on 30 March 1998
ITEM FOR FINANCE COMMITTEE
HEAD 176 - SUBVENTIONS : MISCELLANEOUS
New Recurrent Account Subhead "Mental Health Guardianship Board"
For the purpose of setting up the Mental Health Guardianship Board, Members are invited to approve -
- the creation of a new Recurrent Account subhead entitled "Mental Health Guardianship Board" under Head 176 Subventions : Miscellaneous with the Secretary for Health and Welfare as the controlling officer;
- the remuneration for the full-time non-official Chairperson of the Guardianship Board;
- the payment of honoraria to non-official members of the Board and allowances to witnesses attending before the Board; and
- delegation to the Secretary for the Treasury the authority to approve future revisions of the rates of payment under (c) above having regard to the movement of the Composite Consumer Price Index.
We need to put in place the funding and other related arrangements for setting up the Guardianship Board (the Board) to implement the provisions of the Mental Health (Amendment) Ordinance 1997 (the Amendment Ordinance).
2. We propose to -
- create a new expenditure subhead entitled "Mental Health Guardianship Board" under the General Revenue Account Head 176 Subventions : Miscellaneous, with the Secretary for Health and Welfare as the controlling officer;
- remunerate the full-time non-official Chairperson of the Guardianship Board at a level equivalent to D3 of the Directorate Pay Scale of the civil service;
- pay honoraria to non-official members of the Board at the rate of $3,000 per day or $1,500 per half-day for members who are barristers/solicitors/registered medical practitioners; $2,000 per day or $1,000 per half-day for members who are social workers/psychologists; and $800 per day or $400 per half-day for other members;
- pay allowances to witnesses attending before the Board at the rate of $200 per day or $100 per half-day for professional or expert witnesses and $90 per day or $45 per half-day for ordinary witnesses; and
- delegate to the Secretary for the Treasury the authority to approve future revisions to the rates of honoraria and allowances under (c) and (d) having regard to the movement of the Composite Consumer Price Index.
Functions and Structure of the Board
3. The Amendment Ordinance, which was enacted on 27 June 1997, aims to strengthen the provisions of the Mental Health Ordinance (Cap. 136) (MHO) with a view to providing better legal safeguards for mentally disordered and mentally handicapped persons (collectively known as mentally incapacitated persons in the amended MHO) as well as their carers. One of the major improvements is to provide for the establishment of an independent Guardianship Board to enforce new guardianship provisions for mentally incapacitated persons who have attained the age of 18 years or above.
4. In accordance with section 59J(2) and (3) of the amended MHO, the Board will comprise a Chairperson and not less than nine other non-official members to be appointed by the Chief Executive. The Chairperson of the Board should have such legal experience as the Chief Executive considers suitable. Of the non-official members to be appointed -
- at least three shall be persons who are barristers or solicitors;
- at least three shall be persons who have experience in assessing or treating mentally incapacitated persons, such as registered medical practitioners, social workers or psychologists; and
- at least three shall be persons who have had personal experience with mentally incapacitated persons (other than those referred to in paragraphs (a) and (b) above), such as parents of mentally incapacitated persons.
5. The Board will be supported by a secretariat comprising four non-civil service staff, whose terms and conditions of employment will be determined by the Board with the proviso that these should not be superior to those provided by Government to comparable grades in the civil service. The structure of the Board is at the Enclosure.
6. The main functions and powers of the Board are -
- to consider and determine applications for the appointment of guardians;
- to make guardianship orders;
- to review guardianship orders; and
- to give directions to guardians as to the nature and extent of guardianship orders.
Guardians appointed by the Board will be empowered to make important decisions affecting the daily life of mentally incapacitated persons. These include handling the monthly sum of money for the mentally incapacitated persons' maintenance or other benefits and giving consent to medical and dental treatment on their behalf.
7. Before making any decisions on guardianship applications or reviews, the Board will examine medical reports and other documents submitted by the concerned parties such as the applicants and the Social Welfare Department (SWD). It will have to conduct hearings into such cases and witnesses may be summoned. The parties to the proceedings may have legal representation.
Remuneration for the Chairperson of the Board
8. The Board is an independent set-up to consider, determine and review applications of guardians for mentally incapacitated persons. The Chairperson is required to chair the hearings and guide Board members in determining whether an application is fully substantiated. Since the placement of a mentally incapacitated person into guardianship relates to personal rights and freedoms of that person, the Chairperson has to ensure that due procedures are always followed.
9. We anticipate a substantial number of applications in the initial years of the Board's operation. Since applications to the Board are made on a voluntary and need basis and not all of the potential applications will be made at the same time, we estimate that on average there will be 630 new applications per year, representing 5% of the total potential caseload covering the mentally ill, the moderately and severely mentally handicapped and the demented elderly. Each approved application is subject to review after one year for extension for another term of three years. Apart from handling the new applications and renewals, the Chairperson should monitor the efficient operation of the secretariat especially in complying with statutory duties and requirements. As the revamped guardianship system and the operations of the Board are new to Hong Kong, the Chairperson will need to publicise the Board to promote understanding of its work and the new legislative provisions on guardianship. Thus, at least in the initial years, we envisage this to be a full-time job.
10. We therefore propose to engage a full-time Chairperson on a contract basis. In view of the complex, sensitive and time-consuming duties of the Chairperson which require a person with strong legal experience, commitment, leadership and interpersonal skills, we further propose to remunerate him at a level equivalent to D3 on the Directorate Pay Scale of the civil service. In considering the ranking of the Chairperson, we have drawn reference to the Mental Health Review Tribunal (the Tribunal) which is currently chaired by a District Court Judge which is equivalent to the D3 level. The Tribunal deals with equally complex and sensitive issues as the Guardianship Board in reviewing the period of detention of mental patients in mental hospitals as well as the guardianship and supervision and treatment orders of mentally incapacitated persons arising from criminal proceedings under the MHO.
Honoraria and Allowances for Board Members and Witnesses
11. Non-official members of the Board will examine documents, interview mentally incapacitated persons and witnesses prior to the hearings, take evidence and hear representations. The duties and level of responsibilities are comparable to those of non-official members of the Tribunal. In order to compensate for their travelling expenses and part loss of their earnings for time spent on exercising their duties, we propose to pay non-official members of the Board the same rates of honoraria for professional members (including lawyers, medical practitioners, social workers and psychologist) and other members as those applicable to the Tribunal, that is, $3,000 per day or $1,500 per half-day for members who are barristers/solicitors/registered medical practitioners; $2,000 per day or $1,000 per half-day for members who are social workers/psychologists; and $800 per day or $400 per half-day for other members.
12. The Board may summon witnesses (e.g. relatives of the mentally incapacitated person) to attend the Board's proceedings. To compensate them for travelling and miscellaneous expenses, we propose also to apply to witnesses attending before the Board the same rates of allowances for professional or expert witnesses and other witnesses of the Tribunal, that is, $200 per day or $100 per half-day for professional or expert witnesses and $90 per day or $45 per half-day for ordinary witnesses.
Delegation to the Secretary for the Treasury
13. In order to maintain the real value of the honoraria for non-official members and the allowances for witnesses, we propose that Members delegate to the Secretary for the Treasury the authority to approve future revisions to the rates annually having regard to the movement of the Composite Consumer Price Index.
Expenditure Control for the Board
14. To account for the expenses of the Board, we propose the creation of a new Recurrent Account subhead entitled "Mental Health Guardianship Board" under the General Recurrent Account Head 176 Subventions : Miscellaneous. We estimate that the Board will require an annually recurrent expenditure of $4.7 million, made up as follows -
Remuneration and allowances
Honoraria for members
Allowances for witnesses
The Secretary for Health and Welfare will be the controlling officer for this new subhead.
15. We aim to bring the Board into operation as early as possible in mid-1998. Subject to Members' approval, we shall provide the supplementary provision required in 1998-99 through delegated authority.
16. Members approved on 9 July 1980, and re-affirmed 5 March 1993, that while service on Government boards and committees should be voluntary, no individual should suffer a pecuniary embarrassment through public service, nor should the Government be obtaining the services of highly qualified, professional persons "on the cheap". Remuneration should normally be in respect of payment of expenses and/or compensation for earnings forgone. Members delegated to the Secretary for the Treasury the authority to approve the payment of an honorarium to non-official members of boards and committees according to the above-mentioned principles up to a specified financial ceiling; the current ceiling being $775 per member per attendance. The payment of honoraria exceeding this rate requires the approval of Finance Committee.
17. Since enactment of the Amendment Ordinance, we have established a team of three staff headed by a Senior Social Work Officer in the SWD to assume responsibility for the preparation, implementation and operation of the new guardianship provisions. At present, the team is preparing for the establishment of the Board as early as possible in mid-1998.
Health and Welfare Bureau