In the February 2020 issue, we discussed how one might go about managing the property and affairs of persons with mental incapacity, in particular under Parts II and IV of the Mental Health Ordinance ("MHO"). In this piece, we consider the compulsory mental health admission and treatment regime (the "compulsory regime") under Part III of the MHO, as well as some of the problem areas in the MHO that need to be addressed. The scope of the reform discussion will be limited to the parts of the MHO covered in the two issues.
The Compulsory Regime
The compulsory regime is highly drastic - one which allows for competent persons to be detained and treated with powerful, mind-altering drugs against their will, despite not having violated any laws or having been judged by a jury of peers. The justifications for this generally include the fact that the person suffers from a mental disorder which warrants treatment in hospital, and that it is either in the interests of the patient or for the protection of others. There is much debate as to whether these justifications can be sufficient for the exercise of such draconian powers, in particular when there is no similar regime for those without mental disorder.
The compulsory regime includes both short-term and long-term detention and treatment. Sections 31, 32 and 36 provide for the compulsory admission of patients for observation (seven days), extended observation (21 days) and indefinite treatment, respectively. To be compulsorily admitted, doctors are required to fill out a form indicating their opinion that the patient be detained, and then either a magistrate or a District Judge must countersign the form (depending on the section). Procedurally, a newly-admitted patient must be admitted for observation under s. 31 before being detained under ss. 32 or 36.
Once a patient is admitted to hospital, s/he is placed in a locked ward and most of his/her personal items, including cellphones, are confiscated and locked away. The patient is given little freedom in terms of movement, and unlike other patients, can only leave the ward with permission, generally during visiting hours or for therapeutic purposes. In terms of treatment, the patient will generally be given any treatment that the case medical officer sees fit. No additional safeguards, such as the Second Opinion Appointed Doctor in the UK, are provided for in the MHO. In practice, a multi-disciplinary team will generally meet on a periodic basis to review the patient’s care plan, but all treatment decisions in between these meetings will likely be made by the case medical officer.
A patient admitted under ss. 31, 32 and 36 can apply to review his/her case before the Mental Health Review Tribunal ("MHRT") once every year. For short-term detention and treatment under ss. 31 and 32, however, this right is rendered meaningless by the length of time it takes to have one’s case heard. The length of time required, according to the MHRT Rules, can be up to or even exceed two months and 28 days, which is significantly longer than the maximum of 28 days a patient can be detained under ss. 31 and 32. This means that in most cases of short-term detention and treatment, the patient will not be given an opportunity to have the appropriateness of his/her detention reviewed before his/her release. Even under the long-term detention and treatment regime, where a patient could apply to have his/her case heard prior to release, there are reasons why the patient will not make such an application (eg unaware of this option, not mentally capable to exercise the option (and caregivers unaware of this option), etc.). If no application is made after one year has passed, the medical superintendent has a duty to refer the patient’s case to the MHRT. This means that, for patients who do not apply to have their cases reviewed for any reason, they will not be able to have the appropriateness of their detention reviewed until after they have been detained for an entire year.
Given the lack of effective safeguards once a patient has been detained, what about safeguards pre-detention? The primary safeguard here is the District Judge’s countersigning of the form, as mentioned above (although for s. 31, a magistrate can also make the relevant order). Case law has shown, however, that the role of the District Judge can be quite limited. In the case of Hospital Authority v A District Judge, Hartmann J (as he then was) held that District Judges should not be questioning the validity of the medical opinions submitted by the doctors as long as they were in compliance with the MHO and unless the patient had been treated unlawfully. He further clarified that these medical opinions did not even need much detail – a succinct diagnosis and recommendation would be enough. Thus, the role of the District Judge has been limited to ensuring that s. 36 has been complied with procedurally.
What does this largely administrative role for the District Judge mean? This means, in the case of s. 36, that patients can be detained indefinitely under this section on the basis of two doctors’ opinions only. This is a problem because there is no reliable way to prevent abuse, whether this abuse is intentional or inadvertent. This abuse is not limited to doctors, but also caregivers, who are often the ones providing most of the information about the patient. A regime that systematically allows for the possibility of abuse, especially in relation to vulnerable patients who may not be able to defend themselves properly, should not be considered acceptable in this day and age.
In the previous section, we looked at some of the key problem areas with the compulsory regime in Hong Kong (although it should be noted that there are many other problematic aspects with this regime (and of the conditional discharge regime, also contained in Part III of the MHO) that have not yet been discussed). We now consider some directions for reform.
We first consider the compulsory regime. Hong Kong inherited its compulsory regime from a much earlier form of mental health legislation in the UK, and has not kept up to date with the changes introduced via reforms in the UK. For example, it retains the judicial component in the compulsory admission process. This is unlike the UK, where the judiciary is not involved prior to compulsory admission. Instead, an Approved Mental Health Professional (‘AMHP’) generally initiates the application for compulsory admission (which must then be supported by two medical recommendations). AMHPs can be from various professions, such as social work, nursing, occupational therapy and psychology, but they cannot be doctors. This is so there can be different professional perspectives involved in the decision to compulsorily admit a patient. Prior to making an application for compulsory admission, the AMHP conducts an interview with the patient, and in making the decision, the AMHP considers various criteria, including past history, present condition, social and family factors, wishes of family and medical opinion. In this way, a non-medical professional who has an understanding of the patient will be involved in the decision-making process. While the involvement of courts in Hong Kong technically also brings an alternative perspective to the decision-making process, it currently remains more of a rubber stamp, as discussed above, and meetings with District Judges (if any) are often extremely short. It is highly unlikely that the District Judge will be familiar with the patient’s situation in any way, and for this reason, the District Judge is a much less desirable safeguard than the AMHP.
Apart from rethinking the compulsory admission process, thought needs to be given to the establishment of swift review mechanisms for those who have already been admitted. For many, the experience of being compulsorily admitted and treated in a mental hospital against one’s will is a highly humiliating and traumatising experience, and there need to be better safeguards to ensure that the reasons for and length of detention are necessary and appropriate. These are but some of the issues that need to be considered in relation to the compulsory regime.
As for Parts II and IVB, one of the key issues, apart from procedural concerns and the need for support and education to relatives or other non-professionals appointed as committee of persons without mental capacity on their statutory duties, is the problematic use of mental capacity tests (both in these Parts and in the MHO generally). These are the tests that determine, for example, whether and what orders regarding a person’s assets need to be made (Part II) and whether the person should be placed under guardianship (Part IVB). Here we do not go into detail about how the mental capacity tests themselves are problematic, but instead focus on the problem with having no unified, statutory test for mental capacity.
The MHO, again as a result of inheriting an older form of UK mental health legislation, currently has different tests of mental capacity for different contexts. What is the problem with this? When the Law Commission of the United Kingdom reviewed the mental health legislation containing similar tests of mental capacity to the MHO, they described the law regarding incapacity as “one of incoherence, inconsistency and historical accident” (see the Law Commission’s Report on Mental Incapacity, 1995). They did not consider that these tests of incapacity amounted to “an effective or practical body of law”, and considered that drafting a comprehensive test would be much easier than trying to make amendments to these specific tests. The same can be said of the tests in the MHO - it is simply inconsistent and incoherent to have such different capacity tests for different contexts. Like the UK, which legislated the Mental Capacity Act 2005 (‘MCA’), Hong Kong should legislate a comprehensive, unified test for capacity that applies across all contexts to remedy the current incoherent and piecemeal approach.
What should this test look like? The UK test, which is based on the common law test for capacity, provides us with an example. According to s. 3 of the MCA, a person is unable to make a decision if s/he is unable to (i) understand relevant information, (ii) retain such information, (iii) use or weigh that information in the decision-making process or (iv) communicate the decision. As covered in the previous issue, capacity should be assessed in a decision and time-specific manner, and the s. 3 test can do just that. The more complex a decision is, the more difficult it will be for the person to understand, retain and use the relevant information. So whether it be a decision about the person’s assets or medical treatment, the same test will provide a consistent way to assess whether the person can make the decision.
Before ending this discussion, it must be noted that any serious consideration of mental health law reform in Hong Kong must take into account the UN Convention on the Rights for Persons with Disabilities ("UNCRPD"), an international human rights treaty which has come into force for Hong Kong since 2008. While a detailed discussion of the UNCRPD is beyond the scope of this piece, it is important to note that several of its Articles have important implications for mental health law in Hong Kong. Articles 12 and 14, in particular, have been interpreted by the Committee of the Rights for Persons with Disabilities as saying that compulsory treatment and guardianship regimes should be abolished, and that a lack of mental capacity should not be a reason to deprive a person of his/her legal capacity. Although there may be difficulties with the implementation of these interpretations, it is something that must be kept in mind when considering reform.
The road to reform is a long one. It may be tempting to choose the quick-fix solution, and to implement piecemeal amendments in problem areas. This is, however, merely a band-aid on a gushing wound. Any reform of the MHO needs to be a complete overhaul that keeps in mind human rights requirements, the important principles from the UNCRPD, and of course, coherence and efficacy.