Re Tyl

HCMP 1840/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1840 OF 2006

____________

____________

Before: Hon Lam J in Chambers (Not open to public)

Date of Hearing: 2 October 2009

Date of Judgment: 9 October 2009

_______________

J U D G M E N T

_______________

1.At the hearing on 2 October 2009, in the course of considering the appropriate course to be adopted regarding the sale of the property of TYL, the Official Solicitor as Committee of TYL raised a point about the care of TYL which has some general importance. This court was told that similar problem had emerged in several cases where the Official Solicitor was appointed as Committee and guidance from this court would assist in the future administration of the affairs of the MIPs in those cases.

2.Having reflected on the matter, given that the point arises in the present case, and bearing in mind the supervisory and protective jurisdiction of the court, it is proper that the court should give some guidance.

3.The point can be stated as follows: since the appointment of a committee under Part II of the Mental Health Ordinance Cap. 136 only empowers the committee to manage and administer the properties and affairs of the MIP in question, in cases where the MIP requires medical treatments what are the steps the committee can take to procure proper authorization for the same.

4.In my judgment of 6 August 2009 I set out the reasons for replacement of Madam Mak by the Official Solicitor as committee of TYL. TYL has been living at an elderly home and it is envisaged that she would continue to live there. In the past, Madam Mak has been acting as the contact person with whom the elderly home would liaise as regards the daily care and treatment of TYL. Madam Mak continues to play such a role after the replacement of the Committee.

5.In a letter dated 18 September 2009, Madam Mak indicated to this court that if she does not find the offer from the Committee regarding the sale of the property to her to be acceptable, she would not be able to continue to act as the contact person for a number of reasons.

6.I do not wish to comment upon the validity of such reasons. Whether Madam Mak is willing to continue to act as contact person is solely a matter for her personal decision. This court will not impose that obligation upon her. Historically, she acted in that role because she had been appointed as the guardian for TYL by the Guardianship Board. That was before the episode of her family moving into TYL’s property.

7.On 6 October 2006, the Guardianship Board concluded that there was no justification for renewal the guardianship order given that TYL had settled well in the elderly home and a committee had been appointed under Part II. The Guardianship Board also considered that TYL had no urgent need to receive medical or dental treatment. Thus, as things stand, Madam Mak has no authority to give consent for medical or dental treatments on behalf of TYL.

8.The Official Solicitor as committee can of course substitute Madam Mak as the contact person in the elderly home. However, Ms Cheung raised the issue what steps the committee can take if TYL requires medical or dental treatments in the future.

9.In the exercise of its Part II jurisdiction, the court does not have the power to authorize any medical or dental treatments, see Re F [1990] 2 AC 1 at p. 59-60; Re LYO [2005] 3 HKC 201 at p. 211 para. 38.

10.But in many cases, management of the properties and affairs of a MIP cannot be wholly segregated from the care and treatment of the person. A committee in the management of properties of a MIP must have the power to make payment to elderly home and to settle hospital bills. Thus, indirectly a committee can decide which elderly home or which hospital a MIP would be admitted to. Still, a committee cannot give consent for medical or dental treatments on behalf of an MIP.

11.The Official Solicitor suggested that a guardian can be appointed for TYL and the Director of Social Welfare may agree to become the guardian in such circumstances. However, time would be required for the processing of the application by the Director and the Guardianship Board. Further, there is really no material change of circumstances since the Board decided not to renew the Guardianship Order in 2006. A fresh application may not be fruitful.

12.In my view, there is a more direct route. Part IVC of the Mental Health Ordinance deals with medical and dental treatments for MIPs. In case of urgent treatments, they are covered by Section 59ZF. In case of non-urgent treatments, applications can be made to the court for consent under Section 59ZG. The application can be made by any person.

13.A committee does have the locus standi to make such application, which can properly be regard as part of the affairs of a MIP. In other words, I consider that a committee appointed under Part II should have the authority to make a Section 59ZG application to the court with regard to medical and dental treatments of the MIP.

14.TYL is 83 and relatively healthy. I do not envisage many Section 59ZG applications need to be made in the foreseeable future. However, if her health deteriorates, there will be a case for a fresh application for appointment of guardian since her needs may then satisfy the requirement for guardianship, in particular Section 59O(3)(c) of the Mental Health Ordinance.

15.Thus, the resignation of Madam Mak as the contact person should not present much difficulty in terms of the care and treatment of TYL.

16.I grant leave to publish this judgment as general guidance to committees encountering similar problems.

Ms Sally Cheung of Official Solicitor