DIRECTOR OF SOCIAL WELFARE v. OFFICIAL SOLICITOR

HCMP 44/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 44 OF 2004

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REASONS FOR RULING

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1. This is an application for the appointment of a committee in respect of the estate of an old lady, whom I shall call Madam A under Part II of the Mental Health Ordinance Cap. 136. I have handled quite a number of these applications recently and it seems to me that there is a need for clarification as to the proper procedures to be followed. I would therefore set out my views on some procedural aspects of applications under Part II of the Mental Health Ordinance in this Reasons for Ruling. It is hoped that it would be of some help to the legal profession. Hence this Reasons for Ruling would be handed down in open court with the name of the patient edited to conceal her identity.

2. In respect of an inquiry as to whether a person is incapable, by reason of mental incapacity, of managing and administering his property and affairs, the scheme of Part II of the Mental Health Ordinance envisages a two-stage process. The first stage is to seek directions for an inquiry to be held (Section 7). The directions can also define the scope of the inquiry and that could encompass inquiries concerning the nature of the property belonging to the alleged mentally incapacitated person, the persons who are his relative or next-of-kin and other questions (see Section 7(2)).

3. After directions have been given and a date of inquiry is obtained pursuant to the directions, notice as to the time and place for the inquiry would have to be given in accordance with Section 8. Then at the inquiry, the Court could decide the questions as to which the inquiry has been directed under Section 10. If it is satisfied that the person is mentally incapacitated, the court could then exercise the powers under the other sections in Part II regarding the affairs and property of the person, including but not limiting to the appointment of a committee.

4. On many occasions, the applicants of these applications came to this court to ask for the first call-over hearing of the originating summons be treated as the inquiry. I have a conceptual difficulty with such an approach. Since the scheme of the ordinance involves a two-stage process and in between the two stages, Section 8 expressly provides for notice of the inquiry being given, acceding to such a request would in effect merge the direction and inquiry together and ignore the requirement of Section 8.

5. I understand very often parties wish to save unnecessary costs and they have no intention of side stepping the requirement under Section 8. However, I do not think that is a sufficient reason for proceeding in a manner inconsistent with the scheme of the ordinance. The direction stage is important because at that stage, the court should at least consider the following aspects of the case,

(a) whether there is at least prima facie evidence to justify an inquiry as to the allegation of mental incapacity;

(b) having regard to the facts of the case as revealed in the information before the court, what should be the proper scope of the inquiry and what questions should be considered thereat. For that purpose, the court should consider whether directions should be given pursuant to Section 7(2). These should be clearly identified since the court's duty at the inquiry is to decide these questions (see Section 10(1));

(c) what other evidence should be placed before the court for the purpose of the inquiry (see Section 7(5) and (6));

(d) directions as to the conduct of the inquiry, e.g. whether the doctors are required to attend the inquiry and whether the alleged patient should be ordered to attend an examination under Section 9;

(e) whether an order for substituted service of the notice of the inquiry should be made under Section 8(1) and whether such notice should be given to any relative of the person under Section 8(2). In this connection, one should note the definition of the term "relative" under Section 2. It includes any person with whom the mentally incapacitated person resides or has resided.

The court has to consider all these before the inquiry could be held.

6. If there is a need to make immediate provision for matters under Section 10A(1), the court can also make an order pursuant to Section 10D at the direction stage.

7. Hence, I am of the view that it would not be appropriate to merge the two stages. However, it does not necessarily mean that there has to be two hearings. I shall come back to this later.

8. Another problem which often arises is who should be the parties to the application. Section 7(3) only deals with who can make the applications. The ordinance is silent on who should be the respondents, if any. In my experience, some applicants named the person alleged to be mentally incapacitated to be the respondent. That triggers the question who could acknowledge service and give instructions on behalf of the respondent, who in many cases would probably be a person under disability. There are cases in which someone holds out to act as the guardian ad litem of the person under disability pursuant to Order 80 Rule 3.

9. In my judgment, this is wrong. To start with, one of the subject matter of the inquiry is the mental capacity of the person. This is the question that has to be decided in the inquiry. On the other hand, Order 80 Rule 3 starts from the premise that the person for whom the guardian ad litem could act is a person under disability. Hence, it is inherently unsound to evoke Order 80 Rule 3 in an application for inquiry. Further, the requirement under Order 80 Rule 3(8)(c)(i) implies that the guardian ad litem could only act on the basis that he accepts the person for whom he appears as guardian ad litem is mentally incapacitated. With such restriction, it is difficult to see what is the point of having an guardian ad litem to appear on behalf of the patient at the inquiry.

10. Moreover, the provisions of the Mental Health Ordinance seem to envisage that the person alleged to be mentally incapacitated need not be joined as a party in the first place. Hence, Section 8 prescribed for notice to be given to that person. This section would be otiose if the person is already a party to the proceedings. Of course, if the person wishes to join himself as a party after notice of the inquiry has been served on him, the court can entertain his application for joinder. Further, unless specifically directed by the court, it is not absolutely necessary for such person to attend the inquiry so long as the other evidence as to his medical condition is adequate. He could of course attend if he so wishes.

11. In other cases, the applicant joined the Official Solicitor as the respondent to the application. In the present case, the Official Solicitor was joined because the applicant seeks an order appointing the Official Solicitor as the committee. In my judgment, it is unnecessary to join the Official Solicitor as parties to the proceedings if the purpose is to appoint him as the committee. It is the statutory duty of the Official Solicitor to act as the committee if he is so appointed by the court under the Mental Health Ordinance (see Section 4(1)(a) of the Official Solicitor Ordinance Cap. 416). In any event, I do not find anything in the Mental Health Ordinance to suggest that the intended committee needs to be joined as a party to the proceedings. In principle, I fail to see why it is necessary.

12. There have been suggestions that the Official Solicitor might be joined as guardian ad litem for the alleged mentally incapacitated person. I think that is also incorrect. The Official Solicitor would only become the guardian ad litem for a party when he was so appointed by the court (see Section 4(1)(a) of the Official Solicitor Ordinance). For reasons already canvassed, I do not think it is appropriate to evoke Order 80 for the purpose of an inquiry under Part II of the Mental Health Ordinance.

13. In some cases, the proceedings were brought by an ex parte originating summons. Practice Direction 5.8 provides that ex parte originating summons is to be used only when they are authorized or required by the Rules or any statutory provision. The Rules of the High Court and the Mental Health Ordinance are silent as to whether the originating summons should be taken out on an ex parte basis. Is it impliedly authorized?

14. In my judgment, the answer is yes. Given my earlier conclusions as to the lack of necessity to join the person alleged to be incapacitated or the intended committee or the Official Solicitor as parties (and by parity of reasoning, there is also no need to join the relatives since Section 8 provides for notice to be given to them as the court may direct instead of they having to be joined as a party in the first place), it is difficult to see whom should an applicant join as a respondent. The jurisdiction under Part II is akin to the jurisdiction exercised by the Court of Protection in England. Such proceedings are not adversarial litigation. A comparison with the practice of the English Court of Protection will show that similar applications are made in England on ex parte basis.

15. I think this is precisely what is envisaged by the legislature under Part II of the Mental Health Ordinance. Hence, there is a need for the court to consider giving directions as to notice under Section 8.

16. However, in view of the two-stage process, I am of the view that a hearing date for the inquiry should not be given until directions have been given by the court under Section 7. To allay parties' concern for costs, I see no reason why, given its ex parte nature, directions could not be given on paper applications. Henceforth, it would be more appropriate for parties to modify Form 11 in an ex parte application for directions under Section 7. Unless a party wish to have a hearing for Section 7 directions (e.g. when owing to the special circumstances of the case, the applicant wishes to have a hearing to seek some special interim orders or directions), there should not be any date of hearing marked on the originating summons. Instead, a set of draft directions should be submitted together with the originating summons for the court's consideration. The court will deal with the application and give directions on papers. Of course, the court can always direct that the matter be listed for hearing if it considers that it is necessary.

17. By virtue of the fact that it is an ex parte application, and give the nature of this jurisdiction, applicants and solicitors acting for them should provide the court with all the relevant and necessary information to enable the court to give proper directions. In the preparation of the draft order, consideration should be given to each and every matter set out in Paragraphs 5 and 6 above. The evidence of the relatives or next-of-kin and the property of the mentally incapacitate person and the medical certificates referred to in Section 7(5) are only the statutory minimum. Depending on the facts of the case, there could be other matters which have to be addressed and evidence relevant thereto should be furnished. It is the duty of the applicants and those advising them to investigate into the facts of the case thoroughly and give careful thoughts as to the evidence placed before the court to ensure that the court is well informed.

18. They should also consider the substantive relief that they are inviting the court to grant upon the inquiry. Appointment of committee is only one of the many possible options, the Court is given wide power under Part II of the Mental Health Ordinance in respect of the property and affairs of a mentally incapacitated person, see in particular the general provision under Section 10A. In respect of a mentally incapacitated person with a medium or small estate and where the objective is to facilitate the use of such asset for the maintenance of the person and his family, consideration should be given to the relief provided for under Sections 24 and 25 of the ordinance instead of an appointment of a committee. Another alternative is guardianship, see Section 26A and Part IVB of the ordinance.

19. If it is decided that it would be appropriate to seek the appointment of committee, the court will need to have information about the suitability of the proposed appointees having regard to the affairs and properties of the mentally incapacitated person that they are going to administer.

20. It follows that full information should be included in the evidence as to the three specific matters identified under Section 7(6) as "evidence of the relatives or next-of-kin and the property". At the risk of repetition, I remind applicants and practitioners the special definition of "relatives" under Section 2. As regards the medical evidence, I also wish to highlight the requirement under Section 2(2) of the Ordinance. Although the statutory minimum only refers to certificates to the effect that the mentally incapacitated person is incapable of managing and administering his property and affairs, it is always a better practice to provide full medical reports concerning the persons. Otherwise, the court might feel that it should hear oral testimony from the doctors at the inquiry in order to get a full picture as to the medical condition of the persons involved. In other words, the contents of the medical evidence before the court will have a bearing on whether doctors' attendance at the inquiry could be dispensed with.

21. According to Section 7(6), information should also be provided in respect of the property and affairs of the mentally incapacitated person. Thorough investigations by an applicant and those advising him is necessary before they file an application. If there are difficulties encountered by them in that regard and if there are reasons for believing that some other parties are controlling or hiding assets of such a person or otherwise financially abusing or taking advantage of such a person, it should be brought to the attention of the court and appropriate directions and interim relief could be given.

22. If it is a case where the alleged mentally incapacitated person is in such a state that personal service on him would be ineffectual, Section 8(1) provides for substituted service. It is necessary to note that the section refers to substituted service instead of dispensing with service altogether. Hence, the court does not have the power to dispense with service. Instead, it should consider substituted service.

23. Before substituted service is directed, it must appear to the court that personal service would be ineffectual due to the state of the mentally incapacitated person. Effectual in this context must be considered against the objective of the notice, viz. bringing the inquiry to the attention of the mentally incapacitated person. A person who has no mental capacity to manage or administer his property and affairs might still be able to comprehend a notice of the inquiry. It would not be appropriate to direct substituted service in that case.

24. The present case is a good example. At the hearing of 20 February 2004, Madam A was in court and I have a brief dialogue with her. It appears to me that she could apprehend the nature of the present proceedings and she could certainly understand a notice as to the time and place of an inquiry. I therefore refused the request for substituted service. Originally, the request by the Applicant was for service to be dispensed with. For reasons already given, the court has no power to dispense with service under Section 8.

25. If substituted service on the mentally incapacitated person (as opposed to substituted service on relatives) has to be considered, it should not be the same kind of substituted service which one usually orders in civil litigation. This is because the proviso in Section 8(1) starts with the premise that substituted service on the mentally incapacitated person is to be directed when personal service on him would be ineffectual by reason of his condition. Hence, it would be futile to order the usual kind of substituted service like advertisement in the newspaper. It would be more meaningful to order substituted service by giving notice to those taking care of him currently so that in the event that the person has a lucid interval, he could be told about the inquiry. Hence, it is necessary to have this sort of information placed before the court.

26. Coming back to the facts of the present case, at the hearing of 20 February 2004, apart from direction as to service, the Applicant also requested the court to treat the hearing as the inquiry. For reasons already given, this cannot be done.

27. Having considered the material before me, I am satisfied that I can grant the other requests, viz. the attendance of the doctors be dispensed with at the inquiry and so is the attendance of the Official Solicitor. As I said earlier, there is no need to join the Official Solicitor as a party to the proceedings. I also gave directions for the inquiry to be held. Further, in view of the background of the case and suspicion as to irregular dealings concerning the bank account of Madam A, I also granted direction giving access to the Applicant to the bank statements of Madam A.

28. Lastly, I wish to mention that although it is not necessary to join the Official Solicitor as a party, it is a good practice for applicants to give a set of the papers concerning the application to the Official Solicitor. If every thing were in order, the Official Solicitor would usually write to indicate that his intervention is not necessary. On other occasions, the Official Solicitor could pinpoint matters of concerns which the applicants should address. That would often save unnecessary delay and costs. Of course, when it deems necessary, the court has the power to direct that the Official Solicitor be notified or joined as a party.