Ho Man Kon Natalis v. Pamela Youde Nethersole

HCAL 94/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 94 OF 2013

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D E C I S I O N

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1.This is an application dated 27 May 2013 for leave to commence judicial review against Pamela Youde Nethersole Eastern Hospital in relation to, among other things, an order of conditional discharge under section 42B(1) and (2) of the Mental Health Ordinance, Cap 136 and dated 11 July 2012.

2.The grounds of the application are that the applicant is not suffering from schizophrenia, able to manage himself and his affairs, not posing any jeopardy to the health and safety of himself and the public, is of sound mind and other grounds.  The applicant also relies on section 27 of the Mental Health Ordinance.

3.He is also seeking compensation for illegal practices done to him by the medical officers of the hospital and illegal detention.

4.The Hospital Authority representing the hospital opposes the application.  The 1st ground of objection is that the application does not contain the required public law element to render it amendable to juridical review.  The applicant’s complaints are on the medical diagnosis and treatment that were made by the doctors of the hospital on him as a patient. It is a private law matter for which the applicant can seek redress in a civil claim or before the Mental Health Review Tribunal.  The applicant therefore has not made out a reasonably arguable case for judicial review.

5.Regarding section 27 of the Mental Health Ordinance, if a person, who has previously been found to be mentally incapacitated and had a committee appointed to look after his affairs, has become capable of managing and administering his property and affairs, he or someone on his behalf can apply under this section to stop or set aside the previous proceedings about him and discharge his committee.  This section is therefore inapplicable to the applicant’s situation as he has not been subject to proceedings under Part II of the Ordinance and no committee has been appointed to look after his property and affairs.

6.Furthermore, if the applicant would like to seek damages from the hospital, his civil claim is subject to section 69 of the Mental Health Ordinance.  This section provides some protection to doctors and stipulates that leave of this court is required before civil or criminal proceedings can be brought against them.  The applicant should therefore apply to this court in a private law suit for leave under section 69.  Finally, if the applicant is unhappy with the status of conditional discharge or the conditions imposed on discharge, he can apply to the Mental Health Review Tribunal to review the decision of the hospital under section 59B of the Mental Health Ordinance.  I have considered all these grounds and come to the view that they are all correct.  I conclude that the applicant has not shown an arguable case for judicial review.  The time for the applicant to apply for leave has also lapsed for a long time. 

7.In the premises, I refuse the applicant’s application for leave to commence judicial review against the hospital.  I also make a costs order nisi that the applicant do pay the costs of the Hospital Authority for this application.

Written submissions by the applicant in person

Written submissions by Mayer Brown JSM, for the putative respondent