Lo A. Legislation study in public health: An exploration of the mental health ordinance in Hong Kong. HPHR. 2022;53.10.54111/0001/AAA2
To protect the rights and dignity of mental health patients, there is an urgent need to review the current related laws and reform the compulsory regime concerning mental health treatment in Hong Kong to make it in line with the World Health Organization’s comprehensive Mental Health Action Plan 2013-2020.1
The current compulsory detention provisions are primarily found in the Mental Health Ordinance of Hong Kong (Cap. 136) (“the Mental Health Ordinance”). Such legislation has been enacted as early as 1962. Although there were revisions, they have not sought to modernize the law to ensure that it is in line with current times.
The key parts of the Mental Health Ordinance2 aim to provide care, protection, and supervision for mentally incapacitated persons, including those who have reached 18 years of age, with respect to their health care, their consent to medical treatment, and the management of their property and affairs. The major provisions include Part II which deals with the management of the property and affairs of mentally incapacitated persons in Hong Kong, Part III which deals with the reception, detention and treatment of patients, Part IV which deals with the admission of mentally disordered persons concerned in criminal proceedings, and the transfer of mentally disordered persons under sentence and remand of mentally incapacitated persons, Part IVB which provides for the guardianship of mentally incapacitated persons in Hong Kong, and Part IVC which regulates the consent of mentally incapacitated persons in Hong Kong to medical and dental treatment.
Sections 31, 32, 36, and 43 of the Mental Health Ordinance3 allow for the detention of a patient with mental illness. Under Section 31 of the Mental Health Ordinance, a Hong Kong-registered medical practitioner who has examined the patient within the previous 7 days can send out an application with reasons in the prescribed format, and the patient can be removed to a mental hospital for seven days after a district judge or magistrate has made an order approving it. The power is great because, under the Mental Health Ordinance, the order shall offer “every public officer” such power “to use reasonable force as may be necessary” to ensure that the patient is removed to a mental hospital.4 Under Section 32 of the Mental Health Ordinance, two registered medical practitioners may be able to extend the period of the patient under observation’s detention to twenty-one days with approval from a district judge.5 Under Section 36 of the Mental Health Ordinance, even more powers are granted to medical practitioners, as patients who have been examined by two registered medical practitioners may be detained and transferred to “any other mental hospital” under 36(3) for any indefinite time.6 Under Section 43 of the Mental Health Ordinance, there are also strict powers granted to recapture a patient who has escaped, to allow him or her to be “taken into custody and returned to the mental hospital.”7 There are also no widely accepted elements of redress that patients and their families can seek should they have doubts about the decision.8
While it is understandable that mentally disordered persons be removed from regular persons so that they can be treated appropriately when necessarily, there are few checks and balances to prevent possible abuses or misuse of this discretionary power. As such, there is little recourse and few remedies offered for patients who believe they have been unfairly treated and detained against their will.9 The possibility of extended indefinite detention may also increase stigma and fear toward mental health illness from the general society.
Moreover, it is common practice that the presiding judge or magistrate does not necessarily have to see the individual due to be detained by reason of mental disorder for all cases.10 This sentiment is confirmed by case law in Hospital Authority v. A District Judge,11 which concerned a temporary committal by two medical doctors under Section 32 and the refusal of the judge to countersign the certificate. In that case, the Judge of the Court of First Instance in Hong Kong reiterated that the role of the judge in such orders is purely administrative, and quashed the decision of the previous court’s judge to refuse to sign the certificate under Section 36 of the Mental Health Ordinance while stating that such power should, by extension, apply to other similar sections of the Mental Health Ordinance.
The first option is to add a requirement that the number of doctors required to certify be greater than two with a minimum of five years of practice, including at least one doctor specializing in psychiatry. This is important because this is a medical matter that should be screened by experienced doctors without bias, rather than an administrative matter like a fine or injunction order which should be deferred to judges. It is advisable to have a second opinion by an appointed doctor like it is done in the United Kingdom which had 14,503 such visits in 2017/18.12 The pros of this recommendation are that this would be fairer to patients as it would be more difficult to compulsorily lock someone up on the grounds of mental illness without strong reasons. The cons are that it would make it more costly, administratively, to lock someone up.
There should also be a limit on the amount of time a person is sent away for compulsory treatment, and there should be some type of periodic review mechanism, e.g., a compulsory review for every year that a person is kept compulsorily detained. There should be special compulsory training for doctors, magistrates, and judges who are involved in this to ensure that they have the specific skills and better capacity to determine the presence or absence of mental capacity. The cons of this recommendation include that it would increase administrative work. However, the pros outweigh the cons because it is more beneficial to the patient in the long-run, as the aim for the Mental Health Ordinance is not to lock patients up but to rehabilitate them and to protect society from mentally challenged people.
The third and most favourable option is to increase the amount of prevention work against mental health disorders rather than the withdrawal of people with mental illness in order to decrease stigma. For instance, research has shown that unemployment and lack of social support is a great contributor to suicidal risk,13 hence there can be evidence-based mental wellness promotion programs for the community, especially for those particularly vulnerable during quarantine. There can be both individual-level protection and neighbourhood-level protection. There can also be recommended best practices and compulsory support for mentally incapacitated patients and their carers written in the legislation such as compulsory emotional support for those who are detained in hospitals because of the mental illness, to show them that society has not given up on them and, when they recover, they can be accepted back into society. The benefit is this recommendation can help to decrease the proportion of mentally challenged people in the long-run, however a con is that much more work must be done and this will take time.
These three recommendations fit well within Kingdon’s agenda-setting framework. First, the Mental Health Ordinance problem is a real problem as there are a growing number of scholars writing about this issue in recent years.14 Second, it fits with the policy stream, as nowadays there is COVID-19 and there has been an increasing amount of attention directed toward mental health both locally and globally. Mental health is also a priority in the Policy Address of the Chief Executive of Hong Kong, as shown by the investment of $300 million Hong Kong dollars in mental health public resources last month.15 Third, it fits with the politics stream, as shown by the Policy Address,16 and mental health protection and the protection of minorities are clearly worthwhile goals for any society or community. As such, there is a window of opportunity to bring about significant policy change.
This also applies in the strategic triangle, as there is a public value proposition for safeguarding the rights of people who are deemed to be mentally challenged, which can even happen to people who are currently the healthiest. Given the vicissitudes of life, ordinary people may become depressed and anxious at various stages of their lives and may be regarded as being in need of interference if their grief leads to suicidal thoughts or actions.
From the above, it is clear that it is important to reform the Mental Health Ordinance in Hong Kong to make it more aligned with international human protection rules at the World Health Organization including the United Nations’ Convention of the Rights of Persons with Disabilities17 by increasing the rights of those suspected to have mental disabilities in Hong Kong. Such a move will increase the rights of the mentally incapacitated and allow them and their families to have better protection as they hopefully move toward the road to recovery.
The article is not intended to be legal advice.
Amelia Lo recently received a Master of Public Health from the Harvard T.H. Chan School of Public Health and is interested in various public health issues. Trained in both law and business, she is also an amateur opera singer.