KNOW YOUR RIGHTS, AND KNOW HOW TO USE THEM

Ha Che Wai v Medical Superintendent of Pamela Youde Nethersole Eastern Psychiatric Observation Unit & Ors [2025] HKCFI 5681

On 24 November 2025, the Court of First Instance handed down judgment in Ha Che Wai v Medical Superintendent of PYNE Psychiatric Observation Unit & Ors [2025] HKCFI 5681, confirming that the Hospital Authority and the medical superintendents of mental hospitals are under a duty to take such steps as are reasonably practicable to ensure that patients who are the subject of an order for conditional discharge under section 42B of the Mental Health Ordinance (“MHO”) understand their rights to make an application to the Mental Health Review Tribunal (“MHRT”) for discharge or review, under MHO s.59B.

Background

Mr Ha, with a history of mental illness including paranoid schizophrenia, was detained in Pamela Youde Nethersole Eastern Psychiatric Observation Unit in 2010: first under MHO s.31, then under s.32, later under s.36. He was subsequently conditionally discharged under MHO s.42B, subject to potential recall to detention, and with some conditions.

Between 2014 and 2019, he made five unrepresented applications to the MHRT seeking absolute discharge, four of which were unsuccessful, and the final application was not dealt with, because the Hospital Superintendent discharged him absolutely in June 2020, before his application to the MHRT was dealt with.

The relevant provisions about detention, conditional discharge, and MHRT review

Mental hospitals declared under section 3 of the MHO are the property of the HKSAR Government and are run by the Hospital Authority (“HA”), including the PYNE Psychiatric Observation Unit.

Sections 31, 32 and 36 provide for the involuntary detention of a patient under observation, the extension of detention period, and the detention of certified patients.

Section 42Aprovides for absolute discharge of a patient.

Section 42Bprovides for the conditional discharge of a patient. Mr Ha was conditionally discharged under this section. He is required to comply with conditions (MHO s.42B(2)). If he fails to comply with the conditions, and the Medical Superintendent considers it is necessary in the interests of the patients’ health or safety, or for the protection of other persons, the patient (i.e. Mr Ha) can be recalled to a mental hospital (MHO s.42B(3)).

Section 59Bprovides that “a conditionally discharged patient within the meaning of section 42B” can apply to the MHRT to review his/her case. this application may be made by the patient himself, or by his relative. Applications shall be made after 12 months of his detention, or after 12 months of the determination of a previous review.

Section 59G provides that the Chief Justice may make rules with respect to the making of applications to the MHRT, and with respect to its proceedings, and matters incidental to or consequential on such proceedings.

The Mental Health Review Tribunal Rules (Cap. 136C) were made pursuant to section 59G. they provide for:

(a) the procedure for making an application (r. 3)

(b) representation by an authorised person (r. 9(1))

(c) appointing a representative by the MHRT to represent the patient (r. 9(3))

(d) allowing the patient to be accompanied by other persons at the hearing, (r. 9(6))

(e) disclosure of documents to barrister or solicitor, if they are appointed to represent the patient at the MHRT proceedings (r. 11(3))

(f) giving directions as it thinks fit to ensure the speedy and just determination of the application (r. 12)

Duty to provide information: Section 68A

The MHO also imposes a statutory duty to give information to detained patients, under section 68A of the MHO.

The issues

Mr Ha advanced the following grounds in his application:

Breach of statutory duty (s.68A) and common law duty by the Hospital and HA: The failure of PYNEH / the Medical Superintendent and the HA  to take any steps to advise Mr Ha and other patients of their rights to representation, legal representation and of the availability of legal aid, as procedurally unfair at common law and a breach of their constitutional rights to liberty, access to the MHRT and to a fair hearing, and in breach of MHO s.68A;

Breach of common law duty by the MHRT: the MHRT likewise failed to ensure that the Applicant was appropriately represented.

The Court of First Instance’s decision

Section 68A does not apply to conditionally discharged patients

The CFI held that MHO s.68A only applies to patients in detention, and not to patients who are not in detention because they have been discharged absolutely or conditionally.

The MHO as a whole draws the distinction between (i) a patient who is detained, or who is liable to detention, and (ii) a patient who has been discharged from detention, or who is no longer liable to detention. A patient may only be detained if he is liable to detention, and if he is no longer liable to detention he must be discharged.

The wording of MHO s.42B makes it clear that a conditionally discharged patient is regarded as a patient discharged, unless and until he may be detained again.

The purpose and intent of MHO s.68A sought to ensure every patient being detainedand one of his relatives is informed of the patient’s rights under the MHO. It does not apply to patients who are discharged and not being detained.

The wordings of MHO s.68A also supports the above analysis, as MHO s.68A refers to patients who are “for the time being detained”, their rights of applying to the MHRT in respect of their detention and providing information about their application for discharge.

These points are given practical effect by the use of standard forms.

In any event, MHO s.68A does not impose a positive duty on the Hospital or HA to inform patients or their relatives of the patients’ rights to representation, to legal representation and the availability of legal aid on an application to the Tribunal. (§179).

Common law duty: stepping in to fill in the gaps

As MHO s.68A does not extend to patients made subject to conditional discharge orders, then the common law will step in to protect the same rights to the same extent.

Thus, the Medical Superintendent and the HA are under a common law duty to take such steps are necessary to ensure that conditionally discharged patients understand their rights under MHO s.59B to apply to the MHRT for discharge or review.

However, this duty does not extend to a positive duty to provide information as to the ability for an applicant to the MHRT to be represented, or legally represented, or to the possibility of obtaining legal aid for the MHRT separately.

Separately, in relation to the MHRT, there is no positive duty to advise applicants of their rights to be represented, legally represented, or to the possibility of obtaining legal aid. The MHRT Rules, which govern the procedure of the MHRT, provide sufficiently for the fairness of the process before it.

Extension of time granted

The CFI further finds that this is an appropriate case to grant the extension of time within which to have commenced the proceedings (as opposed to the 3-month rule), and the proceedings have some utility. The intended challenge also gives rise to plainly arguable grounds, with questions of general and public importance raised in the application.

An extension of time was granted accordingly.

Conclusion

The determination of the judicial review turned on the proper construction of statutory provisions and/or findings as to what are the effects of the common law or constitutional provisions. They are applicable to the Applicant as an individual, and to any other person in his category (i.e. being a patient conditionally discharged under MHO s.42B).

The CFI, in a nutshell, made the following findings:

· MHO s.68A applies only to detainedpatients, not conditionally discharged patients.

· The statutory duty (under s.68A) does not extend to conditionally discharged patients.

· However, as conditionally discharged patients are not covered by s.68A, common law steps in to fill the gap.

· The medical superintendent and the HA are under a common law duty to take such steps as are reasonably practicable to ensure that conditionally discharged patients understand their rights to apply to the MHRT for absolute discharge or review, under MHO s.59B.

· However, this does not extend to a positive duty to provide further information as to the availability of representation, or legal aid.

· As to the MHRT, there is no positive duty on them to advise applicants of the right to representation, or legal aid. The MHRT Rules provide sufficient safeguard for the MHRT process.

This judgment clarifies the difference between a “detained” patient and a “discharged” patient and confirms the scope of the medical superintendent’s and the HA’s common duty to inform conditionally discharged patients of their rights to apply to the MHRT for a review.

The CFI holds the further view that the ‘Guidelines on Conditional Discharge’ issued by the HA on 22 December 2023, which is made available to patients upon a conditional discharge, is not specific enough. Inevitably, revisions will have to be made to ensure that the HA complies with its common law duty, as set out above.

We remain hopeful that the HA and the medical superintendents will revise their policies, such that steps as reasonably practicable are taken to ensure conditionally discharged patients understand their rights to apply to the MHRT for review or absolute discharge.

For more information about Azan and Christie, please visit here.

Full judgment is available here.