Practice Direction - 30.1
Applications under
Part II of the Mental Health Ordinance (Cap. 136)
I. General
1.01 Since 2004, the court has handed down a number of judgments on the practice and procedure for applications under Part II of the Mental Health Ordinance, Cap. 136 (“MHO”).
1.02 The relevant paragraphs in some of those judgments will be referred to in this Practice Direction.
1.03 It was held in Re Madam A (HCMP 44/2004, unreported, 5 March 2004) that an inquiry under Part II of the MHO involves a two-stage process: (a) the initial stage in which directions are sought from the court (“the Directions Stage”), and (b) the stage where the actual inquiry takes place (“the Inquiry Stage”).
II. The Directions Stage
2.01 An Applicant should have regard to the provisions of Section 7 to Section 9 of the MHO in the preparation of materials to be placed before the court.
2.02 The Applicant’s aim at this stage is to provide sufficient information to enable the court to give directions for an inquiry to be held under Section 10 of the MHO.
Who can apply?
2.03 Applications for an inquiry may be made by any of the parties referred to in Section 7(3) of the MHO. A “relative” of the alleged mentally incapacitated person (“MIP”) (see definition under Section 2, which includes any person with whom the MIP resides or has resided) may make the application. If there is no application by any relative, the Director of Social Welfare or the Official Solicitor or the guardian may apply.
Application for directions to be made ex parte
2.04 In general, it would be appropriate to apply ex parte for directions. Neither the alleged MIP nor the Official Solicitor should be named as the respondent (see Re Madam A, at [8] to [15]).
How to apply?
2.05 The application should follow the format of Annex A (Ex-parte Originating Summons). This format can be amended to suit the particular circumstances of any case.
2.06 The Originating Summons should be filed together with the supporting documents, a draft Order for directions to be given at the Directions Stage (which should follow the format of the specimen at Annex E) and a draft Order containing all the relief to be sought in the Section 10 inquiry hearing (which should follow the format of the specimen at Annex F). A return date for the hearing of the inquiry will not be given at the time of filing. The papers will only be placed before a judge for his/her consideration and directions after the Applicant has notified the court that the Official Solicitor has no further comments on the draft Order for inquiry and the draft substantive Order (see paragraph 2.24 below).
All relevant and necessary information to be provided
2.07 At this stage of the application, the Applicant should ensure that there is at least prima facie evidence to justify an inquiry as to the allegation of mental incapacity.
2.08 The Applicant is duty bound to provide the court with all relevant and necessary information to enable the court to discharge its statutory duty under the MHO properly. Failure to do so will inevitably delay the application and increase the costs thereof. The Applicant should also bear in mind that he/she has a duty of full and frank disclosure since the application is made ex parte.
2.09 The matters set out in Section 7 of the MHO are the minimum requirements. In the majority of cases, the court will need much more information before it can discharge its duty properly and give appropriate and proper directions in preparation for the inquiry under Section 10.
2.10 There may be occasions when the family members and relatives have different views on how the alleged MIP is to be treated. The Judge may direct the parties and/or interested parties and/or relatives to attend a briefing by the Integrated Mediation Office, if appropriate, to explore the opportunity of attempting resolution of the dispute by mediation. However, it should be noted that, more often than not, the court exercising mental health jurisdiction will not resolve disputes and conflicts among family members (see Re RSH [2006] 4 HKLRD 339, at [6] of the decision on application for cross-examination and at [7] and [8] of the decision on application for inspection of documents). It should therefore be borne in mind that the affidavits filed should only focus on matters which are relevant to the suitable order to be made (i.e. appointment of the committee, the maintenance of the alleged MIP and the administration of the alleged MIP’s property and affairs). A succinct summary of the key issues will suffice. Lengthy revelations of the details of the disputes are not necessary. Costs incurred for the inclusion of unnecessary materials in affidavits may be disallowed insofar as such costs are sought to be reimbursed from the alleged MIP’s estate.
2.11 Particular regard should be paid to the matters referred to in Section 7(2) of the MHO. The scope of the inquiry and any orders sought at the inquiry must be clearly identified at the Directions Stage of the application.
2.12 The Applicant should take the precaution of canvassing the views of the alleged MIP and the relatives before an application is made. If the application is likely to be contested, the court must be informed of that as soon as possible. See Re S (HCMP 1287/2004, unreported, 28 May 2004), at [5].
2.13 A Certificate should accompany the application, following the format of Annex B (Certificate of Family and Property). The format can be amended to suit the particular circumstances of any case.
2.14 Where the Applicant seeks directions relating to the property and/or affairs of the alleged MIP, the nature and extent of his/her property as well as the number and identity of all relatives who may be affected must be made known to the court.
2.15 If the Applicant has reason to suspect or believe that the property or assets of the alleged MIP are being dissipated or mishandled, he/she should bring the matter to the attention of the court.
2.16 The Applicant must conduct all necessary investigations in his/her preparations for an application. He/She must ensure the adequacy of the evidence such as bank statements and medical reports. Insufficient evidence will inevitably lead to delay and the incurring of further costs.
Medical evidence
2.17 The requisite medical certificates under Section 7(5) of the MHO are essential (see also Section 2(2)). The medical certificates should follow the format of the specimen at Annex C (Medical Certificate in Support of an Application under Part II of the MHO).
2.18 At least one of the medical certificates must be given by a medical practitioner approved for this purpose by the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap. 113) as having the relevant special experience (see Section 2(2) of the MHO).
2.19 In order to satisfy the statutory requirements, it is essential that the medical certificates state that the alleged MIP is currently incapable, by reason of mental incapacity, of managing and administering his/her own property and affairs. See Re C (HCMP 424/2004, unreported, 7 July 2004), at [1] and [2].
The interests of the alleged MIP are paramount
2.20 In seeking directions, the Applicant must bear in mind that the interests and requirements of the alleged MIP are paramount: see Section 10A(2)(a) of the MHO. For instance, the court will have regard to the existing and future care arrangements for the alleged MIP; the costs thereof; the health condition of the alleged MIP; his/her life expectancy; the maintenance of the family members of the alleged MIP; the income and expenditure of the family of the alleged MIP and other matters. See Re S , at [3]. In case of immediate need to attend to the maintenance and interests of the alleged MIP, the Applicant and the court may need to consider proceeding with an inquiry and appointment of a committee with the essential authorization for addressing such need first, to be followed by the other investigations and specific authorizations. In case of urgency, appointment of an interim receiver may be necessary (see paragraph 2.29 below for further information).
Application for appointment of a committee of estate (Section 11 of the MHO)
2.21 Where the appointment of a committee of the estate of an alleged MIP is sought, the court must be provided with all relevant and necessary information regarding the members of the proposed committee. Information as to the background, training, qualification and experience of members of the committee must be provided, as well as the manner in which the Applicant envisages the proposed committee will manage and administer the property and affairs of the alleged MIP. For the form of Consent to Appointment as Committee, see Annex D.
2.22 Very often, a professional committee will be considered when there are objections to and lack of consensus on the appointment of the committee among family members. However, it should be borne in mind that the professional committee will have to be remunerated. Hence, consideration must be given as to whether such remunerations to be incurred are proportional to the value of the estate. In case of disagreement, mediation should be considered, with a view to selecting a suitable person to act as the committee, if possible.
Notice to the Official Solicitor
2.23 Notice of the application should be given to the Official Solicitor. The Applicant should submit the whole set of documents filed with court (as referred to in paragraph 2.06 above) to the Official Solicitor, who will comment on the application including the Certificate of Family and Property, the adequacy or accuracy of the information and documents provided as well as the two draft Orders. In the event the Applicant receives comments, enquiries, requisitions and requests for further information/evidence from the Official Solicitor, he/she should reply expeditiously.
Paper applications
2.24 After the Official Solicitor has confirmed with the Applicant (usually by letter) that he/she has no further comments on the draft Orders, the Applicant shall file a Supplemental Certificate of Family and Property (see paragraph 2.33 below). Thereafter he/she shall inform the court in writing of the Official Solicitor’s confirmation, with a view to securing a return date for the hearing of the Inquiry. The clerk of the Mental Health Judge shall, upon consultation with the Listing Officer, give a hearing date to the Applicant directly.
2.25 Normally, directions will be given after consideration on the papers without a hearing unless the court considers, whether upon request or on the court’s own motion, that a directions hearing should be held (for example, if it is envisaged that the application would be seriously contested: see Re S, at [5]). Such a request should be made in writing at the time of the filing of the Originating Summons.
Notice of the Inquiry must be served on the alleged MIP
2.26 Notice of the inquiry must be served on the alleged MIP. Such notice cannot be dispensed with. See Re Madam A, at [25] and [26].
2.27 In the application, the Applicant must indicate to the court the appropriate mode of service on the alleged MIP. Furthermore, the alleged MIP must be given a reasonable notice of the time and place of the inquiry normally by personal service: see Section 8 of the MHO. It is only if the alleged MIP is in such a state that personal service on him/her would be ineffectual that substituted service falls to be considered.
2.28 Substituted service in this context is not by way of advertisement in a newspaper: see Re Madam A, at [25]. Substituted service by way of serving the notice on the person in charge of the institution having the care of the alleged MIP may be considered.
Urgency
2.29 In cases of urgency the Applicant may consider an application under Section 10D and/or Section 10A(1) of the MHO, and the court may consider appointing an interim receiver pending the appointment of the committee: see Re Madam L [2004] 4 HKC 115.
Estates without substantial assets
2.30 In cases where the estates do not involve substantial assets, an order under Section 24 of the MHO should be considered.
Draft Order for the Directions Stage
2.31 The draft Order for the Directions Stage should generally deal with the following matters:
(a) a clear indication of the scope of the inquiry, e.g. appointment of a committee;
(b) a list of the persons to be served with Notice of the inquiry;
(c) the mode of service of the Notice on the alleged MIP, and whether it should be by way of substituted service, and if so, why;
(d) whether further evidence will be required or adduced at the inquiry;
(e) whether it is proposed that a medical examination be conducted;
(f) whether it will be necessary to identify and/or trace the alleged MIP’s relatives or next of kin;
(g) whether the doctors who compiled the reports should attend the inquiry;
(h) whether any interim relief is necessary, or any interim directions should be issued for the protection of the property of the alleged MIP; and
(i) an estimate of the length of the inquiry.
Supplemental Certificate of Family and Property
2.32 If circumstances so require, such as for supplementing or updating the information contained in the Certificate, the Applicant may file (without the need of obtaining the court’s leave) a Supplemental Certificate of Family and Property.
2.33 After the Official Solicitor has indicated that no further enquiries would be raised, the Applicant shall file a Supplemental Certificate of Family and Property for the purpose of succinctly setting out all enquiries raised and the answers / further information given for the court’s reference, following the format of Annex B(1). As copies of all correspondence previously exchanged between the Applicant and the Official Solicitor have been provided to the court, there is no need for such correspondences to be attached to the Supplemental Certificate.
Views of relatives or other persons
2.34 Relatives’ attitude to the application should be stated in the Certificate of Family and Property. Written consent from those relatives who have beneficial interests in the alleged MIP’s estate in the event the alleged MIP dies intestate should be obtained insofar as it is possible to do so. There may be occasions when some relatives or some other persons may submit to the court comments, queries or objections to the Applicant’s proposals without applying to be formally joined as an Intervener for costs consideration. The court may look at the points raised and see whether the matter can be resolved without joining those relatives/persons. However, if the matters are contentious in nature and may not be resolved without any formal hearing and adjudication, those persons raising the comments, queries or objections will have to be joined as interveners.
III. The Inquiry Stage
3.01 The Applicant shall lodge with the court his/her skeleton argument and list of authorities at least 72 hours before the hearing (excluding Saturdays, Sundays and general holidays) together with the following documents:
(a) the draft substantive Order in respect of which the Official Solicitor has indicated that he/she has no further comment; and
(b) the skeleton bill of costs for the purpose of summary assessment of costs at the end of the inquiry hearing.
3.02 If applicable, the skeleton argument shall, among other things, highlight the proposed Orders which are not included in Annex F (and F(1), if applicable), with justification for the court to make those orders.
3.03 No hearing bundle is required to be lodged unless numerous affidavits have been filed which render it difficult for the Judge to peruse the documents in the court files.
3.04 At the inquiry, the court will consider and decide on those matters referred to in Section 10 of the MHO.
3.05 At the inquiry, the court may appoint a committee of the estate of the alleged MIP if it is satisfied that the person is, by reason of mental incapacity, incapable of managing and administering his/her property and affairs: see Section 11 of the MHO.
3.06 All the powers of the committee are derived from the order of appointment and restricted to the terms of the order. If more power than the standard powers set out in Annex F is sought, an application should be made to the court for authorization. If in doubt, the committee ought to apply for specific authorization for the proposed course of action.
3.07 Generally, all major changes intended to be made to the estate of the alleged MIP should be submitted to the court for approval.
3.08 The court may also direct the sale of any property of the MIP under Section 10A and Section 10B of the MHO. If this is contemplated, the application should be supported by proper valuation evidence. The draft Order should also contain appropriate directions as to conduct of the sale and the distribution or disposal of sale proceeds.
3.09 The power of the court under Part II of the MHO is wide. Under Section 10A of the MHO, the court can do or secure the doing of all such things as appear necessary or expedient:
(a) for the maintenance or other benefits of the MIP;
(b) for the maintenance or other benefits of members of the MIP’s family;
(c) for making provision for any other person or purposes for whom or for which the MIP might be expected to provide if he/she were not mentally incapacitated; and
(d) otherwise for administering the MIP’s property and affairs.
(see Re C (HCMP 15/2002, unreported, 14 March 2007), at [13])
3.10 As far as investments of the MIP’s capital are concerned, it should be noted that:
(a) Usually, the existing investments will be preserved unless there is a need to liquidate a particular investment for the maintenance of the MIP or for any other special reason.
(b) Liquid assets of the estate may be placed on deposits which are capital guaranteed (such as fixed deposits).
(c) Authorization must be sought if the committee is minded to place a certain percentage of the MIP’s funds in investments in respect of which the preservation of capital is not guaranteed.
(d) Normally, no general power of investment will be granted unless the non-professional committee has the requisite background and experience to do so.
(e) If the court is satisfied that the non-professional committee has the requisite background and experience to invest on behalf of the MIP, it may consider granting authorization for the committee to do so, but such authorization is normally limited to the making of certain capital-guaranteed investment which must be specified in the application.
(f) A professional committee may be granted general or specific power of investment, depending on the circumstances.
(g) An adequate liquid portion of the estate should be kept so as to ensure the maintenance of the daily care regime of the MIP.
3.11 If the MIP has any on-going business, the committee may be authorized to continue carrying on the business, depending on the ability and experience of the committee. The committee shall provide full information on all relevant matters such as the nature of such business, concrete proposal for the running of the business, experience of the committee, etc. for the court’s consideration. Any business risk should be assessed in the best interests of the MIP.
3.12 For the purpose of managing the property and affairs of the MIP, sometimes it is necessary for the committee to prove its authority (for example, proving title in the sale of landed properties, dealing with banks, insurance companies, etc.). For the above purpose, it is undesirable to produce the entire Order of the court as this may unnecessarily divulge information regarding the other property and affairs of the MIP. In such situations, practitioners should consider seeking leave of the court to have an Abridged Order sealed for use. If such leave is sought, the Applicant should explain clearly in his/her skeleton argument why an Abridged Order is needed, so that the court would have advance notice of such an application. Any draft Abridged Order should be attached to the skeleton argument.
3.13 If the committee seeks to obtain any lump sum payment from the estate of the MIP for repayment of loans or reimbursement for expenses incurred on behalf of the MIP, concrete evidence of such loans or expenses should be produced in support. It is inadequate simply to take the instructions of a next friend on their face value. The lawyer handling the matter owes a duty to the MIP to examine the information closely and properly. See Re YWK (HCMP 2467/2006, unreported, 21 November 2007), at [18].
IV. Further Directions after Appointment of Committee
4.01 Major decisions affecting the management of the affairs of the MIP should be reported to the court before they are carried out. In particular, the court should be notified before the committee removes the MIP from the jurisdiction. In case of non-compliance, the court may consider whether the appointment of the committee should be suspended or revoked.
4.02 From time to time a committee of the estate appointed by the court may have to report to or seek directions from the court pursuant to Section 13 or other provisions of the MHO.
4.03 Such reports or applications should be filed with the court at the High Court Registry. Sending the documents by mail or simply lodging them at the Reception Counter of the High Court Registry does not comply with the duty to file under this paragraph.
4.04 When reports, applications, accounts or other documents are filed in the post-inquiry period, it is essential to state at the top of the first page of the document that it must be brought to the attention of the Judge or the Registrar as appropriate. Failure to do so may result in delay and inconvenience. Words to the effect that the document is “For the attention of the Judge/Registrar” will ensure that the document reaches the Judge or Registrar as early as possible.
4.05 If the committee has any major decision to make which may affect the financial interests of the estate, it would be wise for him/her to seek the court’s sanction before taking any steps. See Re C (HCMP 15/2002), at [16].
4.06 If a committee is minded to borrow money for certain purposes and if that loan is expected to be repaid out of the estate of the MIP, in general, the committee should obtain the approval of the court before he/she actually borrows that money. Any loans or borrowings made without prior sanction of the court are at the committee’s own risk, and the committee may find that he/she is personally liable for the repayment of that loan and the court may not sanction the use of the estate’s money to repay the loan. See Re C (HCMP 15/2002), at [16].
4.07 If the MIP is a shareholder of any private limited company, audited accounts of such a company should be attached to the committee’s annual report to the court.
4.08 In the case of an estate that is not complicated in nature, and annual accounts submitted over a reasonable course of time have demonstrated a true, accurate and complete picture of the estate and the expenditure was fair, reasonable and within the power of the committee , the court may allow the committee to simplify the requirement of the forthcoming annual accounts by requiring them to cover only the current condition of the MIP, the reason why the MIP has moved to a new residence (if applicable), the opening balances, annual income and expenditure, closing balances of the estate and explanatory notes on extraordinary items without supporting documents.
4.09 Consideration could be given for the discharge of the committee after the more complicated steps in the administration and management of the estate have been completed and thereafter properties could be dealt with by a less costly alternative like an order under Section 24 of the MHO: see Director of Social Welfare v Official Solicitor (HCMP 4297/2000, unreported, 14 September 2005).
V. Litigation
5.01 Before bringing or defending any legal proceedings, the committee should obtain the sanction of the court, otherwise he/she will act at his/her own risk as to costs. In this regard, the propositions regarding the conduct of litigation by a committee on behalf of a MIP reiterated in [7] of Re L (HCMP 1120/2003, unreported, 12 May 2006) should be borne in mind.
5.02 Usually, an application for authorization to commence legal proceedings on behalf of a MIP should be supported by evidence as set out in Re YPC (HCMP 1174/2006, unreported, 15 February 2008) at [12].
5.03 In general, when the court authorizes legal proceedings to be conducted on behalf of a MIP, it would also provide for the engagement of solicitors and counsel. Further, the court will usually require a report on the progress of the action by a certain stage of the litigation and review the possible options upon the receipt of the report. The court may also direct the committee to attempt mediation, negotiation or other forms of alternative dispute resolution. See Re YPC, at [19].
VI. Personal Injury Cases
6.01 In the handling of personal injury (“PI”) cases in which an injured person who has been granted or who is seeking compensation may fall within the meaning of “a mentally incapacitated person” of the MHO, consideration should be given to whether an application under Part II of the MHO should be made. See Re LWO (HCMP 2965/2001, unreported, 30 June 2005).
6.02 Where it is considered necessary for the Plaintiff to apply for a committee to be appointed, this should be brought to the notice of the Judge hearing the PI claim. The compensation may include the costs of a Part II application.
VII. Solicitors acting for the committee
7.01 Solicitors acting for the committee should familiarize themselves with the procedure under Part II of the MHO (see Re L, at [21]).
7.02 They must also appreciate that they have a duty to give proper advice to the committee upon the grant of a Part II order. After the court has appointed their client as a committee, the solicitors should explain clearly to their client the terms of the order. In addition, they should explain to the client the duty of a committee, how a committee should conduct himself/herself in handling the property and affairs of the MIP, his/her accountability to the court and the need to apply to the court for directions regarding matters not yet authorized under the initial Part II order. See Re YPC, at [15].
VIII. Approval of settlement
8.01 By reason of the MIP’s disability, the settlement of any litigation conducted by someone else on the MIP’s behalf has to be approved by the court. In cases where a committee has been appointed for the MIP under Part II of MHO, and where the committee also acts as the next friend in the litigation, the committee should seek approval before it agrees to settle on behalf of the MIP. Logically, the committee should get the approval under Part II of the MHO first before going to the court where the litigation is conducted to seek approval of the settlement under Order 80 of the Rules of the High Court (“RHC”) (see Re L, at [1] and Re CK (HCMP 1150/2006, unreported, 4 August 2006), at [4]).
8.02 Where Part II proceedings are desirable but have yet to be commenced, it is possible to obtain approval under Order 80 of the RHC without requiring a committee to be in place as a prerequisite. However, in such a case, the terms to be approved under Order 80 should provide for:
(a) The funds to be received pursuant to the settlement shall remain in court pending the Part II proceedings; and
(b) The disposal of the funds in court shall be in accordance with the directions of the court in the Part II proceedings.
(see Re CK, at [24])
8.03 Whilst Order 80 rule 12 of the RHC gives the court power to deal with money recovered by a person under disability, Order 80 rule 12(3) suggests that such power is confined to payment in respect of monies paid or expenses incurred for or on behalf of, or for the benefit of, the person under disability or for his/her maintenance, or otherwise for his/her benefit, or to the plaintiff's solicitors in respect of costs. In other words, if the payment is not for these purposes, for example, if it is for the maintenance or gifts for family members or friends, it would not be covered under Order 80, rule 12 but under the Part II proceedings (see Re C (HCMP 15/2002), at [12] and Re CK, at [7]).
8.04 When an application for approval comes before the court under Order 80, the following factors (not exhaustive) could be relevant in deciding whether Part II proceedings should be pursued:
(a) The condition of the MIP including his/her age and prognosis;
(b) The future needs and requirements of the MIP;
(c) The quantum of the award;
(d) The background and experience of the next friend including the relationship of the next friend with the MIP and the ability of the next friend to keep proper accounts and to appreciate his/her duty;
(e) The adequacy of the advice given regarding the duty of a next friend;
(f) The needs and resources of the MIP’s family;
(g) The likelihood of applications to use the funds in court for acquisitions of a capital nature;
(h) The attitude of the primary carer of the MIP and to a lesser extent, the attitude of the immediate family members of the MIP; and
(i) The possible alternatives in terms of investment of the funds as opposed to leaving the monies in court.
(see Re CK, at [21])
IX. Miscellaneous
9.01 Applicants should exercise their own judgment as to whether they could simply adopt the forms included in the Annexures, or should make any modifications to the same as the circumstances of the case may require.
9.02 Applications under Part II of the MHO fall within the same category as those set out in paragraph 4 of PD25.1 and hearings are usually not open to the public.
9.03 This Practice Direction supersedes the previous Practice Direction 30.1 on Applications under Part II of the Mental Health Ordinance (Cap.136) dated 10 October 2005.
9.04 This Practice Direction will come into effect on 28 October 2024.
Dated this 16th day of October 2024.
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Andrew Cheung |
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Chief Justice |