Re Lg

HCMH 78/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 78 OF 2012

____________

____________

__________________________________

REASONS FOR JUDGMENT

__________________________________

The application

1.The applicant (“LL”) is the daughter of LG born out of his relationship of Madam L who subsequently became LG’s second wife.  S, F and G (collectively “the respondents”) are 3 of the children of LG born out of his wedlock with his first wife.

2.LL took out proceedings under Part II of the Mental Health Ordinance (“MHO”) for the appointment of herself as LG’s committee.  She has filed medical certificates of Doctor Ng and Doctor Chan respectively, in support of the application.

3.The respondents disputed the mental incapacity of LG and sought to cross-examine the doctors.

4.After hearing the 2 doctors, I find that LG was incapable by reason of mental incapacity, of managing and administering his property and affairs. Here are my reasons.

An application without basis

5.Without disrespect, cross-examination of the doctors was a misconceived exercise.  The doctors have given reasons for their findings in their respective certificate.  The present application was not instigated by LG who protested against the MHO proceedings.  The respondents have not produced contrary medical evidence to contradict the two medical certificates despite this court’s willingness to give leave to the respondents to do so.

6.At the initial stage when this court had to deal with the accommodation of LG as a matter of urgency, LG was not even able to show his preference for a private residence or old age home. 

7.In the divorce proceedings between LG and Madam L, the learned family judge observed that LG might not have the mental capability to conduct the proceedings and adjourned the ancillary relief proceedings pending further investigation of his mental capability.

8.The cross-examination was thus a purely academic exercise to put LL to strict proof.  It was doomed to failure.

The doctors’ evidence

9.The 2 doctors jointly examined LG at his home in Kennedy Road on 25 May 2012.  (That was his home with Madam L before he was removed by LL to an appalling rented flat in Java Road to live with 2 domestic helpers after her parents’ divorce.)  LG was then aged 92.

10.Dr Ng’s opinion in his certificate was as follows:

“[LG] has had progressive deterioration of cognitive function for the past two years, associated with gradual impairment in his Activity of Daily Living. His mental condition has become increasingly confused, talked nonsense, unable to orientate himself in time, place and person. In recent half year, his condition deteriorated further, to the current state where he is totally dependent in his Activity of Daily Living, suffering from double incontinence, unable even to identify his daughter correctly, totally withdrawn and staying at home all the time. Mental State Examination found him to be in poor contact with reality, with his eyes closed most of the time. He was unable to follow even simple verbal command. In general, no reasonable verbal or non-verbal communication was possible. He is diagnosed to be suffering from Dementia.”

Doctor Ng was further of the view that the present mental incapacity had lasted for the past 2 years.  LG’s prospects of mental recovery was poor.

11.Dr Chan’s opinion in his certificate was as follows:

“He was observed by [his] daughter to have rapid deterioration of cognitive functions over the last 1 to 2 years. He became unable to give instructions about his bank account. His signature became unrecognizable. He needed total assistance for his activities of daily living. He has double incontinence. He misidentifies maid to be his daughter and makes up stories about his son-in-law. During the clinical interview, he is grossly disorientated, but able to follow simple instruction at times. There is no meaningful conversation. He does not understand the purpose of interview, and obviously doesn’t have a sense about his properties and assets. The clinical picture is suggestive of a degenerative dementia, most probably existing for more than 5 years yet only recognised by his relative when becoming severe.”

Doctor Chan was of the view that the present mental incapacity had lasted for 5 years. (He has corrected his medical certificate.) LG might occasionally recognize his daughter when his mind was more lucid. Regarding the prospects of mental recovery, Doctor Chan was of the view that it would be “deteriorating instead of any chance of recovery”.

12.The joint examination included taking of medical history and collating information from LL and the domestic helper(s).  The doctors have not asked for the past medical reports of LG from the family doctor.  They were told by LL that LG had never been seen by a psychiatrist and that the condition of LG had lasted for about 2 years.  From the taking of medical history, the doctors could find a number of symptoms of LG having dementia.  They said that the results of their interaction with LG and objective observation were compatible with the description of LL.

13.The doctors did a 3-dimensional analysis: (a) general psychiatric; (b) cognitive; and (c) specific assessment of the ability to handle financial affairs.

14.Aspect (a) was to rule out other causes and to see if the mental disorder was reversible.  Dementia, which was a mental illness, would progressively deteriorate.  The patient would not regain mental ability. Pseudo dementia could be due to eg depression and was not real dementia.

15.Neither doctor commented on whether the divorce between LG and Madam L had any impact on LG.  Doctor Ng said he had not received information of the divorce.  He had looked for depressive symptoms of LG but was not aware of any.

16.Aspect (b) was to ascertain LG’s ability to communicate, his orientation and memory.  The MMSE test was tried.  LG could hardly answer the first few questions about orientation – what day, what people and what time.  Both doctors believed that LG’s ability was so low that he could not give relevant response at all.  It was due to his inability and not unwillingness to answer that the test could not proceed.

17.Doctor Ng agreed that whether a person could proceed with the MMSE test could be affected by eyesight and hearing abilities.  However, he was not aware of LG’s poor eyesight and hearing abilities and no special tests had been carried out.  Doctor Ng mentioned in the answer to question 3 of his certificate that LG’s eyes were closed most of the time, which might not be due to poor eyesight.  To Doctor Ng, the poor hearing was due to degeneration or old age, which was not of concern to him.  LG could hear, eg he would open his eyes when he was asked to, but on other questions, he had given irrelevant answers. 

18.Re aspect (c), it was to ascertain if LG was able to recognize bank notes and do calculations.  Doctor Ng found that LG was unable to do even single digit calculation.

19.Both doctors confirmed that their opinion that LG had suffered from dementia for 2 years was based on what LL said.  In answer to my question, Doctor Chan said that LG was in a late stage of dementia.  Double incontinence was a good indication.  LG barely had informative communication.  From his experience, LG might have gradually deteriorated for the last 5 years before examination.

Assessment of the doctors’ evidence

20.Under section 7 of the MHO, the test of whether a person is “incapable of managing and administering his property and affairs” applies only to business matters, legal transactions and other dealings of a similar kind, but does not extend to physical care and/or treatment: Masterman-Lister v Brutton & Co [2003] 3 All er 162. 

21.The doctors were clearly aware of this test when carrying out the examination.  Doctor Chan, in particular, said that the ability was by reference to the particular person and circumstances.

22.Doctor Ng agreed that whether a person was capable of managing his affairs would depend on the complexity.  He would have needed to make enquiries of solicitors as to the business and welfare of LG, what kind of assets and how much assets and business LG had to handle.  He did ask of LL the kind of assets that LG had got but Doctor Ng could not recall the details.

23.The MHO does not prohibit a joint examination.  The doctors clearly made their independent professional assessment.  I find them to be truthful and reliable witnesses and I accept their evidence.

24.Potential causes (poor eyesight, poor hearing ability, depression and unwillingness to cooperate) that might have affected the result have been considered and ruled out by the doctors.

25.The quality of the doctor’s evidence depended heavily on the quality of the instructions given to them.  The cross-examination established that LL had not told the doctors about LG’s travel to Canada in November 2010 to deal with his affairs, made a will in 2010 and had been divorced shortly before the examination, which the doctors agreed were all relevant to the assessment of his mental ability.  However Doctor Ng said that the travel in 2010 did not mean that LG had not deteriorated in the ensuing 2 years.  Doctor Chan said that even dementia patients could travel from place to place with company, support and care.

26.Doctor Ng was told by LL that LG was socially withdrawn; there was no mention of contacts with sons and daughters.  However, the 3 affirmations of the respondents flatly contradicted LL. 

27.LL might not have told the whole truth to the doctors but Doctor Ng’s evidence was that if LG had the ability, he could have contacted others himself and there was no need for others to make arrangements for him. 

28.LL might have been aware of the deterioration of LG for about 2 years but did not raise it until a family judge did so in the divorce proceedings.  I would not hold this against LL because according to both doctors, family members might not be aware of the symptoms and would wait till the last moment to consult a psychiatrist.

29.LL might have her own agenda to serve in the present proceedings. However, the doctors have exercised independent professional judgment.  They did not just rely on LL’s information but have observed and interacted with LG, and attempted to carry out the objective MMSE test.  Their findings were well supported by reasons.

30.Mr Suen submits that the examination ought to have been directed at LG’s ability to handle business and finance.  I agree as matter of principle. However as the doctors said, LG was not even able to do simple calculation, not able to identify time, place and person.  The natural conclusion must be that he was not able to handle business and finance.  The fact that business and finance have been taken care of by LG’s children in Canada in the past so that LG need not be troubled would not change the conclusion.  It was his decision to entrust business and finance to his children.  The fact was that he would not have the mental capacity to maintain or change that decision.

31.Even taking into account the lack of frank disclosure by LL to the doctors, there was ample evidence to support the doctors’ finding.  For the above reasons I found LG to be a mentally incapacitated person.

Costs

32.This course taken by the respondents is not to be discouraged.  There was nothing on the face of the medical reports to suggest that the doctors have made the wrong assessment or otherwise colluded to come to a false view.  There had been ample opportunity for the respondents to take LG for another medical examination since they had been served with these MHO proceedings.  The objective circumstances in paragraphs 5-7 above were quite clear to show that LG was incapable of managing his property and affairs.  Much of the cross-examination was to attack LL’s credibility in her information to the doctors.  It was a wasteful exercise on the part of the respondents. 

33.I make an order nisi that LL’s costs of the present application be paid by the respondents.  Despite the lack of objection from the respondents, costs for drafting a costs statement should not be allowed as a matter of principle.  In addition, the hearing time on 28 November was just over an hour.  I therefore summarily assess the costs and allow a sum of $95,845.30.

34.I thank Mr To and Mr Suen for their assistance.

Mr  Ken To, instructed by V. Hau & Chow, for the applicant

The 1^st respondent was not represented and did not appear

Mr Jenkin Suen, instructed by Joseph S.C. Chan & Co., for the 2^nd to 4^th respondents