LegCo Paper No. PL 634/95-96
(These notes have been seen by the Administration)
Ref : FP/S/1
LegCo Panel on Welfare Services
Subcommittee on Separate Legislation for the Mentally Handicapped
Notes of Meeting
held on Thursday, 14 December 1995 at 10:45 a.m.
in Conference Room A of the Legislative Council Building
Hon CHEUNG Man-kwong (Chairman)
Hon LI Wah-ming
Hon Eric LI Ka-cheung, JP
Hon Zachary WONG Wai-yin
Hon David CHU Yu-lin
Hon LAW Chi-kwong
Hon LEE Kai-ming
Member in Attendance :
Hon Michael HO Mun-ka
Absent with Apologies :
Hon CHAN Yuen-han
Dr Hon John TSE Wing-ling
By invitation :
- Mr Allan CHOW
- Commissioner for Rehabilitation
- Mr Joseph CHEANG
- Assistant Director of Social Welfare (Acting)
Staff in Attendance :
- Ms Estella CHAN
- Chief Assistant Secretary (Panels) 4
- Miss Anita SIT
- Senior Assistant Secretary (Panels) 7
I. Election of Chairman
Hon LI Wah-ming was elected Chairman of the Subcommittee.
(Note : Hon LI Wah-ming took over the chair of the meeting after being elected to be the Subcommittee Chairman.)
II. Terms of Reference
2. Members agreed that the Subcommittee should be renamed as "Subcommittee on Legislation for the Mentally Handicapped", and the terms of reference should be revised to read "To study the review of the Mental Health Ordinance for the protection of the rights of the mentally handicapped". The Chairman said that the terms of reference would be referred to the Welfare Services Panel for endorsement.
(Post-meeting note: The name of the Subcommittee and its terms of reference were endorsed by the Welfare Services Panel at its meeting on 12 January 1996.)
III. Progress of review of Mental Health Ordinance
(LegCo Paper No. PL377/95-96)
Report by the Commissioner for Rehabilitation
3. Mr Allan CHOW reported that the first draft of the draft instructions in respect of the proposed improvements to the Mental Health Ordinance (MHO) were forwarded to the Attorney General (AG) in November for initial comments. AG advised that the drafting work involved was complex. The draft drafting instructions had now been finalized and submitted to the Secretary for Health and Welfare for approval to issue hopefully within the next two weeks. The amendment bill was scheduled to be introduced to the Legislative Council (LegCo) in May 1996.
4. Members expressed discontent that after the meeting of this Subcommittee in June 1995, the Administration did not meet with the parent associations until October 1995. Mr CHOW explained that after the last meeting with the Subcommittee, the Administration had to devote a great deal of time to the finalization of the proposed improvement package.
5. Members expressed the view that the enactment of the statutory provisions for the protection of the mentally handicapped had long been awaited and they would like to see the amendment bill pass by LegCo within the 1995/96 session. Mr CHOW confirmed that this was also the Administrations intention. Members pointed out that taking into account the necessary lead time for the legislative process, it would be fairly impossible to have the amendment bill passed within the 1995/96 session if it was to be introduced to LegCo as late as May 1996. Mr CHOW said that the present schedule was set having regard to AGs advice on the time needed for the drafting of the amendment bill. Given the complexity of the amendment exercise, it was already a very tight schedule. He added that the Administration had already given a high priority to this matter in its legislative programme. After discussion, Members arrived at the view that the bill should be introduced to LegCo not later than mid-April 1996. On the part of the Subcommittee, the Chairman of the House Committee and the Legal Advisor of the Legislative Council would be consulted on the feasible ways to expedite the legislative process within the Council, and the Chief Secretary would be requested to advance the legislative slot for the amendment bill from May to mid-April 1996. Mr CHOW said that he would convey Members view on the legislative timetable to AG.
(Post- meeting note: On behalf of the Subcommittee, the Chairman sent a letter to the Chief Secretary on 12 January 1996 requesting her support in this matter.)
6. Members considered that apart from parent associations and the Hong Kong Council of Social Service (HKCSS), it would be necessary to consult other concern groups and concerned sectors such as the banking, legal and medical (including dental) sectors about the proposed improvements to the MHO. In response, Mr CHOW advised that the inter-departmental review group would be consulted on the issues involved. He added that as the drafting instructions were mainly concerned with the legal technicalities, only the underlying principles and the details of the relevant proposals would be provided to the respective groups/bodies for consultation purpose. Members considered that in any case, the consultation should be completed by the time the amendment bill was introduced to LegCo, i.e. mid-April 1996.
7. In response to Members request, Mr CHOW said that he would consult the Director of Administration on whether the amendment bill could be forwarded to the Subcommittee for advance deliberations before it was gazetted. He also agreed to provide a copy of the Mental Health Act 1983 of the United Kingdom (UK) for Members reference.
(Post-meeting note : A copy of the Act was circulated to Members vide LegCo Paper No. PL447/95-96 on 22 December 1995.)
Proposed Definitions of "Mental Disorder" and "Mental Handicap"
8. On the definitions of "Mental Disorder" and "Mental Handicap", Mr CHOW said that amendments had been made having regard to Members comments at the last meeting in June 1995 and the present proposed definitions had been agreed by the parent associations and the HKCSS. He further advised that in considering the definitions, the inter-departmental review group had made reference to those adopted in UK.
9. On whether "slow learners" with IQ scores between 70 to 85 should be regarded as mentally handicapped (MH) persons, Mr CHOW said that whether a person would be classified as MH would be subject to the advice of doctors and clinical psychologists. Some Members were concerned that the proposed definition of "Mental Handicap" might be too vague and might give rise to disputes in future. Mr CHOW explained that the review group considered that it would be rather impracticable to define "Mental Handicap" in the law in quantitative terms. In fact, the proposed definitions were similar to those being adopted in many other countries. However, he agreed to further examine a Members suggestion that a more objective condition (such as IQ scores) be specified for the definition of "Mental Handicap" in the subsidiary legislation.
10. In response to the Chairmans enquiry, Mr Joseph CHEANG said that there was no specific welfare service for "slow learners", but they were provided with special education services. Mr CHOW also confirmed that there was no specific rehabilitation service for "slow learners", because they were not classified as people with a disability.
11. Members noted the proposed definition of "Mental Disorder" as follows:
"Mental Disorder" means mental illness, arrested or incomplete development of mind which amounts to mental impairment, psychopathic disorder or any other disorder or disability of mind. For the purpose of this definition, "mental impairment" means significant impairment of intelligence and social functioning which is associated with abnormally agressive or seriously irresponsible conduct on the part of the person concerned.
12. A Member remarked that the proposed definition of "Mental Disroder" appeared to have included the conditions associated with "Mental Handicap", particularly the part on "mental impairment". The Chairman shared the Members view that the definitions of "Mental Disorder" and "Mental Handicap" should be distinct as the disposal options available to the court for the MH were very different from those for the mentally disordered (MD). This was also the principal reason for the present review of the MHO. Another Member commented that the Chinese translation of "mind" into "¤ß´¼" in the definition of "Mental Disorder" was not quite appropriate. Mr CHOW agreed to further examine the definitions and the respective translations.
13. A proposal set out in paragraph 10(iii) of the paper was that "In respect of special medical treatment, there shall be a provision to the effect that the court will not consent to the carrying out of special medical treatment on a MD or MH person if that person is under 18 years of age". Members were concerned that such a provision might pre-empt the courts decision. In some cases, it might be in the best interest of the MH person for a special medical treatment to be carried out on him/her. For instance, the courts decision might be more appropriate in a case where a MH person under 18 years of age had been raped by her father, who being the guardian refused to give consent to an abortion on the MH person. Mr CHOW agreed to clarify the legal circumstances in such a case and to examine if there was any drawback under the proposal in paragraph 10(iii).
14. Having noted that statutory provisions in respect of MH persons under 18 years of age were covered by another ordinance, Members were concerned that with two distinct systems prescribed by two separate ordinances, problems such as disruption to the continuity of guardianship might arise from the switch from one system to another when a MH person reached 18 years of age. On whether the legislative provisions relating to MH people under 18 years of age could be incorporated into the MHO, Mr CHOW said that this would have a lot of implications and would require a lot of time to examine. At this stage, there was no plan to do so. He however took note of Members concern that the well-being of the mentally handicapped should not be adversely affected on account of the need to switch to the provisions of the MHO when they reached the age of 18.
15.. Members were concerned that it might be very difficult to find a suitable retired judge to chair the Guardianship Board (GB) as it was observed that the chairman posts of a few other independent statutory bodies were still vacant because no suitable retired judge was willing to take up the posts. They also considered that a lawyer who had been admitted to practice for at least five years would not have the necessary experience for the position. In response, Mr CHOW said that the MHO would not specify the qualification(s) for the chairmanship of the GB, but only that he/she would be appointed by the Governor. He assured that the appointment would be made prudently with due regard to the necessary experience and knowledge required to head the GB. As regards the eligibility of representatives of parent associations for appointment to the GB, Mr CHOW confirmed that they would be among those members of the public to be accorded priority for such appointment.
16. In response to Members enquiry, Mr CHOW clarified the proposal set out in paragraph 8 that in the case where a MD or MH persons total assets was less than $100,000, the court might issue a Short Procedure Order authorising the MD or MH persons assets to be used in a specified way for his or her benefit. The amount of $100,000 was recommended after consultation with the Social Welfare Department.
17. It was mentioned in paragraph 15 of the paper that the amendment to the relevant provisions in the MHO to provide the magistrate with the discretion to make alternative disposal options for MD and MH persons was being taken forward by the Security Branch in conjunction with a similar amendment to the Criminal Procedure Ordinance (CPO) (Cap. 221). The Chairman was concerned that the amendment to the CPO might cause delay to the amendment of the MHO. Mr CHOW assured that this would not be the case as the amendment to the CPO would be introduced to LegCo in early 1996.
18. A Member recalled that the Subcommittees initial suggestion in previous LegCo sessions was to draw up a separate piece of legislation for the protection of the mentally handicapped rather than to make amendments to the existing MHO. In the course of deliberation, Members were given to understand that a separate piece of legislation would require much longer time to draw up and thus the Subcommittee agreed to proceed with the Administrations proposal of making amendments to the MHO first. The Member opined that legislative amendments to the MHO should only serve as an interim measure; the Administration should proceed with the drawing up of a separate legislation afterwards. Mr CHOW remarked that the issue of whether a separate legislation was necessary had been discussed for quite some time in the past. The Administration remained of the view that a separate legislation was not necessary and the concerned proposed improvement package would further safeguard the well-being of people with mental handicap.
19. At the Chairmans request, Mr CHOW agreed to ask the Judiciary to prepare a progress report on the implementation of the recommendations of the Working Party on Mentally Handicapped People Giving Evidence in Court not involving legislative changes.
(Post meeting note: An up-to-date report on the progress of the implementation of the recommendations of the Working Party was circulated to Members vide LegCo Paper No. PL519/95-96 on 9 January 1996.)
The meeting ended at 12:25 a.m.
22 January 1996
Last Updated on 22 August 1998