LegCo Paper No. CB(2) 2746/96-97
(These minutes have been seen
by the Administration)
Ref. : CB2/BC/8/96
Bills Committee on
Mental Health (Amendment) Bill 1997
Minutes of 2nd Meeting
held on Thursday, 8 May 1997 at 8:30 am
in the Conference Room A of the Legislative Council Building
Members present :
Dr Hon LAW Chi-kwong (Chairman)
Dr Hon LEONG Che-hung, OBE, JP
Hon Michael HO Mun-ka
Hon Howard YOUNG, JP
Members absent :
Hon Fred LI Wah-ming
Hon LEE Kai-ming
Public Officers Attending :
- Mr Augustine CHOI
- Commissioner for Rehabilitation
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
- Dr W M KO
- Deputy Director (Operations)
- Ms Venus CHOY
- Chief Legal Counsel
- Miss Ophelia CHAN
- Assistant Director (Rehabilitation)
- Mr FUNG Man-lok
- Senior Social Work Officer (Medical Social Service)
- Miss Priscilla TO
- Assistant Secretary for Health and Welfare
Attendance by Invitation :
- Hong Kong Council of Social Service (HKCSS)
- Mr WONG Chak-tong
- Miss Stella HO
- Parents Association of the Pre-school Handicapped Children
- Mrs Julie LEE
- Hong Kong Joint Council of Parents of the Mentally Handicapped
- Mr PAK Kam-chuen
- Ms CHAK Sau-lin
- Hong Kong Down Syndrome Association Limited
- Ms Alison TAM
Clerk in Attendance :
- Mrs Percy MA
- Chief Assistant Secretary (House Committee)
Staff in Attendance :
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Ms Christine LIU
- Senior Assistant Secretary (2) 8
I. Meeting with the Administration and Deputations
The Chairman welcomed representatives of the Administration and deputations to the meeting. Referring to the Administrations response to the deputations written submissions to the Bills Committee, the Chairman invited the deputations to give their further views, if any. The main points discussed were summarised below.
2. Mr WONG Chak-tong said that in the light of the explanations given by the Administration, the Chinese rendition of "mental incapacity" as was considered acceptable. In this connection, Miss Stella HO enquired about the latest position regarding the Chinese translation for "mentally incapacitated person" (MIP).
3. The Commissioner for Rehabilitation (C for R) replied that was the best available Chinese legal term for "mental incapacity" which was used as a collective term for "mental disorder" or "mental handicap" in the Bill. At the meeting of the Panel on Welfare Service held on 11 April 1997, members had requested the Administration to consider an alternative term of "concerned person" for "mentally incapacitated person". After consideration, the Administration was of the view that there were technical difficulties in using the term "concerned person" because its Chinese rendition would be the same as "person concerned" or close to "in relation to a person" which were already used in the Mental Health Ordinance and the amended Bill. C for R added that representatives of the HKCSS and parents associations had noted the Administrations explanations and agreed to accept the Chinese rendition of "mental incapacity" and "mentally incapacitated person" proposed in the Bill.
Period of co-residency with a relative
4. Making reference to the definition of "relative" which included "any person with whom the MIP resides or had resided", Mr WONG Chak-tong said that some NGOs were worried that if a minimum period of co-residency was not specified, there might be cases of abuse.
5. C for R said that any period of co-residency to be specified under the definition of "relative" would be arbitrary. The proposed definition of "relative" had already provided sufficient flexibility for different categories of persons to act in the interest of MIPs. Although a guardianship application might be made by a relative of the MIP, the role of a "guardian" was considered to be more important than that of an "applicant" because the latter would unlikely have any vested interest unless he also wanted to be the guardian. In view of the important role of guardians, the proposed new section 59S of the Bill had described in detail the requirements of guardians.
6. Mrs Julie LEE said that while there were pros and cons in specifying a minimum period of co-residency, she was inclined to agree with the Administration that the any proposed period might limit the number of eligible persons who could act for the benefit of MIPs. Moreover, she trusted that the Guardianship Board should be in a position to assess the suitability of a proposed guardian.
. On the Administrations reply that it did not agree to include non-governmental organisations (NGOs) officers-in-charge or social workers as eligible persons for making guardianship applications because there was no legally enforceable and clear definition for "NGO" and "officer-in-charge", Mr WONG Chak-tong enquired if the newly enacted legislation on registration of social workers would help resolve the problem.
7. While Mrs Julie LEE supported the proposed inclusion of social workers as eligible persons for making guardianship applications, she said that it was unnecessary for these applications to be referred to the Social Welfare Department (SWD) for screening as to whether the MIP in question was in need of a guardian. Ms Alison TAM said that the proposal would expand the scope of protection for those MIPs not residing in a NGO residential home or not being taken care of properly by their relatives.
8. C for R said that if there was a genuine need for a MIP living in a NGO residential home who had no relative to apply for guardianship, and if the NGOs officer-in-charge was not eligible to make the guardianship application under the definition of "relative", he could ask one of his staff who resided/had resided with the MIP to make the application. Alternatively, the officer-in-charge could ask DSW to make the application. If the case was a genuine one, DSW would certainly make an application for him. As proposed under the Bill, a guardianship application should be supported by the written reports of two registered medical practitioners. In considering the application, the Guardianship Board would consider the social enquiry report prepared by SWD.
9. Miss Stella HO said that people residing with MIPs in NGO residential homes could be care-takers or welfare workers who might not be the most suitable persons for making the guardianship application. She proposed that the registered social worker handling the case of the MIP in question could be the applicant as he/she would fully understand the MIPs needs.
. C for R was concerned about possible difficulties in implementing the proposal. He quoted a situation where more than one registered social workers had handled the same case and they happened to have different views on the question of guardianship application. Mr Michael HO opined that the merits of the application should be a matter for the Guardianship Board to consider.
10. The Senior Assistant Law Draftsman (SALD) pointed out that although the Social Workers Registration Bill had just been enacted, a transitional period of about a year would be provided for registration of social workers. As such, there was likely to be a gap of about six months to one year before any registered social worker could make a guardianship application.
11. Members did not consider the point raised by SALD should be a cause of concern. They generally felt that the proposal would facilitate applications for guardianship and would be in the interest of MIPs.
12. C for R undertook to consider the proposal in consultation with DSW and revert to the Bills Committee.
13. Mrs Julie LEE made the following points:
- she accepted the Administrations proposal that the requirement for the Guardianship Board to interview the proposed guardian to ascertain his/her suitability should be included in the Guardian Board Rules, rather than in the main Ordinance;
- According to the Administration, amendments would be made to the existing Regulations 3(d) & (5) of the Mental Health (Guardianship) Regulations (the Regulations). She would like to know if there would be a comprehensive review of the Regulations. At present, a private guardian was required to inform DSW within 14 days on certain matters relating to a MIP e.g. his/her death, marriage, change of occupation etc. She hoped that a balance could be struck between the mechanism of monitoring and duties performed by a guardian. In relation to this, she would like to know how DSW, when acting in the capacity as a guardian, would be monitored.
14. On paragraph 15(b) above, SSWO replied that at present, guardianship applications could be made by a public officer of SWD or a relative or a registered medical practitioner. The application should be founded on the written opinions in the prescribed form of two registered medical practitioners and approved by the Assistant Director of SWD. There were established procedures for processing, approving guardianship applications and renewal of guardianship orders.
15. In view of the important role of guardians, Mr Michael HO opined that all guardians should be advised of the provisions of the Mental Health (Guardianship) Regulations and any subsequent amendments to the Regulations by SWD in writing. This could help avoid any inadvertent breach of law on their part. The Administration agreed.
. SSWO supplemented that the existing practice was that each private guardian was given a "Guide for Private Guardians" to help him/her understand the roles and duties. On the other hand, the existing Regulations stipulated that DSW or his officer should arrange for every person received into guardianship to be visited at intervals of not more than six month. In fact, visits had been conducted on a more frequent basis.
16. Mrs Julie LEE said that according to the Administrations reply, in respect of autistic persons who were classified as MIPs by medical practitioners, applications could be made to the High Court for the appointment of a committee of the estate under the amended Part II of the Bill. She asked if they had to be re-certified as MIPs for the purpose of a guardianship application.
17. In response, C for R replied that for an autistic person to benefit from the relevant provisions of the existing and amended Mental Health Ordinance, he/she should be certified by medical practitioners as having any of the following mental disorder:
- mental illness
- a state of arrested and incomplete development of mind which amounted to a significant impairment of intelligence and social functioning
- any other disorders or disability of mind (if they showed specific cognitive or intellectual deficits).
He added that a committee of the estate might be appointed under the existing and amended Part II of the Bill for any MIP who was incapable of managing and administering his/her property and affairs, and a guardianship application might be made under Part IV of the Bill for any MIP who was unable to handle or manage affairs relating to his/her daily living.
18. Deputy Director (Operation) added that according to medical definition, autism was a mental illness which had been defined as a kind of mental disorder in the Bill. As such, autistic persons would be protected under the Bill.
19. Mrs Julie LEE considered that autistic persons should be formally classified as MIPs. She said that she would request the Administration to review the situation if there were subsequent incidents indicating that autistic persons were not given adequate legislative protection under the Bill.
20. Mr WONG Chak-tong said that at present, some residential home operators or home-help team workers managed the financial and other affairs on behalf of MIPs. They were concerned whether they would need to apply for a guardianship order for each of the MIPs under their care, and whether continuation of the existing practice was legal after enactment of the Bill.
. C for R said that the existing practice of managing the financial affairs of MIPs on an informal trust basis could continue and would not be deemed as illegal. It was not a statutory requirement for MIPs to be received into guardianship. In fact, similar arrangement was adopted for non-controversial cases in Australia even though the country had a formal guardianship system.
21. Mr Michael HO said that he would like the legal adviser to give his legal opinion on informal trust. He pointed out that many MIPs in NGOs or mental hospitals were in receipt of Comprehensive Social Security Assistance (CSSA) payments or other allowances and would need help to manage their financial affairs. He doubted if the system of informal trust was legally enforceable. ALA4 agreed to provide the information after the meeting.
. C for R supplemented that for non-controversial cases, the arrangement of informal trust was workable. For example, in cases where the MIP was over the age of 18 and had parents or relatives as an informal trustee to look after his/her financial affairs. However, it was for NGOs to decide whether they should apply for a guardianship order if there was a genuine need for some formal authorization.
. SSWO advised members that under the existing system, medical/family social workers of SWD could be appointed to manage the social security payments of MIPs. Legal advice obtained by the Administration had confirmed that this informal arrangement was in order.
. In response to Mr Howard YOUNGs concern about the requirement for guardians to furnish reports to DSW under the Mental Health (Guardianship) Regulation 3 (d), SSWO replied that at present, parents who acted as guardians were not normally required to submit any reports. After enactment of the Bill, parents and relatives acting as guardians for MIPs might be asked to submit simple and informal reports e.g. a monthly income and expenditure account. However, a more formal report might be required in the case where the guardian was an institution.
Increase of workload in Hospital Authority (HA)
22. The Chairman said that some psychiatrists in HA were concerned about increase of workload after enactment of the Bill. Deputy Director (Operations) replied that additional resources had been secured for HA to appoint one doctor, one clinical psychologist and one psychiatric nurse in 1997/98 to cope with the anticipated increase in workload.
23. Dr LEONG Che-hung said that geriatricians or psycho-geriatricians might be required to give medical opinions in relation to applications for guardianship or the appointment of a committee of the estate submitted by demented elderly persons. He expressed concern about the workload generated for HA in this respect, and the availability of suitable persons for appointment as geriatricans or psycho-geriatricians if additional manpower was required to cope with the increase in workload.
24. C for R clarified that any medical report in substantiation of an application by a demented elderly did not necessarily have to be compiled by a geriatrican or psycho-geriatrician in HA. He assured members that should the workload of HA be increased substantially, request for additional staff would be raised.
25. Mrs Julie LEE expressed her wish that the proposals contained in the Bill should be implemented in six months time. This was noted by the Bills Committee.
26. C for R clarified that an application for guardianship could be made to DSW under the existing Ordinance, without having to wait for the enactment of the Bill.
(The deputations left the meeting at this juncture)
27. Mr Michael HO said that he was aware that the original proposal to include clinical psychologists as one of the qualified professionals for the purpose of the proposed section 59M(3) of the Bill was dropped because there was no legally enforceable definition of clinical psychologists. As the professional expertise of clinical psychologist had been most useful in assessing MIPs in overseas jurisdictions, he urged the Administration to discuss with the Hong Kong Psychological Society with a view to coming up with an acceptable definition for clinical psychologists.
28. C for R said that the Administration had detailed discussions and consultation with the Hong Kong Psychological Society but was unable to find a legally enforcable definition for clinical psychologists. In recognition of the contribution of clinical psychologists in assessing MIPs, one of the three additional posts sought for HA to cope with additional work arising from the Bill was clinical psychologist. In further response to Mr HO, he said that the Administration had provided information regarding consultation with the various professional bodies, NGOs and parents associations on the Bill to the Panel on Welfare Services (Paper No. CB(2) 1721/96-97 (04) refers)
II. Proposed amendments by the Administration
29. The Chairman suggested and members agreed to go through the list of amendments proposed by the Administration tabled at the meeting (circulated to members vide Paper No. CB(2) 2241/96-97(01) dated 13 May 1997).
30. In the light of the Hong Kong Bar Associations comments, the Administration said that they would move a CSA to incorporate S96(1)(g) & S101 of the UK Mental Health Act 1983 in the Bill (an extract of the Act was circulated to members vide LegCo Paper No. CB(2) 2345/96-97 dated 22 May 1997).
31. Members agreed to support the proposed amendments in principle. The Administration would let members have the draft CSAs for consideration.
III. Clause by Clause examination of the Bill
32. Due to time constraints, the Chairman proposed and members agreed that members would study the provisions of the Bill. The draft CSAs and additional information to be provided by the Administration would be circulated to members for consideration upon receipt by the Secretariat. It was also agreed that a further meeting be tentatively scheduled at 8:30 am on 21 May 1997.
33. The meeting ended at 10:30 am
Legislative Council Secretariat
20 June 1997
Last Updated on 16 October 1997