Re Tbs

HCMH 51/2019

[2021] HKCFI 394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 51 OF 2019

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Before: Hon B Chu J in Chambers (Not Open to the Public)

Date of Applicant’s Submission on Costs: 23 November 2020

Date of Intervenor’s Submission on Costs: 21 December 2020

Date of Applicant’s Reply Submissions: 4 January 2021

Date of Decision: 26 February 2021

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DECISION

(On Costs)

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Introduction

1.The present application concerns the issue of costs arising out of a summons issued by the Applicants on 27 February 2020 (“2^nd Summons”), which was issued after an earlier summons issued on 13 February 2020 (“1^st Summons”) was dismissed by DHCJ MK Liu on 14 February 2020.

2.The Applicants and the Intervenor are siblings.  Their father passed away on 20 June in 2019 and on the same day, Mother was taken by the Applicants to two psychiatrists for examinations.  The present proceedings were commenced not long thereafter by the Applicants under Part II of the Ordinance, for them to be appointed as the Committee for Mother.  Their application was opposed by the Intervenor.  Eventually, on 19 November 2019, by agreement and with consent of the Official Solicitor (“OS”), the OS was appointed as the Committee for Mother who had been declared to be incapable by reason of her mental incapacity as defined in the Ordinance of managing and administering her property and affairs (“MHO Order”).

3.There were disputes between the Applicants and the Intervenor over the interim care arrangements for Mother, as a result of which this Court first made an order on 19 August 2019 for Mother’s interim arrangements which were later updated and replaced by the present interim arrangements set out in a Schedule 2 attached to the MHO Order (“Schedule 2 Arrangements”). Reasons for Decision were later handed down by this Court on 29 November 2019 in relation to whether this Court had the jurisdiction to make those interim arrangements for Mother pending the appointment of a guardian for her (“Reasons”).  I will follow the definitions/abbreviations in the Reasons, save otherwise indicated herein.

4.As seen in the Reasons, Mother and Father had altogether 5 children, among whom there were 3 sons.  Gloria, one of the 3 Applicants herein, is the oldest of the 5 children.  The 2^nd child was a son who passed away in 1987.  The Intervenor, Dandy, is the 3^rd of the children, followed by Mona and then David. 

5.As further set out in the Reasons, after this Court made the order for the 1^st Interim Arrangements, David lodged an application to the Guardianship Board for Guardianship Proceedings on 28 August 2019, seeking an order that he be appointed Mother’s guardian.  This was however opposed by the Intervenor.

6.Schedule 2 Arrangements set out essentially, amongst other things, Mother was to continue reside at the Regency Park Property[1] (which was purchased in November 1991 in the joint names of Mother and the Intervenor) together with the Intervenor, his wife Madam Chan Lan (“Madam Chan”) and their 3 sons, and Mother was to continue to be under the care of her carer Lilis[2].  The Applicants were to have access to Mother as set out therein.

Events leading to the issue of the 1^st and the 2^nd Summons

7.Mother was first admitted to Baptist Hospital on an urgent basis on 15 January 2020 (the Applicants’ access day), accompanied by Gloria, as Mother had complained of chest and abdomen pain.  The attending doctor apparently declined to admit Mother to the hospital that day as there was no resident doctor.  Mother was then discharged after an electrogram showed she was normal.  However, the next day (again the Applicants’ access day), due to vomiting at dinner time, Mother was then taken by Gloria to St Teresa Hospital but again Mother was declined to be admitted that day and was given some injection.  Mother was then advised to re-attend St Teresa’s Hospital the next day, 17 January 2020. 

8.According to Gloria, she had left voice messages to the Intervenor to inform him but he did not answer her calls.  17 January 2020 was not the Applicants’ access day, and according to the Applicants, as they were not able to communicate with the Intervenor, they instructed their solicitors to send an urgent letter to his solicitors, to which there was no reply.  The Applicants then contacted the social worker Mr Chan and conveyed to him their concern regarding Mother’s health. 

9.It was not until the afternoon of 18 January 2020 when the Applicants were informed by the Intervenor that Mother had been admitted into Princess Margaret Hospital (“PMH”), which was without consultation with them.  The Applicants complained that there was a long line up for CT scan at PMH and Mother was put on the waiting list, and further while Mother was still waiting for the scan, due to the Covid-19 pandemic, it was announced that the visiting hours at PMH were reduced and limited to 5:30 pm t0 7:30 pm daily. 

10.Mother later received her CT scan on 20 January 2020, and according to the Applicants, Mother’s condition was diagnosed to be “fatally critical requiring immediate surgical operation” and a surgical operation was done on 21 January 2020 due to intestinal obstruction.  Mother had to stay in PMH after the operation for recovery.  The Applicants were advised by doctors at PMH that there might be a tumour in Mother’s colon and that she had cancer of colon which reached Stage 4[3]. According to the Applicants, Mother was to attend PMH for a follow up on 23 April 2020.

11.According to the Applicants, the Intervenor refused to discuss with them the long term medical plan for Mother .  It was the Applicants’ case that they could not just leave Mother at PMH where she could be exposed to other viruses and diseases.  On 23 January 2020, they then instructed their solicitors to write to the Intervenor’s solicitors to request for Mother to be transferred to a private hospital, namely St Paul Hospital (“SPH”), under the care of a private doctor Dr Jensen Poon who is a specialist in the intestinal cancer (“Dr Poon”) .

12.On 26 January 2020, the Hospital Authority announced that no visiting to patients in public hospitals was allowed until further notice.

13.On 31 January 2020, Mother was discharged from PMH with the artificial urination pipe connected to urination bag as well as an excretion bag.  Although the Applicants were taught how to clean and/or replace the urination and excretion bags, they were of the view that Mother should receive proper and professional care and attention.  It was also their case that on 1 and 2 February 2020, they tried to telephone the Regency Park Property to look for Mother but no one answered the phone and they accused the Intervenor to be in breach of paragraph 4(3) of the Schedule 2 Arrangements.

14.On 3 February 2020, Gloria, Mona, and David’s wife Suzanne (“Suzanne”) visited Mother at Regency Park Property, and when they were there, the Intervenor and Madam Chan demanded them “to change the urination bag, take shower and clean the excretion hole” for Mother who was lying on the bed. 

15.It would then appear that Dandy and Madam Chan entered Mother’s room during the Applicants’ access time and then there was a dispute.  Suffice to say, it was Gloria’s allegation that she was assaulted by Madam Chan, and the police was then called (“Assault Incident”).  All this took place with Mother lying there.  As a result of the police report, Gloria, Mona, Suzanne and Madam Chan were all taken to the police station for investigation of the Assault Incident (“Police Report”).

16.On 4 February 2020, David and Mona’s husband Mr Kwan (“Mr Kwan”) intended to visit Mother at Regency Park Property, but according to the Applicants, David was not allowed to see Mother by the Intervenor without being explained why and only Mr Kwan was allowed.

17.Thereafter, Gloria, Mona and David were told by the Intervenor that they could only see Mother in the company of Mr Kwan.  The Applicants complained that the Intervenor unilaterally placed a condition on their access to Mother after the 03.02.20 Incident.

18.Thereafter, the Applicants did then manage to gain entry into the Regency Park Property on 10 February 2020, but they were expelled.  Late afternoon that day, Mr Kwan went to see Mother and according to the Applicants, he reported that Mother was in a critical condition. Eventually, on 11 February 2020, Mona, David and Suzanne were allowed to see Mother, when they were accompanied by Mr Kwan.

19.It would later appear from the report of the Society for the Promotion of Hospice Care (“Society”) run by the Jockey Club Home for Hospice that the Society was contacted in February ( 11 February 2020 was the registration date) for hospice home care support for Mother and the Society started to provide service for Mother since then, as set out in the report[4]. Mother seemed to have also been referred to Caritas Medical Centre palliative home care team for follow up.

20.Mother was admitted to PMH again on 12 February 2020 and the next day, 13 February 2020, the Applicants issued their 1^st Summons.  As said earlier, the 1^st Summons was heard by DHCJ MK Liu that day on urgent basis (“1^st Urgent Hearing”). The 1^st Summons was dismissed by the Deputy Judge citing the lack of medical evidence demonstrating that Mother would not be cared for properly at the PMH and there being a lack of urgency.  As a result of the dismissal, the Applicants were ordered pay the Intervenor’s costs of the 1^st Summons.

21.Mother was re-admitted to PMH again on 25 February 2020 for fast heart beat.  The Applicants complained that although the Intervenor informed Mr Kwan, he did not inform the Applicants about this.

22.This seemed to have prompted the Applicants to issue their 2^nd Summons, and again the Applicants were seeking an urgent order to vary the Schedule 2 Arrangements.  In so far as I can see, the terms in the Schedule Arrangements proposed in both summonses are essentially the same, save that in the 1^st Summons, Mother was to be admitted to SPH or “a similar private hospital” and in the 2^nd Summons, Mother was to be admitted to either SPH or the Gleneagles Hospital.

23.The urgent application was fixed before this Court on 2 March 2020 (“2^nd Urgent Hearing”).  The Intervenor complained that instead of the Applicants applying for leave to appeal against the order made by DHCJ MK Liu dismissing their 1^st Summons, they took out the 2^nd Summons which was essentially for the same relief and was thus an abuse of the court’s process for the Applicants to re-run the same application all over again. 

24.It turned out Mother was only admitted to PMH for two days and she was discharged on 27 February 2020.  Thus, by the time of the 2^nd Urgent Hearing, Mother had already been discharged and being cared for at home.

25.According to the Intervenor, Mother was suspected to have colon tumour or cancer back in 2019 but due to her advanced age, Mother opted against examination of her colon to confirm the diagnosis, and that Mother had expressed her wish to the treating doctor and Madam Chan that she were to receive as little medical intervention as possible.  The Intervenor had produced a referral letter dated 22 December 2019 from the A&E of PMH from the resident doctor/doctor in charge to the consultant in charge of the Department of Surgery at PMH indicating that it was noted that “opted not for CLN in view of advanced age. Case close surgical since 6/2019”[5] (“Referral Letter”).

26.Despite the hostility and/or lack of communication between the Applicants and the Intervenor, from those messages produced by the Intervenor between him and Mr Kwan, they seemed to be able to communicate and on 12 February 2020, the Intervenor had informed Mr Kwan that Mother’s cancer had spread and thereafter, it appeared that the Intervenor was updating Mr Kwan on Mother’s condition.  Further on 25 February 2020, the Intervenor had informed Mr Kwan about Mother having to go to PMH urgently for a heart check up due to her fast heart beat and that Mother had urinary infection and needed to remain in hospital for one or two days for observation[6].

27.Although by the time of the 2^nd Urgent Hearing, Mother had already been discharged and was at home, the reality appeared to be that Mother being in advanced age and diagnosed with malignant intestinal obstruction would require constant medical care and attention which on occasions had to be urgent.  It is not disputed that Mother has sufficient assets for her to be admitted to a private hospital or a private high standard nursing home and to be under the care of a private specialist.  Due to the pandemic, no visitors were allowed in public hospitals.  There also appeared to be some delay and/or difficulty in obtaining a proper medical report on Mother’s condition and whether there was any proposed treatment plan from her treating doctors at PMH.  Further, there was also an issue as to whether Mother’s own wish could be ascertained.

28.As seen in the Reasons, pending the outcome of the Guardianship Proceedings, and pending the appointment of a guardian for Mother, this Court can invoke its inherent protective jurisdiction over Mother. Although by the time of the 2^nd Urgent Hearing, there appeared to be no urgency in Mother to be immediately admitted to a private hospital or a private nursing home, there was really no sufficient evidence before the Court as to Mother’s condition and whether there was any treatment plan available for her.  As a result, this Court decided to give further directions, amongst which, to enable OS to obtain all medical records and documents in respect of Mother or alternatively to contact and to authorise Dr Poon to access and download such information online from the Hospital Authority through the eHealth system and to prepare an expert report for this Court, and also for parties to file their respective psychiatric evidence in relation to Mother’s then mental condition and whether her wishes could be ascertained (“02.03.20 Order”).  The 2^nd Summons was adjourned for a substantive hearing, which was subsequently fixed on 14 October 2020 (“Substantive Hearing”). 

29.In the meantime, Mother was brought to the Gleneagles Hospital on 5 May 2020 by the Applicants because of bleeding pre rectum, and Dr Poon saw her there and admitted Mother to Gleneagles Hospital, where she remained between 6 May 2020 to 8 June 2020.  Despite initial objection from the Intervenor, it was eventually agreed for Mother to undergo a PET/CT scan at Gleneagles Hospital under the arrangement of Dr Poon.

30.As seen in the OS report of 24 June 2020 (“OS Report”)[7], Dr Poon produced a concise medical report on Mother and Dr Poon had kept the OS informed about the medical condition of Mother by phone and email from the period from 6 May 2020 to 11 June 2020 and that in Dr Poon’s email of 11 June 2020, it was stated that Mother’s tumor at the colon/bowel had spread to liver and nymph nodes in a significant amount, which was not present at the time of the CT scan conducted at PMH earlier, and that it was not feasible to remove the tumor by operation.  It was the OS’s opinion that Mother’s status quo should be maintained rather than to move her to a private nursing home and that the guardian to be appointed by the Guardianship Board would have the final say over Mother’s accommodation.  OS however agreed with the Applicants that Lilis should be discharged from the responsibility to decide on Mother’s suitability for a medical procedure for reasons set out in the OS Report.

31.The Intervenor’s solicitors wrote to the Guardianship Board on 5 August 2020 urging the Guardianship Board to make appropriate directions for Mother, and later on 11 August 2020, proposed to the Applicants to withdraw the 2^nd Summons and to vacate the Substantive Hearing.  The Applicants proposed a joint letter to the Guardianship Board requesting for a hearing date for the Guardianship Proceedings which was eventually sent by the parties jointly on 19 August 2020.

32.Thereafter, the parties were able to agree to the Substantive Hearing being vacated and a consent order was made on 12 October 2020.  The parties agreed that the costs of the OS of and incidental to the 2^nd Summons and remuneration be paid out of the Mother’s estate, and that the issue of costs of the Applicants and the Intervenor of and incidental to the 2^nd Summons be decided by way of paper disposal.

Costs order proposed by the Applicants  

33.The Applicants seek an order that their costs of and incidental to the 2^nd Summons be paid out of Mother’s estate and that such costs be summarily assessed. 

Costs order proposed by the Intervenor

34.The Intervenor’s position is that the Applicants should bear their own costs.

Discussion

35.As described by the OS the parties had “traded allegations”.  In fact, they have been doing this since the commencement of these proceedings.  The Applicants have from day one alleged that they lost their father as he was not properly taken care of by the Intervenor and Madam Chan, which was denied by the Intervenor.  Each side has accused the other of being in breach of this Court’s orders and also obstruction of access/interview of Mother by the psychiatrist appointed by the Intervenor, and/or taking matters into their own hands.

36.What is clear is that there was a complete breakdown of communications, if not hostility, between the Applicants and Intervenor.

37.After Mother’s urgent surgery on 21 January 2020 at PMH due to intestinal obstruction, she had been readmitted to PMH on 3 separate occasions for different reasons: (i) 12-15 February 2020 (high fever due to wound infection), (ii) 19-20 February 2020 (Mother fell down at home resulting in injuries to her forehead and chin), and (iii) 25-27 February 2020 (Mother had fast heart rate due to wound infection). 

38.In light of the above, and as pointed out by the OS, I would accept that the Applicants issued the 2^nd Summons because they were concerned about Mother’s medical condition, and they had wanted her to undergo proper care. 

39.Although there was no sufficient evidence that Mother was not receiving proper care at PMH, there was no reason as to why Dr Poon, a specialist, should not be consulted, and to at least provide a proper medical report on Mother’s condition and treatment plan, and that it could only be in Mother’s best interests to have all options laid before her.  Dr Poon first provided a medical report on 18 March 2020 after obtaining all Mother’s medical information from the eHealth system[8] (“1^st Poon Report”) and Dr Poon had then suggested further investigation: (i) a sigmoidoscopy to obtain biopsy of Mother’s tumor to confirm the diagnosis of colon cancer, which risk would be minimal and (ii) a PET/CT scan to assess stage of the tumor properly and to see whether it had spread to any other organ to decide whether Mother should have further operation, and the scan would have minimal risk.

40.As further pointed out by Dr Poon in his report of 13 May 2020 (“2^nd Poon Report”)[9], it was quite clear that the Intervenor and Madam Chan held opposite opinion to Dr Poon’s suggestions, and that they wanted nothing done and notwithstanding Dr Poon having made many attempts to speak to them, they refused to accept Dr Poon’s suggestions[10].  The Intervenor claimed under paragraph 17 of the 02.03.20 Order, neither the Applicants nor he was to contact Dr Poon.  This direction was made by this Court for Dr Poon to maintain his independence, as this Court had directed Dr Poon to provide an expert report.  Further, it was clear under paragraph 17 of the 02.03.20 Order, the parties could apply for leave to contact Dr Poon through the OS.

41.In my view, the Intervenor had adopted a rather inflexible attitude, as a result of which, it was not until 2 June 2020 that Mother eventually underwent the PET/CT scan.  As seen in Dr Poon’s medical report dated 7 July 2020 to the Guardianship Board (“3^rd Poon Report”)[11], the PET/CT scan showed that by then Mother’s tumor had multiple spread to her liver already and the spread to her liver was not present in her CT scan done earlier in February at PMH.  The earlier CT scan seemed to have been done in PMH on about 20 January 2020 but whether done January or February, it was not a PET/CT scan.  In any event, Dr Poon opined that Mother had by the time of the PET/CTscan lost that chance of cure for her colon tumor.[12]

42.As pointed out in the OS Report, there were two issues worth mentioning in brief: (i) Dr Poon had from the very beginning tried to inform both parties that the low-risk examinations were necessary, and in light of the difficulties in liaising with the Intervenor encountered by Dr Poon, OS relayed Dr Poon’s views to the parties by 3 letters in May 2020 and that Dr Poon even took the initiative to seek a second opinion from another surgeon and to arrange for psychiatric assessment of Mother by a qualified pscychistrist at Gleneagles Hospital, and yet the parties still wanted Mother to be examined by their respective psychiatrists; and (ii) with the benefit of hindsight, it was clear that Mother did not have mental capacity to refuse or consent to some medical procedures (including colonoscopy as suggested by Dr Poon) and there seemed to be a spread of cancer cells from January to June 2020.

43.The examination in (i) above was directed as a result of the Intervenor’s case that it was Mother herself who did not wish to undergo any colonoscopy.  Although OS opined that the Intervenor’s insistence on placing Mother’s autonomy as top priority was understandable, OS was not able to conclude that the Applicants’ 2^nd Summons was groundless or lacked urgency[13].

44.As pointed out by the Intervenor, DHCJ M Liu had dismissed the 1^st Summons due to there being no urgency.  To issue the 2^nd Summons seeking almost exactly the same orders was, in my view, somewhat misconceived and pre-mature.  As already pointed out by the Deputy Judge at the 1^st Urgent Hearing, there was no proper medical evidence on Mother.  What the Applicants should have done was to issue an urgent summons seeking directions for an expert medical report as to Mother’s condition and to any treatment plan or the way forward.  Instead, as said, the Applicants issued the 2^nd Summons and their supporting affirmations were full of allegations/accusations which clouded the main immediate issue to this Court, which was to seek proper medical evidence of Mother’s condition and any treatment plan.  However, having said this, if not for the 2^nd Summons, the matter would not have been brought before this Court and although somewhat misconceived and pre-mature, the 2^nd Summons did achieve the purpose of obtaining proper medical evidence by  this Court making those directions in the 02.03.20 Order.

45.Further, I note all it was stated in the Referral Letter was that the “CLN”, which I understand to be the colonoscopy, was opted not for Mother in view of advance age, but there was really no sufficient evidence as to who had exercised the option, whether it was the resident doctor/doctor in charge, or it was opted by the Intervenor, or Mother. All one can see in Dr Gabriel Hung’s report a reference to the medical report by Dr Leung Man Chung Jack dated 11 May 2020, stating that Mother “verbalized that she wanted comfort care and refused cardiopulmonary resuscitation, intubation, tube feeding and dialysis at end of life”.[14]  

46.As pointed out by the OS, with the benefit of hindsight, it was clear that Mother did not have mental capacity to refuse or consent to some medical procedures (including colonoscopy as suggested by Dr Poon) and there seemed to be a spread of cancer cells from January to June 2020.

47.There was also no sufficient evidence that all the available investigation options had been put to Mother or explained to her in 2019 or in January 2020 properly when she underwent the transverse colostomy.  As seen in the 1^st Poon Report, there were other options and procedures of minimal risk to find out whether it was colon cancer and whether the cancer had spread.  There was also no sufficient evidence that the consequence of not having the colonoscopy had been explained clearly to Mother and to the family in 2019 or in early 2020.  I find Dr Poon’s reports very helpful and I agree with OS that it was unfair of the Intervenor to criticise Dr Poon for keeping Mother at the Gleneagles Hospital from 5 May 2020 to 8 June 2020.  In my view, it was regrettable that an expert report was not obtained nor applied for earlier, instead of there being a 6 month delay, and it was further regrettable that there was such a delay in carrying out even the PET/CT scan.  

48.Although the present application is not an application for the appointment of a committee under Part II of the Mental Health Ordinance as in LLC (No 2) [2010] 4 HKLRD 400, HCMP 2656/2006, 16.07.2010, this Court was asked to invoke its inherent protective jurisdiction over Mother and that her best interests would be of paramount consideration and in my view, the general principles set out by Poon J, as he then was in LLC (No 2) are equally applicable herein.

49.Having considered all the evidence, I am satisfied that the Applicants were genuinely concerned over the care and medical treatment for Mother, due to lack of sufficient medical information and that the Applicants were acting bona fide, and the 2^nd Summons was issued in good faith in the best interests of Mother, albeit somewhat misconceived and pre-mature.  In any event, having considered the parties’ respective conduct, I find it fair and just for the Applicants’ costs and disbursements to be paid out of Mother’s estate as sought by them.

Conclusion

50.In light of what said above, I make the following order in relation to the Applicants’ costs:

(1)  The Applicants’ costs of and incidental to the 2^nd Summons including any disbursements be paid out of Mother’s estate on common fund basis;

(2)  There be a certificate for counsel;

(3)  The Applicants to submit a statement of their costs to the Court and to OS within 21 days from the date of this order, and the OS to inform this Court of his comments thereon within 14 days thereafter;

(4)  The Applicants’ costs will be summarily assessed by this Court and paid out of the Mother’s estate.

51.As the Intervenor did not seek an order for his own costs to be paid out from Mother’s estate, I make no order as to his costs.  

Ms Yanky Lam, instructed by Tsang Chan & Woo Solicitors & Notaries, for the Applicants

Mr Vincent Chiu, instructed by F Zimmern & Co, for the Intervenor

Mr Philip Cheng, of the Official Solicitor