Mental health — mentally incapacitated person (MIP) — appointment of committee — test and approach when deciding whether to appoint committee for MIP — Mental Health Ordinance (Cap. 136) Pt.II
Human rights — right to privacy — right of persons in use and disposal of their property — compliance with rights for test for whether to appoint committee for MIP — Hong Kong Bill of Rights Ordinance (Cap. 383) — Basic Law art. 14
C applied under Pt. II of the Mental Health Ordinance (Cap. 136) for the appointment of a committee for Mrs A, her mother. B, another daughter of Mrs A’s, intervened to contest the application. At first instance, the Judge was satisfied that Mrs A was incapable, by reason of mental incapacity, of managing and administering her property and affairs. Nevertheless, he refused to appoint a committee for her. C appealed against this refusal, principally on the ground that the Judge should have applied the “best interest” test but had applied instead a “plainly contrary” test and had taken a “substituted judgment” approach. It was also contended that the Judge had erred in some of his findings of fact and had taken irrelevant considerations into account.
Held, dismissing the appeal, that:
1) The Judge had applied the “best interest” test even though he had attached weight to Mrs A’s wishes and feelings. Attaching due weight to the feelings of a mentally incapacitated person (an “MIP”) in the application of the “best interest” test was necessary in order to comply with art. 14 of the Bill of Rights (which protects persons from unlawful interference with their privacy) and art. 105 of the Basic Law (which protects the rights of persons in the use and disposal of their property). Although the Judge had put it too widely when he said that “[u]nless they are plainly contrary to the well-being of the MIP, the court cannot substitute its own view for that of the MIP as to what is in his best interests”, it was very clear that the Judge did not apply a “plainly contrary” test or take a “substituted judgment” approach (Airedale NHS Trust v Bland  AC 789, Re A (Male Sterilsation)  1 FLR 549, Aintree University Hospitals NHS Foundation Trust v James  AC 591 applied). (See paras. 34–36, 45–54, 61.)
2) The Judge had not erred in his findings of fact or in his exercise of discretion. (See paras. 57–60, 63–71.)
This was an appeal by the applicant against the decision of David Lok J refusing to appoint a committee for a mentally incapacitated person for the purpose of investigating the circumstances leading to the making of certain documents (see  2 HKLRD 1105). The facts are set out in the judgment.
Editorial Note: The “best interest” test was shaped so as to be compliant with constitutionally protected human rights.