Using Hong Kong’s mental health legislation as a case study, this article asks whether provisions in domestic mental health legal frameworks which seek to restrict the institution of legal proceedings against those working under such legislation may be justified, given the implications they have on the fundamental right to access to justice. Under section 69 of the Hong Kong Mental Health Ordinance, legal proceedings cannot be brought against anyone acting in pursuance of the Ordinance unless leave has been given by a court, and such leave shall not be given unless the court is satisfied there is a ‘reasonably arguable’ case of bad faith or negligence. Limited case law on section 69 and Hong Kong mental health jurisprudence in general indicate that this test is likely to be applied by judges stringently, with the result that mental health patients face a virtually insurmountable hurdle should they wish to bring actions against professionals for wrongful or negligent treatment under the Ordinance. The author argues that provisions such as section 69 are rooted in discriminatory stereotypes of persons with mental illness as particularly ‘vexatious’ litigants and constitute unjustified barriers to their right to equal access to the courts. In Hong Kong’s case, in particular, section 69 operates within and reinforces a broader legislative framework that is systemically discriminatory against those who fall under the compulsory mental health regime. As such, such provisions must be seriously reconsidered and reformed.
In the recent Court of First Instance decision Bhatti Bhupinder Singh v Hospital Authority, the judge refused to grant leave under s 69 of the Mental Health Ordinance (Cap 136) (MHO) to the claimant for his wrongful diagnosis and wrongful detention claims against the Hospital Authority. This article considers this decision in detail, arguing that the judge’s reasoning was highly flawed due to its lack of consideration of a crucial factual context of the case, as well as its lack of scrutiny of the decisions made by the various medical professionals involved, in particular in relation to whether the criteria specified by each relevant section of the MHO was satisfied. The resulting approach demonstrates an unacceptable level of deference towards the judgment of medical professionals, to the extent that it is difficult to see how a reasonably arguable case could ever be mounted under s 69 of the MHO — a problematic outcome, given the implications of s 69 on the important right to access to courts. Given that compulsory admission and treatment is a highly draconian regime involving deprivation of liberty and the administration of powerful, mind-altering drugs, the court cannot simply be a rubber stamp and must exercise its supervisory role in a much more meaningful manner.
DOI: 10.1163/15718158-02001002
This article examines the current legal framework and practice of the conditional discharge of mental health patients in Hong Kong under Section 42B of the Mental Health Ordinance from a human rights perspective. Using existing literature and findings from semi-structured qualitative interviews conducted with medical professionals, the author argues that the current regime lacks adequate safeguards for mental health patients, both in law and in actual practice, and suffers from the absence of a clear guiding purpose. As such, the law and practice of conditional discharge would most likely infringe patients’ fundamental rights to private and family life and to liberty and personal security. The article concludes with the suggestion that an evidence-based approach is required to determine the purpose of the regime and how it may be best designed for that end.
Journal Article (5)
Using Hong Kong’s mental health legislation as a case study, this article asks whether provisions in domestic mental health legal frameworks which seek to restrict the institution of legal proceedings against those working under such legislation may be justified, given the implications they have on the fundamental right to access to justice. Under section 69 of the Hong Kong Mental Health Ordinance, legal proceedings cannot be brought against anyone acting in pursuance of the Ordinance unless leave has been given by a court, and such leave shall not be given unless the court is satisfied there is a ‘reasonably arguable’ case of bad faith or negligence. Limited case law on section 69 and Hong Kong mental health jurisprudence in general indicate that this test is likely to be applied by judges stringently, with the result that mental health patients face a virtually insurmountable hurdle should they wish to bring actions against professionals for wrongful or negligent treatment under the Ordinance. The author argues that provisions such as section 69 are rooted in discriminatory stereotypes of persons with mental illness as particularly ‘vexatious’ litigants and constitute unjustified barriers to their right to equal access to the courts. In Hong Kong’s case, in particular, section 69 operates within and reinforces a broader legislative framework that is systemically discriminatory against those who fall under the compulsory mental health regime. As such, such provisions must be seriously reconsidered and reformed.
In the recent Court of First Instance decision Bhatti Bhupinder Singh v Hospital Authority, the judge refused to grant leave under s 69 of the Mental Health Ordinance (Cap 136) (MHO) to the claimant for his wrongful diagnosis and wrongful detention claims against the Hospital Authority. This article considers this decision in detail, arguing that the judge’s reasoning was highly flawed due to its lack of consideration of a crucial factual context of the case, as well as its lack of scrutiny of the decisions made by the various medical professionals involved, in particular in relation to whether the criteria specified by each relevant section of the MHO was satisfied. The resulting approach demonstrates an unacceptable level of deference towards the judgment of medical professionals, to the extent that it is difficult to see how a reasonably arguable case could ever be mounted under s 69 of the MHO — a problematic outcome, given the implications of s 69 on the important right to access to courts. Given that compulsory admission and treatment is a highly draconian regime involving deprivation of liberty and the administration of powerful, mind-altering drugs, the court cannot simply be a rubber stamp and must exercise its supervisory role in a much more meaningful manner.
This article broadly reviews the Interception of Communications and Surveillance Ordinance (ICSO) and judicial decisions on interception and covert surveillance in Hong Kong both before and after the passage of the ICSO, discussing in particular their implications on the right to privacy and the right to a fair trial. The author questions whether the ICSO has fulfilled its role as a piece of corrective legislation to the pre-2006 lack of legislative framework for government surveillance activities and addresses concerns about whether further reform is required to better protect fundamental rights and freedoms in the “digital age”.
DOI: 10.1163/15718158-02001002
This article examines the current legal framework and practice of the conditional discharge of mental health patients in Hong Kong under Section 42B of the Mental Health Ordinance from a human rights perspective. Using existing literature and findings from semi-structured qualitative interviews conducted with medical professionals, the author argues that the current regime lacks adequate safeguards for mental health patients, both in law and in actual practice, and suffers from the absence of a clear guiding purpose. As such, the law and practice of conditional discharge would most likely infringe patients’ fundamental rights to private and family life and to liberty and personal security. The article concludes with the suggestion that an evidence-based approach is required to determine the purpose of the regime and how it may be best designed for that end.
DOI: 10.21953/lse.1q96d2d7j1vj
In the recent judgment of WBC (Local Authority) v Z, X, Y1 a twenty-year-old woman with Asperger Syndrome and a borderline learning disability was declared to possess legal capacity, both to participate in the litigation and to make decisions regarding her residence, social contacts and care. This judgment is important because it recognises a strong presumption of capacity under the Mental Capacity Act 2005 (MCA 2005) and provides a comprehensive example of the Act’s application to a complex and finely balanced set of facts.
ISBN: 2516-4058
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Medical law and ethics, family law, gender and sexuality, international human rights.