Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Lwy v Guardianship Board And Another

Judgment Cited authorities 11 Cited in 1 Precedent Map Related
Vincent
Judgment Date20 February 2009
Year2009
Citation[2009] 3 HKLRD 30
Judgement NumberHCMP953/2008
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP000953/2008 LWY v. GUARDIANSHIP BOARD AND ANOTHER

HCMP 953/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 953 OF 2008

____________

BETWEEN

LWY Appellant
and
GUARDIANSHIP BOARD 1st Respondent
THE DIRECTOR OF SOCIAL WELFARE 2nd Respondent

____________

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

Date of Hearing: 6 January 2009

Date of Judgment: 6 January 2009

Date of Reasons for Judgment: 20 February 2009

___________________________________

REASONS FOR JUDGMENT

___________________________________

1. In the performance of its function under Part IVB of the Mental Health Ordinance [“MHO”] Cap. 136, does the Guardianship Board have the power to confer authority on a guardian to restrict access to a mentally incapacitated person? This is the issue which calls for determination in this appeal.

2. The Appellant brought an appeal against the decision of the Guardianship Board on 21 April 2008 in respect of her mother Madam Lee, a 78 years old lady who, unfortunately, suffered from mental incapacity. Madam Lee has 5 children. More specifically, the Appellant was aggrieved by the condition laid down by the Board regarding access to her mother. As a special condition to the Guardianship order, the Board provided,

“In discharging a general statutory duty to act for the interests of welfare of the subject, the guardian may only allow access to her by any family member or relatives in a place and on such terms and conditions to be decided at the guardian’s absolute discretion.”

3. Given that the Appellant is not legally represented, and the point in issue is one of general application, apart from asking the Official Solicitor to represent the interest of Madam Lee in the appeal, the court also appointed Mr Chow as amicus to assist the court. Mr Tavares, appearing on behalf of the Director of Social Welfare, also conducted a very comprehensive research into the relevant law. The chairman of the Board had put in a written submission though he did not appear at the hearing. The Appellant also made an oral submission at the hearing. I am grateful to all the parties who made submissions before me.

4. On 6 January 2009, this court allowed the appeal and set aside the special condition. The following are my reasons.

5. The Board is created by statute and its power can only be derived from statute. Sections 59K and 59O of the MHO give the Board the power to make guardianship orders. In the present context, the following legislative provisions are relevant. Section 59K(1)(d) provides that the Board shall

“give directions to guardians as to the nature and extent of guardianship orders made under section 59O appointing those guardians, including directions as to the exercise, extent and duration of any particular powers and duties of those guardians contained in such terms and conditions (if any) that those guardianship orders may be subject under subsection (2) of that section”.

6. Section 59O(2) provides again that,

“Any guardianship order … 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.”

7. These provisions do not set out specifically what aspects of a mentally incapacitated person [MIP]’s livelihood can be dealt with by a guardian under a guardianship order. In the light of the history leading to the enactment of Part IVB, which I shall discuss below, it is quite clear that these general provisions do not mean to give the Board authority to confer on a guardian a general and unrestricted power in dealing with the livelihood of a MIP by the making a guardianship order.

8. Section 59R sets out the terms and effect of guardianship order. In particular, Section 59R(3) prescribes specifically the power that can be conferred upon a guardian under such order.

“… 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 ---

(a) the power to require the mentally incapacitated person to reside at such place as may be specified by the guardian;

(b) the power to convey, or to arrange the conveyance of, the mentally incapacitated person to the place so specified by the guardian, and such reasonable force may be used as is necessary for the purpose;

(c) the power to require the mentally incapacitated person to attend at places and times so specified by the guardian for the purpose of treatment or special treatment (within the meaning of section 59ZA) or occupation, education or training;

(d) the power to consent to that treatment (other than special treatment) on behalf of the mentally incapacitated person but only to the extent that the mentally incapacitated person is incapable of understanding the general nature and effect of any such treatment;

(e) the power to require access to the mentally incapacitated person to be given, at any place where the mentally incapacitated person is residing, to any registered medical practitioner, approved social worker, or other person (if any) specified in the order;

(f) the power to hold, receive or pay such monthly sum (within the meaning of section 44B(8)) specified in the order on behalf of the mentally incapacitated person for the maintenance or other benefit of that person as if the guardian were a trustee of that monthly sum. ”

9. At this juncture, it is convenient to refer to the history of mental health legislation in Hong Kong. In this connection, much had been said by Blair-Kerr J in Re ShangKiang-yuen [1968] HKLR 192. Up to 1997, there was a dual system in force in Hong Kong, one regime under our Mental Health Ordinance (enacted since 1962) together with another regime under the then English legislation by reason of Section 8(2) of the Supreme Court Ordinance and Section 77 of the Interpretation and General Clauses Ordinance. In 1997, the amendments to the Mental Health Ordinance replaced this dual system with a single regime under the MHO.

10. One facet of the dual system in Hong Kong was based upon Section 8(2) of the Supreme Court Ordinance conferring on the Supreme Court the jurisdiction exercisable in England by the Lord Chancellor or other judges under English mental health legislation. It had no application to guardianship proceedings. Guardianship proceedings were not proceedings before the court. Instead, under the English Acts they were applications forwarded to the local health authority or since 1983 the local social services authority. There was no need for an order to be made. It could be acted upon if it appeared to be duly made and founded on the necessary medical recommendations (see Section 34(3) of the 1959 Act and Section 8(3) of the 1983 Act). Guardianship application naming a person other than a local authority as guardian had to be accepted before it took effect (Section 33(3) of the 1959 Act and Section 7(5) of the 1983 Act). A patient could apply to a Mental Health Review Tribunal for review.

11. Under the 1959 Mental Health Act, the effect of a guardianship application was to confer upon the guardian all such powers as would be exercisable in relation to the patient as if the guardian were the father of the patient and the patient were under the age of 14, see Section 34(1) of the 1959 Act.

12. Given the wide power conferred upon such a guardian, he could determine and restrict access to the patient. Thus, Regulation 6 of the Mental Health (Hospital and Guardianship) Regulation 1960 specifically provided that subject to certain regulations, “the guardian may restrict to such extent as he thinks necessary the making of visits to the patient and may prohibit visits by any person who the guardian has reason to believe may have an adverse effect on the patient.”

13. The 1959 Act was replaced by the Mental Health Act 1983. The 1983 Act was the result of a review of mental health legislation in England. In that review, one conclusion was that the power given to a guardian under the 1959 Act was too wide. In the Command Paper 8405 presented to Parliament in 1981, the following was said at para. 43,

“The guardian … is given the powers that a father has over a child under 14. These powers are therefore very wide, as well as somewhat ill-defined, and out of keeping, in their paternalistic approach, with modern attitudes to the care of the mentally disordered. The 1978 White Paper … suggested that further consideration was needed and put forward three possible options. One option was to retain guardianship powers in more or less their present form with some minor changes … The second option was to introduce a range of community care orders to parallel existing compulsory hospital powers … The third was to introduce new specific powers to restrict the liberty of the individual only as much as is necessary to ensure that he receives medical treatment and social support and training --- the ‘essential powers’ approach.”

14. The British Government, after consultation, adopted the third option. Thus, at para. 44 of the paper, it was stated,

“The Government … has decided that the third option, which was widely supported, most closely meets current needs. The Bill therefore provides that guardianship powers should be retained, but that the guardian should have only the ‘essential powers’ rather than all the powers of the father of a child under 14 as at present.”

Then three essential powers were enumerated and they did not include a general power to restrict access to the patient. Para. 44 continued,

“The Bill proposes that guardianship will be required to be ‘in the interest of the welfare of the...

To continue reading

Request your trial
1 cases
  • L v Guardianship Board And Another
    • Hong Kong
    • 2 May 2023
    ...guardianship order. However, power could not be conferred on a guardian to restrict access to the person: see LWY v Guardianship Board [2009] 3 HKLRD 30 (at §§25; 34). The Director acknowledged that, and has so far caused social workers to make repeated efforts to handle the children’s disa......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT