RE a mentally incapacitated person CKY

HCMH 41/2024

[2025] HKCFI 393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 41 OF 2024

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DECISION

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1.  This is a case where application under Part II of the Mental Health Ordinance (Cap 136) followed the settlement in a Personal Injuries action where the Plaintiff was suing by next friend. At the stage of settlement, costs were provided for in the PI action to be paid by the defendant in the PI action but not for any subsequent Part II Application.

2.  The reasons given included:

(1)  there was already a Guardianship Order in existence;

(2)  the MIP’s son could good take care of the MIP; and

(3)  the client had not given instructions for Part II Application.

3.  It was said that the MIP’s son died sometime thereafter, and there was a need for the Part II application.

4.  I wish to comment on the reasons. First, Guardianship Order is not a substitute for a Part II order because the jurisdiction for the Guardianship Board are mainly for:

(1)  direction as to residence of the MIP;

(2)  direction as to medical treatment

if there were any dispute amongst the relatives.

5.  Sometimes the Guardianship jurisdiction is looked upon as a sort of a “mini Part II” because the Board has jurisdiction to expend up to $20,000, but judging from the PI settlement that is wholly inadequate.

6.  As to whether the solicitor was bound by the client’s instructions that there were not to be any Part II Application, I think that is really putting the cart before horse, because rather, the client would have to act on the advice of the solicitors and/or counsel on the matter of a Part II application.

7.  As explained in the cases, which are now included in the revised Practice Direction 30.1 published on 28 October 2024, the solicitors have the duty to be familiarised with the jurisdiction and law relating to Part II, and to advise their clients accordingly. It is really not correct to say that the solicitor was bound by the client’s instructions because on any fair and objective assessment of this case there should have been a Part II Application.

8.  The situation did not differ from the last time when I was making no order as to costs to be paid out of the MIP’s estate.

9.  Hence, no order as to costs is confirmed, and the solicitors’ undertaking not to charge the Applicant for the costs not reimbursed from the estate do stand.

10.  I lift the prohibition against publication of this decision.