doctors drew attention to what he called the various checks and controls which are built into the 1983 Act in order to preserve a proper balance between the interests of patients not to be detained against their will or assault (for example by way of injections to which they do not consent) and the interests of society as a whole in granting to doctors a combination of powers which gives them flexibility in providing appropriate treatment for those mentally disordered. In this connection he instanced not only the various ways in which an authority to detain a patient may be discharged, to which I have earlier referred, but, the need for two doctors to be able to say that the conditions of s 3 are met, the obligation on them to give reasons for their opinion (s 3(3)), the fact that the patient's nearest relative can prevent a social worker from making an application for admission under s 3(s 11(4)), the fact that a social worker who does so apply must first consult the nearest relative (s 11(4)), the fact that if the application is made by the nearest relative, a social worker must, as soon as practicable, interview the patient and report to the hospital managers on his social circumstances (s 14), and so on.

In my judgment, these provisions do not help to construe the sections with which this case is concerned. Each of these checks and controls in its compatible with the construction of counsel for the applicants as with the construction of counsel for the doctors."

26. Mrs. Williams advised the court that there is an additional safeguard for persons like Patient O. Under section 59B of the Ordinance, "an application may be made to the tribunal for the review of the case of any patient liable to be detained". This sounds comforting but, as McCullough J has already observed, does not help to explain who is a patient liable to be detained. Also, this is a right to apply for review after a decision has been made to detain the patient liable to be detained and this right cannot be exercised until the patient has already been detained for at least 12 months. See section 59B(5). I should also point out that this right may well be meaningless to a patient who has no relative and no guardian and who is certified by doctors to be incapable of looking after his or her own interests.

27. In my view, section 36 is not an ambiguous provision. It unambiguously stipulates that the patient has to be either a voluntary patient or a patient liable to be detained (otherwise than under this section) before the procedure leading to prolonged detention for treatment can be undertaken.

28. Moreover, I believe that a narrow interpretation accords with legislative intention. Before the Ordinance was substantially amended in 1988, three categories of patients could be countersigned for detention under section 36. Those types, under the old section 36, were "patient under observation", "a voluntary patient" or "a temporary patient". The category of "temporary patient" has been abolished. The category of "voluntary patient" is preserved in the current section 36. But what happened to the category of "patient under observation"? Mr. Fung contended that "patient liable to be detained (otherwise than under this section)" is "patient under observation". But if this is correct, why did our legislature not use the same lean and clear expression "patient under observation" but instead a convoluted formula? The removal of "patient under observation" per se indicates that our legislature considered that "patient under observation" are no longer subject to section 36 procedure.

29. Section 36(1)(b) reinforces the view that section 36 does not create liability for detention. Voluntary patients are the other category of patients in respect of whom section 36 procedure may be undertaken. A voluntary patient is one in respect of whom authority (independent of section 36) for hospitalization has been obtained. The health or safety condition that doctors have to certify is the same for a voluntary patient as well as other patients liable to be detained. So a parallel becomes clear. Before section 36 may be invoked, either consent (i.e. contractual authority for hospitalization) or liability (i.e. statutory authority for hospitalization) must be existent; in either case the authority must be independent of section 36. Put in another way, the categories of "patient liable to be detained (otherwise than under this section)" and "voluntary patient" are pari passu and indicate legislative intention that authority extraneous to section 36 for hospitalization must be found before section 36 can be invoked even though there is health or safety reason for the patient to be detained in hospital for long term treatment.

30. It may be argued that our legislature intended to use a new formula to embrace several categories of patients, such as "patient under observation" and others that we can think of. I do not accept such argument as good because it has been seen that our legislature saw the need for section 36(4) introduced as part of the 1988 amendments to include more categories of patients as those who may be subject to section 36 procedure. Section 36(4), incidentally, covers patients who are already at the wrong end of criminal procedure. The expression "or detained by an order of a court", in that subsection, in accordance with the well established ejusdem generis rule of construction, should not be interpreted as referring to patients detained by an order of a court under sections 31 or 31 of the Ordinance which have nothing to do with criminal procedure.

31. Question then arises: given that there is a clear need for some mental patients to be compulsorily detained for treatment even though they would not or cannot give consent, why should our legislature made it no longer possible to have them detained for treatment? The short answer is, I think, our legislature has done better.

32. It is true that, as both Mr. Fung and Mrs. Williams have pointed out, there was no discussion at all during the Legislative Council debate in 1988 pertaining to the amendment to section 36(1) replacing "patient under observation" with "patient liable to be detained (otherwise than under this section)". In my view, it is extraordinary that all the honourable members of the Council, who spoke about the danger of classifying mentally handicapped persons as mentally disordered and the risk of police abusing their power to take into custody persons suspected of being mentally disordered, did not in 1988 notice the drastic and uncertain change of wording proposed for section 36(1). I suspect there might be a conspiracy of silence at the time because the overhaul of the Ordinance then was done in advance anticipation of Hong Kong reversion to Chinese sovereignty. There might be the fear, now proven to be unjustified, that if the Ordinance was not fundamentally revamped in respect of compulsory detention of mental patients, the old provisions could be abused by a totalitarian regime taking over Hong Kong in due course.

33. The key to the new regime for compulsory detention of mental patients in Hong Kong, I believe, can be found in the new provisions for guardianship of mental patient. Before the 1988 amendments, there was already Part II of the Ordinance whereby the interests of mentally incapacity persons can be protected by invoking High Court jurisdiction as a Court of Protection. The 1988 amendments strengthened and put more safeguards in Part II of the Ordinance. In addition, four new sections, i.e. sections 33, 34, 35 and 35A in place of previous dissimilar ones, were inserted into Part III of the Ordinance. These new provisions created an entirely new scheme for guardianship of mental patients in conditions that would justify prolonged detention for treatment under section 36. Under this new scheme, a relative or the Director of Social Welfare could be the guardian. The guardian, it must be noted, had statutory power to give consent to treatment of the patient in mental hospital.

34. Given that there was already similar procedure under Part II of the Ordinance, one should think that the new guardianship scheme in Part III would be an unnecessary duplication or, perhaps, a new device that undercuts the protection built into the Part II regime because it is simpler to appoint a guardian under Part III. I believe the Administration and the Legislative Council did not at the time immediately realize that the new guardianship regime would undercut the Part II regime. But the intention of the Legislative Council in affecting the 1988 amendments now becomes clear. A new protocol was introduced into Part III. After 1988, a mental patient could still be detained for observation for a prescribed short period of time. Once it became apparent that prolonged detention for treatment is necessary, whereas previously the patient could be signed off to hospital, since 1988 a guardian should intervene. The guardian, being either a relative or the Director of Social Welfare, is supposed to look after and protect the interest of the patient, and so can be safely entrusted with power to give consent for long term treatment of the patient in a mental hospital. The patient becomes a voluntary patient because of consent given on his behalf. But that is not the end of the matter. To further protect the patient, section 36 procedure applies to a voluntary patient too. So even when there is consent by a guardian with statutory authority, a mental patient cannot be detained unless two doctors have signed a certificate and a judge has countersigned the certificate.

35. Before any one says that my understanding of the 1988 amendments is far fetched, I should point out that the Administration was not even satisfied with the guardianship scheme introduced in the 1988 amendments. In January 1997, the Administration introduced a bill to further amend the Ordinance. That bill was rushed through just a few days before the 1st July 1997 changeover. The governor at the time gave his assent to the amendments on 26 June 1997! The 1997 amendments now appear as Part IVB and IVC of the Ordinance. In essence, the 1988 guardianship scheme was re-modelled in 1997 to bring in a statutory, quasi-judicial Guardianship Board under Part IVB of the Ordinance. I do not know if the 1988 Part III guardianship scheme operated as I believe it should. If the scheme did operate as I believe it should, perhaps the executive departments charged with implementing the scheme failed to grasp our legislature's real intention. Nevertheless, the 1997 Part IVB Guardianship Board is already constituted and fully operational. The Board can consider emergency and less urgent applications for appointment of guardian. The Board supervises the guardian. There is procedure for appeal to the High Court against orders of the Guardianship Board. So there are now two more layers of judicial safeguard for the mental patient under guardianship. The guardian can give consent for treatment and special treatment of the patient under Part IVC of the Ordinance.

36. In the light of the persistent, consistent and elaborate provisions built into the Ordinance since 1988 to safeguard the interests of mental patients whether or not they can or would give consent for treatment, our legislature should not be taken to have intended to preserve the pre-1988 system of detaining a mental patient for up to a year on three signatures obtained through a paper mill.

37. In my view, it makes a lot of sense and it is a wise policy to introduce a guardian as the Ordinance has stipulated. A mental patient requiring long term treatment in a mental hospital may leave behind affairs that need taken care of. Even when the patient has very little money or asset, he or she may have a rented room, personal effects, social security payment, etc. etc. If the patient has a relative, the relative often needs the status and authority as a guardian to help the patient tidy these loose ends. If the patient has no relative at all, it is all the more important that a social worker be appointed guardian to hold over things for the patient. My sense of the sentiment of doctors who signed the Form 7 is that they are genuinely desirous of seeing that the patient gets proper treatment. I admire them. I hope they appreciate by now that, quite apart from the requirements of the law, it is not a satisfactory arrangement to have a patient abruptly pulled into a mental hospital, treated for a few months or years, then discharged only to find that he or she no longer has a roof over the head or all his or her treasured belongings (especially souvenirs and old photos or family jewelry) untraceable? I am sure that there are social workers stationed in hospitals and in out-of-hospital offices who have been helpful with mental patients processed under Part III of the Ordinance. But if these social workers are not properly appointed guardian, and there is no relative constituted as guardian, the patient is in effect in legal limbo. A guardian appointed before the patient is forcibly taken into mental hospital would ensure that the patient's affairs will be attended to with lawful authority and safeguard all through the time of treatment and the guardian has to prepare for the patient's adjustment back to normal life after discharge from hospital. Social medicine is just as important as psychiatric medicine for rehabilitation.

38. Since most of the patients requiring compulsory detention in mental hospital for treatment should through the intervention of a guardian qualify as a voluntary patient under section 36(1)(b) of the Ordinance, one might ask when would one ever find a "patient liable to be detained (otherwise than under this section)" per section 36(1)(a)? The formulation "patient liable to be detained (otherwise than under this section)" is unprecedented when compared with sections 2, 3 and 4 of the Mental Health Act 1983 or its predecessors in the Ordinance. It may or may not be ill drafted. In my view, courts are under no obligation to justify the existence of such isolated legislative novelties.

Conclusion

39. For all the reasons given, I hold that a patient detained under section 31 or 32 of the Ordinance for a specific period for observation is not per se a patient liable to be detained within the meaning of section 36(1) of the Ordinance. Section 36 of the Ordinance does not create liability for detention.

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

41. In the instant case, it is not appropriate, on both medical and legal grounds, to order detention of Patient O under section 36 of the Ordinance. The Form 7 relating to Patient O was misconceived.

42. Mrs. Williams of the Official Solicitor's Office has indicated that her office gladly assists the court as amicus curiae and would not seek an order to cover the costs of her office. I, therefore, make no order as to costs.

43. I take this opportunity to express my heartful gratitude towards Mrs. Williams of the Official Solicitor's Office and Mr. Fung for their courtesy and assistance extended to the court. They have in fact did in depth research

which so clarified other issues that consequently I have had no need to mention.