MENTAL HEALTH ORDINANCE - CHAPTER 136 MENTAL HEALTH ORDINANCE - LONG TITLE Long title VerDate:01/02/1999 To amend and consolidate the law relating to mental incapacity and the care and supervision of mentally incapacitated persons, to provide for the management of the property and affairs of mentally incapacitated persons, to provide for the reception, detention and treatment of mentally incapacitated persons who are mentally disordered persons or patients, to provide for the guardianship of such patients and for mentally incapacitated persons generally, to make provision for the giving of consent for treatment or special treatment in respect of mentally incapacitated persons who have attained 18 years of age, to provide for the removal of objectionable terminology relating to mental incapacity in other statutory provisions and to provide for matters incidental or consequential thereto. (Replaced 81 of 1997 s. 2) [19 January 1962] G.N.A. 2 of 1962 (Originally 35 of 1960) MENTAL HEALTH ORDINANCE - SECT 1 Short title VerDate:30/06/1997 PART I PRELIMINARY This Ordinance may be cited as the Mental Health Ordinance. MENTAL HEALTH ORDINANCE - SECT 2 Interpretation VerDate:01/02/1999 (1) In this Ordinance, unless the context otherwise requires- "approved social worker" (認可社會工作者) means a social worker approved for the purposes of this Ordinance by the Director of Social Welfare; (Added 46 of 1988 s. 2. Amended 81 of 1997 s. 3) "certified patient" (實證病人) means a person who is detained in a mental hospital in accordance with the provisions of section 36; "chairman" (主席) means chairman of the tribunal; (Added 46 of 1988 s. 2) "Correctional Services Department Psychiatric Centre" (懲教署精神病治療中心) means the Correctional Services Department Psychiatric Centre set apart as a prison under section 4 of the Prisons Ordinance (Cap 234); (Added 37 of 1973 s. 2) "Court" (原訟法庭) means the Court of First Instance and any judge of the Court of First Instance; (Replaced 25 of 1998 s. 2) "Director of Social Welfare" (社會福利署署長) includes an assistant director of social welfare; "guardian" (監護人)- (a) in relation to a person under the age of 16 years to whom section 30 applies, means any other person having charge of that first-mentioned person or the Director of Social Welfare; (b) in relation to a person under the age of 18 years other than a person to whom paragraph (a) applies, means any other person having charge of that first-mentioned person; (c) in relation to a person subject to a guardianship order under Part IIIA, means the Director of Social Welfare, or such other person as may be specified in the order, as the case may be; or (d) under Part IVB, means the person so appointed under that Part in respect of a mentally incapacitated person who has attained the age of 18 years; (Replaced 81 of 1997 s. 3) "hospital order" (入院令) means an order made in accordance with the provisions of section 45, 49, 54 or 54A or an order having the effect that a person shall be treated as if he were liable to be detained by an order under any of those sections; (Amended 37 of 1973 s. 2; 46 of 1988 s. 2) "IQ" (智商) means intelligence quotient; (Added 81 of 1997 s. 3) "medical officer" (公職醫生) means a registered medical practitioner in the full time employment of Government or the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap 113); (Amended 68 of 1990 s. 24) "medical superintendent" (院長) means the medical superintendent or an assistant medical superintendent of a mental hospital appointed in accordance with the provisions of section 4; "mental disorder" (精神紊亂) means- (a) mental illness; (b) a state of arrested or incomplete development of mind which amounts to a significant impairment of intelligence and social functioning which is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned; (c) psychopathic disorder; or (d) any other disorder or disability of mind which does not amount to mental handicap, and "mentally disordered" (精神紊亂) shall be construed accordingly; (Replaced 81 of 1997 s. 3) "mental handicap" (弱智) means sub-average general intellectual functioning with deficiencies in adaptive behaviour, and "mentally handicapped" shall be construed accordingly; (Added 81 of 1997 s. 3) "mental hospital" (精神病院) means any place declared to be a mental hospital in accordance with the provisions of section 3; "mental hospital visitor" (精神病院視察人員) means a person appointed to be a mental hospital visitor in accordance with the provisions of section 5 while he is so appointed; "mental incapacity" (精神上無行為能力) means- (a) mental disorder; or (b) mental handicap, and "mentally incapacitated" (精神上無行為能力) shall be construed accordingly; (Added 81 of 1997 s. 3) "mentally disordered person" (精神紊亂的人) means a person suffering from mental disorder; (Added 81 of 1997 s. 3) "mentally handicapped person" (弱智人士) means a person who is or appears to be mentally handicapped; (Added 81 of 1997 s. 3) "mentally incapacitated person" (精神上無行為能力的人) means- (a) for the purposes of Part II, a person who is incapable, by reason of mental incapacity, of managing and administering his property and affairs; or (b) for all other purposes, a patient or a mentally handicapped person, as the case may be; (Added 81 of 1997 s. 3) "patient" (病人) means a person suffering or appearing to be suffering from mental disorder; (Replaced 46 of 1988 s. 2) "patient under observation" (接受觀察病人) means a person who is detained in a mental hospital in accordance with the provisions of section 31 or 32; "prescribed form" (訂明表格) means a form provided by regulations; (Amended 46 of 1988 s. 2) "psychopathic disorder" (精神病理障礙) means a persistent disorder or disability of personality (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned; (Added 46 of 1988 s. 2. Amended 81 of 1997 s. 3) "registered dentist" (註冊牙醫) has the same meaning as in the Dentists Registration Ordinance (Cap 156); (Added 81 of 1997 s. 3) "registered medical practitioner" (註冊醫生) means a person who is registered or who is deemed to be registered in accordance with the provisions of the Medical Registration Ordinance (Cap 161); "Registrar" (司法常務官) means the Registrar of the High Court; (Amended 25 of 1998 s. 2) "regulations" (規例) means regulations made under section 72; (Added 46 of 1988 s. 2) "relative" (親屬), in relation to a mentally incapacitated person, means any of the following persons being, in the case of persons referred to in paragraphs (b) to (i) of this definition, persons who have attained the age of 18 years- (a) spouse or reputed spouse; (b) child or child's spouse; (c) parent or parent-in-law; (d) sibling or sibling's spouse; (e) grandparent or grandparent-in-law; (f) grandchild or grandchild's spouse; (g) uncle or aunt; (h) nephew or niece or spouse of nephew or niece; (i) cousin or cousin's spouse; (j) any person with whom the mentally incapacitated person resides or has resided; (Replaced 81 of 1997 s. 3) "sub-average general intellectual functioning" (低於平均的一般智能) means an IQ of 70 or below according to the Wechsler Intelligence Scales for Children or an equivalent scale in a standardized intelligence test; (Added 81 of 1997 s. 3) "transfer order" (轉移令) means an order issued in accordance with the provisions of section 52 or 53; "tribunal" (審裁處) means the Mental Health Review Tribunal established under section 59A; (Replaced 46 of 1988 s. 2) "Voluntary patient" (自願入院病人) means a person who has been admitted into and is in a mental hospital in accordance with the provisions of section 30. (2) Of the medical certificates given for the purposes of section 7(5) or the opinions given for the purposes of sections 36 and 59M, at least one shall be given by a practitioner approved for the purposes of this section by the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap 113) as having special experience in the diagnosis or treatment of mental disorder or having special experience in the assessment or determination of mental handicap, as the case may be. (Added 46 of 1988 s. 2. Amended L.N. 76 of 1989; 68 of 1990 s. 24; 81 of 1997 s. 3) (3) In deducing relationships for the purposes of this section, any relationship of the half-blood shall be treated as a relationship of the whole blood, an illegitimate person shall be treated as the legitimate child of his mother, and an adopted child as a child of the adopting parent. (Added 46 of 1988 s. 2) (4) Any function vested in the Director of Social Welfare or any power conferred on him by or under this Ordinance may be exercised on his behalf by any public officer authorized in that behalf by the Director of Social Welfare. (Added 46 of 1988 s. 2. Amended 81 of 1997 s. 3) (5) Nothing in subsection (1) shall be construed as implying that a person may be dealt with under this Ordinance as suffering from mental disorder, or from any form of mental disorder described in that subsection, by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs. (Added 46 of 1988 s. 2) (6) For the purposes of this Ordinance, any reference to "medical superintendent" may be construed to include a reference to any alternative title (such as "hospital chief executive") as may be used from time to time by the Hospital Authority. (Added 81 of 1997 s. 3) "approved social worker" (認可社會工作者) "certified patient" (實證病人) "chairman" (主席) "Correctional Services Department Psychiatric Centre" (懲教署精神病治療中心) "Court" (原訟法庭) "Director of Social Welfare" (社會福利署署長) "guardian" (監護人) "hospital order" (入院令) "IQ" (智商) "medical officer" (公職醫生) "medical superintendent" (院長) "mental disorder" (精神紊亂) "mentally disordered" (精神紊亂) "mental handicap" (弱智) "mentally handicapped" "mental hospital" (精神病院) "mental hospital visitor" (精神病院視察人員) "mental incapacity" (精神上無行為能力) "mentally incapacitated" (精神上無行為能力) "mentally disordered person" (精神紊亂的人) "mentally handicapped person" (弱智人士) "mentally incapacitated person" (精神上無行為能力的人) "patient" (病人) "patient under observation" (接受觀察病人) "prescribed form" (訂明表格) "psychopathic disorder" (精神病理障礙) "registered dentist" (註冊牙醫) "registered medical practitioner" (註冊醫生) "Registrar" (司法常務官) "regulations" (規例) "relative" (親屬) "sub-average general intellectual functioning" (低於平均的一般智能) "transfer order" (轉移令) "tribunal" (審裁處) "Voluntary patient" (自願入院病人) MENTAL HEALTH ORDINANCE - SECT 3 Declaration of mental hospitals VerDate:01/07/1997 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) The Chief Executive may by order declare any place which is the property of the Government to be a mental hospital for the detention, custody, treatment and care of mentally disordered persons. (2) The Chief Executive on the application of the owner thereof, may, by order, declare any place which is not the property of the Government to be a mental hospital for the detention, custody, treatment and care of mentally disordered persons. (3) Notification of every such order shall be published in the Gazette. (Amended 60 of 2000 s. 3) MENTAL HEALTH ORDINANCE - SECT 4 Appointment of medical superintendents and assistant medical superintendents VerDate:01/02/1999 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) The Chief Executive may appoint any medical officer to be the medical superintendent or an assistant medical superintendent of a mental hospital. (2) On the application of any registered medical practitioner who is not a medical officer, the Chief Executive may appoint the registered medical practitioner to be the medical superintendent or an assistant medical superintendent of a mental hospital. (Amended 81 of 1997 s. 4) (3) Notification of every such appointment shall be published in the Gazette. (Amended 60 of 2000 s. 3) MENTAL HEALTH ORDINANCE - SECT 5 Appointment and duties of visitors VerDate:01/07/1997 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) The Chief Executive may appoint mental hospital visitors for every mental hospital. (Amended 60 of 2000 s. 3) (2) Two or more mental hospital visitors appointed in accordance with subsection (1) shall once at least in every month, together inspect every part of the mental hospital of which they are mental hospital visitors and shall see and examine so far as circumstances permit, every patient therein and shall enter in a book to be kept for that purpose any remarks which they may deem proper in regard to the management and condition of the mental hospital and the patients therein. (Amended 46 of 1988 s.3) MENTAL HEALTH ORDINANCE - SECT 6 Delegation VerDate:30/06/1997 A medical superintendent may delegate any of his powers and functions under this Ordinance to any registered medical practitioner and may use and employ to carry out his functions under this Ordinance any employee in a mental hospital. MENTAL HEALTH ORDINANCE - SECT 7 Court may order inquiry VerDate:01/02/1999 PART II MANAGEMENT OF PROPERTY AND AFFAIRS OF MENTALLY INCAPACITATED PERSONS (Replaced 81 of 1997 s. 5) (1) The Court may, on application under this section, make an order directing an inquiry whether any person subject to the jurisdiction of the Court who is alleged to be mentally incapacitated is incapable, by reason of mental incapacity, of managing and administering his property and affairs. (Replaced 81 of 1997 s. 6) (2) Such order may also contain directions for inquiries concerning the nature of the property belonging to the person alleged to be mentally incapacitated, the persons who are his relative or next-of-kin, the time during which he has been mentally incapacitated or such other questions as to the Court shall seem proper. (Amended 81 of 1997 ss. 6 & 58) (3) Application for such inquiry may be made by any relative of the person alleged to be a mentally incapacitated person, but if no such application is made by the relative, then by- (a) the Director of Social Welfare; (b) the Official Solicitor; or (c) any guardian of that person appointed under Part IVB. (Replaced 81 of 1997 s. 6) (4) The application referred to in subsection (3) shall be made by an originating summons (within the meaning of the Rules of the High Court (Cap 4 sub. leg.)) and those Rules shall apply accordingly. (Added 81 of 1997 s. 6. Amended 25 of 1998 s. 2) (5) Despite subsection (4), the application referred to in subsection (3) shall be accompanied by 2 medical certificates and evidence of the relatives or next-of-kin and the property (if any) of the mentally incapacitated person, and such other documents or evidence as may be required by the Court. (Added 81 of 1997 s. 6) (6) In this section- "evidence of the relatives or next-of-kin and the property" (關於親屬或最近親及財產的證 據) means a certificate made and signed by the applicant or, if the Court so orders in a particular case, an affidavit, giving particulars of the mentally incapacitated person's relatives or next-of-kin, property and affairs and of the circumstances giving rise to the application; "medical certificate" (醫生證明書) means a certificate made and signed by a registered medical practitioner that the mentally incapacitated person is incapable, by reason of mental incapacity, of managing and administering his property and affairs. (Added 81 of 1997 s. 6) "evidence of the relatives or next-of-kin and the property" (關於親屬或最近親及財產的證 據) "medical certificate" (醫生證明書) MENTAL HEALTH ORDINANCE - SECT 8 Provision as to notice of inquiry VerDate:01/02/1999 (1) Reasonable notice of the time and place appointed for the inquiry shall be given to the person alleged to be a mentally incapacitated person: Provided that if it shall appear that the person alleged to be a mentally incapacitated person is in such a state that personal service on him would be ineffectual, the Court may direct such substituted service of the notice as it shall think proper. (2) The Court may also, if it thinks fit, direct a copy of such notice to be served upon any relative of the person alleged to be a mentally incapacitated person. (Amended 81 of 1997 ss. 7 & 58) MENTAL HEALTH ORDINANCE - SECT 9 Power to examine person alleged to be mentally incapacitated VerDate:01/02/1999 At any time after the application for the inquiry the Court may require the person alleged to be a mentally incapacitated person to attend at such convenient time and place within Hong Kong as the Court may appoint, for the purpose of being personally examined by the Court or by any person from whom the Court may desire to have a report of his mental capacity and condition, and the Court may also make an order authorizing any person or persons named therein to have access to the person alleged to be a mentally incapacitated person for the purpose of a personal examination. (Amended 46 of 1988 s. 32; 81 of 1997 s. 58) MENTAL HEALTH ORDINANCE - SECT 10 Questions to be decided by Court VerDate:01/02/1999 (1) At the inquiry, after receiving such reports and hearing such evidence and arguments as it may think fit, the Court shall decide whether the person who is alleged to be a mentally incapacitated person is incapable, by reason of mental incapacity, of managing and administering his property and affairs and shall also decide any other questions as to which an inquiry has been directed. (Replaced 81 of 1997 s. 8) (2) The Court may make such order as may appear just respecting the costs of the inquiry and may include therein such remuneration to physicians and surgeons as the Court shall deem reasonable: Provided that no order for the payment of costs shall be made against an applicant under section 7(3)(a) or (b). (Amended 81 of 1997 s. 8) MENTAL HEALTH ORDINANCE - SECT 10A General functions of Court with respect to property and affairs of mentally incapacitated person VerDate:01/02/1999 (1) The Court may, with respect to the property and affairs of a mentally incapacitated person, do or secure the doing of all such things as appear necessary or expedient- (a) for the maintenance or other benefit of that person; (b) for the maintenance or other benefit of members of that person's family; (c) for making provision for any other person or purposes for whom or for which the mentally incapacitated person might be expected to provide if he were not mentally incapacitated; or (d) otherwise for administering the mentally incapacitated person's property and affairs. (2) In the performance of the functions under subsection (1) the Court shall have regard- (a) as a paramount consideration, to the requirements of the mentally incapacitated person; (b) subject to paragraph (c), to the interest of creditors; (c) to the rules of common law which formerly restricted the enforcement by a creditor of rights against the property of a mentally incapacitated person under the control of the Court or other judicial authority (if any), which rules shall apply to property under the protection and management of the Court; and (d) to the desirability of making provision for obligations of the mentally incapacitated person notwithstanding that those obligations may not be legally enforceable. (Added 81 of 1997 s. 9) MENTAL HEALTH ORDINANCE - SECT 10B Powers of Court as to mentally incapacitated person's property and affairs VerDate:01/02/1999 (1) Without prejudice to the generality of section 10A, the Court shall have power to make such orders and give such directions and authorities as it thinks fit for the purposes of that section and in particular may for those purposes make orders or give directions or authorities for- (a) subject to section 12, the control and management of any property of the mentally incapacitated person, including such orders, directions or authorities in respect of the transfer or vesting of property or the payment into or lodgment in the Court of money or securities; (b) the sale, exchange, charging or other disposition of or dealing with any property (including the business premises) of the mentally incapacitated person; (c) the acquisition of any property in the name, or on behalf, of the mentally incapacitated person; (d) the settlement of any property of the mentally incapacitated person, or the gift of any property of that person to any other person or for any purposes described in section 10A(1)(b) or (c); (e) the execution for the mentally incapacitated person of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by that person if he were not mentally incapacitated; (f) the carrying on by another suitable person of any profession, trade or business of the mentally incapacitated person; (g) the dissolution of a partnership of which the mentally incapacitated person is a member; (h) the carrying out of any contract entered into by the mentally incapacitated person; (i) the conduct of legal proceedings in the name of the mentally incapacitated person or on that person's behalf; (j) the reimbursement out of the property of the mentally incapacitated person, with or without interest, of money applied by any other person either in payment of the mentally incapacitated person's debts (whether legally enforceable or not) or for the maintenance or other benefit of the mentally incapacitated person or members of his family or in making provision for any other person or for any purposes for whom or for which he might be expected to provide if he were not mentally incapacitated; (k) the exercise of any power (including a power to consent) vested in the mentally incapacitated person, whether beneficially, or as guardian or trustee, or otherwise. (2) If under subsection (1) provision is made for the settlement of any property of a mentally incapacitated person, or the exercise of a power vested in that person of appointing trustees or retiring from a trust, the Court may make as respects the property so settled or the trust property such vesting or other orders as the case may require, including (in the case of the exercise of such a power) any order which could have been made under the Trustee Ordinance (Cap 29). (3) Where under this section a settlement has been made of any property of a mentally incapacitated person, and the Court is satisfied, at any time before the death of that person, that any material fact was not disclosed when the settlement was made, or that there has been a substantial change in the circumstances then pertaining, the Court may by order vary the settlement in such manner as the Court thinks fit, and (if necessary) give consequential directions. (4) The power of the Court to make or give an order, direction or authority for the execution of a will for a mentally incapacitated person- (a) shall not be exercisable at any time when that person is a minor; and (b) shall not be exercised unless the Court has reason to believe that the mentally incapacitated person is incapable of making a valid will for himself. (Added 81 of 1997 s. 9) MENTAL HEALTH ORDINANCE - SECT 10C Supplementary provisions as to wills executed under section 10B VerDate:01/02/1999 (1) Where under section 10B(1) the Court makes an order or gives a direction or authority requiring or authorizing another person ("the authorized person") to execute a will for a mentally incapacitated person, any will executed in pursuance of that order, direction or authority shall be expressed to be signed by the mentally incapacitated person acting by the authorized person, and shall be- (a) signed by the authorized person in the name of the mentally incapacitated person, and with the authorized person's own name, in the presence of 2 or more witnesses present at the same time; (b) attested and subscribed by those witnesses in the presence of the authorized person; and (c) sealed with the seal of the Court. (2) The Wills Ordinance (Cap 30) shall have effect in relation to any such will as if it were signed by the mentally incapacitated person by his own hand, except that in relation to any such will- (a) section 5 of that Ordinance (which makes provision as to the signing and witnessing of wills) shall not apply; and (b) in any provision of that Ordinance any reference to execution in the manner required by that section of that Ordinance shall be construed as a reference to execution in the manner required by subsection (1). (3) Subject to this section, any such will executed in accordance with subsection (1) shall have the same effect for all purposes as if the mentally incapacitated person were capable of making a valid will and the will had been executed by him in the manner required by the Wills Ordinance (Cap 30). (4) So much of subsection (3) as provides for such a will to have effect as if the mentally incapacitated person were capable of making a valid will- (a) shall not have effect in relation to such a will in so far as it disposes of any immovable property, other than immovable property in Hong Kong; and (b) where at the time when such a will is executed the mentally incapacitated person is domiciled in a place outside Hong Kong, shall not have effect in relation to that will in so far as it relates to any other property or matter, except any property or matter in respect of which, under the law of the mentally incapacitated person's domicile, any question of his testamentary capacity would fall to be determined in accordance with the law of Hong Kong. (Added 81 of 1997 s. 9) MENTAL HEALTH ORDINANCE - SECT 10D Court's powers in cases of emergency VerDate:01/02/1999 Where- (a) it is represented to the Court, and the Court has reason to believe, that a mentally incapacitated person may be incapable by reason of mental incapacity of managing and administering his property and affairs; and (b) the Court is of the opinion that it is necessary to make immediate provision for any of the matters referred to in section 10A(1), then pending the determination of the question as to whether that person is so incapable, the Court may exercise in relation to the property and affairs of that person any of the powers conferred on the Court by this Part in relation to the property and affairs of a mentally incapacitated person so far as is requisite for enabling that provision to be made. (Added 81 of 1997 s. 9) MENTAL HEALTH ORDINANCE - SECT 10E Preservation of interests in mentally incapacitated person's property VerDate:09/06/2000 (1) Where any property of a mentally incapacitated person has been disposed of under this Part, and under his will or his intestacy, or by any gift perfected or nomination taking effect on his death, any other person would have taken an interest in the property but for the disposal- (a) he shall take the same interest, if and so far as circumstances allow, in any property belonging to the estate of the deceased which represents the property disposed of; and (b) if the property disposed of was real property any property representing it shall so long as it remains part of his estate be treated as if it were real property. (2) The Court, in ordering, directing or authorizing under this Part any disposal of property which apart from this section would result in the conversion of personal property into real property, may direct that the property representing the property disposed of shall, so long as it remains the property of the mentally incapacitated person or forms part of his estate, be treated as if it were personal property. (3) References in subsections (1) and (2) to the disposal of property are references to- (a) the sale, exchange, charging or other dealing (otherwise than by will) with property other than money; (b) the removal of property from one place to another; (c) the application of money in acquiring property; or (d) the transfer of money from one account to another, and references to property representing property disposed of shall be construed accordingly and as including the result of successive disposals. (4) The Court may give such directions as appear to it necessary or expedient for the purpose of facilitating the operation of subsection (1), including the carrying of money to a separate account and the transfer of property other than money. (Amended 32 of 2000 s. 48) (5) Where the Court has ordered, directed or authorized the expenditure of money for the carrying out of permanent improvements on, or otherwise for the permanent benefit of, any property of the mentally incapacitated person, it may order that the whole or any part of the money expended or to be expended shall be a charge upon the property, whether without interest or with interest at a specified rate; and an order under this subsection may provide for excluding or restricting the operation of subsection (1). (6) A charge under subsection (5) may be made in favour of such person as may be just, and in particular, where the money charged is paid out of the mentally incapacitated person's general estate, may be made in favour of a person as trustee for the mentally incapacitated person; but no charge under that subsection shall confer any right of sale or foreclosure during the lifetime of the mentally incapacitated person. (Added 81 of 1997 s. 9) MENTAL HEALTH ORDINANCE - SECT 11 Appointment of committees VerDate:01/02/1999 (1) If the Court is satisfied that the person who is alleged to be mentally incapacitated is incapable, by reason of mental incapacity, of managing and administering his property and affairs, the Court may, if it shall think fit, appoint a committee of the estate, and for this purpose, the Official Solicitor may be so appointed of such person and may make such order, if any, as to the remuneration of the committee out of such person's estate, and as to the giving of security by the committee, as to the Court may seem fit. (Amended 81 of 1997 s. 10) (2) A committee of the estate appointed under this Part shall do all such things in relation to the property and affairs of the mentally incapacitated person as the Court, in the exercise of the powers conferred on the Court under sections 10A and 10B, orders or directs the committee of the estate to do and may do any such thing in relation to the property and affairs of the mentally incapacitated person as the Court, in the exercise of those powers, authorizes the committee of the estate to do. (Replaced 81 of 1997 s. 10) (3) The provisions of Order 30, rules 5, 6 and 7 of the Rules of the High Court (Cap 4 sub. leg.) which apply to receivers shall apply to a committee of the estate as if the references to "receiver" in those rules were substituted by references to "committee of the estate". (Added 81 of 1997 s. 10. Amended 25 of 1998 s. 2) MENTAL HEALTH ORDINANCE - SECT 12 Powers of management of estate of mentally incapacitated person VerDate:01/02/1999 The Court may, on the appointment of a committee of the estate of a mentally incapacitated person, direct by the order of appointment or by any subsequent order that the person to whom the charge of the estate is committed shall have such powers for the management thereof as to the Court shall seem necessary and proper, reference being had to the nature of the property, whether movable or immovable, of which the estate may consist: (Amended 81 of 1997 ss. 11 & 58) Provided that such powers shall not extend to the sale or charge by way of mortgage of the estate or any part thereof or to the letting of any immovable property, unless for a term not exceeding 3 years. MENTAL HEALTH ORDINANCE - SECT 13 Powers of Registrar VerDate:01/02/1999 (1) The Registrar may, without an order of reference, receive any proposal and conduct any inquiry respecting the management of the estate of a mentally incapacitated person if such proposal relates to any matter which the committee of the estate has not been empowered by an order under section 12 to dispose of. (Amended 81 of 1997 s. 58) (2) The Registrar may likewise, without reference, receive and inquire into any proposal relating to the sale or charge by way of mortgage of the estate or of any part thereof or to the letting of any immovable property for a term exceeding 3 years. (3) The Registrar shall report to the Court on the proposal, and the Court shall, subject to the provisions of this Ordinance, make such order upon the report and respecting the costs as shall under the circumstances seem just. MENTAL HEALTH ORDINANCE - SECT 14 What relatives may attend proceedings VerDate:30/06/1997 The Court shall once in the matter of each inquiry, and may afterwards from time to time, determine whether any one or more, and, if any, how many and which of the relatives or next-of-kin shall attend before the Registrar at the cost of the estate in any proceeding connected with the management thereof, and, if any such relative or next-of-kin is an infant, may from time to time appoint a fit person to be his guardian for the purpose of such proceeding. MENTAL HEALTH ORDINANCE - SECT 15 Orders may be made on petition VerDate:30/06/1997 The Court may, on application made to it by petition concerning any matter whatsoever connected with the inquiry, make such order, subject to the provisions of this Ordinance, respecting the application and the costs thereof and of the consequent proceedings as shall under the circumstances seem just. MENTAL HEALTH ORDINANCE - SECT 16 (Repealed 81 of 1997 s. 12) VerDate:01/02/1999 MENTAL HEALTH ORDINANCE - SECT 17 Committee to execute instruments VerDate:01/02/1999 (1) The committee of the estate of the mentally incapacitated person shall, in his name and on his behalf, execute all such conveyances and instruments of transfer, relative to any sale, mortgage or other disposition of his estate as the Court shall order. (2) In like manner such committee shall, under the order of the Court, exercise all powers whatsoever vested in a mentally incapacitated person whether the same are vested in him for his own benefit or in the character of trustee or guardian. (Amended 81 of 1997 s. 58) MENTAL HEALTH ORDINANCE - SECT 18 (Repealed 81 of 1997 s. 13) VerDate:01/02/1999 MENTAL HEALTH ORDINANCE - SECT 19 (Repealed 81 of 1997 s. 14) VerDate:01/02/1999 MENTAL HEALTH ORDINANCE - SECT 20 (Repealed 81 of 1997 s. 15) VerDate:01/02/1999 MENTAL HEALTH ORDINANCE - SECT 21 Committee may dispose of lease VerDate:01/02/1999 Where a mentally incapacitated person is entitled to a lease or under-lease, and it appears to be for the benefit of his estate that it should be disposed of, the committee of the estate may by order of the Court surrender, assign or otherwise dispose of the same to such person for such valuable or nominal consideration and upon such terms as the Court shall think fit. (Amended 81 of 1997 s. 58) MENTAL HEALTH ORDINANCE - SECT 22 Transfer of stock of mentally incapacitated person VerDate:01/02/1999 Where any stock or Government security or any share or debenture in a public company, transferable within Hong Kong or the dividends of which are payable there, are standing in the name of, or are vested in, a mentally incapacitated person beneficially entitled thereto or a committee of the estate of a mentally incapacitated person or a trustee for him, and the committee or trustee dies intestate or himself becomes a mentally incapacitated person or is out of the jurisdiction of the Court, or it is uncertain whether the committee or trustee be living or dead or he neglects or refuses to transfer the stock, securities or shares or to receive and pay the dividends to a new committee or trustee, or as he directs, within 14 days after being required by him to do so, the Court may order some fit person to make such transfer or to transfer the same and to receive and pay over the dividends in such manner as the Court may direct, and such transfer or payment shall be valid and effectual for all purposes. (Amended 46 of 1988 s. 32; 81 of 1997 s. 58) MENTAL HEALTH ORDINANCE - SECT 23 Transfer of property of mentally incapacitated person residing out of Hong Kong VerDate:01/02/1999 Where any property situate in Hong Kong is standing in the name of or vested in any person residing out of Hong Kong, the Court, upon being satisfied that such person has been declared to be mentally incapacitated and that his personal estate has been vested in a committee, curator or manager according to the laws of the place where he is residing, may order some fit person to make such transfer of the property, or of any part thereof, to such committee, curator or manager or otherwise, and also to receive and pay over any proceeds or profits thereof as the Court may think fit; and any act done in pursuance of such order shall be valid and effectual for all purposes. (Amended 46 of 1988 s. 32; 81 of 1997 s. 16) MENTAL HEALTH ORDINANCE - SECT 24 Power to order maintenance without appointing committee VerDate:01/02/1999 If it appears to the Court, having regard to the situation and condition in life of the mentally incapacitated person and his family and the other circumstances of the case, to be expedient that his property should be made available for his or their maintenance in a direct and inexpensive manner, the Court may, instead of appointing a committee of the estate, order that the property, if money, or, if of any other description, the produce thereof when realized, be paid to such person as the Court may think fit to be applied for the purpose aforesaid, and all payments so made shall be a good discharge to the person making the same. (Amended 81 of 1997 s. 58) MENTAL HEALTH ORDINANCE - SECT 25 Temporary provision for maintenance of mentally incapacitated person VerDate:01/02/1999 If it appears to the Court that the mental incapacity of a mentally incapacitated person is in its nature temporary, and that it is expedient to make temporary provision for his maintenance or the maintenance of his family, the Court may in the manner provided by section 24 direct his property or a sufficient part of it to be applied for the purpose aforesaid. (Amended 81 of 1997 ss. 17 & 58) MENTAL HEALTH ORDINANCE - SECT 26 Order for detention of mentally disordered person VerDate:01/02/1999 When upon any inquiry under this Part any person has been found by the Court to be mentally disordered and incapable, by reason of mental disorder, of managing and administering his property and affairs, the Court may make an order for such person to be received into a mental hospital and send him in suitable custody, together with the order for his reception, to the mental hospital named in such order. (Replaced 81 of 1997 s. 18) MENTAL HEALTH ORDINANCE - SECT 26A Order for potential guardianship of mentally incapacitated person VerDate:01/02/1999 When upon any inquiry under this Part any person has been found by the Court to be mentally incapacitated and incapable, by reason of mental incapacity, of managing and administering his property and affairs, the Court may recommend the applicant under this Part to make an application for a guardianship order under Part IVB, unless the mentally incapacitated person has already been received into guardianship under this Ordinance. (Added 81 of 1997 s. 19) MENTAL HEALTH ORDINANCE - SECT 26B Variation of powers of committee of the estate or the replacement of committee of the estate VerDate:01/02/1999 (1) The Court may, on an application under subsection (2), make an order- (a) to vary any powers of a committee of the estate ("relevant committee") appointed under section 11 or this section; (b) to replace the relevant committee by another committee of the estate, and where the relevant committee is not the Official Solicitor he may be so appointed. (2) An application under this section may be made by any relative of the person alleged to be a mentally incapacitated person, but if no such application is made by such relative, then by- (a) the Director of Social Welfare; (b) the Official Solicitor; (c) any guardian of that person appointed under Part IVB; or (d) the relevant committee. (Added 81 of 1997 s. 19) MENTAL HEALTH ORDINANCE - SECT 27 Annulling proceedings VerDate:01/02/1999 (1) When any person has been found to be mentally incapacitated and it shall be shown to the Court, either on the application of such person or of any other person acting on his behalf or on the information of any other person, that there is reason to believe that such person has become capable of managing and administering his property and affairs, the Court may make an order for inquiry whether such person is so capable. (2) An inquiry under this section shall be conducted in the same manner as an inquiry under section 10(1), and the power under section 9 to examine a person alleged to be mentally incapacitated shall be applied accordingly. (Replaced 81 of 1997 s. 20) (3) If it be found on such inquiry that the person who is the subject of the inquiry has become capable of managing and administering his affairs, the Court shall order all proceedings in such matter to cease or to be set aside on such terms and conditions as under the circumstances of the case shall appear proper. (4) A committee of the estate appointed under this Part for any mentally incapacitated person shall be discharged by order of the Court on the Court being satisfied that that person has become capable of managing and administering his property and affairs, and may be discharged by order of the Court at any time if the Court considers it expedient to do so, and such a committee of the estate shall be discharged (without any order) on the death of the mentally incapacitated person. (Added 81 of 1997 s. 20) (Amended 81 of 1997 s. 20) MENTAL HEALTH ORDINANCE - SECT 28 References to tribunal by medical superintendent VerDate:01/02/1999 Where the Court has made an order under section 27(3) in respect of any person detained in a mental hospital, the medical superintendent of the mental hospital shall forthwith, on the production of a certified copy of such order, refer the case to the tribunal under section 59D(1)(a). (Replaced 81 of 1997 s. 21) MENTAL HEALTH ORDINANCE - SECT 29 (Repealed 46 of 1988 s. 4) VerDate:01/02/1999 PART III RECEPTION, DETENTION AND TREATMENT OF PATIENTS (Amended 81 of 1997 s. 22) MENTAL HEALTH ORDINANCE - SECT 30 Voluntary patients VerDate:30/06/1997 (1) If a person appears to require treatment in a mental hospital and if he, or in the case of a person under the age of 16 years, his parent or guardian- (a) is desirous that such person should receive such treatment; and (b) completes an application in writing; and (c) lodges the application with a medical superintendent, the medical superintendent may admit such person as a voluntary patient. (2) A voluntary patient- (a) shall be entitled to leave the mental hospital after the expiration of 7 days from his, or if he is under the age of 16 years, his parent or guardian, giving notice in writing; or, in the discretion of the medical superintendent, verbal notice, to the medical superintendent of the intention of the voluntary patient to leave the mental hospital: Provided that a medical superintendent may in his absolute discretion discharge a voluntary patient at any time within such period of 7 days; and (b) shall leave the mental hospital within 72 hours after he, or if he is under the age of 16 years his parent or guardian, has received from the medical superintendent notice in writing, signed by the medical superintendent, stating that the medical superintendent is satisfied that it is not necessary that the voluntary patient should remain in the mental hospital and that the voluntary patient is required to leave the mental hospital. (3) A person who became a voluntary patient when he was under the age of 16 years shall not remain in a mental hospital as a voluntary patient for more than 28 days after he has attained the age of 16 years unless during such period of 28 days he shall have completed and lodged with the medical superintendent such application as is referred to in subsection (1). (4) A medical superintendent may detain in a mental hospital, for observation and treatment, a person who has been admitted as a voluntary patient until the expiration of 7 days from the time when such notice as is referred to in subsection (2)(a) has been given or, in the case of a person who was admitted as a voluntary patient when he was less than 16 years of age, until the expiration of 28 days after the voluntary patient has attained the age of 16 years. MENTAL HEALTH ORDINANCE - SECT 31 Detention of a patient under observation VerDate:30/06/1997 (1) An application may be made to a District Judge or magistrate for an order for the detention of a patient for observation on the grounds that the patient- (a) is suffering from mental disorder of a nature or degree which warrants his detention in a mental hospital for observation (or for observation followed by medical treatment) for at least a limited period; and (b) ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons. (Replaced 46 of 1988 s. 5) (1A) An application for an order for the detention of a patient for observation shall be founded on the written opinion in the prescribed form of a registered medical practitioner who has examined the patient within the previous 7 days, which opinion shall include- (a) a statement that in the opinion of the practitioner the conditions set out in subsection (1) are satisfied; (b) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in subsection (1)(a); and (c) a statement of the reasons for that opinion so far as it relates to the conditions set out in subsection (1)(b). (Added 46 of 1988 s. 5) (1B) Upon receipt of an application under subsection (1) the District Judge or magistrate may make an order in the prescribed form authorizing the removal of the patient to a mental hospital for the purpose of detention and observation during the period not exceeding 7 days from and including the date of the order. (Added 46 of 1988 s.5) (2) Every such order shall have the effect of authorizing the applicant and every public officer with such assistance in each case as may be necessary, to use such reasonable force as may be necessary in order to remove to a mental hospital the patient and if for any reason it is not practicable forthwith to remove him to a mental hospital to detain him in a place of safety for a period not exceeding 48 hours. (Amended 46 of 1988 s. 5) (3) Where the patient has requested to see the District Judge or magistrate before such Judge or magistrate determines whether or not to make an order under subsection (1B)- (a) the District Judge or magistrate shall not make the order until he has seen the patient; and (b) a certificate by the registered medical practitioner who furnished the opinion for the purposes of subsection (1A) as to whether or not the patient has made such a request shall be sufficient evidence of the fact thereof. (Replaced 46 of 1988 s. 5) (4) A medical superintendent may detain in a mental hospital for observation, investigation and treatment any person who is the subject of an order under this section or under section 32. MENTAL HEALTH ORDINANCE - SECT 32 Extension of period of detention of a patient under observation VerDate:30/06/1997 (1) If a patient under observation in a mental hospital has been examined by 2 registered medical practitioners, either separately or together, and the 2 registered medical practitioners are of the opinion that it is necessary that the patient under observation should be detained in a mental hospital for a further period for the purpose of observation, investigation and treatment, they may complete a certificate in the prescribed form and forward it to a District Judge. (Amended 35 of 1969 s. 2) (2) If a District Judge who has received a certificate in accordance with the provisions of subsection (1) is of the opinion that it is necessary for the person named in the certificate to be detained in a mental hospital for a further period of observation, investigation and treatment, he shall countersign the certificate and shall forward it to the medical superintendent of the mental hospital in which the person is detained. (Amended 35 of 1969 s. 2) (3) Only one extension of not more than 21 days shall be made in accordance with this section to any order made in accordance with section 31. (Amended 46 of 1988 s. 6) (4) Subject to section 36, no person shall be detained in a mental hospital after the expiration of the period of any order made in accordance with section 31 and of any extension thereto made in accordance with this section unless he has become a voluntary patient. (Amended 46 of 1988 s. 6) MENTAL HEALTH ORDINANCE - SECT 33 (Repealed 81 of 1997 s. 24) VerDate:01/02/1999 MENTAL HEALTH ORDINANCE - SECT 34 (Repealed 81 of 1997 s. 25) VerDate:01/02/1999 MENTAL HEALTH ORDINANCE - SECT 35 (Repealed 81 of 1997 s. 26) VerDate:01/02/1999 MENTAL HEALTH ORDINANCE - SECT 35A General provisions as to applications VerDate:01/02/1999 (1) Subject to the provisions of this section, an application under section 31(1) for detention for observation shall be in the prescribed form and may be made by- (a) a relative of the patient; (b) a registered medical practitioner; (c) a public officer in the Social Welfare Department, and every such application shall specify which of those persons is making the application and, if made by a relative of a patient, shall state the relationship. (2) Before an application under section 31(1) for the detention of a patient for observation is made by a registered medical practitioner or a public officer in the Social Welfare Department, that practitioner or officer shall take such steps as are reasonably practicable to inform a person in Hong Kong appearing to him to be a relative of the patient (if there is such a person) that the application is to be made, and if the medical practitioner or public officer fails to take such steps prior to the detention of the patient in a mental hospital, the medical superintendent shall, as soon as practicable thereafter, take them. (3) No application for detention for observation under section 31(1) may be made by any person in respect of a patient unless that person has personally seen the patient within the period of 14 days ending immediately prior to the date of application. (Added 46 of 1988 s. 7. Amended 81 of 1997 s. 27) MENTAL HEALTH ORDINANCE - SECT 36 Detention of certified patients VerDate:01/02/1999 (1) If- (a) a patient liable to be detained in a mental hospital (otherwise than under this section) or in the Correctional Services Department Psychiatric Centre; or (b) a voluntary patient in a mental hospital, has been examined by 2 registered medical practitioners either separately or together and the 2 registered medical practitioners are of the opinion that- (i) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital; and (Amended 81 of 1997 s. 28) (ii) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section, they may complete a certificate in the prescribed form and forward it to a District Judge. (Replaced 46 of 1988 s. 8) (2) If a District Judge who has received a certificate in accordance with subsection (1) is satisfied that the certificate referred to in subsection (1) is in order and there are no grounds for rejecting it, he shall countersign the certificate and shall forward it to the medical superintendent of the mental hospital in which the person is detained: (Amended 46 of 1988 s. 8) Provided that a District Judge shall not countersign a certificate- (a) in respect of a voluntary patient unless he is satisfied that the voluntary patient, or some person on his behalf in the case of a voluntary patient of less than 16 years of age, has given notice of the intention of the voluntary patient to leave the mental hospital in accordance with section 30(2)(a) and that it would be likely to be dangerous to the voluntary patient or to other persons if the voluntary patient were discharged from the mental hospital; or (b) (Repealed 46 of 1988 s. 8) (3) A medical superintendent may detain in a mental hospital for observation, investigation and treatment any person who is the subject of an order under this section and may transfer the patient to any other mental hospital. (4) The procedures described in subsections (1) and (2) may be undertaken notwithstanding that the patient is detained under a hospital order or because he has been sentenced to imprisonment or is detained by an order of a court, but where the patient is detained under a hospital order or because he has been sentenced to imprisonment- (a) such procedures shall not be commenced more than 30 days before the date when he would, in the absence of such procedures, be released from detention; and (b) the provisions of Part IV or, where the Criminal Procedure Ordinance (Cap 221) applies, that Ordinance, shall continue to apply to that patient until that date, and nothing done under this section shall have the effect of varying any order to a court. (Added 46 of 1988 s. 8) (5) This section- (a) applies to a patient who suffers from mental illness or psychopathic disorder; and (b) applies to a patient other than a patient referred to in paragraph (a) only where the 2 medical practitioners referred to in subsection (1) are, in addition to being of the opinion described in that subsection, also of the opinion that the patient is abnormally aggressive or that his conduct is seriously irresponsible. (Added 46 of 1988 s. 8) (Amended 35 of 1969 s. 2) MENTAL HEALTH ORDINANCE - SECT 37 (Repealed 46 of 1988 s. 9) VerDate:30/06/1997 MENTAL HEALTH ORDINANCE - SECT 38 Temporary transfer of patients VerDate:01/02/1999 When it appears to a medical superintendent that it would be for the benefit of any certified patient receiving treatment or special care or that it is necessary for the purpose of obtaining treatment of a particular nature for any patient, that he should be temporarily transferred to and maintained in another hospital, institution or place, the medical superintendent, if the person in charge of the other hospital, institution or place is willing to receive the patient, may arrange for such transfer. (Amended 46 of 1988 s. 10; 81 of 1997 s. 29) MENTAL HEALTH ORDINANCE - SECT 39 Absence on trial VerDate:30/06/1997 (1) A medical superintendent may from time to time permit a certified patient or a patient under observation to be absent from the mental hospital on trial for such periods as the medical superintendent may think proper. (Amended 46 of 1988 s. 11) (2) Any absence on trial under this section shall be subject to such conditions as the medical superintendent may prescribe. (3) In any case where a patient is absent from a mental hospital in accordance with this section, the medical superintendent may, subject to subsection (5), by notice in writing in the prescribed form to the patient or to the person for the time being in charge of the patient, revoke the permission to be absent and recall the patient to the mental hospital if he is of the opinion that it is necessary so to do in the interests of the patient's health or safety or for the protection of other persons. (Replaced 46 of 1988 s. 11) (4) If before the expiry of any period of absence which has been prescribed the medical superintendent certifies in the prescribed form that it is not necessary that the patient be detained in a mental hospital he shall be deemed to have been lawfully discharged in accordance with the provisions of this Ordinance. (Amended 46 of 1988 s. 11) (5) A patient who has been permitted to be absent from a mental hospital in accordance with the provisions of this section shall not be recalled under subsection (3) after he has ceased to be liable to be detained under this Ordinance. (Added 46 of 1988 s. 11) MENTAL HEALTH ORDINANCE - SECT 40 (Repealed 46 of 1988 s. 12) VerDate:30/06/1997 MENTAL HEALTH ORDINANCE - SECT 41 (Repealed 46 of 1988 s. 12) VerDate:30/06/1997 MENTAL HEALTH ORDINANCE - SECT 42 Discharge of patient before recovery VerDate:30/06/1997 (1) Where on behalf of a patient including a voluntary patient a relative or friend of the patient makes application in writing in the prescribed form to the medical superintendent- (a) stating the relationship or connection of the applicant with the patient; (b) requesting that the patient may be delivered over to the applicant; and (c) undertaking that the patient will receive proper care and will be prevented from doing injury to himself or to others and, in the case of an application by a person other than the person on whose application the patient was admitted to a mental hospital, satisfies the medical superintendent that before he made the application he served on such person notice of his intention so to do, the medical superintendent shall within 48 hours of the receipt of the application either- (i) discharge the patient to the applicant notwithstanding that the patient is still a mentally disordered person; or (ii) give to the applicant a certificate in the prescribed form stating that he refuses to discharge the patient on the ground that- (A) he is satisfied that the patient is dangerous or otherwise unfit to be at large; or (B) he is not satisfied that the patient will receive proper care. (2) (Repealed 46 of 1988 s. 13) MENTAL HEALTH ORDINANCE - SECT 42A Discharge of patient VerDate:01/02/1999 (1) Subject to section 42B a patient who is for the time being liable to be detained shall cease to be so liable if there is made in accordance with this section an order in writing discharging him from detention (referred to as an "order for discharge" in this section and section 42B, but subject to subsection (6) of that section). (Amended 81 of 1997 s. 30) (2) An order for discharge may be made in respect of a patient- (a) where the patient is liable to be detained in a mental hospital, by the medical superintendent; (b) (Repealed 81 of 1997 s. 30) (Added 46 of 1988 s. 14) MENTAL HEALTH ORDINANCE - SECT 42B Conditional discharge of patients with propensity to violence VerDate:01/07/2007 For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative Council (L.N. 130 of 2007), see paragraph (12) of that Resolution. (1) Where- (a) it appears to the medical superintendent that a patient has a medical history of criminal violence or a disposition to commit such violence; but (b) the medical superintendent is of the opinion that the patient may safely be discharged subject to conditions to be specified in an order for discharge, the medical superintendent may, in the exercise of his powers under section 42A, but subject to any restriction on such power imposed by any provision of Part IV, make an order for discharge subject to compliance by the patient discharged (in this section and section 43 called "the conditionally discharged patient") with conditions. (2) Without prejudice to the power of the medical superintendent in the exercise of his powers under subsection (1) to impose such conditions as he thinks fit on an order for discharge, being conditions reasonable in the circumstances, such conditions may require the conditionally discharged patient- (a) to reside at a place specified by the medical superintendent; (b) to attend at an out-patient department of a hospital or at a clinic specified by the medical superintendent; (c) to take medication as prescribed by a medical practitioner; or (d) to be under the supervision of the Director of Social Welfare. (3) In any case where- (a) it appears to a medical superintendent that a conditionally discharged patient has failed to comply with any condition to which his order for discharge is subject; and (b) the medical superintendent is of the opinion that it is necessary in the interests of the patient's health or safety, or for the protection of other persons, to recall the patient to a mental hospital, the medical superintendent may, by notice in writing in the prescribed form to the conditionally discharged patient or to the person in charge of the conditionally discharged patient, recall the patient to the mental hospital and, upon the giving of the notice to the patient, or at such subsequent time as may be stated in the notice, the patient may be detained and section 43(5) shall apply accordingly. (4) Any conditionally discharged patient recalled to a mental hospital under subsection (3) shall, upon admission to that hospital, be deemed to have been detained therein under section 31 and, for the purposes of that section, the patient shall be deemed to have been detained in that hospital in pursuance of an order under section 31(1B) made at the time of admission. (5) The medical superintendent may at any time by notice in writing to the conditionally discharged patient vary the conditions of his discharge. (6) This section shall apply to a person who is admitted to the Correctional Services Department Psychiatric Centre in pursuance of a hospital order with the following modifications- (a) references in subsections (1) and (2) to the medical superintendent shall be construed as references to the Commissioner of Correctional Services and references to the exercise of the medical superintendent's powers under section 42A as references to any power vested in the Commissioner to discharge a person from the Centre; (b) references to an order of discharge shall be construed as references to an order of discharge by the Commissioner of Correctional Services with the consent of the Chief Executive given under section 47(1A)(b); (Amended 60 of 2000 s. 3) (c) references in subsections (3), (4) and (5) to the medical superintendent shall be construed as references to a medical officer authorized for the purposes of those subsections in writing by the Secretary for Food and Health; and (Amended L.N. 76 of 1989; 68 of 1990 s. 24; L.N. 106 of 2002; L.N. 130 of 2007) (d) references in subsection (3) or (4) to recall to a mental hospital shall be construed as references to call to a mental hospital specified by such medical officer in the notice given under subsection (3), and the power to discharge the patient at any time subsequent to the making of the order of conditional discharge may be exercised by that medical officer who shall have, in that respect, the power of a medical superintendent under section 42A. (Added 46 of 1988 s. 14) MENTAL HEALTH ORDINANCE - SECT 43 Detention and recapture VerDate:01/02/1999 (1) Every patient received into a mental hospital under the authority of this Ordinance may, subject to this Ordinance, be detained therein until he is removed or discharged in accordance with this Ordinance. (2) Where a patient who is for the time being liable to be detained in a mental hospital under this Ordinance escapes, he may, subject to the provision of this section, be taken into custody and returned to the mental hospital by the medical superintendent, any officer or servant of such hospital, any person authorized by the medical superintendent or any police officer. (3) Where a person who is for the time being liable to be detained under this Ordinance- (a) fails to return to the mental hospital on any occasion on which, or at the expiration of any period for which, permission to be absent was granted under section 39, or upon being recalled under that section; or (b) absents himself without permission from any place where he is required to reside in accordance with conditions imposed on the grant of leave of absence under that section, he may, subject to this section, be taken into custody and returned to the mental hospital by the medical superintendent, any officer or servant of such hospital, or any person authorized by the medical superintendent. (4) (Repealed 81 of 1997 s. 31) (5) Where a conditionally discharged patient- (a) fails to return to the mental hospital upon being recalled under section 42B(3) or called there under section 42B(6)(d); or (b) absents himself without permission from any place where he is required to reside in accordance with conditions imposed on his discharge under section 42B, he may be taken into custody and returned to the mental hospital by the medical superintendent, or any officer or servant of the hospital, or any other person authorized by the medical superintendent: Provided that where section 42B(6) applies references in this section to the medical superintendent shall be construed as referring to the medical superintendent of the mental hospital specified in the notice given under section 42B(3). (6) A patient shall not be taken into custody under this section after the expiration of 28 days beginning with the first day of his absence without leave, or, in the case of a failure to return to a mental hospital, the day on which the obligation to return arose, and a patient who has not returned or been taken into custody under this section within that period shall cease to be liable to be detained at the expiration of that period: (Amended 81 of 1997 s. 31) Provided that nothing in this subsection shall apply in the case of a person who is or was liable to detention under a hospital order which is not endorsed under section 45(1A), whether or not he was, prior to the event giving rise to the power to take him into custody under this section, in actual detention, absent on permission granted under section 39 or conditionally discharged from detention under that order. (7) Where by virtue of this section a person is detained, taken into custody or returned to a mental hospital, such reasonable force may be used as is necessary for the purpose. (Replaced 46 of 1988 s. 14) MENTAL HEALTH ORDINANCE - SECT 44 Removal of patient from Hong Kong VerDate:01/02/1999 (1) Where an alien or any person not domiciled in Hong Kong is detained as a patient and it appears expedient that he should be removed to the country of which he is a national, the Chief Secretary for Administration if satisfied that his removal is likely to be for his benefit, and that proper arrangements have been made for such removal and for his subsequent care and treatment, may, by warrant, direct the patient to be delivered to the person named in the warrant for the purpose of removal to the country of which he is a national, and every such warrant shall be obeyed by the person or authority having the charge of the person named therein. (Amended 81 of 1997 s. 32; L.N. 362 of 1997) (2) A warrant under this section shall be sufficient authority for the master of any vessel or captain of any aircraft or the guard on any train to receive and detain the patient on board such vessel, aircraft or train for the purpose of conveying him to his destination. (3) Any order of removal made under this section shall be addressed to the medical superintendent of the mental hospital in which the patient is at the time detained and shall direct him to deliver up the patient to the person mentioned in such order at such place and in such manner as may be specified in the said order for the purpose of such removal as aforesaid; and the patient shall be delivered up accordingly. (4) Any patient removed from Hong Kong in accordance with the provisions of this section shall not return to Hong Kong except by permission of the Chief Secretary for Administration. (Amended L.N. 362 of 1997) (Amended 46 of 1988 s. 32) MENTAL HEALTH ORDINANCE - SECT 44A Power of court or magistrate to make guardianship order VerDate:09/06/2000 PART IIIA GUARDIANSHIP OF PERSONS CONCERNED IN CRIMINAL PROCEEDINGS (1) Where- (a) section 76(1) of the Criminal Procedure Ordinance (Cap 221) applies to a person; (b) the court or magistrate concerned is satisfied, on the written or oral evidence of 2 or more registered medical practitioners (of whom not less than 2 shall be psychiatrists on the Specialist Register established under section 6(3) of the Medical Registration Ordinance (Cap 161)), that- (Amended 32 of 2000 s. 9) (i) the person is mentally incapacitated to a nature or degree which warrants his reception into guardianship under this Part; and (Amended 81 of 1997 s. 33) (ii) it is necessary in the interests of the welfare of the person or for the protection of other persons that the person should be so received; and (Amended 81 of 1997 s. 33) (c) the court or magistrate is of the opinion, having regard to all the circumstances of the case, including- (i) the nature of any act or omission by virtue of which the section referred to in paragraph (a) applies to him; (ii) the character and antecedents of the person; (iii) the other available methods of dealing with him; and (iv) the advice of the Director of Social Welfare on- (A) the suitability of an order under this section in the case of the person; and (B) where applicable, the availability of a suitable person to be authorized under paragraph (i) if there is an order under this section in the case of the person, that the most suitable method of disposing of the case is by means of an order under this section, the court or magistrate may- (i) by an order ("guardianship order") place the person under the guardianship of the Director of Social Welfare, or a person authorized by the Director of Social Welfare for the purpose, as may be specified in the order; (ii) specify in the guardianship order the period ("validity period") during which the person should be so placed which shall not exceed 1 year commencing on the date of the order. (Amended 81 of 1997 s. 33) (2) Section 45(3) shall apply to a guardianship order as it applies to a hospital order. (Part IIIA added 38 of 1996 s. 2) MENTAL HEALTH ORDINANCE - SECT 44B Effect of guardianship order VerDate:01/07/2007 For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative Council (L.N. 130 of 2007), see paragraph (12) of that Resolution. (1) A guardianship order may confer on the Director of Social Welfare or any other person authorized by the Director of Social Welfare, as guardian, 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 that 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 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. (Replaced 81 of 1997 s. 34) (2) (Repealed 81 of 1997 s. 34) (2A) If any person (other than the Director of Social Welfare) who is the guardian of a mentally incapacitated person placed under guardianship in pursuance of a guardianship order- (a) dies; or (b) gives notice in writing to the Director of Social Welfare that he desires to relinquish the functions of guardian, the guardianship of the mentally incapacitated person shall upon that death or the receipt of that notice, as the case may be, vest in the Director of Social Welfare. (Added 81 of 1997 s. 34) (2B) If any such guardian, not having given notice under subsection (2A)(b), is incapacitated by illness or any other cause from performing the functions of guardian of the mentally incapacitated person, those functions shall, during the guardian's incapacity, be performed on his behalf by the Director of Social Welfare. (Added 81 of 1997 s. 34) (3) A guardianship order shall cease to be of any effect- (a) upon the person subject to the order being discharged by the tribunal under section 59E; or (Amended 81 of 1997 s. 34) (b) upon expiry of the validity period unless the court or magistrate renews the order upon- (i) an application made- (A) not less than 3 months before such expiry; and (B) at the instigation of the Director of Social Welfare; and (ii) production of such evidence of the need for renewal as the court or magistrate thinks fit; (c) upon revocation of the order by the court or magistrate. (Added 81 of 1997 s. 34) (3A) The court or magistrate may, upon an application under subsection (3)(b)(i)- (a) renew the guardianship order; (b) renew and vary the guardianship order and in the case of a variation which is a transfer, may place the person subject to the order under the guardianship of the Director of Social Welfare, or a person authorized by the Director of Social Welfare, for a validity period of not more than 3 years commencing on the date of the renewal of the guardianship order. (Added 81 of 1997 s. 34) (4) Where a person is placed under guardianship in pursuance of a guardianship order, any previous guardianship order (including any guardianship order under Part IVB) by which he was liable to be subject to guardianship shall cease to have effect. (Amended 81 of 1997 s. 34) (4A) Where a person placed under guardianship in pursuance of a guardianship order becomes liable to be detained or is detained in a mental hospital or the Correctional Services Department Psychiatric Centre the powers conferred on a guardian under subsection (1)(a), (b) and (c) in respect of the mentally incapacitated person shall be suspended and remain suspended until the mentally incapacitated person is discharged. (Added 81 of 1997 s. 34) (5) The Secretary for Labour and Welfare may, by notice in the Gazette, amend subsection (3)(b)(i)(A) by substituting a different period or periods for any period specified in that subsection, either generally or to cover a particular case or class of case. (Amended L.N. 106 of 2002; L.N. 130 of 2007) (6) It is hereby declared that a notice under subsection (5) is subsidiary legislation. (7) Where a mentally incapacitated person who is for the time being subject to a guardianship order under this Part absents himself without the permission or agreement of the guardian from the place where he is required by the guardian to reside, he may be taken into custody and returned to that place by the guardian or by the Director of Social Welfare, and such reasonable force may be used as is necessary for the purpose. (Added 81 of 1997 s. 34) (8) For the purposes of this section- "monthly sum" (每月款項) means a sum not exceeding the latest median monthly employment earnings of employed persons, for the time being, specified in the Quarterly Report on General Household Survey published by the Census and Statistics Department; "vary" (更改), in relation to a guardianship order, includes transfer. (Added 81 of 1997 s. 34) (Part IIIA added 38 of 1996 s. 2) "monthly sum" (每月款項) "vary" (更改) MENTAL HEALTH ORDINANCE - SECT 44C Interpretation VerDate:01/02/1999 PART IIIB SUPERVISION AND TREATMENT ORDERS RELATING TO PERSONS CONCERNED IN CRIMINAL PROCEEDINGS In this Part, unless the context otherwise requires- "mental incapacity" (精神上無行為能力), in relation to treatment, includes behaviour manifested by a mental incapacity; (Replaced 81 of 1997 s. 35) "supervised person" (受監管人) includes a prospective supervised person; "supervising officer" (監管人員) includes a prospective supervising officer; "supervision" (監管) includes care; "treatment" (治療) includes education, training and behaviour management. (Part IIIB added 38 of 1996 s. 2) "mental incapacity" (精神上無行為能力) "supervised person" (受監管人) "supervising officer" (監管人員) "supervision" (監管) "treatment" (治療) MENTAL HEALTH ORDINANCE - SECT 44D Power of court or magistrate to make supervision and treatment order VerDate:09/06/2000 (1) Subject to the other provisions of this Part, where- (a) section 76(1) of the Criminal Procedure Ordinance (Cap 221) applies to a person; (b) the court or magistrate concerned is satisfied, on the written or oral evidence of 2 or more registered medical practitioners (of whom not less than 2 shall be psychiatrists on the Specialist Register established under section 6(3) of the Medical Registration Ordinance (Cap 161)), that- (Amended 32 of 2000 s. 10) (i) the person is mentally incapacitated to a nature or degree which warrants his receiving supervision and treatment under this Part; (ii) the mental incapacity is susceptible to treatment; and (iii) it is necessary in the interests of the welfare of the person or for the protection of other persons that the person should be so supervised and treated; and (Amended 81 of 1997 s. 36) (c) the court or magistrate is of the opinion, having regard to all the circumstances of the case, including- (i) the nature of any act or omission by virtue of which the section referred to in paragraph (a) applies to him; (ii) the character and antecedents of the person; (iii) the other available methods of dealing with him; and (iv) the advice of the Director of Social Welfare on- (A) the suitability of an order under this section in the case of the person; (B) where applicable, the availability of a suitable person acting under the Director of Social Welfare's authority under paragraph (i) if there is an order under this section in the case of the person; and (C) if there is an order in the case of the person, the arrangements that will need to be made for the treatment intended to be specified in the order, that the most suitable method of disposing of the case is by means of an order under this section, the court or magistrate may by an order ("supervision and treatment order") require the person ("supervised person")- (i) to be under the supervision of the Director of Social Welfare or any person acting under his authority ("the supervising officer") for a period specified in the order of not more than 2 years commencing on the date of the order; and (ii) to submit, during the whole or such part of that period as may be specified in the order, to treatment by or under the direction of a registered medical practitioner (or other appropriately qualified person) with a view to the improvement of his mental disorder. (2) Section 45(3) shall apply to a supervision and treatment order as it applies to a hospital order. (Part IIIB added 38 of 1996 s. 2) MENTAL HEALTH ORDINANCE - SECT 44E Restrictions on the making of a supervision and treatment order VerDate:30/06/1997 (1) The court or magistrate shall not make a supervision and treatment order unless the court or magistrate has considered a social inquiry report from the supervising officer. (2) For the purpose of subsection (1), "social inquiry report" (社會背景 調查報告) means a report- (a) compiled by the supervising officer of the supervised person; and (b) which includes an assessment of the family background, and social and financial situation, of the supervised person. (Part IIIB added 38 of 1996 s. 2) (2) For the purpose of subsection (1), "social inquiry report" (社會背景 調查報告) means a report- (a) compiled by the supervising officer of the supervised person; and (b) which includes an assessment of the family background, and social and financial situation, of the supervised person. MENTAL HEALTH ORDINANCE - SECT 44F Making of a supervision and treatment order and general requirements VerDate:30/06/1997 (1) Before making a supervision and treatment order, the court or magistrate shall explain to the supervised person the effect of the order. (2) The supervised person shall keep in contact with the supervising officer in accordance with such instructions as he may from time to time be given by that officer and shall notify that officer of any change of address. (3) For the purpose of executing the supervision and treatment order concerned, the supervising officer shall have the power to convey the supervised person to a place or places as specified in the order. (Part IIIB added 38 of 1996 s. 2) MENTAL HEALTH ORDINANCE - SECT 44G Obligatory requirements as to medical treatment VerDate:01/02/1999 (1) A supervision and treatment order shall include a requirement that the supervised person shall submit, during the whole or part of such period as specified in the order, to treatment (which may include residential treatment in a hospital) by or under the direction of a registered medical practitioner (or other appropriately qualified person) with a view to the improvement of his mental incapacity. (Amended 81 of 1997 s. 37) (2) When the supervised person is under treatment as a residential patient in a mental hospital, the supervision and treatment order shall be suspended until the supervised person is discharged from that hospital. (Part IIIB added 38 of 1996 s. 2) MENTAL HEALTH ORDINANCE - SECT 44H Optional requirements as to residence VerDate:30/06/1997 A supervision and treatment order may include requirements as to the residence of a supervised person and, where the supervised person is required to reside in an institution, the period for which he is so required to reside shall be specified in the order. (Part IIIB added 38 of 1996 s. 2) MENTAL HEALTH ORDINANCE - SECT 44I Revocation and amendment of a supervision and treatment order VerDate:30/06/1997 Where a supervision and treatment order is in force in respect of any supervised person and, on the application of the supervised person, a relative of the supervised person or the supervising officer, the court or magistrate is satisfied that- (a) having regard to circumstances which have arisen since the order was made, it would be in the interests of the health or welfare of the supervised person that the order should be revoked, the court or magistrate, as the case may be, may revoke the order; (b) the supervised person has persistently refused to comply with the requirements as specified in the order, but the condition does not require compulsory admission to a mental hospital, the court or magistrate, as the case may be, may revoke the order or vary the requirements of the order. (Part IIIB added 38 of 1996 s. 2) MENTAL HEALTH ORDINANCE - SECT 45 Powers of court or magistrate to make a hospital order VerDate:01/02/1999 PART IV ADMISSION OF MENTALLY DISORDERED PERSONS CONCERNED IN CRIMINAL PROCEEDINGS, TRANSFER OF MENTALLY DISORDERED PERSONS UNDER SENTENCE AND REMAND OF MENTALLY INCAPACITATED PERSONS (Replaced 81 of 1997 s. 38) (1) Where- (a) a person is- (i) convicted by the Court of First Instance or a District Court of an offence other than an offence the sentence for which is fixed by law; (Amended 25 of 1998 s. 2) (ii) convicted by a magistrate of an offence punishable on summary conviction by imprisonment; or (iii) charged before a magistrate with an act or omission as an offence punishable on summary conviction by imprisonment and the magistrate is satisfied that such person did the act or made the omission; and (b) the court or magistrate is satisfied on the written or oral evidence of 2 registered medical practitioners received in accordance with section 46 that- (i) such person is a mentally disordered person; and (ii) the nature or degree of the mental disorder from which the person is suffering warrants his detention in the Correctional Services Department Psychiatric Centre or a mental hospital for treatment; and (c) the court or magistrate is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of such person, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section, the court or magistrate may by a hospital order authorize the admission of the person to and his detention in the Correctional Services Department Psychiatric Centre or a mental hospital specified in the order or, if the person is under 14 years of age, in a mental hospital specified in the order, and may specify in the order the period during which such person should be so detained which shall not be greater than the sentence which the court or magistrate could have imposed in respect of the offence with which such person was charged. (Amended 37 of 1973 s. 3) (1A) Where under subsection (1) the court or magistrate by a hospital order authorizes the admission of a person to, and detention in, a mental hospital, and is of the opinion that in all the circumstances of the case the proviso to section 47(2) should not apply, the judge or magistrate may include a statement to that effect in the hospital order and, if he does so, that proviso shall not apply. (Added 46 of 1988 s. 15) (2) A hospital order shall not be made under this section unless the court or magistrate is satisfied that arrangements have been made for the admission of the person to the Correctional Services Department Psychiatric Centre or that mental hospital within 28 days after the date of the hospital order, in the event of the hospital order being made by the court or magistrate. (Amended 37 of 1973 s. 3) (3) Where a hospital order has been made, the court or magistrate shall not impose a sentence of imprisonment or a fine or make a probation order in respect of the offence but may make any other order which the court or magistrate has power to make apart from this section and for the purpose of this subsection "sentence of imprisonment" (監禁刑罰) includes any sentence or order for detention in a remand home, a reformatory school, a house of detention or a training centre. [cf. 1959 c. 72 s. 60 U. K.] "sentence of imprisonment" (監禁刑罰) MENTAL HEALTH ORDINANCE - SECT 46 Requirement as to medical evidence VerDate:01/02/1999 (1) Of the registered medical practitioners whose evidence is received in accordance with section 45(1)(b) or 54(3) at least one shall be a medical officer. (2) For the purpose of section 45(1)(b) or 54(3) a report in writing purporting to be signed by a registered medical practitioner may, subject to the provisions of this section, be received in evidence without proof of the signature or qualifications of the registered medical practitioner but the court or magistrate may require that the registered medical practitioner, by whom the report was signed, be called to give oral evidence. (3) Where, in pursuance of the directions of a court or magistrate, a report of a registered medical practitioner is tendered in evidence in accordance with section 45(1)(b) otherwise than by or on behalf of the accused- (Amended 40 of 1962 s. 2 ) (a) if the accused is represented by counsel or solicitor, a copy of the report shall be given to his counsel or solicitor; (b) if the accused is not so represented, the substance of the report shall be disclosed to the accused or, in the case of a child or young person, to his parent or guardian if present in court; and (c) in any case, the accused, or in the case of a child or young person, his parent or guardian may require that the registered medical practitioner who signed the report be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by or on behalf of the accused. (Amended 46 of 1988 s. 16; 81 of 1997 s. 39) [cf. 1959 c. 72 s. 62 U.K.] MENTAL HEALTH ORDINANCE - SECT 47 Effect of hospital order VerDate:01/02/1999 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) A hospital order shall be sufficient authority for- (a) the Commissioner of Correctional Services or any other person directed to do so by the court or magistrate to convey the person named in the order to the Correctional Services Department Psychiatric Centre or the mental hospital specified in the order within a period of 28 days from the date of the order; and (b) the Commissioner of Correctional Services to admit him to the Correctional Services Department Psychiatric Centre or the medical superintendent to admit him to the mental hospital and to detain him therein in accordance with the provisions of this Ordinance. (Amended 37 of 1973 s. 4) (1A) A person who is admitted to the Correctional Services Department Psychiatric Centre in pursuance of a hospital order shall be treated, for the purposes of the Prisons Ordinance (Cap 234), as if he had been lawfully confined in a prison in accordance with section 7 of that Ordinance except that during the period for which he is ordered to be detained in the Correctional Services Department Psychiatric Centre, or if no period is specified in the order, while the order is in force- (a) the power of the Commissioner of Correctional Services to grant leave of absence under the Prisons Ordinance (Cap 234) shall not be exercised; and (b) the person shall not be discharged therefrom unless with the prior consent of the Chief Executive. (Added 37 of 1973 s. 4. Amended 60 of 2000 s. 3) (2) A person who has been admitted to a mental hospital in pursuance of a hospital order shall be treated, for the purposes of Part III, as if he had been detained in a mental hospital in accordance with section 36: Provided that, unless the hospital order has been endorsed under section 45(1A), the power to grant permission for leave of absence under section 39, to discharge under section 42A or to discharge conditionally under section 42B shall be exercisable only with the prior consent of the Chief Executive. (Replaced 46 of 1988 s. 17. Amended 60 of 2000 s. 3) (3) Where- (a) a person is admitted to the Correctional Services Department Psychiatric Centre; or (b) a person is admitted to a mental hospital, (Amended 81 of 1997 s. 40) in pursuance of a hospital order, any previous order by which he was liable to be detained in a mental hospital shall cease to have effect. (Replaced 37 of 1973 s. 4) [cf. 1959 c. 72 s. 63 U.K.] MENTAL HEALTH ORDINANCE - SECT 48 Appeal against hospital order VerDate:30/06/1997 Any person who is aggrieved by a hospital order made in respect of him or in respect of a child or young person of whom he is parent or guardian may appeal against the hospital order in the same manner as any other judgment or order of the court or magistrate and in any such appeal, the provisions of any other enactment relating to appeals against orders or judgments of the court or magistrate shall apply. [cf. 1959 c. 72 s. 70 U.K.] MENTAL HEALTH ORDINANCE - SECT 49 (Repealed 81 of 1997 s. 41) VerDate:01/02/1999 MENTAL HEALTH ORDINANCE - SECT 50 Period of detention under this Part VerDate:01/02/1999 No person shall be detained- (Amended 81 of 1997 s. 42) (a) in pursuance of a hospital order, being an order authorizing his detention for a specified period, after the expiration of that period; or (b) if he is serving a sentence of imprisonment in pursuance of the order of any court, in a mental hospital or the Correctional Services Department Psychiatric Centre after the expiration of the sentence of imprisonment, unless he is detained under Part III otherwise than as applied by this Part. (Replaced 46 of 1988 s. 18) MENTAL HEALTH ORDINANCE - SECT 51 Remand VerDate:01/02/1999 (1) (a) If a court or magistrate is of the opinion that any person who is charged before the court or magistrate with an offence, including a person in respect of whom an information or charge for an indictable offence is being heard or has been heard by the magistrate in accordance with the provisions of Part III of the Magistrates Ordinance (Cap 227), or who has been convicted but not sentenced of an offence being, in the case of a conviction by a magistrate, an offence punishable on summary conviction by imprisonment or an indictable offence of which the magistrate has convicted the accused summarily, may be or is alleged to be a mentally incapacitated person, the court or magistrate may remand such person- (Amended 46 of 1988 s. 19; 81 of 1997 s. 58) (i) to a mental hospital; or (ii) to a prison; or (iii) to a training centre established under section 3 of the Training Centres Ordinance (Cap 280) in the case of a person not less than 16 years of age but under 21 years of age; or (iv) to a place of detention appointed under section 16 of the Juvenile Offenders Ordinance (Cap 226) in the case of child or young person within the meaning of that Ordinance, for observation, investigation and treatment for any period not exceeding 14 days and on the making of any such order shall adjourn the proceedings against such person for such period and may extend such period of 14 days by further periods of 7 days each so that the total period of remand does not in any case exceed 42 days. (b) Without prejudice to the provisions of any other Ordinance, any person remanded under paragraph (a) to a prison, a training centre or a place of detention for observation, investigation and treatment may be removed in the custody of an officer of the Correctional Services Department or a public officer appointed by the Director of Social Welfare in the case of a child or young person, from the prison, training centre or place of detention for the purpose of attending a Government psychiatric clinic or Hospital Authority (within the meaning of the Hospital Authority Ordinance (Cap 113)) psychiatric clinic for observation, investigation and treatment. (Amended 68 of 1990 s. 24) (c) The Training Centres Ordinance (Cap 280) shall apply mutatis mutandis to any person remanded to a training centre under paragraph (a) for observation, investigation and treatment. (d) The Remand Home Rules (Cap 226 sub. leg.) shall apply to any child or young person remanded to a place of detention under paragraph (a) for observation, investigation and treatment. (Replaced 3 of 1968 s. 3) (2) (a) A court or magistrate may, in lieu of remanding a person under subsection (1), admit him to bail in accordance with the periods specified in subsection (1) on his procuring or producing such surety or sureties as the court or magistrate thinks fit. (b) In the case of any person admitted to bail under paragraph (a) it shall be a condition of the recognizance- (i) that he shall undergo observation, investigation and treatment by a medical officer at such mental hospital or Government psychiatric clinic or Hospital Authority (within the meaning of the Hospital Authority Ordinance (Cap 113)) psychiatric clinic as may be specified in the recognizance; or (Amended 68 of 1990 s. 24) (ii) that he shall undergo observation, investigation and treatment by a suitably qualified medical practitioner named in the recognizance. (c) In the case of any person admitted to bail under paragraph (a) it may be a condition of the recognizance that the person reside in a mental hospital for the purposes of observation, investigation and treatment for such period, within the period specified in the recognizance, as may be required by the examining medical officer or medical practitioner. (d) Notwithstanding any other provision of this Ordinance, where arrangements have been made for the reception of any person so required to reside at a mental hospital for the purposes of any observation, investigation and treatment he may be admitted to the mental hospital. (e) Where a court or magistrate is satisfied by information on oath that a person admitted to bail under paragraph (a) has failed to observe any of the conditions of the recognizance taken under this subsection the court or magistrate may issue a warrant for the apprehension of the person; and the recognizance may be enforced in like manner, as a recognizance may be enforced under the Criminal Procedure Ordinance (Cap 221) or under Part II of the Magistrates Ordinance (Cap 227), as the case may be. (Added 3 of 1968 s. 3) (3) (Repealed 46 of 1988 s. 19) (4) Any order made in accordance with subsection (1) or (2) may be made in the absence of the person if the court or magistrate is satisfied on such evidence as shall be placed before him that no useful purpose might be served by the personal appearance before the court or magistrate of such person. (Amended 3 of 1968 s. 3; 46 of 1988 s. 19) MENTAL HEALTH ORDINANCE - SECT 52 Removal to a mental hospital of a person serving a sentence of imprisonment VerDate:01/07/1997 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) If the Chief Executive is satisfied from the report of a medical officer that a person who is serving a sentence of imprisonment is a mentally disordered person and that the nature or degree of the mental disorder from which he is suffering warrants his detention in a mental hospital for treatment, the Chief Executive may, by transfer order, direct that the person be removed to and detained in such mental hospital as is specified in the order. (2) A transfer order shall cease to have effect at the expiration of a period of 14 days from the date on which it was made unless within that period the person with respect to whom it was made has been received in the mental hospital specified in the transfer order. (3) A person who is admitted to a mental hospital in pursuance of a transfer order shall be treated for the purposes of Part III as if he had been detained in a mental hospital under section 36 except that- (a) the power of the medical superintendent to permit absence on trial under section 39 shall not be exercised; and (b) the person shall not be discharged therefrom except with the consent of the Chief Executive. (Replaced 46 of 1988 s. 20) (4) If the Chief Executive is satisfied from the report from a medical superintendent that a person, who was transferred to a mental hospital by a transfer order made under subsection (1) and whose sentence of imprisonment has not expired, no longer requires treatment for mental disorder the Chief Executive may by order direct that the person be returned to the custody of the Commissioner of Correctional Services or the Director of Social Welfare, as the case may be, to serve the remainder of his sentence of imprisonment. (Amended 40 of 1962 s. 3) (5) In this section "sentence of imprisonment" (監禁刑罰) includes any sentence or order for detention in a remand home, a reformatory school, a house of detention, a detention centre, a training centre or an addiction treatment centre. (Amended 42 of 1968 s. 12; 12 of 1972 s. 13) (Amended 60 of 2000 s. 3) [cf. 1959 c. 72 s. 72 U.K.] "sentence of imprisonment" (監禁刑罰) MENTAL HEALTH ORDINANCE - SECT 52A Removal to a Correctional Services Department Psychiatric Centre of persons detained in a mental hospital VerDate:01/07/1997 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) The Chief Executive may, after consultation with the Commissioner of Correctional Services and a medical superintendent, by order direct that a person detained in a mental hospital in pursuance of an order made under this Part or under the Criminal Procedure Ordinance (Cap 221), be removed to and detained in the Correctional Services Department Psychiatric Centre. (2) An order under subsection (1) shall be sufficient authority for the Commissioner of Correctional Services to admit the person removed from the mental hospital to the Correctional Services Department Psychiatric Centre and to detain him therein for the period specified in the order authorizing his detention in the mental hospital, or if no such period is specified, while that order is in force. (3) A person who is removed to and detained in the Correctional Services Department Psychiatric Centre in pursuance of an order under subsection (1) shall be treated, for the purposes of the Prisons Ordinance (Cap 234), as if he had been lawfully confined in a prison in accordance with section 7 of that Ordinance except that during the period within which he is liable to be detained- (a) the power to the Commissioner of Correctional Services to grant leave of absence under the Prisons Ordinance (Cap 234) shall not be exercised; and (b) the person shall not be discharged therefrom unless with the prior consent of the Chief Executive. (Added 37 of 1973 s. 5. Amended 60 of 2000 s. 3) MENTAL HEALTH ORDINANCE - SECT 52B Removal to a mental hospital of persons detained in the Correctional Services Department Psychiatric Centre VerDate:01/07/1997 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) The Chief Executive may, after consultation with a medical superintendent and the Commissioner of Correctional Services, by order direct that a person detained in the Correctional Services Department Psychiatric Centre in pursuance of an order made under this Part or under the Criminal Procedure Ordinance (Cap 221), be removed to and detained in a mental hospital. (2) An order under subsection (1) shall be sufficient authority for the medical superintendent to admit the person removed from the Correctional Services Department Psychiatric Centre to a mental hospital and to detain him therein for the period specified in the order authorizing his detention in the Correctional Services Department Psychiatric Centre, or if no such period is specified, while that order is in force. (3) A person who is removed to and detained in a mental hospital in pursuance of an order under subsection (1) shall be treated as being detained there in accordance with section 36 except that during the period within which he is liable to be detained- (a) the power of the medical superintendent to permit absence on trial under section 39 shall not be exercised; and (b) the person shall not be discharged therefrom except with the consent of the Chief Executive. (Added 46 of 1988 s. 21. Amended 60 of 2000 s. 3) MENTAL HEALTH ORDINANCE - SECT 53 Removal to a mental hospital of other prisoners VerDate:01/07/1997 Adaptation amendments retroactively made - see 25 of 1998 s. 2; 60 of 2000 s. 3 (1) If the Chief Executive is satisfied from the report of a medical officer that a person to whom this section applies is a mentally disordered person and that the nature or degree of the mental disorder from which he is suffering warrants his detention of the person in a mental hospital for medical treatment, the Chief Executive may by transfer order direct that the person be removed to and detained in a mental hospital. (Amended 60 of 2000 s. 3) (2) This section shall apply to any person who is- (a) committed in custody for trial in accordance with section 85(2) of the Magistrates Ordinance (Cap 227); (b) remanded in custody in accordance with section 90 of the Magistrates Ordinance (Cap 227), the magistrate having made an order of transfer in respect of such person in accordance with section 88 of that Ordinance; (c) remanded in custody by a court or magistrate; (d) remanded in custody by the Court of First Instance or by a District Court to await a judgment or sentence which has been respited; (Amended 25 of 1998 s. 2) (e) a civil prisoner, that is to say, a person committed by a court to prison for a limited term, including a person committed to prison in pursuance of a writ of attachment, not being a person falling to be dealt with under section 52; or (Amended L.N. 183 of 1972) (f) detained in any place by virtue of the Immigration Ordinance (Cap 115). (Replaced 55 of 1971 s. 66) (3) The provisions of section 52(2), (3) and (4) shall apply for the purposes of this section and to any transfer made in accordance with this section. [cf. 1959 c. 72 s. 73 U.K.] MENTAL HEALTH ORDINANCE - SECT 54 Further provisions as to persons committed for trial or sentence or on remand VerDate:01/07/1997 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) A transfer order given in accordance with section 53(1) shall cease to have effect when the case of the person named in the transfer order has been disposed of by the court or magistrate having jurisdiction to try or otherwise deal with him; but without prejudice to any power of that court or magistrate to make a hospital order under this Part in his case. (Amended 34 of 1972 s. 22) (2) Where a transfer order has been given in accordance with section 53(1)- (a) if the Chief Executive is notified by a medical superintendent at any time before the person named in the transfer order is brought before the court or magistrate having jurisdiction to try or otherwise deal with him, that the person no longer requires treatment for mental disorder, the Chief Executive may by order direct that such person be remitted to any place where he might have been detained if he had not been removed to a mental hospital, there to be dealt with as if he had not been so removed, and on his arrival at the place to which he is so remitted the transfer order shall cease to have effect; (Amended 34 of 1972 s. 22; 60 of 2000 s. 3) (b) if no order has been made in accordance with paragraph (a) and if it appears to the court or magistrate having jurisdiction to try or otherwise deal with the person named in the transfer order that it is impracticable or inappropriate to bring that person before the court or magistrate and the conditions set out in subsection (3) are satisfied, the court or magistrate may make a hospital order in respect of such person in his absence and, in the case of a person awaiting trial, without convicting him. (Amended 34 of 1972 s. 22) (3) A hospital order may be made in respect of a person in accordance with subsection (2)(b) if the court or magistrate is satisfied, on the written or oral evidence of 2 registered medical practitioners received in accordance with section 46(1) and (2) that- (Amended 40 of 1962 s. 4) (a) such person is a mentally disordered person; and (b) the nature or degree of the mental disorder from which the person is suffering warrants his detention in a mental hospital for medical treatment, and the court or magistrate is of the opinion after considering any depositions or other documents required to be sent to the proper officer of the court, that it is proper to make a hospital order. (4) When a transfer order has been made in respect of a person remanded in custody by a magistrate, the power of further remanding such person under section 20 of the Magistrates Ordinance (Cap 227) may be exercised by the magistrate without such person being brought before the magistrate. (5) Any transfer order made in respect of a civil prisoner shall cease to have effect on the expiration of the period during which he would but for his removal to the mental hospital, be liable to be detained in prison. [cf. 1959 c. 72 s. 75 U.K.] MENTAL HEALTH ORDINANCE - SECT 54A Hospital order in respect of persons awaiting trial or sentence VerDate:30/06/1997 If it appears to the court or magistrate having jurisdiction to try or otherwise deal with a person specified in section 53(2)(a), (b), (c) or (d) that- (a) the conditions set out in section 54(3) are satisfied; and (b) it is impracticable or inappropriate to bring that person before the court or magistrate, the court or magistrate may, by a hospital order made in respect of that person in his absence and, if he is a person awaiting trial, without convicting him, authorize his admission to and detention in the Correctional Services Department Psychiatric Centre. (Added 37 of 1973 s. 6) MENTAL HEALTH ORDINANCE - SECT 55 Removal of prisoners for observation VerDate:30/06/1997 (1) If the Commissioner of Correctional Services or, in the case of a person who is detained in a remand home or a reformatory school, the Director of Social Welfare, has reason to believe that a person who is serving a sentence of imprisonment as defined by section 52(5) or a person to whom section 53 applies is a mentally disordered person and that it is necessary or desirable that such person should be forthwith transferred to a mental hospital for observation or treatment, he may, by writing under his hand, order that such person be taken to a mental hospital for the purpose of detention, observation and treatment during the period of 14 days from and including the date of the order. (Amended 40 of 1962 s. 5) (2) The provisions of sections 51, 52 and 53 may be applied to a person who is detained in a mental hospital in consequence of an order made under subsection (1) as if no such order had been made. (3) A person who is detained in a mental hospital in consequence of an order made under subsection (1) shall be deemed to be in legal custody. MENTAL HEALTH ORDINANCE - SECT 56 Medical reports on persons on remand VerDate:01/07/1997 (1) If a person is committed in custody for trial in accordance with section 85(2) of the Magistrates Ordinance (Cap 227), the Commissioner of Correctional Services- (a) (Repealed 24 of 1993 s. 18) (b) if the Secretary for Justice makes application in writing to the Commissioner of Correctional Services in respect of the prisoner, shall, (Amended 24 of 1993 s. 18) make an order in accordance with section 55(1), even if the Commissioner of Correctional Services has no reason to believe that the prisoner is a mentally disordered person. (2) If the prisoner is the subject of an application by the Secretary for Justice in accordance with subsection (1)(b), the medical officer of the prison or the medical superintendent of the mental hospital, as the case may be, shall, not less than 7 days before the date fixed for the trial of the prisoner, submit to the Registrar and to the Secretary for Justice a report on the mental condition of the prisoner, stating whether or not the prisoner has exhibited any indication of insanity and whether or not he is fit to plead. (Amended 24 of 1993 s. 18) (3) A report submitted in accordance with subsection (2) shall not express any opinion as to the degree of responsibility of the prisoner at the time when the offence with which he is charged was committed but if, from symptoms exhibited while under observation in the prison or in the mental hospital, the medical officer of the prison or the medical superintendent of the mental hospital, as the case may be, is of the opinion that insanity exists and has done so for some time previous to the date when the offence was committed, or that there is any history of insanity, his report should embody this opinion. (Amended L.N. 362 of 1997) MENTAL HEALTH ORDINANCE - SECT 57 Persons ordered to be admitted to a mental hospital under Criminal Procedure Ordinance VerDate:01/07/1997 Adaptation amendments retroactively made - see 60 of 2000 s. 3 Notwithstanding anything contained in section 76 of the Criminal Procedure Ordinance (Cap 221), the Chief Executive may order that a person found not guilty by reason of insanity be detained in custody in some other manner than is specified in that Ordinance. (Replaced 34 of 1972 s. 22. Amended 60 of 2000 s. 3) MENTAL HEALTH ORDINANCE - SECT 58 Temporary transfer for specialist medical treatment of patients concerned in criminal proceedings VerDate:30/06/1997 The provisions of section 38 shall apply to persons who are detained in a mental hospital under this Part or under the Criminal Procedure Ordinance (Cap 221). (Added 40 of 1962 s. 7. Amended 34 of 1972 s. 22) MENTAL HEALTH ORDINANCE - SECT 59 Removal to prison of persons subject to a hospital order VerDate:01/07/1997 Adaptation amendments retroactively made - see 60 of 2000 s. 3 If the Chief Executive is satisfied from the report of a medical superintendent that a person, who was transferred and detained by a hospital order authorizing his detention for a specified period, no longer requires treatment for mental disorder, the Chief Executive may by order direct that the person be transferred to and detained in prison in the custody of the Commissioner of Correctional Services for any period not extending beyond the expiration of the period specified in the hospital order. (Added 40 of 1962 s. 7. Amended 34 of 1972 s. 22; 46 of 1988 s. 22; 60 of 2000 s. 3) MENTAL HEALTH ORDINANCE - SECT 59A Mental Health Review Tribunal VerDate:01/02/1999 Adaptation amendments retroactively made - see 60 of 2000 s. 3 PART IVA MENTAL HEALTH REVIEW TRIBUNAL (1) There shall be a tribunal known as the Mental Health Review Tribunal for the purpose of dealing with applications and references by and in respect of patients under this Ordinance or mentally handicapped persons to whom Part IIIA or IIIB applies, as the case may be, ("relevant persons"). (Amended 81 of 1997 s. 44) (2) The tribunal shall consist of- (a) a chairman appointed by the Chief Executive and having such legal experience as the Chief Executive considers suitable; (b) persons (referred to in this Part as "the medical members") being registered medical practitioners appointed by the Chief Executive on the recommendation of the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap 113); (Amended L.N. 76 of 1989; 68 of 1990 s. 24) (c) persons (referred to in this Part as "the social work members") appointed by the Chief Executive who have such experience and knowledge of social work as the Chief Executive considers suitable; and (d) persons appointed by the Chief Executive and having such experience and knowledge of administration, clinical psychology, or such other qualifications or experience, as the Chief Executive considers suitable. (Amended 60 of 2000 s. 3) (3) The members of the tribunal shall hold and vacate office under the terms of the instrument under which they are appointed, but may resign office by notice in writing to the Chief Executive. (Amended 60 of 2000 s. 3) (4) Any member of the tribunal who ceases to hold office shall be eligible for re-appointment. (5) Subject to the rules referred to in section 59G, the members who are, with the chairman, to exercise the functions of the tribunal for the purposes of any proceedings or class or group of proceedings under this Ordinance shall be appointed by the chairman, and of the members so appointed- (a) one or more shall be appointed from the medical members; (b) one or more shall be appointed from the social work members; and (c) one or more shall be appointed from the members who are neither medical members nor social work members. (6) Subject to the rules referred to in section 59G, the jurisdiction of the tribunal may be exercised by the chairman and 3 of its members, and references in this Ordinance to the tribunal shall be construed accordingly. (7) The Registrar of the High Court may defray the expenses of the tribunal to such amount as he may, with the consent of the Financial Secretary, determine. (Amended 25 of 1998 s. 2) (8) There shall be a secretary to the tribunal who shall be appointed by the Chief Executive. (Amended 60 of 2000 s. 3) (9) The persons recommended to the Chief Executive by the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap 113) under subsection (2)(b) shall be persons who, in the opinion of the Director, have relevant experience in psychiatry. (Amended L.N. 76 of 1989; 68 of 1990 s. 24; 60 of 2000 s. 3) (Part IVA added 46 of 1988 s. 23) MENTAL HEALTH ORDINANCE - SECT 59B Applications to the tribunal VerDate:01/02/1999 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) An application may be made to the tribunal for the review of the case of any patient liable to be detained in a mental hospital or the Correctional Services Department Psychiatric Centre; but nothing in this section shall apply to any person who is serving a sentence of imprisonment in pursuance of the order of any court during the period within which he is liable to be detained in pursuance of that sentence other than a person detained at the discretion of the Chief Executive. (Amended 81 of 1997 s. 45; 60 of 2000 s. 3) (2) An application may be made to the tribunal for the review of any case of- (a) a patient permitted to be absent on trial under section 39; (b) a conditionally discharged patient within the meaning of section 42B; (c) a person admitted to guardianship under Part IIIA; (Replaced 81 of 1997 s. 45) (d) a supervised person within the meaning of Part IIIB. (Added 81 of 1997 s. 45) (3) An application under subsection (1) or (2) may be made by- (a) the person to whom those subsections apply; or (Replaced 81 of 1997 s. 45) (b) his relative, and, subject to subsection (5) and to any rules made under section 59G, may be made at any time. (4) An application under subsection (1) or (2) may be brought for the purpose of reviewing any direction or decision of a medical superintendent under this Ordinance and, when so brought, shall specify the grounds for applying for the review. (5) Except with the leave of the tribunal, no application may be made under subsection (1) or (2)- (a) by a patient liable to be detained under a hospital order or transfer order, within a period of 12 months after he is first liable to be so detained; or (b) within 12 months of the determination of a previous review unless it is for the purpose of reviewing any direction or decision of the medical superintendent under this Ordinance which could not have been considered at the previous review. (Part IVA added 46 of 1988 s. 23) MENTAL HEALTH ORDINANCE - SECT 59C References to tribunals by Chief Executive VerDate:01/02/1999 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) The Chief Executive may, if he thinks fit, at any time refer to the tribunal the case of any patient to whom section 59B(1) applies. (Amended 81 of 1997 s. 46; 60 of 2000 s. 3) (2) For the purpose of furnishing information to the tribunal for the purposes of a reference under subsection (1), any registered medical practitioner authorized by or on behalf of the patient may, at any reasonable time, visit the patient and examine him in private and require the production of and inspect any records relating to the detention or treatment of the patient in any hospital and relevant to the reference. (Part IVA added 46 of 1988 s. 23) MENTAL HEALTH ORDINANCE - SECT 59D Duty to refer cases to tribunal VerDate:01/02/1999 (1) Whenever a patient (other than a voluntary patient) or his relative does not exercise his right to apply to the tribunal under section 59B(1) for a period of 12 months after the right first became available to him- (Amended 81 of 1997 s. 47) (a) the medical superintendent, if the patient is liable to be detained in a mental hospital; or (b) the Commissioner of Correctional Services, where the patient is liable to be detained in the Correctional Services Department Psychiatric Centre, shall, at the expiration of the period for making the application, refer the patient's case to the tribunal. (2) For the purpose of furnishing information to the tribunal for the purposes of any reference under this section, any registered medical practitioner authorized by or on behalf of the patient may, at any reasonable time, visit and examine the patient in private and require the production of and inspect any records relating to the detention or treatment of the patient in any hospital and relevant to the reference. (3) For the purposes of subsection (1), a person who applies to the tribunal but subsequently withdraws his application shall be treated as not having exercised his right to apply, and where a person withdraws his application on a date after the expiration of the period mentioned in that subsection, the medical superintendent or as the case may be, the Commissioner of Correctional Services shall refer the patient's case as soon as possible after that date. (4) A medical superintendent or the Commissioner of Correctional Services may, in the event of an application being made to the tribunal by any other person under section 59B(1), with the leave of the tribunal, discontinue any review proceedings brought under this section. (Part IVA added 46 of 1988 s. 23) MENTAL HEALTH ORDINANCE - SECT 59E Powers of the tribunal VerDate:01/02/1999 Adaptation amendments retroactively made - see 60 of 2000 s. 3 (1) Where application is made to the tribunal under section 59B(1) or (2)(a) or (b) or a case is referred to it under section 59C(1) or 59D(1), the tribunal may- (Amended 81 of 1997 s. 48) (a) direct that a patient be discharged, and where it does so the patient shall be discharged in accordance with its direction; and (b) make such recommendations in the matter as it thinks fit including recommendations to the Chief Executive and to any public officer as to the exercise of their powers under this or any other Ordinance. (Amended 60 of 2000 s. 3) (2) In the exercise of its powers under subsection (1)(a), the tribunal shall direct that a patient be discharged, either absolutely or subject to the imposition of conditions under section 42B, if it is satisfied- (a) that he is not then suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a mental hospital for medical treatment; or (b) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should be so detained to receive such treatment. (3) In determining whether to direct the discharge of a patient, the tribunal shall have regard- (a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patient's condition; and (b) to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation. (4) The tribunal may under subsection (1) direct the discharge of a patient on a future date specified in the direction; and where the tribunal does not direct the discharge of a patient under that subsection the tribunal may- (a) with a view to facilitating his discharge on a future date, recommend that- (i) he be granted leave of absence; (ii) he be transferred to another mental hospital; (iii) a guardianship application under section 59M(1) be made to the Guardianship Board (within the meaning of section 59I) for the purposes of the Board determining whether or not he should be received into guardianship under Part IVB, and, in such a case, recommend the terms of the appropriate guardianship order that may be made by the Board under that Part; and (Replaced 81 of 1997 s. 48) (b) further consider his case in the event of any such recommendation not being complied with. (5) Where application is made to the tribunal under section 59B(2)(c) or (d) the tribunal may in any case direct that the person to whom those paragraphs apply be discharged, and shall so direct if it is satisfied that it is not necessary in the interests of the welfare of that person, or for the protection of other persons, that that person should remain in guardianship under Part IIIA or remain as a supervised person within the meaning of Part IIIB. (Replaced 81 of 1997 s. 48) (6) The tribunal may under subsection (5) direct the discharge of the person to whom section 59B(2)(c) or (d) applies on a future date specified in the direction, and where the tribunal does not direct the discharge of that person the tribunal may- (a) with a view of facilitating his discharge on a future date, recommend that a guardianship application under section 59M(1) be made to the Guardianship Board (within the meaning of section 59I) for the purposes of the Board determining whether or not he should be received into guardianship under Part IVB, and, in such a case, recommend the terms of the appropriate guardianship order that may be made by the Board under that Part; and (b) further consider his case in the event of any such recommendation not being complied with. (Added 81 of 1997 s. 48) (Part IVA added 46 of 1988 s. 23) MENTAL HEALTH ORDINANCE - SECT 59F General provisions concerning tribunal application VerDate:01/02/1999 (1) No application shall be made to the tribunal except in such cases and at such times as are expressly provided by this Ordinance. (2) An application to the tribunal authorized to be made under this Ordinance shall be made by notice in writing addressed to the tribunal. (Part IVA added 46 of 1988 s. 23. Amended 81 of 1997 s. 49) MENTAL HEALTH ORDINANCE - SECT 59G Procedure of the tribunal VerDate:01/02/1999 (1) Rules may be made by the Chief Justice with respect to the making of applications to the tribunal and with respect to its proceedings and matters incidental to or consequential on such proceedings. (2) Rules made under subsection (1) may in particular make provision- (a) for enabling the tribunal to dispose of an application without a formal hearing where such a hearing is not requested by the applicant or it appears to the tribunal that such a hearing would be detrimental to the health of the relevant person; (b) for enabling the tribunal to exclude members