LegCo Paper No. CB(2)1768/96-97
(These minutes have been seen by the Administration )
Ref: CB2/PL/WS

LegCo Panel on Welfare Services (Special Meeting)

Minutes of Meeting
held on Monday, 20 January 1997
at 11:00 am
in Conference Room B of
the Legislative Council Building

Members Present :

    Hon Fred LI Wah-ming (Chairman)
    Hon David CHU Yu-lin (Deputy Chairman)
    Hon CHEUNG Man-kwong
    Hon Frederick FUNG Kin-kee
    Hon Eric LI Ka-cheung, OBE, JP
    Dr Hon YEUNG Sum
    Hon LEE Cheuk-yan
    Hon CHAN Yuen-han
    Hon LEE Kai-ming
    Hon MOK Ying-fan
    Dr Hon John TSE Wing-ling

Members absent :

    Hon Zachary WONG Wai-yin*
    Hon James TIEN Pei-chun, OBE, JP *
    Dr Hon LAW Chi-kwong*

Members attending :

    LegCo Panel on Health Services

    Hon HO Mun-ka, Michael
    Hon Howard YOUNG, JP

Public officers attending :

Health and Welfare Branch

Mr Augustine CHOI Chi-wa
Commissioner for Rehabilitation
Miss Priscilla TO
Assistant Secretary for Health and Welfare

Attorney General's Chambers

Mr R A Griffey
Senior Assistant Law Draftsman

Social Welfare Department

Mr FUNG Man-lok, Raymond
Senior Social Work Officer (Medical Social Services)
Mr NG Ting-kwong, Allan
Senior Social Work Officer (Rehabilitation/Policy)

Hospital Authority

Deputy Director (Operations)
Hospital Chief Executive
Kwai Chung Hospital
Ms Venus CHOY
Chief Legal Counsel
Senior Manager (Professional Services)

Clerk in attendance :

Ms Doris CHAN
Chief Assistant Secretary (2)4

Staff in attendance :

Miss Joanne MAK
Senior Assistant Secretary (2)4

I. Briefing by the Administration on the Mental Health (Amendment) Bill 1997

The Chairman requested the Administration to brief members on the salient points of the Mental Health (Amendment) Bill 1997, in particular, those parts which were not accepted by the concerned parents associations.

2. The Administration reported that it had taken into full account the opinions of the parents associations and lengthy consultation with the relevant professional bodies was taken before reaching a consensus on the definitions of "mental handicap" and "mental dissorder". Members noted that the proposed definitions were different from those adopted by the World Health Organisation (WHO).

3. The Administration briefly explained the provisions of the Bill - clauses 1 to 4 dealt with the proposed "definitions", clauses 5 to 19 dealt with arrangements relating to the management of property and affairs of the mentally incapacitated persons (MIP), clauses 20 to 49 contained consequential amendment arising from the proposed definitions and the setting up of a Guardianship Board, clause 50 dealt with the setting up of a Guardianship Board and the introduction of consent procedures for medical and dental treatment of adult MIPs and clause 56 dealt with the basic provisions governing the operation of the Guardianship Board.


4. A member opined that the Administration should explore the possibility of using the same definitions of "mental handicap" and "mental disorder" used by WHO which were internationally recognised. He also suggested that "mentally incapacitated person" should be substituted by "person with mental retardation" and "mentally incapacitated" by "mentally retarded".

5. The Administration replied that WHO had been consulted which suggested that the term "mental retardation" or "mental impairment" instead of "mental handicap" should be used. However, these terms had been rejected by parents associations and non-governmental organisations (NGOs). The Administration stressed that the proposed definitions had been accepted by all parties concerned including the parents associations.

6. As regards the terms "mentally incapacitated person" or "mentally incapacitated", the Administration explained that, to save the trouble of constantly repeating "mentally disordered or mentally handicapped persons as the case may be" in the Bill, they proposed to use "MIPs" to refer to "mentally handicapped or mentally disordered persons". The Senior Assistant Law Draftsman (SALD) advised that terms similar to "mentally incapacitated" were also used in other Ordinances to describe cases relating to incapacitated persons. SALD agreed that it was possible to come up with another term but it would be a time-consuming process. However, a member pointed out that the concerned parents had all along been opposed to associating "mental handicap" with "mental disorder" because they were of the view that these two kinds of disabilities were different. He doubted that the proposed term "MIP" would mislead the public to think that the two categories of persons were the same. He therefore suggested that if no better term could be devised, he would prefer repeating "mentally disordered or mentally handicapped persons as the case may be" in the Bill when they were referred to.

7. The Administration was requested to provide information on the terms it had considered other than MIP, and why they had not been adopted. The Administration would also provide information on the divergrent views between professional bodies, NGOs and parents association on the provisions of the Bill.

8. Members criticised the term "mentally incapacitated" and its Chinese rendition "精神上無行為能力" as being very difficult to understand. The Chinese term would also imply complete mental incapacitation. The Administration said that the Chinese term did not have such an intended meaning. Consideration would be given to revising the translation of the term.

9. The Administration further explained that for those who were mentally incapacitated temporarily (such as people in comas), they would not be classified as MIPs. It pointed out that MIPs strictly referred to the mentally handicapped and the mentally disordered persons, the definitions of which were clearly spelt out in the Bill.

The Guardianship Board 10. The Administration briefed members on the functions of the Guardianship Board.

11. On the composition of the Board, a member enquired the definition of "public officer" in clause 59J 2(b) of the Bill. SALD replied that it would have the same interpretation as in the Interpretation and General Clauses Ordinance (Cap. 1). In response to a member's query, SALD undertook to confirm later whether Legislative Councillors were also included.

[Post meeting Note: It was confirmed that Legislative Councillors were not public officers within the meaning of section 3 of Cap. 1]

Guardian's Power

12. A member questioned whether the guardian's scope of power should be restricted. For example, the guardian should not be authorised in all cases to manage the properties of the MIP received into his guardianship. The guardian should be authorised to do so only for a MIP whose mental incapacitation was serious enough to justify it. He requested the Administration to define the type of MIPs who should be considered unable to look after their properties and thus required guardians to manage on their behalf.

13. In response, the Administration clarified that the power to appoint a committee of the estate for the management of a MIP's property would continue to rest with the High Court. It explained that only the following six kinds of power would be conferred on the guardian by the Guardianship Board -

  1. to require the MIP received into his guardianship to reside at a specified place;

  2. to require the MIP to attend at specified places and times for medical treatment, occupation, education or training;

  3. to give any registered medical practitioner, approved social worker, or other person specified in the guardianship order access to the MIP;

  4. to convey the MIP to places so specified by the guardian and to use such reasonable force as might be necessary;

  5. to consent to medical and dental treatment, other than special treatment of an irreversible or controversial nature to be specified by the Secretary for Health and Welfare under the Ordinance, on behalf of the MIP; and

  6. to hold, receive or pay on behalf and for the maintenance or other benefit of the MIP such monthly sums as might be specified by the Board. (The maximum amount of such monthly expenses was currently $9,500.)

14. The Administration reported that the Social Welfare Department (SWD) had monitored the appointed guardians by making it an official duty of SWD staff to conduct regular visits to people received into guardianship. This policy would be extended to MIPs received into guardianship in the new provision.

15. At a member's enquiry, the Administration said that there were provisions in the Bill to ensure that a MIP received into guardianship would have the right to be informed of the decisions made relating to him and to make presentation of his own views.

16. A member noted that there were provisions in the Bill which made it a criminal offence for a guardian having unlawful sexual intercourse with a female MIP. He enquired if the same provisions would be made to protect a male MIP received into guardianship. The Administration explained that there were already provisions in the Crimes Ordinance to protect males and females, MIPs or otherwise, from various sexual abuses. The relevant provisions in the Mental Health Ordinance were only additional provisions.

17. There being no other business, the meeting ended at 12:20 pm.

Legislative Council Secretariat
8 April 1997

* other commitments

Last Updated on 22 August 1998