JACQUELINE FRANCIS v. CHAN YI SAN

HCMP 1235/2019

[2020] HKCFI 238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1235 OF 2019

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J U D G M E N T

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1.  This is an application for leave to commence proceedings under s 69(2) of the Mental Health Ordinance, Cap 136 (“MHO”).

BACKGROUND

2.  On 18 January 2016, the Plaintiff was brought by the police to the Accident and Emergency Department (“AED”) of Kwong Wah Hospital (“KWH”).  After assessment by the Consultation Liaison Team (“CLT”) of Kwai Chung Hospital (“KCH”) at KWH, the Plaintiff was compulsorily detained at KCH from 20 January 2016 to 3 June 2016 pursuant to the provisions in the MHO.

3.  On 30 April 2019, the Plaintiff issued a Writ of Summons against the Defendant, being an Advanced Practice Nurse (Psychiatric) of the CLT of KCH (DCCJ 2122/2019).  According to the Plaintiff’s Statement of Claim dated 30 April 2019 indorsed with the Writ of Summons, the Plaintiff claimed damages in the sum of HK$3,000,000 for alleged assault, perjury and medical negligence.  An Acknowledgement of Service of Writ of Summons was filed on behalf of the Defendant on 8 May 2019 to indicate the Defendant’s intention to contest the Plaintiff’s claim.

4.  Upon the Defendant’s request, on 15 August 2019, Master Peony Wong of the District Court ordered, among others, that the proceedings in DCCJ 2122/2019 be stayed pending leave to be obtained by the Plaintiff under s 69(2) of the MHO.

5.  On 16 August 2019, the Plaintiff took out the present Originating Summons seeking for such leave.

RELEVANT CIRCUMSTANCES

6.  The Defendant opposes the present application. She made an affirmation on 30 October 2019 (“the Defendant’s Affirmation”) setting out the Plaintiff’s medical history and exhibiting the relevant objective documentary evidence.

7.  At the material time in January 2016, the Defendant was working at KWH, a public hospital managed by the Hospital Authority, as an Advanced Practice Nurse (Psychiatric) of the CLT of KCH.  The CLT of KCH aims to provide timely psychiatric consultation to patients in general hospitals (i.e. non mental hospitals) managed by the Hospital Authority.

(i)  18 January 2016

8.  The Plaintiff attended her husband’s workplace on 18 January 2016 claiming that her husband was missing.  The Plaintiff called the police herself.  She banged her head against the door of the lift. She struggled and slapped the police when the police arrived and one of the police officers sustained scratch marks over the hand.  In view of the Plaintiff’s aggressive behaviour, the Plaintiff, accompanied by the police, was handcuffed and sent to the AED of KWH.

9.  The Plaintiff arrived at the AED of KWH on 18 January 2016.  According to the medical record of the AED, the provisional diagnosis was suspected personality disorder and aggressive behaviour with a need to rule out organic cause.  A Referral Form was then sent by the AED to the CLT seeking a comprehensive psychiatric assessment for the Plaintiff such that appropriate suggestions on psychiatric management could be recommended.  Upon receipt of the Referral Form by the CLT, the case was assigned to the Defendant.

10.  The Defendant then attended the Plaintiff in a consultation room of the AED under police escort.  The Defendant was told by one of the police officers that the Plaintiff had previously been involved in an incident on 9 November 2015.  At that time, the police received a call from the Plaintiff’s son who complained that his parents were missing.  The Plaintiff was eventually found in the Hong Kong Airport and she claimed that her son and husband had been kidnapped by 5 policemen.  The Plaintiff’s son was informed and confirmed that this was not true and the Plaintiff’s husband was in fact safe.  According to her son, the Plaintiff suffered from mental problems.  The Plaintiff eventually returned to her son and the case was closed.

11.  The Defendant then interviewed the Plaintiff. When the Defendant saw the Plaintiff, she was still handcuffed.  During the Defendant’s interview with the Plaintiff, the Plaintiff was uncooperative and turned her head away when being asked questions.  When the Defendant asked the Plaintiff about the reason for her attendance at the AED and her psychiatric background, she looked at one of the police officers who escorted her and said he was the one who suffered from schizophrenia instead of herself.  She refused to provide her relatives’ contact telephone numbers and remained silent when asked questions.  She swore at the end of the interview.  The police told the Defendant they would leave and confirmed that they would not press charges against the Plaintiff for the injury caused by her.

12.  After the interview, given the Plaintiff’s violent and unpredictable behaviour as well as her lack of family support, for the sake of prudence, the Defendant contacted Dr. Wong Sze Lai Shirley (“Dr. Wong”), who was a specialist in Psychiatry and an Associate Consultant of the CLT of KCH, to seek her management advice.  After the Defendant’s discussion with Dr. Wong about the findings of her interview with the Plaintiff, they shared the same clinical impression of suspected underlying psychotic features with a need to rule out organic cause.  Further investigations were ordered and a management plan was laid down.  Reassessment by a psychiatrist was arranged for the Plaintiff on 20 January 2016.

(ii)  19 January 2016

13.  On the afternoon of 19 January 2016, the Defendant was informed by the ward staff that the Plaintiff had refused all investigations and physical examination.  According to the ward staff, she also refused to follow instructions.  The Defendant was asked by the ward staff to reassess the mental state of the Plaintiff.

14.  When the Defendant saw the Plaintiff, the Plaintiff was put in restraint.  She complained about being restrained against her will.  She insisted on talking about what she wanted.  When she was asked about the reason for admission or her husband, she refused to give any answer. She kept saying that she had evidence to sue.  She claimed she had an appointment in Central at 5 p.m. the day before which was important and asked to be discharged so that she could go there at once.  She talked about “direction” but refused to elaborate.  She complained that she was not understood properly and refused to provide contact telephone numbers of her husband and son.  The Defendant’s clinical impression was that further investigation was needed for suspected underlying psychotic features.  The Plaintiff was scheduled to be reassessed by a psychiatrist on the next day.

15.  The Defendant received a phone call from the Plaintiff’s case medical officer later that afternoon.  According to the case medical officer, the Plaintiff requested to be discharged against medical advice.  The case medical officer thus requested the Defendant to reassess the Plaintiff’s mental fitness for discharge against medical advice.

16.  The Defendant then saw the Plaintiff together with the Plaintiff’s case medical officer that afternoon.  The Plaintiff still refused to speak with the Defendant and adopted a challenging attitude.  The entire interview took place in the presence of the case medical officer.

17.  According to the CLT’s internal guidelines, in a case where a patient asked for discharge against medical advice, an Advanced Practice Nurse (Psychiatric) must seek management advice from experienced Consultation Liaison psychiatrists.  The Defendant thus discussed the case with Dr. Wong again.  After the Defendant updated Dr. Wong regarding the Plaintiff’s condition, their shared clinical impression was that the Plaintiff had suspected persecutory and paranoid idea and was admitted for emotional behaviour with self-harming act and aggressive act of attacking the police.  Due to the Plaintiff’s underlying persecutory and paranoid idea, she was considered mentally unfit to be discharged against medical advice.  She was also found to have limited insight on her mental problem.  The Plaintiff was scheduled for reassessment by a psychiatrist on the next day.

18.  The Defendant did not attend the Plaintiff again after the said two interviews on 19 January 2016 and was not involved in the subsequent management of the Plaintiff at KWH.

(iii)  Subsequent events

19.  According to the medical records, the Plaintiff was re-assessed by Dr. Ng Yin Kwok (“Dr. Ng”), a specialist in Psychiatry, of the CLT of KCH at KWH on 20 January 2016.  The Plaintiff revealed psychotic symptoms in the ward.  Dr. Ng suspected that the Plaintiff had paranoid schizophrenia and suggested that the Plaintiff be admitted to KCH, compulsorily if necessary, for further observation, investigation and treatment.

20.  On 20 January 2016, an application for compulsory detention of the Plaintiff was made pursuant to ss 35A(1) and 31(1A) of the MHO to transfer the Plaintiff to KCH on the ground that the Plaintiff was suffering from mental disorder of a nature or degree which warranted her detention in a mental hospital for observation followed by medical treatment for at least a limited period, and the application was approved and countersigned by a Magistrate of the Kowloon City Magistracy pursuant to s 31(1B) of the MHO on the same day.  The Plaintiff was transferred from KWH to KCH on 20 January 2016 for the purposes of detention and observation for a period of 7 days.

21.  The period of compulsory detention of the Plaintiff in KCH was further extended pursuant to ss 32(2) and 36(2) of the MHO.  The Plaintiff was eventually discharged from KCH on 3 June 2016.

S 69 OF THE MHO

22.  S 69 of the MHO provides:-

“(1)  Where a person has made application for the removal or detention of any person under the provisions of this Ordinance, or signed or carried out, or done any act with a view to signing or carrying out, an order purporting to be an order for removal or detention, or any report, application, recommendation, or certificate purporting to be a report, application, recommendation, or certificate under this Ordinance, or has done anything or given any advice in a professional capacity in pursuance of this Ordinance, he shall not be liable to any civil or criminal proceedings whether on the ground of want of jurisdiction or on any other ground unless he has acted in bad faith or without reasonable care.

(2)  No proceedings, civil or criminal, shall be brought against any person in any Court in respect of any such matter as is mentioned in subsection (1), without the leave of the Court, and leave shall not be given unless the Court is satisfied that there is substantial ground for the contention that the person, against whom it is sought to bring the proceedings, has acted in bad faith or without reasonable care.

(3)  Notice of any application under subsection (2) shall be given to the person against whom it is sought to bring the proceedings, and that person shall be entitled to be heard against the application.”

23.  S 69 of the MHO offers protection to medical staff and hospital against unreasonable and groundless claims by psychiatric patients.

24.  According to 陳碩謙對醫院管理局[1], the matters covered by s 69 of the MHO are:

(a)  the making of an application for removal or detention of a patient;

(b)  the signing of an order for removal or detention;

(c)  the signing of any report, application, recommendation, or certificate under the MHO;

(d)  the carrying out of an order for removal or detention;

(e)  the doing of anything in pursuance of the MHO; and

(f)  the giving of any advice in a professional capacity in pursuance of the MHO.

25.  In the Judgment, the Court of Appeal explained that the scope of s 69(1) of the MHO is “very wide and it covers acts done by the staff of hospitals in discharging their day to day duties in control of patients”. [2]

26.  The Court of Appeal adopted a remedial interpretation of the leave threshold and held that the test of “reasonably arguable ground”, and not “substantial ground”, should be applied in respect of the leave requirement in s 69(2) of the MHO.  The Court of Appeal held that the threshold adopted for leave to apply for judicial review is sufficient for the purpose of satisfying the threshold of an application for leave under s 69(2).

27.  In Po Fun Chan v Winnie Cheung [3], the Court of Final Appeal held that the appropriate test for leave applications for judicial review is one of “arguability”, not “potential arguability”, which is applied to both law and fact.  In other words, only a reasonably arguable claim which enjoys realistic prospect of success should be given leave to proceed.

MERITS OF THE APPLICATION

28.  The Plaintiff’s claim against the Defendant under DCCJ 2122/2019 is related to the Defendant’s management of the Plaintiff’s condition in KWH in January 2016.  As mentioned above, the Defendant’s observation, advice and clinical impression of the Plaintiff’s mental condition given in her professional capacity as an Advanced Practice Nurse (Psychiatric) in KWH had formed part of the basis of the Plaintiff’s compulsory detention at KCH from 20 January 2016 to 3 June 2016.

29.  It is beyond doubt that the Defendant’s management of the Plaintiff is covered by s 69(1) of the MHO and that the Plaintiff should obtain leave from the Court of First Instance under s 69(2) before commencing DCCJ 2122/2019.

30.  Having heard the submissions of the parties, I do not find that the Plaintiff has established any “reasonably arguable ground” to claim that the Defendant had acted in bad faith or without reasonable care.

31.  In the Plaintiff’s affidavit dated 16 August 2019 (“the Plaintiff’s 1^st Affidavit”), she has put forward numerous allegations against the Defendant.  In the Defendant’s Affirmation, she has tried to deal with those allegations of the Plaintiff insofar as they relate to her management on 18 and 19 January 2016.

32.  I do not purpose to deal with each allegation of the Plaintiff, nevertheless I can make the following observations:

(a)  The Defendant was only involved in the 3 interviews of the Plaintiff which took place on 18 and 19 January 2016 respectively. The purpose of the interviews was to assess the mental state of the Plaintiff. The Defendant was not involved in the day-to-day management of the Plaintiff. In particular, the Defendant was not involved in the physical restraint of the Plaintiff.  In the circumstances, the Plaintiff’s allegation that the Defendant had assaulted her or mishandled her property is misconceived and unsubstantiated.

(b)  Based on the Defendant’s observations of the Plaintiff during the 3 interviews and her discussion with Dr. Wong, their shared clinical impression was that the Plaintiff had suspected persecutory and paranoid idea.  The Plaintiff was thus arranged to be assessed by a psychiatrist on 20 January 2016.  The Plaintiff was later assessed by multiple medical practitioners including Dr. Ng, Dr. Tseng Cee Zhong Steven and Dr. Chung Kit Wang, Dr. Lu Wan Yin Vivien and Dr. Choi Yan Yin, all of whom opined that the Plaintiff suffered from a mental disorder which required her to be compulsorily detained at KCH.  The Plaintiff was eventually diagnosed to have suffered from delusional disorder, with a differential diagnosis of paranoid schizophrenia. The said diagnosis of the Plaintiff cannot be impugned just because of her own personal belief that she was of sound mind.

(c)  The Defendant is an Advanced Practice Nurse (Psychiatry) with psychiatric training and over 30 years of experience. Based on the information available at the time, she exercised professional knowledge and judgment in her assessment of the Plaintiff.

(d)  None of the Plaintiff’s assertions are based on or supported by any objective or medical evidence.

(e)  Nothing in the Plaintiff’s 1^st Affidavit would constitute “reasonably arguable ground” that the Defendant had acted in bad faith or without reasonable care at the time of her management of the Plaintiff on 18 and 19 January 2016.

(f)  It is trite law that in order to bring a claim for medical negligence, the Plaintiff must be able to adduce medical expert evidence to substantiate her allegations.  In particular, the Plaintiff has to adduce medical expert evidence to show that the Defendant had breached her duty of care according to the Bolam test and that the breach has caused injury to the Plaintiff (i.e. an expert report on liability and causation). The Plaintiff has not produced any expert opinion on the management of the Defendant according to the Bolam test to support her claim of medical negligence against the Defendant.

(g)  The Defendant did not know the Plaintiff prior to her admission.  In the circumstances, there was no reason for the Defendant to lie about the Plaintiff’s mental condition or mistreat her, whether as alleged or at all.

33.  In reply to the Defendant’s Affirmation, the Plaintiff filed and served another affidavit on 27 November 2019 (“the Plaintiff’s 2^nd Affidavit”). The Plaintiff has again made numerous allegations against the Defendant but none of them are supported by any objective or medical evidence.  Again, nothing in the Plaintiff’s 2^nd Affidavit would constitute “reasonably arguable ground” that the Defendant had acted in bad faith or without reasonable care at the time of her management of the Plaintiff on 18 and 19 January 2016.

34.  It is also clear from the Plaintiff’s 2^nd Affidavit that a lot of the Plaintiff’s allegations are based on her own misconception, for examples:

(a)  In paragraph 12 of the Plaintiff’s 2^nd Affidavit, she argued that “A Bachelor of Science in Healthcare (BSC) This is aimed at healthcare administrators or Pharmaceutical sales.  It is not a BSN which is a Bachelor of Science in Nursing.  Furthermore the Defendant is currently enrolled as an EN which is an Enrolled Nurse with the HK Nursing Council.  This is a private entity nothing to do with working in the public sector.” However, as mentioned in paragraph 2 of the Defendant’s Affirmation, the Defendant had obtained a Degree of Bachelor of Science in Health Care Studies (Nursing), which is a degree programme in nursing.  Further, the Defendant has been enrolled with the Nursing Council of Hong Kong as an Enrolled Nurse (Psychiatric) since January 1986 and registered with the Nursing Council of Hong Kong as a Registered Nurse (Psychiatric) since December 1993.  The Nursing Council of Hong Kong is a statutory authority established under the Nurses Registration Ordinance Cap. 164, and is responsible for the registration or enrolment of nurses both in the public and private sectors.

(b)  In paragraph 12 of the Plaintiff’s 2^nd Affidavit, the Plaintiff argued that KWH does not have a Department of Psychiatry.  In support of her contention, she exhibited a printout of the webpage of KWH.  However, since 2002, KCH has provided Consultation Liaison Service to KWH and the name “Department of Psychiatry” has been commonly used since then.  In fact, the services “Liaison Psychiatry” is listed on the webpage exhibited in the Plaintiff’s 2^nd Affidavit.

(c)  The Plaintiff said that the Defendant used the term “DOA” in her notes of 18 January 2016 which meant “dead or alive”.  This is an unsubstantiated allegation and “DOA” is in fact the abbreviation for “Date of Admission”.

35.  On 2 December 2019, the Plaintiff filed and served a supplemental affidavit.  Again, nothing in such supplemental affidavit would constitute “reasonably arguable ground” that the Defendant had acted in bad faith or without reasonable care at the time of her management of the Plaintiff on 18 and 19 January 2016.

THE PLAINTIFF’S PREVIOUS APPLICATION FOR HABEAS CORPUS

36.  During the Plaintiff’s detention at KCH, on 17 February 2016, the Plaintiff made an application to the High Court for habeas corpus. The respondent to the said application was the Superintendent of KCH.  The Plaintiff’s case in gist was that she was seized by the police and subsequently detained in KCH.  The Plaintiff said the seizure and detention at KCH were both made against her will and thus unlawful.

37.  After hearing the parties on 15 March 2016, Au J (as he then was) discharged the writ of habeas corpus with no order as to costs.  According to the Reasons for Decision dated 21 July 2016, though the Plaintiff contended that she was of sound mind and suffered no mental illness, the learned judge found that the Plaintiff’s assertions were not based on or supported by any relevant medical reports, as opposed to the respondent’s evidence which was well supported by objective documentary evidence, including the expert medical opinions provided by psychiatrists and the relevant detention orders issued by the courts.  Au J took the view that the respondent had satisfied him with the above credible and objective evidence that the Plaintiff’s detention at KCH was and had been a lawful one made pursuant to the relevant provisions under the MHO and valid orders issued by the courts.

38.  In my judgment, the dicta of Au J are also applicable in the present case.

39.  For the above reasons, the Plaintiff has failed to demonstrate “reasonably arguable ground” that the Defendant had acted in bad faith or without reasonable care.  In such circumstances, the Plaintiff’s application for leave under s 69(2) of the MHO is dismissed.

40.  Costs follow the event and so I order the Plaintiff to pay the Defendant the costs of this application.

41.  The costs in the sum of $203,266 claimed in the Defendant’s Statement of Costs are excessive.  I only allow about two-thirds of the costs claimed and I summarily assess the Defendant’s costs in the sum of $135,000.