Cap. 136 《精神健康條例》Mental Health Ordinance

In this Ordinance, unless the context otherwise requires—

Of the medical certificates given for the purposes of section 7(5) or the opinions given for the purposes of sections 36 and 59M, at least one shall be given by a practitioner approved for the purposes of this section by the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap. 113) as having special experience in the diagnosis or treatment of mental disorder or having special experience in the assessment or determination of mental handicap, as the case may be. (Added 46 of 1988 s. 2. Amended L.N. 76 of 1989; 68 of 1990 s. 24; 81 of 1997 s. 3)

In deducing relationships for the purposes of this section, any relationship of the half-blood shall be treated as a relationship of the whole blood, an illegitimate person shall be treated as the legitimate child of his mother, and an adopted child as a child of the adopting parent. (Added 46 of 1988 s. 2)

Any function vested in the Director of Social Welfare or any power conferred on him by or under this Ordinance may be exercised on his behalf by any public officer authorized in that behalf by the Director of Social Welfare. (Added 46 of 1988 s. 2. Amended 81 of 1997 s. 3)

Nothing in subsection (1) shall be construed as implying that a person may be dealt with under this Ordinance as suffering from mental disorder, or from any form of mental disorder described in that subsection, by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs. (Added 46 of 1988 s. 2)

For the purposes of this Ordinance, any reference to “medical superintendent” may be construed to include a reference to any alternative title (such as “hospital chief executive”) as may be used from time to time by the Hospital Authority. (Added 81 of 1997 s. 3)

The Chief Executive may by order declare any place which is the property of the Government to be a mental hospital for the detention, custody, treatment and care of mentally disordered persons.

The Chief Executive on the application of the owner thereof, may, by order, declare any place which is not the property of the Government to be a mental hospital for the detention, custody, treatment and care of mentally disordered persons.

Notification of every such order shall be published in the Gazette.

The Chief Executive may appoint any medical officer to be the medical superintendent or an assistant medical superintendent of a mental hospital.

On the application of any registered medical practitioner who is not a medical officer, the Chief Executive may appoint the registered medical practitioner to be the medical superintendent or an assistant medical superintendent of a mental hospital. (Amended 81 of 1997 s. 4)

Notification of every such appointment shall be published in the Gazette.

The Chief Executive may appoint mental hospital visitors for every mental hospital. (Amended 60 of 2000 s. 3)

Two or more mental hospital visitors appointed in accordance with subsection (1) shall once at least in every month, together inspect every part of the mental hospital of which they are mental hospital visitors and shall see and examine so far as circumstances permit, every patient therein and shall enter in a book to be kept for that purpose any remarks which they may deem proper in regard to the management and condition of the mental hospital and the patients therein. (Amended 46 of 1988 s. 3)

The Court may, on application under this section, make an order directing an inquiry whether any person subject to the jurisdiction of the Court who is alleged to be mentally incapacitated is incapable, by reason of mental incapacity, of managing and administering his property and affairs. (Replaced 81 of 1997 s. 6)

Such order may also contain directions for inquiries concerning the nature of the property belonging to the person alleged to be mentally incapacitated, the persons who are his relative or next-of-kin, the time during which he has been mentally incapacitated or such other questions as to the Court shall seem proper. (Amended 81 of 1997 ss. 6 & 58 )

Application for such inquiry may be made by any relative of the person alleged to be a mentally incapacitated person, but if no such application is made by the relative, then by—

The application referred to in subsection (3) shall be made by an originating summons (within the meaning of the Rules of the High Court (Cap. 4 sub. leg. A)) and those Rules shall apply accordingly. (Added 81 of 1997 s. 6. Amended 25 of 1998 s. 2; E.R. 4 of 2019)

Despite subsection (4), the application referred to in subsection (3) shall be accompanied by 2 medical certificates and evidence of the relatives or next-of-kin and the property (if any) of the mentally incapacitated person, and such other documents or evidence as may be required by the Court. (Added 81 of 1997 s. 6)

In this section—

Reasonable notice of the time and place appointed for the inquiry shall be given to the person alleged to be a mentally incapacitated person: Provided that if it shall appear that the person alleged to be a mentally incapacitated person is in such a state that personal service on him would be ineffectual, the Court may direct such substituted service of the notice as it shall think proper.

The Court may also, if it thinks fit, direct a copy of such notice to be served upon any relative of the person alleged to be a mentally incapacitated person.

At the inquiry, after receiving such reports and hearing such evidence and arguments as it may think fit, the Court shall decide whether the person who is alleged to be a mentally incapacitated person is incapable, by reason of mental incapacity, of managing and administering his property and affairs and shall also decide any other questions as to which an inquiry has been directed. (Replaced 81 of 1997 s. 8)

The Court may make such order as may appear just respecting the costs of the inquiry and may include therein such remuneration to physicians and surgeons as the Court shall deem reasonable:Provided that no order for the payment of costs shall be made against an applicant under section 7(3)(a) or (b). (Amended 81 of 1997 s. 8)

The Court may, with respect to the property and affairs of a mentally incapacitated person, do or secure the doing of all such things as appear necessary or expedient—

In the performance of the functions under subsection (1) the Court shall have regard—

Without prejudice to the generality of section 10A, the Court shall have power to make such orders and give such directions and authorities as it thinks fit for the purposes of that section and in particular may for those purposes make orders or give directions or authorities for—

If under subsection (1) provision is made for the settlement of any property of a mentally incapacitated person, or the exercise of a power vested in that person of appointing trustees or retiring from a trust, the Court may make as respects the property so settled or the trust property such vesting or other orders as the case may require, including (in the case of the exercise of such a power) any order which could have been made under the Trustee Ordinance (Cap. 29).

Where under this section a settlement has been made of any property of a mentally incapacitated person, and the Court is satisfied, at any time before the death of that person, that any material fact was not disclosed when the settlement was made, or that there has been a substantial change in the circumstances then pertaining, the Court may by order vary the settlement in such manner as the Court thinks fit, and (if necessary) give consequential directions.

The power of the Court to make or give an order, direction or authority for the execution of a will for a mentally incapacitated person—

Where under section 10B(1) the Court makes an order or gives a direction or authority requiring or authorizing another person (the authorized person) to execute a will for a mentally incapacitated person, any will executed in pursuance of that order, direction or authority shall be expressed to be signed by the mentally incapacitated person acting by the authorized person, and shall be—

The Wills Ordinance (Cap. 30) shall have effect in relation to any such will as if it were signed by the mentally incapacitated person by his own hand, except that in relation to any such will—

Subject to this section, any such will executed in accordance with subsection (1) shall have the same effect for all purposes as if the mentally incapacitated person were capable of making a valid will and the will had been executed by him in the manner required by the Wills Ordinance (Cap. 30).

So much of subsection (3) as provides for such a will to have effect as if the mentally incapacitated person were capable of making a valid will—

Where any property of a mentally incapacitated person has been disposed of under this Part, and under his will or his intestacy, or by any gift perfected or nomination taking effect on his death, any other person would have taken an interest in the property but for the disposal—

The Court, in ordering, directing or authorizing under this Part any disposal of property which apart from this section would result in the conversion of personal property into real property, may direct that the property representing the property disposed of shall, so long as it remains the property of the mentally incapacitated person or forms part of his estate, be treated as if it were personal property.

References in subsections (1) and (2) to the disposal of property are references to—

and references to property representing property disposed of shall be construed accordingly and as including the result of successive disposals.

The Court may give such directions as appear to it necessary or expedient for the purpose of facilitating the operation of subsection (1), including the carrying of money to a separate account and the transfer of property other than money. (Amended 32 of 2000 s. 48)

Where the Court has ordered, directed or authorized the expenditure of money for the carrying out of permanent improvements on, or otherwise for the permanent benefit of, any property of the mentally incapacitated person, it may order that the whole or any part of the money expended or to be expended shall be a charge upon the property, whether without interest or with interest at a specified rate; and an order under this subsection may provide for excluding or restricting the operation of subsection (1).

A charge under subsection (5) may be made in favour of such person as may be just, and in particular, where the money charged is paid out of the mentally incapacitated person’s general estate, may be made in favour of a person as trustee for the mentally incapacitated person; but no charge under that subsection shall confer any right of sale or foreclosure during the lifetime of the mentally incapacitated person.

If the Court is satisfied that the person who is alleged to be mentally incapacitated is incapable, by reason of mental incapacity, of managing and administering his property and affairs, the Court may, if it shall think fit, appoint a committee of the estate, and for this purpose, the Official Solicitor may be so appointed of such person and may make such order, if any, as to the remuneration of the committee out of such person’s estate, and as to the giving of security by the committee, as to the Court may seem fit. (Amended 81 of 1997 s. 10)

A committee of the estate appointed under this Part shall do all such things in relation to the property and affairs of the mentally incapacitated person as the Court, in the exercise of the powers conferred on the Court under sections 10A and 10B, orders or directs the committee of the estate to do and may do any such thing in relation to the property and affairs of the mentally incapacitated person as the Court, in the exercise of those powers, authorizes the committee of the estate to do. (Replaced 81 of 1997 s. 10)

The provisions of Order 30, rules 5, 6 and 7 of the Rules of the High Court (Cap. 4 sub. leg. A) which apply to receivers shall apply to a committee of the estate as if the references to “receiver” in those rules were substituted by references to “committee of the estate”. (Added 81 of 1997 s. 10. Amended 25 of 1998 s. 2; E.R. 4 of 2019)

The Registrar may, without an order of reference, receive any proposal and conduct any inquiry respecting the management of the estate of a mentally incapacitated person if such proposal relates to any matter which the committee of the estate has not been empowered by an order under section 12 to dispose of. (Amended 81 of 1997 s. 58)

The Registrar may likewise, without reference, receive and inquire into any proposal relating to the sale or charge by way of mortgage of the estate or of any part thereof or to the letting of any immovable property for a term exceeding 3 years.

The Registrar shall report to the Court on the proposal, and the Court shall, subject to the provisions of this Ordinance, make such order upon the report and respecting the costs as shall under the circumstances seem just.

The committee of the estate of the mentally incapacitated person shall, in his name and on his behalf, execute all such conveyances and instruments of transfer, relative to any sale, mortgage or other disposition of his estate as the Court shall order.

In like manner such committee shall, under the order of the Court, exercise all powers whatsoever vested in a mentally incapacitated person whether the same are vested in him for his own benefit or in the character of trustee or guardian.

The Court may, on an application under subsection (2), make an order—

An application under this section may be made by any relative of the person alleged to be a mentally incapacitated person, but if no such application is made by such relative, then by—

When any person has been found to be mentally incapacitated and it shall be shown to the Court, either on the application of such person or of any other person acting on his behalf or on the information of any other person, that there is reason to believe that such person has become capable of managing and administering his property and affairs, the Court may make an order for inquiry whether such person is so capable.

An inquiry under this section shall be conducted in the same manner as an inquiry under section 10(1), and the power under section 9 to examine a person alleged to be mentally incapacitated shall be applied accordingly. (Replaced 81 of 1997 s. 20)

If it be found on such inquiry that the person who is the subject of the inquiry has become capable of managing and administering his affairs, the Court shall order all proceedings in such matter to cease or to be set aside on such terms and conditions as under the circumstances of the case shall appear proper.

A committee of the estate appointed under this Part for any mentally incapacitated person shall be discharged by order of the Court on the Court being satisfied that that person has become capable of managing and administering his property and affairs, and may be discharged by order of the Court at any time if the Court considers it expedient to do so, and such a committee of the estate shall be discharged (without any order) on the death of the mentally incapacitated person. (Added 81 of 1997 s. 20)

If a person appears to require treatment in a mental hospital and if he, or in the case of a person under the age of 16 years, his parent or guardian—

the medical superintendent may admit such person as a voluntary patient.

A voluntary patient—

A person who became a voluntary patient when he was under the age of 16 years shall not remain in a mental hospital as a voluntary patient for more than 28 days after he has attained the age of 16 years unless during such period of 28 days he shall have completed and lodged with the medical superintendent such application as is referred to in subsection (1).

A medical superintendent may detain in a mental hospital, for observation and treatment, a person who has been admitted as a voluntary patient until the expiration of 7 days from the time when such notice as is referred to in subsection (2)(a) has been given or, in the case of a person who was admitted as a voluntary patient when he was less than 16 years of age, until the expiration of 28 days after the voluntary patient has attained the age of 16 years.

An application may be made to a District Judge or magistrate for an order for the detention of a patient for observation on the grounds that the patient—

An application for an order for the detention of a patient for observation shall be founded on the written opinion in the prescribed form of a registered medical practitioner who has examined the patient within the previous 7 days, which opinion shall include—

Upon receipt of an application under subsection (1) the District Judge or magistrate may make an order in the prescribed form authorizing the removal of the patient to a mental hospital for the purpose of detention and observation during the period not exceeding 7 days from and including the date of the order. (Added 46 of 1988 s. 5)

Every such order shall have the effect of authorizing the applicant and every public officer with such assistance in each case as may be necessary, to use such reasonable force as may be necessary in order to remove to a mental hospital the patient and if for any reason it is not practicable forthwith to remove him to a mental hospital to detain him in a place of safety for a period not exceeding 48 hours. (Amended 46 of 1988 s. 5)

Where the patient has requested to see the District Judge or magistrate before such Judge or magistrate determines whether or not to make an order under subsection (1B)—

A medical superintendent may detain in a mental hospital for observation, investigation and treatment any person who is the subject of an order under this section or under section 32.

If a patient under observation in a mental hospital has been examined by 2 registered medical practitioners, either separately or together, and the 2 registered medical practitioners are of the opinion that it is necessary that the patient under observation should be detained in a mental hospital for a further period for the purpose of observation, investigation and treatment, they may complete a certificate in the prescribed form and forward it to a District Judge. (Amended 35 of 1969 s. 2)

If a District Judge who has received a certificate in accordance with the provisions of subsection (1) is of the opinion that it is necessary for the person named in the certificate to be detained in a mental hospital for a further period of observation, investigation and treatment, he shall countersign the certificate and shall forward it to the medical superintendent of the mental hospital in which the person is detained. (Amended 35 of 1969 s. 2)

Only one extension of not more than 21 days shall be made in accordance with this section to any order made in accordance with section 31. (Amended 46 of 1988 s. 6)

Subject to section 36, no person shall be detained in a mental hospital after the expiration of the period of any order made in accordance with section 31 and of any extension thereto made in accordance with this section unless he has become a voluntary patient. (Amended 46 of 1988 s. 6)

Subject to the provisions of this section, an application under section 31(1) for detention for observation shall be in the prescribed form and may be made by—

and every such application shall specify which of those persons is making the application and, if made by a relative of a patient, shall state the relationship.

Before an application under section 31(1) for the detention of a patient for observation is made by a registered medical practitioner or a public officer in the Social Welfare Department, that practitioner or officer shall take such steps as are reasonably practicable to inform a person in Hong Kong appearing to him to be a relative of the patient (if there is such a person) that the application is to be made, and if the medical practitioner or public officer fails to take such steps prior to the detention of the patient in a mental hospital, the medical superintendent shall, as soon as practicable thereafter, take them.

No application for detention for observation under section 31(1) may be made by any person in respect of a patient unless that person has personally seen the patient within the period of 14 days ending immediately prior to the date of application.

If—

has been examined by 2 registered medical practitioners either separately or together and the 2 registered medical practitioners are of the opinion that—

they may complete a certificate in the prescribed form and forward it to a District Judge. (Replaced 46 of 1988 s. 8)

If a District Judge who has received a certificate in accordance with subsection (1) is satisfied that the certificate referred to in subsection (1) is in order and there are no grounds for rejecting it, he shall countersign the certificate and shall forward it to the medical superintendent of the mental hospital in which the person is detained: (Amended 46 of 1988 s. 8)Provided that a District Judge shall not countersign a certificate—(a)in respect of a voluntary patient unless he is satisfied that the voluntary patient, or some person on his behalf in the case of a voluntary patient of less than 16 years of age, has given notice of the intention of the voluntary patient to leave the mental hospital in accordance with section 30(2)(a) and that it would be likely to be dangerous to the voluntary patient or to other persons if the voluntary patient were discharged from the mental hospital; or(b)(Repealed 46 of 1988 s. 8)

A medical superintendent may detain in a mental hospital for observation, investigation and treatment any person who is the subject of an order under this section and may transfer the patient to any other mental hospital.

The procedures described in subsections (1) and (2) may be undertaken notwithstanding that the patient is detained under a hospital order or because he has been sentenced to imprisonment or is detained by an order of a court, but where the patient is detained under a hospital order or because he has been sentenced to imprisonment—

and nothing done under this section shall have the effect of varying any order to a court. (Added 46 of 1988 s. 8)

This section—

A medical superintendent may from time to time permit a certified patient or a patient under observation to be absent from the mental hospital on trial for such periods as the medical superintendent may think proper. (Amended 46 of 1988 s. 11)

Any absence on trial under this section shall be subject to such conditions as the medical superintendent may prescribe.

In any case where a patient is absent from a mental hospital in accordance with this section, the medical superintendent may, subject to subsection (5), by notice in writing in the prescribed form to the patient or to the person for the time being in charge of the patient, revoke the permission to be absent and recall the patient to the mental hospital if he is of the opinion that it is necessary so to do in the interests of the patient’s health or safety or for the protection of other persons. (Replaced 46 of 1988 s. 11)

If before the expiry of any period of absence which has been prescribed the medical superintendent certifies in the prescribed form that it is not necessary that the patient be detained in a mental hospital he shall be deemed to have been lawfully discharged in accordance with the provisions of this Ordinance. (Amended 46 of 1988 s. 11)

A patient who has been permitted to be absent from a mental hospital in accordance with the provisions of this section shall not be recalled under subsection (3) after he has ceased to be liable to be detained under this Ordinance. (Added 46 of 1988 s. 11)

Where on behalf of a patient including a voluntary patient a relative or friend of the patient makes application in writing in the prescribed form to the medical superintendent—

the medical superintendent shall within 48 hours of the receipt of the application either—

(Repealed 46 of 1988 s. 13)

Subject to section 42B a patient who is for the time being liable to be detained shall cease to be so liable if there is made in accordance with this section an order in writing discharging him from detention (referred to as an order for discharge in this section and section 42B, but subject to subsection (6) of that section). (Amended 81 of 1997 s. 30)

An order for discharge may be made in respect of a patient—

Where—

the medical superintendent may, in the exercise of his powers under section 42A, but subject to any restriction on such power imposed by any provision of Part IV, make an order for discharge subject to compliance by the patient discharged (in this section and section 43 called the conditionally discharged patient) with conditions.

Without prejudice to the power of the medical superintendent in the exercise of his powers under subsection (1) to impose such conditions as he thinks fit on an order for discharge, being conditions reasonable in the circumstances, such conditions may require the conditionally discharged patient—

In any case where—

the medical superintendent may, by notice in writing in the prescribed form to the conditionally discharged patient or to the person in charge of the conditionally discharged patient, recall the patient to the mental hospital and, upon the giving of the notice to the patient, or at such subsequent time as may be stated in the notice, the patient may be detained and section 43(5) shall apply accordingly.

Any conditionally discharged patient recalled to a mental hospital under subsection (3) shall, upon admission to that hospital, be deemed to have been detained therein under section 31 and, for the purposes of that section, the patient shall be deemed to have been detained in that hospital in pursuance of an order under section 31(1B) made at the time of admission.

The medical superintendent may at any time by notice in writing to the conditionally discharged patient vary the conditions of his discharge.

This section shall apply to a person who is admitted to the Correctional Services Department Psychiatric Centre in pursuance of a hospital order with the following modifications—

and the power to discharge the patient at any time subsequent to the making of the order of conditional discharge may be exercised by that medical officer who shall have, in that respect, the power of a medical superintendent under section 42A.

Every patient received into a mental hospital under the authority of this Ordinance may, subject to this Ordinance, be detained therein until he is removed or discharged in accordance with this Ordinance.

Where a patient who is for the time being liable to be detained in a mental hospital under this Ordinance escapes, he may, subject to the provision of this section, be taken into custody and returned to the mental hospital by the medical superintendent, any officer or servant of such hospital, any person authorized by the medical superintendent or any police officer.

Where a person who is for the time being liable to be detained under this Ordinance—

he may, subject to this section, be taken into custody and returned to the mental hospital by the medical superintendent, any officer or servant of such hospital, or any person authorized by the medical superintendent.

(Repealed 81 of 1997 s. 31)

Where a conditionally discharged patient—

he may be taken into custody and returned to the mental hospital by the medical superintendent, or any officer or servant of the hospital, or any other person authorized by the medical superintendent:

Provided that where section 42B(6) applies references in this section to the medical superintendent shall be construed as referring to the medical superintendent of the mental hospital specified in the notice given under section 42B(3).

A patient shall not be taken into custody under this section after the expiration of 28 days beginning with the first day of his absence without leave, or, in the case of a failure to return to a mental hospital, the day on which the obligation to return arose, and a patient who has not returned or been taken into custody under this section within that period shall cease to be liable to be detained at the expiration of that period: (Amended 81 of 1997 s. 31)Provided that nothing in this subsection shall apply in the case of a person who is or was liable to detention under a hospital order which is not endorsed under section 45(1A), whether or not he was, prior to the event giving rise to the power to take him into custody under this section, in actual detention, absent on permission granted under section 39 or conditionally discharged from detention under that order.

Where by virtue of this section a person is detained, taken into custody or returned to a mental hospital, such reasonable force may be used as is necessary for the purpose.

Where an alien or any person not domiciled in Hong Kong is detained as a patient and it appears expedient that he should be removed to the country of which he is a national, the Chief Secretary for Administration if satisfied that his removal is likely to be for his benefit, and that proper arrangements have been made for such removal and for his subsequent care and treatment, may, by warrant, direct the patient to be delivered to the person named in the warrant for the purpose of removal to the country of which he is a national, and every such warrant shall be obeyed by the person or authority having the charge of the person named therein. (Amended 81 of 1997 s. 32; L.N. 362 of 1997)

A warrant under this section shall be sufficient authority for the master of any vessel or captain of any aircraft or the guard on any train to receive and detain the patient on board such vessel, aircraft or train for the purpose of conveying him to his destination.

Any order of removal made under this section shall be addressed to the medical superintendent of the mental hospital in which the patient is at the time detained and shall direct him to deliver up the patient to the person mentioned in such order at such place and in such manner as may be specified in the said order for the purpose of such removal as aforesaid; and the patient shall be delivered up accordingly.

Any patient removed from Hong Kong in accordance with the provisions of this section shall not return to Hong Kong except by permission of the Chief Secretary for Administration. (Amended L.N. 362 of 1997)

Where—

the court or magistrate may—

Section 45(3) shall apply to a guardianship order as it applies to a hospital order.

A guardianship order may confer on the Director of Social Welfare or any other person authorized by the Director of Social Welfare, as guardian, to the exclusion of any other person one or more of the following powers, namely—

(Repealed 81 of 1997 s. 34)

If any person (other than the Director of Social Welfare) who is the guardian of a mentally incapacitated person placed under guardianship in pursuance of a guardianship order—

the guardianship of the mentally incapacitated person shall upon that death or the receipt of that notice, as the case may be, vest in the Director of Social Welfare. (Added 81 of 1997 s. 34)

If any such guardian, not having given notice under subsection (2A)(b), is incapacitated by illness or any other cause from performing the functions of guardian of the mentally incapacitated person, those functions shall, during the guardian’s incapacity, be performed on his behalf by the Director of Social Welfare. (Added 81 of 1997 s. 34)

A guardianship order shall cease to be of any effect—

The court or magistrate may, upon an application under subsection (3)(b)(i)—

for a validity period of not more than 3 years commencing on the date of the renewal of the guardianship order. (Added 81 of 1997 s. 34)

Where a person is placed under guardianship in pursuance of a guardianship order, any previous guardianship order (including any guardianship order under Part IVB) by which he was liable to be subject to guardianship shall cease to have effect. (Amended 81 of 1997 s. 34)

Where a person placed under guardianship in pursuance of a guardianship order becomes liable to be detained or is detained in a mental hospital or the Correctional Services Department Psychiatric Centre the powers conferred on a guardian under subsection (1)(a), (b) and (c) in respect of the mentally incapacitated person shall be suspended and remain suspended until the mentally incapacitated person is discharged. (Added 81 of 1997 s. 34)

The Secretary for Labour and Welfare may, by notice in the Gazette, amend subsection (3)(b)(i)(A) by substituting a different period or periods for any period specified in that subsection, either generally or to cover a particular case or class of case. (Amended L.N. 106 of 2002; L.N. 130 of 2007)

It is hereby declared that a notice under subsection (5) is subsidiary legislation.

Where a mentally incapacitated person who is for the time being subject to a guardianship order under this Part absents himself without the permission or agreement of the guardian from the place where he is required by the guardian to reside, he may be taken into custody and returned to that place by the guardian or by the Director of Social Welfare, and such reasonable force may be used as is necessary for the purpose. (Added 81 of 1997 s. 34)

For the purposes of this section—

Subject to the other provisions of this Part, where—

the court or magistrate may by an order (supervision and treatment order) require the person (supervised person)—

Section 45(3) shall apply to a supervision and treatment order as it applies to a hospital order.

The court or magistrate shall not make a supervision and treatment order unless the court or magistrate has considered a social inquiry report from the supervising officer.

Before making a supervision and treatment order, the court or magistrate shall explain to the supervised person the effect of the order.

The supervised person shall keep in contact with the supervising officer in accordance with such instructions as he may from time to time be given by that officer and shall notify that officer of any change of address.

For the purpose of executing the supervision and treatment order concerned, the supervising officer shall have the power to convey the supervised person to a place or places as specified in the order.

A supervision and treatment order shall include a requirement that the supervised person shall submit, during the whole or part of such period as specified in the order, to treatment (which may include residential treatment in a hospital) by or under the direction of a registered medical practitioner (or other appropriately qualified person) with a view to the improvement of his mental incapacity. (Amended 81 of 1997 s. 37)

When the supervised person is under treatment as a residential patient in a mental hospital, the supervision and treatment order shall be suspended until the supervised person is discharged from that hospital.

Where—

the court or magistrate may by a hospital order authorize the admission of the person to and his detention in the Correctional Services Department Psychiatric Centre or a mental hospital specified in the order or, if the person is under 14 years of age, in a mental hospital specified in the order, and may specify in the order the period during which such person should be so detained which shall not be greater than the sentence which the court or magistrate could have imposed in respect of the offence with which such person was charged. (Amended 37 of 1973 s. 3)

Where under subsection (1) the court or magistrate by a hospital order authorizes the admission of a person to, and detention in, a mental hospital, and is of the opinion that in all the circumstances of the case the proviso to section 47(2) should not apply, the judge or magistrate may include a statement to that effect in the hospital order and, if he does so, that proviso shall not apply. (Added 46 of 1988 s. 15)

A hospital order shall not be made under this section unless the court or magistrate is satisfied that arrangements have been made for the admission of the person to the Correctional Services Department Psychiatric Centre or that mental hospital within 28 days after the date of the hospital order, in the event of the hospital order being made by the court or magistrate. (Amended 37 of 1973 s. 3)

[cf. 1959 c. 72 s. 60 U. K.]

Of the registered medical practitioners whose evidence is received in accordance with section 45(1)(b) or 54(3) at least one shall be a medical officer.

For the purpose of section 45(1)(b) or 54(3) a report in writing purporting to be signed by a registered medical practitioner may, subject to the provisions of this section, be received in evidence without proof of the signature or qualifications of the registered medical practitioner but the court or magistrate may require that the registered medical practitioner, by whom the report was signed, be called to give oral evidence.

Where, in pursuance of the directions of a court or magistrate, a report of a registered medical practitioner is tendered in evidence in accordance with section 45(1)(b) otherwise than by or on behalf of the accused— (Amended 40 of 1962 s. 2 )

A hospital order shall be sufficient authority for—

A person who is admitted to the Correctional Services Department Psychiatric Centre in pursuance of a hospital order shall be treated, for the purposes of the Prisons Ordinance (Cap. 234), as if he had been lawfully confined in a prison in accordance with section 7 of that Ordinance except that during the period for which he is ordered to be detained in the Correctional Services Department Psychiatric Centre, or if no period is specified in the order, while the order is in force—

A person who has been admitted to a mental hospital in pursuance of a hospital order shall be treated, for the purposes of Part III, as if he had been detained in a mental hospital in accordance with section 36: Provided that, unless the hospital order has been endorsed under section 45(1A), the power to grant permission for leave of absence under section 39, to discharge under section 42A or to discharge conditionally under section 42B shall be exercisable only with the prior consent of the Chief Executive. (Replaced 46 of 1988 s. 17. Amended 60 of 2000 s. 3)

Where—

in pursuance of a hospital order, any previous order by which he was liable to be detained in a mental hospital shall cease to have effect. (Replaced 37 of 1973 s. 4)

[cf. 1959 c. 72 s. 63 U.K.]

(Repealed 46 of 1988 s. 19)

Any order made in accordance with subsection (1) or (2) may be made in the absence of the person if the court or magistrate is satisfied on such evidence as shall be placed before him that no useful purpose might be served by the personal appearance before the court or magistrate of such person. (Amended 3 of 1968 s. 3; 46 of 1988 s. 19)

If the Chief Executive is satisfied from the report of a medical officer that a person who is serving a sentence of imprisonment is a mentally disordered person and that the nature or degree of the mental disorder from which he is suffering warrants his detention in a mental hospital for treatment, the Chief Executive may, by transfer order, direct that the person be removed to and detained in such mental hospital as is specified in the order.

A transfer order shall cease to have effect at the expiration of a period of 14 days from the date on which it was made unless within that period the person with respect to whom it was made has been received in the mental hospital specified in the transfer order.

A person who is admitted to a mental hospital in pursuance of a transfer order shall be treated for the purposes of Part III as if he had been detained in a mental hospital under section 36 except that—

If the Chief Executive is satisfied from the report from a medical superintendent that a person, who was transferred to a mental hospital by a transfer order made under subsection (1) and whose sentence of imprisonment has not expired, no longer requires treatment for mental disorder the Chief Executive may by order direct that the person be returned to the custody of the Commissioner of Correctional Services or the Director of Social Welfare, as the case may be, to serve the remainder of his sentence of imprisonment. (Amended 40 of 1962 s. 3)

The Chief Executive may, after consultation with the Commissioner of Correctional Services and a medical superintendent, by order direct that a person detained in a mental hospital in pursuance of an order made under this Part or under the Criminal Procedure Ordinance (Cap. 221), be removed to and detained in the Correctional Services Department Psychiatric Centre.

An order under subsection (1) shall be sufficient authority for the Commissioner of Correctional Services to admit the person removed from the mental hospital to the Correctional Services Department Psychiatric Centre and to detain him therein for the period specified in the order authorizing his detention in the mental hospital, or if no such period is specified, while that order is in force.

A person who is removed to and detained in the Correctional Services Department Psychiatric Centre in pursuance of an order under subsection (1) shall be treated, for the purposes of the Prisons Ordinance (Cap. 234), as if he had been lawfully confined in a prison in accordance with section 7 of that Ordinance except that during the period within which he is liable to be detained—

The Chief Executive may, after consultation with a medical superintendent and the Commissioner of Correctional Services, by order direct that a person detained in the Correctional Services Department Psychiatric Centre in pursuance of an order made under this Part or under the Criminal Procedure Ordinance (Cap. 221), be removed to and detained in a mental hospital.

An order under subsection (1) shall be sufficient authority for the medical superintendent to admit the person removed from the Correctional Services Department Psychiatric Centre to a mental hospital and to detain him therein for the period specified in the order authorizing his detention in the Correctional Services Department Psychiatric Centre, or if no such period is specified, while that order is in force.

A person who is removed to and detained in a mental hospital in pursuance of an order under subsection (1) shall be treated as being detained there in accordance with section 36 except that during the period within which he is liable to be detained—

If the Chief Executive is satisfied from the report of a medical officer that a person to whom this section applies is a mentally disordered person and that the nature or degree of the mental disorder from which he is suffering warrants his detention of the person in a mental hospital for medical treatment, the Chief Executive may by transfer order direct that the person be removed to and detained in a mental hospital. (Amended 60 of 2000 s. 3)

This section shall apply to any person who is—

The provisions of section 52(2), (3) and (4) shall apply for the purposes of this section and to any transfer made in accordance with this section.

[cf. 1959 c. 72 s. 73 U.K.]

A transfer order given in accordance with section 53(1) shall cease to have effect when the case of the person named in the transfer order has been disposed of by the court or magistrate having jurisdiction to try or otherwise deal with him; but without prejudice to any power of that court or magistrate to make a hospital order under this Part in his case. (Amended 34 of 1972 s. 22)

Where a transfer order has been given in accordance with section 53(1)—

A hospital order may be made in respect of a person in accordance with subsection (2)(b) if the court or magistrate is satisfied, on the written or oral evidence of 2 registered medical practitioners received in accordance with section 46(1) and (2) that— (Amended 40 of 1962 s. 4)

and the court or magistrate is of the opinion after considering any depositions or other documents required to be sent to the proper officer of the court, that it is proper to make a hospital order.

When a transfer order has been made in respect of a person remanded in custody by a magistrate, the power of further remanding such person under section 20 of the Magistrates Ordinance (Cap. 227) may be exercised by the magistrate without such person being brought before the magistrate.

Any transfer order made in respect of a civil prisoner shall cease to have effect on the expiration of the period during which he would but for his removal to the mental hospital, be liable to be detained in prison.

[cf. 1959 c. 72 s. 75 U.K.]

If the Commissioner of Correctional Services or, in the case of a person who is detained in a remand home or a reformatory school, the Director of Social Welfare, has reason to believe that a person who is serving a sentence of imprisonment as defined by section 52(5) or a person to whom section 53 applies is a mentally disordered person and that it is necessary or desirable that such person should be forthwith transferred to a mental hospital for observation or treatment, he may, by writing under his hand, order that such person be taken to a mental hospital for the purpose of detention, observation and treatment during the period of 14 days from and including the date of the order. (Amended 40 of 1962 s. 5)

The provisions of sections 51, 52 and 53 may be applied to a person who is detained in a mental hospital in consequence of an order made under subsection (1) as if no such order had been made.

A person who is detained in a mental hospital in consequence of an order made under subsection (1) shall be deemed to be in legal custody.

If a person is committed in custody for trial in accordance with section 85(2) of the Magistrates Ordinance (Cap. 227), the Commissioner of Correctional Services—

make an order in accordance with section 55(1), even if the Commissioner of Correctional Services has no reason to believe that the prisoner is a mentally disordered person.

If the prisoner is the subject of an application by the Secretary for Justice in accordance with subsection (1)(b), the medical officer of the prison or the medical superintendent of the mental hospital, as the case may be, shall, not less than 7 days before the date fixed for the trial of the prisoner, submit to the Registrar and to the Secretary for Justice a report on the mental condition of the prisoner, stating whether or not the prisoner has exhibited any indication of insanity and whether or not he is fit to plead. (Amended 24 of 1993 s. 18)

A report submitted in accordance with subsection (2) shall not express any opinion as to the degree of responsibility of the prisoner at the time when the offence with which he is charged was committed but if, from symptoms exhibited while under observation in the prison or in the mental hospital, the medical officer of the prison or the medical superintendent of the mental hospital, as the case may be, is of the opinion that insanity exists and has done so for some time previous to the date when the offence was committed, or that there is any history of insanity, his report should embody this opinion.

There shall be a tribunal known as the “Mental Health Review Tribunal” for the purpose of dealing with applications and references by and in respect of patients under this Ordinance or mentally handicapped persons to whom Part IIIA or IIIB applies, as the case may be, (relevant persons). (Amended 81 of 1997 s. 44; E.R. 4 of 2019)

The tribunal shall consist of—

The members of the tribunal shall hold and vacate office under the terms of the instrument under which they are appointed, but may resign office by notice in writing to the Chief Executive. (Amended 60 of 2000 s. 3)

Any member of the tribunal who ceases to hold office shall be eligible for re-appointment.

Subject to the rules referred to in section 59G, the members who are, with the chairman, to exercise the functions of the tribunal for the purposes of any proceedings or class or group of proceedings under this Ordinance shall be appointed by the chairman, and of the members so appointed—

Subject to the rules referred to in section 59G, the jurisdiction of the tribunal may be exercised by the chairman and 3 of its members, and references in this Ordinance to the tribunal shall be construed accordingly.

The Registrar of the High Court may defray the expenses of the tribunal to such amount as he may, with the consent of the Financial Secretary, determine. (Amended 25 of 1998 s. 2)

There shall be a secretary to the tribunal who shall be appointed by the Chief Executive. (Amended 60 of 2000 s. 3)

The persons recommended to the Chief Executive by the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap. 113) under subsection (2)(b) shall be persons who, in the opinion of the Director, have relevant experience in psychiatry. (Amended L.N. 76 of 1989; 68 of 1990 s. 24; 60 of 2000 s. 3)

An application may be made to the tribunal for the review of the case of any patient liable to be detained in a mental hospital or the Correctional Services Department Psychiatric Centre; but nothing in this section shall apply to any person who is serving a sentence of imprisonment in pursuance of the order of any court during the period within which he is liable to be detained in pursuance of that sentence other than a person detained at the discretion of the Chief Executive. (Amended 81 of 1997 s. 45; 60 of 2000 s. 3)

An application may be made to the tribunal for the review of any case of—

An application under subsection (1) or (2) may be made by—

and, subject to subsection (5) and to any rules made under section 59G, may be made at any time.

An application under subsection (1) or (2) may be brought for the purpose of reviewing any direction or decision of a medical superintendent under this Ordinance and, when so brought, shall specify the grounds for applying for the review.

Except with the leave of the tribunal, no application may be made under subsection (1) or (2)—

The Chief Executive may, if he thinks fit, at any time refer to the tribunal the case of any patient to whom section 59B(1) applies. (Amended 81 of 1997 s. 46; 60 of 2000 s. 3)

For the purpose of furnishing information to the tribunal for the purposes of a reference under subsection (1), any registered medical practitioner authorized by or on behalf of the patient may, at any reasonable time, visit the patient and examine him in private and require the production of and inspect any records relating to the detention or treatment of the patient in any hospital and relevant to the reference.

Whenever a patient (other than a voluntary patient) or his relative does not exercise his right to apply to the tribunal under section 59B(1) for a period of 12 months after the right first became available to him— (Amended 81 of 1997 s. 47)

shall, at the expiration of the period for making the application, refer the patient’s case to the tribunal.

For the purpose of furnishing information to the tribunal for the purposes of any reference under this section, any registered medical practitioner authorized by or on behalf of the patient may, at any reasonable time, visit and examine the patient in private and require the production of and inspect any records relating to the detention or treatment of the patient in any hospital and relevant to the reference.

For the purposes of subsection (1), a person who applies to the tribunal but subsequently withdraws his application shall be treated as not having exercised his right to apply, and where a person withdraws his application on a date after the expiration of the period mentioned in that subsection, the medical superintendent or as the case may be, the Commissioner of Correctional Services shall refer the patient’s case as soon as possible after that date.

A medical superintendent or the Commissioner of Correctional Services may, in the event of an application being made to the tribunal by any other person under section 59B(1), with the leave of the tribunal, discontinue any review proceedings brought under this section.

Where application is made to the tribunal under section 59B(1) or (2)(a) or (b) or a case is referred to it under section 59C(1) or 59D(1), the tribunal may— (Amended 81 of 1997 s. 48)

In the exercise of its powers under subsection (1)(a), the tribunal shall direct that a patient be discharged, either absolutely or subject to the imposition of conditions under section 42B, if it is satisfied—

In determining whether to direct the discharge of a patient, the tribunal shall have regard—

The tribunal may under subsection (1) direct the discharge of a patient on a future date specified in the direction; and where the tribunal does not direct the discharge of a patient under that subsection the tribunal may—

Where application is made to the tribunal under section 59B(2)(c) or (d) the tribunal may in any case direct that the person to whom those paragraphs apply be discharged, and shall so direct if it is satisfied that it is not necessary in the interests of the welfare of that person, or for the protection of other persons, that that person should remain in guardianship under Part IIIA or remain as a supervised person within the meaning of Part IIIB. (Replaced 81 of 1997 s. 48)

The tribunal may under subsection (5) direct the discharge of the person to whom section 59B(2)(c) or (d) applies on a future date specified in the direction, and where the tribunal does not direct the discharge of that person the tribunal may—

No application shall be made to the tribunal except in such cases and at such times as are expressly provided by this Ordinance.

An application to the tribunal authorized to be made under this Ordinance shall be made by notice in writing addressed to the tribunal.

Rules may be made by the Chief Justice with respect to the making of applications to the tribunal and with respect to its proceedings and matters incidental to or consequential on such proceedings.

Rules made under subsection (1) may in particular make provision—

Subsections (1) and (2) apply in relation to references to the tribunal as they apply in relation to applications to the tribunal by or in respect of relevant persons. (Amended 81 of 1997 s. 50)

The rules may be so framed as to apply to all applications or references to the tribunal, or to applications or references of any specified class, and may make different provision in relation to different cases.

Any functions conferred on the chairman by the rules may, if for any reason he is unable to act, be exercised by another member of the tribunal appointed by him for the purpose.

The tribunal shall have power to hear, receive and examine evidence on oath.

The tribunal may, by notice under the hand of the chairman, summon any witness and require the production of any document or record or other thing which is relevant to the proceedings.

Any person on whom a summons under subsection (2) has been served who—

commits an offence and is liable to a fine at level 2.

The tribunal may pay allowances in respect of travelling expenses, subsistence and loss of earnings to any person attending the tribunal as an applicant or witness, to the relevant person who is the subject of the proceedings if he attends otherwise than as the applicant or a witness and to any person (other than counsel or a solicitor) who attends as the representative of an applicant. (Amended 81 of 1997 s. 51)

The tribunal may, and if so required by the Chief Executive shall, state in the form of a special case for determination by the Court of First Instance any question of law which may arise before it. (Amended 25 of 1998 s. 2; 60 of 2000 s. 3)

In this Part, unless the context otherwise requires—

This Part does not apply to a mentally incapacitated person who is subject to a guardianship order under Part IIIA, other than to such a person who is the subject of a recommendation under section 59E(4)(a)(iii) or (6)(a).

There is hereby established a body corporate to be called the “Guardianship Board”. (Amended E.R. 4 of 2019)

Subject to subsection (3), the Chief Executive shall appoint to the Board—

Of the members of the Board appointed under subsection (2)(b)—

The relevant provisions of the Schedule shall have effect with respect to the Board and its members.

The Board shall not be regarded as a servant or agent of the Government or as enjoying any status, immunity or privilege of the Government.

The Guardianship Board shall—

and in so doing shall observe and apply the matters or principles referred to in subsection (2).

The matters or principles that the Board shall observe and apply in the performance of its functions or the exercise of its powers are as follows, namely—

The Guardianship Board may, by notice under the hand of the Chairperson to the Board, summon any witness and require the production of any document or record or other thing which is relevant to its proceedings.

Any person on whom a summons under subsection (1) has been served who—

commits an offence and is liable to a fine at level 2.

The Guardianship Board may pay allowances in respect of travelling expenses, subsistence and loss of earnings to any person attending any proceedings of the Guardianship Board as a witness.

A mentally incapacitated person who has attained the age of 18 years may be received into guardianship in pursuance of an application made to the Guardianship Board in accordance with this section.

A guardianship application may be made in respect of a mentally incapacitated person on the grounds that—

A guardianship application shall be accompanied by and founded on the written reports of 2 registered medical practitioners (neither of whom being the applicant), and each report shall include—

A guardianship application shall state the age of the mentally incapacitated person or, if his exact age is not known to the applicant, shall state (if it be the fact) that that person is believed to have attained the age of 18 years.

A guardianship application under section 59M(1) shall be in the prescribed form and may be made by—

and every such application shall specify which of those persons is making the application and, if made by a relative of the mentally incapacitated person, shall state the relationship.

No guardianship application under section 59M(1) may be made by any person in respect of the mentally incapacitated person unless the applicant has personally seen the mentally incapacitated person within the period of 14 days ending immediately prior to the date of the application.

On receipt of a guardianship application, the Guardianship Board shall send copies of the application—

The Guardianship Board shall give notice to the applicant of the time and place appointed for the purpose of determining whether or not the mentally incapacitated person should be received into guardianship and to any other person to whom a copy of that application has been sent under subsection (3).

Subject to subsection (3), if, after conducting a hearing into any guardianship application made under section 59M(1) for the purpose of determining whether or not a mentally incapacitated person who has attained the age of 18 years should be received into guardianship and having regard to the representations (if any) of any person present at the hearing to whom a copy of the guardianship application has been sent under section 59N(3) and considering the social enquiry report referred to in section 59P(1) the Guardianship Board is satisfied that the mentally incapacitated person is a person in need of a guardian, it may make an order appointing a guardian in respect of that person.

Any guardianship order made under subsection (1) shall be subject to such terms and conditions as the Guardianship Board thinks fit, including terms and conditions (if any) as to the exercise, extent and duration of any particular powers and duties of the guardian.

In considering the merits of a guardianship application to determine whether or not to make a guardianship order under subsection (1) in respect of a mentally incapacitated person, the Guardianship Board shall observe and apply the matters or principles referred to in section 59K(2) and, in addition, shall apply the following criteria, namely that it is satisfied—

For the purpose of section 59O, a report (social enquiry report) signed by or on behalf of the Director of Social Welfare and prepared by a public officer in the Social Welfare Department shall, subject to subsection (2), be received in evidence for consideration by the Guardianship Board.

A copy of the social enquiry report (or the substance of the report) referred to in subsection (1) shall be given or disclosed to—

The social enquiry report shall contain the views and wishes of the mentally incapacitated person, in so far as they may be ascertained and include an assessment of the family background, and social and financial situation, of that person.

Subject to section 59U(5), a guardianship order made under section 59O shall have effect—

An emergency guardianship order made under section 59Q shall have effect—

whichever event first occurs.

Subject to subsections (6) and (7), a guardianship order may confer on the guardian appointed under this Part, to the exclusion of any other person one or more of the following powers, namely—

The period within which a guardianship application is required for the purposes of this section to be forwarded to the Guardianship Board is the period of 14 days beginning with the date on which the mentally incapacitated person was last examined by a registered medical practitioner before furnishing a written report containing a medical opinion for the purposes of the application.

Where a mentally incapacitated person is the subject of a recommendation under section 59E(4)(a)(iii) or (6)(a) received into guardianship under this Part—

made in respect of the mentally incapacitated person shall cease to have effect, or where the mentally incapacitated person is subject to detention in a mental hospital or the Correctional Services Department Psychiatric Centre the Guardianship Board shall direct that he be discharged, and where it does so that person shall be discharged in accordance with its directions.

Where a mentally incapacitated person received into guardianship under this Part becomes the subject of a supervision and treatment order under Part IIIB the powers conferred on a guardian in subsection (3)(a), (b) and (c) in respect of the mentally incapacitated person shall be suspended and shall remain suspended until that order is revoked or ceases to have effect.

Where a mentally incapacitated person received into guardianship under this Part becomes liable to be detained or is detained in a mental hospital or the Correctional Services Department Psychiatric Centre the powers conferred on a guardian in subsection (3)(a), (b) and (c) in respect of the mentally incapacitated person shall be suspended and shall remain suspended until the mentally incapacitated person is discharged.

A person (other than the Director of Social Welfare) shall not be appointed by the Guardianship Board as a guardian of a mentally incapacitated person received into guardianship under this Part unless the Board is satisfied that—

Where it appears to the Guardianship Board that there is no appropriate person available to be appointed the guardian of a mentally incapacitated person the subject of a guardianship application, the Guardianship Board shall make a guardianship order appointing the Director of Social Welfare as the guardian of the mentally incapacitated person.

In the performance of any functions or the exercise of any powers under this Ordinance the guardian shall ensure—

and shall comply with directions (if any) given by the Guardianship Board in respect of that guardian and any regulation made under section 72(1)(g) or (h).

If any person (other than the Director of Social Welfare) who is the guardian of a mentally incapacitated person received into guardianship under this Part—

the guardianship of the mentally incapacitated person shall, subject to a review by the Guardianship Board under section 59U, upon that death or the receipt of that notice, as the case may be, vest in the Director of Social Welfare.

If any such guardian, not having given notice under subsection (1)(b), is incapacitated by illness or any other cause from performing the functions of guardian of the mentally incapacitated person, those functions shall, during the guardian’s incapacity and subject to a review by the Guardianship Board under section 59U, be performed on his behalf by the Director of Social Welfare or by any other person approved for that purpose by the Guardianship Board.

The Guardianship Board may, of its own initiative and in accordance with such procedure as it thinks fit, review any guardianship order made under section 59O at any time prior to the expiry of the period for which the guardianship order has effect under section 59R(1).

The Guardianship Board shall review any guardianship order made under section 59O—

the Guardianship Board shall review any guardianship order made under section 59O in the circumstances described in section 59T(1)(a) or (b).

The following persons are entitled to request the Guardianship Board to review a guardianship order made under section 59O—

Despite section 59R(1), a guardianship order that would otherwise cease to have effect under that section before the completion of a review under this section shall continue to have effect until the completion of the review.

On reviewing a guardianship order in accordance with this section, the Guardianship Board may—

The provisions of this Part apply to the renewal or variation of a guardianship order (including a variation in the duration of that order) in the same way as they apply to the making of such an order under section 59O.

Any party to proceedings before the Guardianship Board may appeal to the Court from any decision of the Board in that proceeding—

An appeal by any person under this section shall be instituted—

On the hearing of an appeal under this section, the Court shall determine the appeal and may make such order as it thinks fit including the following, namely—

Pending the determination of an appeal by the Court, and subject to any order made by the Court to the contrary, the appeal operates to stay the decision appealed against.

The Guardianship Board is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.

Proceedings before the Board shall be conducted with as little formality and legal technicality and form as the circumstances of the case permit.

Despite subsection (2), the Board shall have power to hear, receive and examine evidence on oath.

Proceedings before the Guardianship Board shall be open to the public unless the Board, in any particular case, determines that it is in the interests of the mentally incapacitated person the subject of the proceedings, or for some other good reason, that those proceedings should be conducted wholly or partly in the absence of the public.

The procedure for any hearing of the Board shall, subject to any rules made under section 59Z, be as determined by the Board.

In any proceedings before the Guardianship Board, the following persons may appear in person or be represented by counsel or a solicitor, namely—

The Guardianship Board may, if it appears to the Board that any person entitled to appear in person before it under subsection (1) ought to be separately represented by counsel or a solicitor—

Rules may be made by the Secretary for Labour and Welfare with respect to the making of guardianship applications to the Guardianship Board and with respect to its proceedings and matters incidental, supplementary or consequential to such proceedings. (Amended L.N. 106 of 2002; L.N. 130 of 2007)

Rules made under subsection (1) may make provision—

This Part applies to treatment or special treatment of a mentally incapacitated person who has attained the age of 18 years and is incapable of giving consent to the carrying out of that treatment or that special treatment, as the case may be, but does not apply to—

A mentally incapacitated person is incapable of giving such consent if that person is incapable of understanding the general nature and effect of the treatment or special treatment.

The Court when considering whether or not to give consent to the carrying out of treatment or special treatment, or the guardian when considering whether or not to give consent to the carrying out of treatment, under this Part, shall observe and apply the following principles, namely to—

Nothing in this Ordinance shall be construed as enabling the removal, in the course of any treatment or special treatment of a mentally incapacitated person who has attained the age of 18 years and is incapable of giving consent to the carrying out of such treatment or special treatment, as the case may be, from that person of any organ for the purpose of transplanting it into another person.

The Secretary for Health may in consultation with the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap. 113) or that authority and other appropriate bodies, by notice in the Gazette, specify any dental treatment, medical treatment or both, as the case may be, to be special treatment for the purposes of this Part. (Amended L.N. 106 of 2002; L.N. 130 of 2007; L.N. 144 of 2022)

It is hereby declared that a notice under subsection (1) is subsidiary legislation.

Consent to the carrying out of treatment in respect of a mentally incapacitated person to whom this Part applies may be given by the guardian of that person appointed under Part IIIA or IVB in respect of whom a guardianship order has conferred the power to consent under section 44B(1)(d) or 59R(3)(d).

Subject to sections 59ZF(1) and 59ZJ, consent to the carrying out of treatment or special treatment in respect of a mentally incapacitated person to whom this Part applies may be given by the Court under this Part.

Treatment by a registered medical practitioner or registered dentist may be carried out in respect of a mentally incapacitated person to whom this Part applies without consent under section 59ZD(1) or (2) if that registered medical practitioner or registered dentist intending to carry out or supervise the treatment considers that as a matter of urgency that treatment is necessary and is in the best interests of the mentally incapacitated person.

Subject to subsection (3), treatment by a registered medical practitioner or registered dentist may be carried out in respect of a mentally incapacitated person to whom this Part applies without consent under section 59ZD(1) if—

Where a registered medical practitioner or registered dentist intending to carry out or supervise the treatment under subsection (2) considers that that treatment is necessary and is in the best interests of the mentally incapacitated person, then he may carry out that treatment without the consent of the mentally incapacitated person or that person’s guardian (if any) accordingly.

Any person, including a medical superintendent, registered medical practitioner or registered dentist, may apply to the Court for consent to the carrying out of special treatment in respect of a mentally incapacitated person to whom this Part applies.

Any person, including a medical superintendent, registered medical practitioner or registered dentist, may apply to the Court for consent to the carrying out of treatment in respect of a mentally incapacitated person to whom this Part applies in circumstances where a guardian of that person appointed under Part IIIA or IVB who has been conferred the power to consent in a guardianship order under section 44B(1)(d) or 59R(3)(d)—

The person making an application under section 59ZG(1) or (2) shall, as soon as practicable after making the application, serve a copy of the application on—

Subject to section 59ZJ(2), any failure to serve a copy of an application under subsection (1)(b) or (c) shall not affect any decision of the Court in respect of the application, but the Court shall take into account any such failure in making its decision.

Without prejudice to section 59ZF(1), if, after conducting a hearing into an application under section 59ZG(1) or (2), the Court is satisfied that it is appropriate that treatment or special treatment, as the case may be, should be carried out in the best interests of the mentally incapacitated person to whom this Part applies, the Court may consent to the carrying out of that treatment or that special treatment and make an order to the applicant to that effect.

Nothing in this section requires the Court to consider an application under section 59ZG(1) or (2) if the Court is not satisfied that the applicant has a sufficient interest in the health and well-being of the mentally incapacitated person to whom this Part applies.

The Court shall not consent under this Part to the carrying out of special treatment in respect of a mentally incapacitated person to whom this Part applies unless the Court is satisfied that the special treatment is the only or most appropriate method of treating that person or that the special treatment is in the best interests of that person.

In the case of a failure to serve a copy of an application under section 59ZH(1)(b) or (c), the Court shall not consent under this Part to the carrying out of treatment or special treatment, as the case may be, in respect of a mentally incapacitated person to whom this Part applies unless the Court is satisfied that that failure will not affect the observation and application of the principles referred to in section 59ZB(3).

If after the reception of any patient into a mental hospital it appears that the order or the medical certificate upon which he was received is defective or incorrect, the same may at any time afterwards be amended, with the sanction of the medical superintendent, by the person or persons signing the same.

An amendment made under this section shall be effective as from the date of the reception.

The Court, on the application of the Secretary for Justice and on being satisfied that a patient including a person who has been received into a mental hospital in accordance with section 76 of the Criminal Procedure Ordinance (Cap. 221) has property which may be applied towards his maintenance or that any person is legally bound to maintain the patient and has sufficient means to enable him to do so, may make an order for the recovery of the cost of the maintenance of the patient, together with the costs of the application, out of the property of the patient or from such person. (Amended L.N. 362 of 1997)

Any order made in accordance with the provisions of subsection (1) shall be of the same force and effect and subject to the same appeal as a judgment or order made by the Court in any proceedings in respect of the property or of the person therein mentioned.

Any attendant, nurse, servant or other person employed in a mental hospital who ill-treats or wilfully neglects any patient shall be guilty of an offence and shall be liable on summary conviction to a fine at level 2 and imprisonment for 2 years. (Amended 46 of 1988 s. 24)

Without prejudice to section 125 of the Crimes Ordinance (Cap. 200), any man who is an officer on the staff of, or is otherwise employed in—

commits an offence and shall on conviction on indictment be liable to imprisonment for 5 years. (Replaced 46 of 1988 s. 24)

Consent shall not be a defence in any proceedings for an offence under subsection (2) if the accused knew, or had reasonable grounds to suspect at the time when intercourse took place, that the woman with whom he had sexual intercourse was such a woman as is described in paragraph (a), (b) or (c) of that subsection. (Replaced 46 of 1988 s. 24)

If on the trial of any person for rape the Court or jury is satisfied that the accused is guilty of an offence under subsection (2) but are not satisfied that he is guilty of rape, the Court or jury shall acquit him of rape and shall find him guilty of an offence under subsection (2).

Where a person has made application for the removal or detention of any person under the provisions of this Ordinance, or signed or carried out, or done any act with a view to signing or carrying out, an order purporting to be an order for removal or detention, or any report, application, recommendation, or certificate purporting to be a report, application, recommendation, or certificate under this Ordinance, or has done anything or given any advice in a professional capacity in pursuance of this Ordinance, he shall not be liable to any civil or criminal proceedings whether on the ground of want of jurisdiction or on any other ground unless he has acted in bad faith or without reasonable care.

No proceedings, civil or criminal, shall be brought against any person in any Court in respect of any such matter as is mentioned in subsection (1), without the leave of the Court, and leave shall not be given unless the Court is satisfied that there is substantial ground for the contention that the person, against whom it is sought to bring the proceedings, has acted in bad faith or without reasonable care.

Notice of any application under subsection (2) shall be given to the person against whom it is sought to bring the proceedings, and that person shall be entitled to be heard against the application.

Subject to the provisions of section 69 any person who—

shall be guilty of an offence and shall be liable on summary conviction to a fine at level 4 and to imprisonment for 2 years. (Amended 46 of 1988 s. 28)

No prosecution under this section shall be instituted except by or with the consent of the Secretary for Justice. (Amended L.N. 362 of 1997))

Nothing in this section shall prevent any general hospital or nursing home which has been recognized as such by the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap. 113) from receiving and treating any person who is in need of and is desirous of receiving psychiatric treatment. (Amended L.N. 76 of 1989; 68 of 1990 s. 24)

If it appears to a magistrate on information on oath laid by any person who is authorized under this Ordinance to take a mentally incapacitated person to any place, or to take into custody or retake a mentally incapacitated person who is liable under this Ordinance to be so taken or retaken—

the magistrate may issue a warrant authorizing any police officer or other person named in the warrant to enter the premises and remove the mentally incapacitated person.

If it appears to a magistrate, on information on oath laid by an approved social worker, that there is reasonable cause to suspect that a person believed to be mentally incapacitated—

the magistrate may issue a warrant authorizing any police officer or other person named in the warrant to enter any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety.

In the execution of a warrant issued under subsection (1) or (2) the person named in the warrant—

Subsections (1) and (3) apply to and in relation to a supervised person within the meaning of Part IIIB as they apply to and in relation to a mentally incapacitated person and subsections (2), (3) and (4) apply to and in relation to such a person as they apply to a person believed to be suffering from a mental disorder. (Added 38 of 1996 s. 4)

If a police officer finds in any place a person whom he reasonably believes to be suffering from mental disorder and to be in immediate need of care or control, the officer may, notwithstanding the provisions of section 51 of the Police Force Ordinance (Cap. 232), take that person into custody and remove him forthwith to a place of safety if the officer thinks it necessary to do so in the interests of that person or for the protection of other persons.

A person who is in, or is removed under this section to, a place of safety may be detained there for a period not exceeding 24 hours for the purpose of enabling him to be examined by a registered medical practitioner and of making necessary arrangements for his treatment and care.

Such force as is reasonably necessary may be used for the purposes of taking a person into custody and removing him to a place of safety, and for detaining him there, under this section.

Nothing in subsection (1) shall confer upon any police officer a right to enter upon any premises.

The Secretary for Health may by regulation provide for— (Amended 81 of 1997 s. 55; L.N. 106 of 2002; L.N. 130 of 2007; L.N. 144 of 2022)

Such regulations may provide that the contravention of any regulation shall constitute an offence and may prescribe penalties for any offence not exceeding a fine at level 2 and imprisonment for 6 months.

Regulations under subsection (1)(g) and (h) may in particular make provision for requiring the mentally incapacitated persons to be visited on behalf of the Director of Social Welfare, on such occasions or at such intervals as may be prescribed and may provide for the appointment, in the case of every mentally incapacitated person subject to the guardianship of a person other than the Director of Social Welfare, of a registered medical practitioner to act as the medical attendant of the mentally incapacitated person. (Added 46 of 1988 s. 31)

Subject to subsection (3), despite—

(the original provisions) by the Mental Health (Amendment) Ordinance 1997 (81 of 1997) (the relevant Ordinance) a person received into guardianship under section 33 (as repealed by the relevant Ordinance) shall remain under guardianship as if the original provisions had not been repealed or amended, as the case may be, by the relevant Ordinance. (Amended 32 of 2000 s. 48)

The amendments of Part IIIA by the relevant Ordinance shall not affect the validity of any guardianship orders made before the commencement of those amendments or the powers conferred by such orders.

Where a guardianship order is made under Part IVB in respect of a person who has been received into guardianship under section 33 (as repealed by the relevant Ordinance) that guardianship shall cease to have effect on the making of that guardianship order.

The amendment of section 72(1) by section 55 of the relevant Ordinance shall not affect any regulations made under that first-mentioned section in force immediately before the commencement of that amendment and those regulations shall continue to apply—

Despite the repeal of section 12(4) of the High Court Ordinance (Cap. 4) by item 1 of Schedule 2 to the relevant Ordinance, any application made before the relevant date under the provisions of Part VII of the Mental Health Act 1983 (1983 c. 20 U.K.) as applied to Hong Kong shall be dealt with under Part II, subject to such modifications as may be necessary, as if the application had been made under Part II and not under the provisions of Part VII of that Act. (Amended 25 of 1998 s. 2)

The repeal of section 12(4) of the High Court Ordinance (Cap. 4) by item 1 of Schedule 2 to the relevant Ordinance shall not affect the validity of any orders, directions or authorities made or given before the relevant date under the provisions of Part VII of the Mental Health Act 1983 (1983 c. 20 U.K.) as applied to Hong Kong, and any receiver appointed under that Part of that Act shall be treated as if he were appointed a committee of the estate of a mentally incapacitated person under Part II. (Amended 25 of 1998 s. 2)