MENTAL HEALTH ORDINANCE

MENTAL HEALTH ORDINANCE

LAWS OF HONG KONG

MENTAL HEALTH ORDINANCE

CHAPTER 136





CHAPTER 136

MENTAL HEALTH ORDINANCE

ARRANGEMENT OF SECTIONS

Section page

PART 1

PRELIMINARY

1. Short title .......................................... 5
2. Interpretation .......................5
3. Declaration of mental hospitals ...... 7

4. Appointment of medical superintendents and assistant medical super-

intendents ..............................8
5. Appointment and duties of visitors ... 8
6. Delegation .................................................... 8

PART 11

PROCEEDINGS IN INQUIRIES INTO MENTAL
DISORDERS

7. Court may order inquiry .............. 8

8. Provision as to notice of inquiry..... 9

9. Power to examine person alleged to be mentally disordered 9
10. Questions to be decided by Court ....9
11. Appointment of committees ...........10
12- Powers of management of estate of mentally disordered person 10
13. Powers of Registrar .................10
14. What relatives may attend proceedings 11
is. Orders may be made on petition ......11
16. Dealing with mentally disordered person's property for certain purposes 11
17. Committee to execute instruments ....11
18. Performance of contract .............12
19. Partner found to he mentally disordered 12
20. Disposal of business premises .......12

21. Committee may dispose of lease ....................... 12
22. Transfer of stock of mentally disordered person 12

23. Transfer of property of mentally disordered person residing out of Hong

Kong ....................................13
24. Power to order maintenance without appointing committee 13

25. Temporary provision for maintenance of mentally disordered person 13





Section..................................... Page
26. Order for detention of mentally disordered person 14
27. Annulling proceedings ................14
28. Discharge of person found on inquiry not to be of unsound mind 14

PART III

RECEPTION, DETENTION AND TREATMENT
OF MENTALLY
DISORDERED PERSONS

29. (Repealed) ...........................15
30. Voluntary patients ...................15
31. Detention of a patient under observation 16
32. Extension of period of detention of a patient under observation 17
33. Application for guardianship .........17
34. Effect of guardianship application, etc . 18
35. Transfer of guardianship in case of death, incapacity, etc. of guardian 19
35A.....................General provisions as to applications 20
36. Detention of certified patients ......20
37. (Repealed) ...........................22
38. Temporary transfer of patients .......22
39. Absence on trial .....................22

40-41. (Repealed) ........................23

42. Discharge of patient before recovery ...............................
23

42A..............................Discharge of patient 23
42B.........Conditional discharge of patients with propensity to violence 24
43. Detention and recapture ..............25
44. Removal of patient from Hong Kong ....27

PARTIV

ADMISSION OF PATIENTS CONCERNED IN CRIMINAL
PROCEEDINGS
AND TRANSFER OF PATIENTS UNDER SENTENCE

45..............Powers of court or magistrate to make a hospital order 27
46........................Requirement as to medical evidence 29
47.............................Effect of hospital order 29
48..........................Appeal against hospital order 30
49..........................Hospital Order Appeal Tribunal 31





Section................................... Page
50. Period of detention under this Part ..31
51. Remand ...............................31
52. Removal to a mental hospital of a person serving a sentence of imprisonment 33
52A.......................................Removal to a Correctional Services Department Psychiatric Centre of persons

detained in a mental hospital
..................................... 34

52B. Removal to a mental hospital of persons detained in the Correctional Services

Department Psychiatric Centre ..........................................
35

53.......................................Removal to a mental hospital of other prisoners 35
54.......................................Further provisions as to persons committed for trial or sentence or on remand 36
54A......................................Hospital order in respect of persons awaiting trial or sentence 37
55.......................................Removal of prisoners for observation 37
56.......................................Medical reports on persons on remand 38

57. Persons ordered to be admitted to a mental hospital under Criminal

Procedure Ordinance ................39

58. Temporary transfer for specialist medical treatment of patients concemed in

criminal proceedings
.............................................. 39

59.......................................Removal to prison of persons subject to a hospital order 39

PART IVA

MENTAL HEALTH REVIEW TRIBUNAL

59A......................Mental Health Review Tribunal 39

59B......................................Applications to the tribunal 40

59C......................References to tribunals by Governor
.............................................. 41

59D.....................................Duty to refer cases to tribunal 41

59E...........Powers of the tribunal
................................................................................... 42

59F......................................General provisions concerning tribunal application 43
59G......................................Procedure of the tribunal 43

59H......................The tribunal: supplementary provisions
.............................................. 45

PART V

GENERAL PROVISIONS

60.......................................Saving of powers 45

61.......................Amendment of orders
.............................................. 45

62.......................................Application of property of a mentally disordered person found wandering 46





Section.................................... Page
63. Enforcement of cost of maintenance ....46
64. Saving ................................46
65. Offences against patients .............46
65A........................................Sexual intercourse with a woman under guardianship 47
66. Construction of laws ..................47
67. Medical orders or certificates ........47
68. Copy of reception order to be sent to the person in charge of the mental
hospital ............................................................................................................... 48
68A.......................................Duty to give information to detained patients 48
69........................................Protection of persons carrying out the provisions of this Ordinance 48
70........................................Penalty for improper reception or detention 49
71........................................Powers of a District Judge and a magistrate 49
71A.......................................Warrant to search for and remove patients 49
71B.......................................Mentally disordered persons found in heed of cam or control so
72. Power to..........................make regulations
............................................................................... 51





CHAPTER 136

MENTAL HEALTH

To amend and consolidate the law relating to mental disorder and its treatment and
to make provision for the reception, detention and treatment of persons of
unsound mind.

[19January19621 G.N.A.2of1962

Originally 35 of 1960 45 of 1961, 40 of 1962, 3 of 1968, 42 of 1968, 35 of 1969, 50 of 1969,
L.N. 176 of 1970, L.N. 72 of 1971, 55 of 1971, 12 of 1972, 34 of 1972, L.N. 183 of 1972,
37 of 1973, L.N. 123 of 1982, R. Ed. 1982,46 of 1988, L.N. 76 of 1989

PART 1

PRELIMINARY

1. Short title

This Ordinance may be cited as the Mental Health Ordinance.

2. Interpretation

(1) In this Ordinance, unless the context otherwise requires-

'approved social worker means a social worker approved for the purposes of this
Ordinance by the Director of Social Welfare; (Added46of 1988s. 2)

'certified patient means a person who is detained in a mental hospital in accordance
with the provisions of section 36;

'chairman' means chairman of the tribunal; (Added46of 1988s. 2)

'Correctional Services Department Psychiatric Centre' means the Correctional
Services Department Psychiatric Centre set apart as a prison under section 4 of
the Prisons Ordinance(Cap. 234); (Added37of 1973s. 2)

'Court' means the High Court and any judge of the High Court;

Director of Social Welfare' includes an assistant director of social welfare;

'guardian' in relation to a person under the age of 16 years includes any person
having charge of the person under the age of 16 years and the Director of Social
Welfare and in relation to a person received into guardianship pursuant to an
application under section 33, the person in whom the powers specified in
section 34(1) are vested; (Amended46of 1988s.2)

'hospital order' 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; (Amended37of 1973s. 2;46of 1988s.2)

'medical. officer' means a registered medical practitioner in the full time employment
of Government;

'medical superintendent' means the medical superintendent or an assistant medical
superintendent of a mental hospital appointed in accordance with the
provisions of section 4;

'mental disorder' means mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind; (Replaced 46
of 1988 s. 2)

'mental hospital' means any place declared to be a mental hospital in accordance
with the provisions of section 3;

'mental hospital visitor' means a person appointed to be a mental hospital visitor in
accordance with the provisions of section 5 while he is so appointed;

'patient' means a person suffering or appearing to be sufFering from mental
disorder; (Replaced 46of 1988s.2)

'patient under observation' means a person who is detained in a mental hospital in
accordance with the provisions of section 31 or 32;

'prescribed form' means a form provided by regulations; (Amended 46 of 1988s.2)

'psychopathic disorder' means a persistent disorder or disability of mind (whether
or not including significant impairment of intelligence) which results in
abnormally aggressive or seriously irresponsible conduct on the part of the
person concemed; (Added46of 1988s.2)

'registered medical practitioner' means a person who is registered or who is deemed
to be registered in accordance with the provisions of the Medical Registration
Ordinance(Cap. 16 1);

'Registrar' means the Registrar of the Supreme Court;

'regulations' means regulations made under section 72; (Added46 of 1988 s.2)

'relative' in relation to a patient means any of the following persons being, in the
case of the persons referred to in paragraphs (b) to (i) of this definition,
persons of or above the age of 18 years

(a)husband or wife, or reputed husband or wife who is living with the
patient or, if the patient is for the time being an in-patient in a hospital
or in the Correctional Services Department Psychiatric Centre, was so
living when the patient was last residing at liberty out of a hospital or
the Centre;

(b) son or daughter;

(c) father or mother;

(d) brother or siser;





(e) grandparent;

(f) grandchild;

(g) uncle or aunt;

(h) nephew or niece;

(i)any person with whom the patient ordinarily resides or, if the patient is
for the time being an in-patient in a hospital or in the Correctional
Services Department Psychiatric Centre, with whom he was ordinarily
residing when last at liberty out of a hospital or the Centre;
(Added46of 1988s. 2)

'transfer order' means an order issued in accordance with the provisions of
section 52 or 53;

'tribunal' means the Mental Health Review Tribunal established under sec

tion 59A; (Replaced 46 of 1988 s. 2)

'voluntary patient' 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 opinions given for the purposes of sections 32, 33 and 36, at
least one shall be given by a practitioner approved for the purposes of this section
by the Director of Hospital Services as having special experience in the diagnosis or
treatment of mental disorder. (Added46 of 1988 s. 2. Amended L.N. 76 of 1989)

(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. (Added46 of 1988s.2)

(4) Any function vested in the Director of Social Welfare by this Ordinance may
be exercised on his behalf by any public officer authorized in that behalf by the
Director of Social Welfare. (Added46 of 1988 s. 2)

(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.
(Added46of 1988s.2)

3. Declaration of mental hospitals

(1) The Governor 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 Governor 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.





4. Appointment of medical superintendents
and assistant medical superintendents

(1) The Governor 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 not in the
employment of Government, the Governor may appoint the registered medical
practitioner to be the medical superintendent or an assistant medical super-
intendent of a mental hospital.
(3) Notification of every such appointment shall be published in the
Gazette.

5. Appointment and duties of visitors

(1) The Governor may appoint mental hospital visitors for every mental
hospital.
(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)

6. Delegation

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.

PART 11

PROCEEDINGS IN INQUIRIES INTO MENTAL DISORDERS

7. Court may order inquiry

(1) The Court may, on such application as is hereinafter mentioned, make
an order directing an inquiry whether any person subject to the jurisdiction of
the Court who is alleged to be a mentally disordered person is of unsound mind
and incapable of managing himself and his affairs.
(2) Such order may also contain directions for inquiries concerning the
nature of the property belonging to the person alleged to be mentally





disordered, the persons who are his relative or next-of-kin, the time during which he
has been of unsound mind or such other questions as to the Court shall seem
proper.

(3) Application for such inquiry may be made by any person related by blood
or marriage to the person alleged to be a mentally disordered person, or by any
public officer nominated by the Chief Secretary.

8. Provision as to notice of inquiry

(1) Reasonable notice of the time and place appointed for the inquiry shall be
given to the person alleged to be a mentally disordered person:

Provided that if it shall appear that the person alleged to be a mentally
disordered 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 person related by blood or marriage to the person alleged to be a mentally
disordered person.

9. Power to examine person alleged

to he mentally disordered

At any time after the application for the inquiry the Court may require the
person alleged to be a mentally disordered 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 disordered person for the purpose of a personal
examination.

(Amended 46 of 1988 s. 32)

10. Questions to be decided by Court

(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 disordered person is or is not of unsound mind and
incapable of managing himself and his affairs and shall also decide any other
questions as to which an inquiry has been directed.

(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 the
Chief Secretary or against any public officer nominated under section 7.

11. Appointment of committees

(1) If the Court finds that the person who is alleged to be a mentally
disordered person is of unsound mind and incapable of managing himself and
his affairs, the Court may, if it shall think fit, appoint a committee of the person
and estate 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.
(2) If the Court finds that the person who is alleged to be a mentally
disordered person is incapable of managing his affairs, but is not dangerous to
himself or to others, the Court may appoint a committee of his estate, without
appointing a committee of his person.

12. Powers of management of estate
of mentally disordered person

The Court may, on the appointment of a committee of the person or estate
of a mentally disordered 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:
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.

13. Powers of Registrar

(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 disordered 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.
(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.





14. What relatives may attend proceedings

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.

15. Orders may be made on petition

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.

16. Dealing with mentally disordered person's
property for certain purposes

The Court may, if it appears to be just or for the benefit of the mentally
disordered person, order that any property, movable or immovable, and
whether in possession, reversion, remainder, contingency or expectancy, be
sold, charged by way of mortgage or otherwise disposed of as may seem most
expedient for the purpose of raising money to be applied for any of the
following purposes-
(a)the payment of his debts, including any debt incurred for his
maintenance or otherwise for his benefit;
(b) the discharge of any incumbrance on his estate;
(c)the payment of or provision for the expenses of his future
maintenance and the maintenance of his family, including the
expenses of his removal to his country of origin or elsewhere,
when he shall be so removed, and all expenses incidental thereto;
(d)the payment of the costs of any proceeding under this Ordinance
and of any costs incurred by order or under the authority of the
Court.

17. Committee to execute instruments

(1) The committee of the estate of the mentally disordered 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 disordered person whether





the same are vested in him for his own benefit or in the character of trustee or
guardian.

18. Performance of contract

Where a person having contracted to sell or otherwise dispose of his estate or
any part thereof afterwards becomes mentally disordered, the Court may, if the
contract is such as the Court thinks ought to be performed, direct the committee of
the estate to execute such conveyances and to do such acts in fulfilment of the
contract as it shall think proper.

19. Partner found to he mentally disordered

If a member of a partnership firm be found to be mentally disordered, the Court
may, on the application of the other partners or of any person who appears to the
Court to be entitled to require the same, dissolve the partnership; and thereupon, or
upon a dissolution by decree of Court or otherwise by due course of law, the
committee of the estate may, in the name and on behalf of the mentally disordered
person, join with the other partners in disposing of the partnership property upon
such terms, and shall do all such acts for carrying into effect the dissolution of the
partnership, as the Court shall think proper.

20. Disposal of business premises

Where a mentally disordered person has been engaged in business the Court
may, if it appears to be for the benefit of his estate that the business premises should
be disposed of, order the committee of the estate to sell and dispose of the same,
and the moneys arising from such sale shall be applied in such manner as the Court
shall direct.

21. Committee may dispose of lease

Where a mentally disordered 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.

22. Transfer of stock of mentally disordered person

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





disordered person beneficially entitled thereto or a committee of the estate of a
mentally disordered person or a trustee for him, and the committee or trustee
dies intestate or himself becomes a mentally disordered 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)

23.Transfer of property of mentally disordered
person residing out of Hong Kong
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 of unsound mind 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)

24. Power to order maintenance without
appointing committee

If it appears to the Court, having regard to the situation and condition in
life of the mentally disordered 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.

25.Temporary provision for maintenance
of mentally disordered person
If it appears to the Court that the unsoundness of mind of a mentally
disordered 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.

26. Order for detention of mentally disordered person

When upon any inquiry under this Part any person has been found by the
Court to be of unsound mind and incapable of managing himself and his
affairs, the Court shall either 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, or, if any friend or
relative of such person shall undertake in writing to the satisfaction of the
Court that such person shall be properly taken care of and shall be prevented
from doing injury to himself or others, make him over to the care of such friend
or relative.

27. Annulling proceedings

(1) When any person has been found of unsound mind 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 unsoundness of mind has ceased, the Court
may make an order for inquiry whether such person is still of unsound mind
and incapable of managing himself and his affairs.
(2) The inquiry shall be conducted in the same manner subject to the
same rules as are hereinbefore described for an inquiry into the unsoundness of
mind of a person alleged to be mentally disordered.
(3) If it be found on such inquiry that the unsoundness of mind has
ceased, 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.

28. Discharge of person found on inquiry
not to he of unsound mind

When after inquiry into the unsoundness of mind of any person detained in
a mental hospital, the Court has made an order under section 27 that the
proceedings shall cease or be set aside, the medical superintendent of the mental
hospital shall forthwith, on the production of a certified copy of such order,
discharge from such mental hospital the person whose unsoundness of mind has
ceased.





PART 111

RECEPTION, DETENTION AND TREATMENT OF MENTALLY
DISORDERED PERSONS

29. (Repealed 46 of 1988 s. 4)

30. Voluntary patients
(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 super-
intendent 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.





31. Detention of a patient under observation

(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)

(IA) 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

(e)a statement of the reasons for that opinion so far as it relates to the
conditions set out in subsection (1)(b). (Added46 of 1988 s.5)

(IB) 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. (Added46of
1988s. 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 (I B)-

(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 (IA) 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.

32. Extension of period of detention
of a patient under observation
(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 sec-
tion 3 1, (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)

33. Application for guardianship
(1) A patient who has attained the age of 18 years may be received into
guardianship in pursuance of an application (in this Part referred to as 'a
guardianship application') made to the Director of Social Welfare in
accordance with this section.
(2) A guardianship application may be made in respect of a patient on the
grounds that-
(a)he is suffering from mental disorder of a nature or degree which
warrants his reception into guardianship under this section; and
(b)it is necessary in the interests of the welfare of the patient or for
the protection of other persons that the patient should be so
received.
(3) A guardianship application shall be founded on the written opinions
in the prescribed form of 2 registered medical practitioners, and each opinion
shall include-





(a)a statement that in the opinion of the practitioner the conditions set
out in subsection (2) 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 (2)(a); and

(c)a statement of the reasons for that opinion so far as it relates to the
conditions set out in subsection (2)(b).

(4) A guardianship application shall state the age of the patient or, if his exact
age is not known to the applicant, shall state (if it be the fact) that the patient is
believed to have attained the age of 18 years.

(5) The person named as guardian in a guardianship application may be either
the Director of Social Welfare or any other person (including the applicant himself);
but a guardianship application in which a person other than the Director of
SocialWelfare is named as guardian shall be of no effect unless it is accepted by the
Director of Social Welfare and is accompanied by a statement in writing by that
person that he is willing to act as guardian.

(6) Where a guardianship application names a person other than the Director of
Social Welfare as the guardian and the Director determines not to accept that person
as the guardian the Director may appoint himself to be the guardian and, if he does
so, shall notify the applicant accordingly.

(Replaced 46 of 1988 s. 7)

34. Effect of guardianship application, etc.

(1) Where a guardianship application, duly made under the provisions of this
Part and forwarded to the Director of Social Welfare within the period allowed by
subsection (2), is accepted by him, or he appoints himself to be the guardian under
section 33(6), the application shall, subject to the regulations, confer on him or the
person named in the application as guardian, to the exclusion of any other person

(a)the power to require the patient to reside at a place specified by him or
the person named as guardian;

(b)the power to require the patient to attend at places and times so
specified for the purpose of medical treatment, occupation, education
or training;

(c)the power to require access to the patient to be given, at any place
where the patient is residing, to any registered medical practitioner,
approved social worker, or other person so specified.

(2) The period within which a guardianship application is required for the
purposes of this section to be forwarded to the Director of Social Welfare is the
period of 14 days beginning with the date on which the patient was last examined by
a registered medical practitioner before giving a medical opinion for the purposes of
the application.





(3) If within the period of 14 days beginning with the day on which
a guardianship application has been accepted by the Director of Social
Welfare the application, or any medical opinion given for the purposes of the
application, is found to be in any respect incorrect or defective, the application
or opinion may, within that period and with the consent of the Director, be
amended by the person by whom it was signed; and upon such amendment
being made the application or opinion shall have effect and shall be deemed to
have had effect as if it had been originally made as so amended:
Provided that the Director shall not consent to an amendment which in his
opinion has the effect of making a change of substance to any medical opinion.
(4) Where a patient is received into guardianship in pursuance of a
guardianship application, any previous application under this Part by virtue of
which he was subject to guardianship or liable to be detained in a mental
hospital shall cease to have effect.
(5) The guardianship of a patient shall cease to be of any effect on the
expiration of 2 years from its commencement unless it is-
(a) meanwhile discharged; or
(b) renewed by a further application under section 33.
(Replaced 46 of 1988 s. 7)

35. Transfer of guardianship in case of death,
incapacity, etc. of guardian

(1) If any person (other than the Director of Social Welfare) who is the
guardian of a patient received into guardianship under this Part-
(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 patient shall thereupon vest in the Director of Social
Welfare.
(2) If any such guardian, not having given notice under subsection (1)(b),
is incapacitated by illness or any other cause from performing the functions
of guardian of the patient, those functions may, during his incapacity, be
performed on his behalf by the Director of Social Welfare or by any other
person approved for the purposes by the Director of Social Welfare.
(3) If it appears to a District Judge, upon application made by the
Director of Social Welfare, or by a patient or a relative of a patient, that it
would be in the interests of the patient for the guardianship of the patient to be
transferred to the Director of Social Welfare or to any other person approved
for the purpose by the Judge, the Judge may make an order so transferring the
guardianship.
(4) In such circumstances, by such procedures and subject to such
conditions as may be prescribed by regulations-





(a)a patient who is for the time being liable to be detained in a
mental hospital under this Part may be transferred into the
guardianship of the Director of Social Welfare or another
person;
(b)a patient who is for the time being subject to the guardianship of
the Director of Social Welfare or other person by virtue of an
application under this Part or the operation of subsection (1) may
be transferred into the guardianship of another person or, as the
case may be, of the Director of Social Welfare, or be transferred
to a mental hospital.
(5) A patient transferred to a mental hospital in the manner referred to in
subsection (4)(b) shall be deemed to be detained under an order made under
section 3 1 (1B) upon the date of the transfer.

35A. General provisions as to applications
(1) Subject to the provisions of this section, an application under sec-
tion 3 1 (1) for detention for observation, and a guardianship application under
section 33(1), 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) or
application for guardianship under section 33(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.
(Added46of 1988s. 7)

36. Detention of certified patients
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 illness, amounting to mental
disorder of a nature or degree which makes it appropriate for him
to receive medical treatment in hospital; and
(ii) it is necessary for the health or safety of the patient or for
the protection of other persons that he should receive such treat-
ment 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 of
a court.(Added46 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. (Added46 of 1988 s. 8)

(Amended 35 of 1969 s. 2)

37. (Repealed 46 of 1988 s. 9)

38. Temporary transfer of patients

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 special treatment 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.

(Amended46of 1988s. 10)

39. Absence on trial

(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. (Amended46of 1988s. 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 46of 1988s.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. (Amended46of
1988s.]])





(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. (Added46of
1988s. 11)

40-41. (Repealed 46 of 1988 s. 12)

42. Discharge of patient before recovery

(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

(e)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)

42A. Discharge of patient

(1) Subject to section 42B a patient who is for the time being liable to be
detained or subject to guardianship shall cease to be so liable or subject if there is
made in accordance with this section an order in writing discharging him from
detention or guardianship (referred to as an 'order for discharge' in this section and
section 42B, but subject to subsection (6) of that section).

(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)where the patient is subject to guardianship, by the Director of Social
Welfare.

(Added46of 1988s. 14)

42B. Conditional discharge of patients
with propensity to violence

(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;

(e) 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
conditonally 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 3 1 (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 Governor given under section 47(1A)(b);

(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 Director of Hospital
Services; and (Amended L.N. 76 of 1989)

(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.

(Added46of 1988s. 14)

43. Detention and recapture

(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 provisions 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) Where a patient who is for the time being subject to guardianship under this
Part absents himself without the leave of the guardian from the place where he is
required by the guardian to reside, he may, subject to this section, be taken into
custody and returned to that place by the guardian or by the Director of Social
Welfare.

(5) Where a conditonally 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 or subject to
guardianship, as the case may be, at the expiration of that period:

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.





1 (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)

44. Removal of patient from Hong Kong
(1) Where an alien or any person not domiciled in Hong Kong is detained
as a mentally disordered person and it appears expedient that he should be
removed to the country of which he is a national, the Chief Secretary 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 mentally disordered person 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.
(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.
(Amended 46 of 1988 s. 32)

PARTIV

ADMISSION OF PATIENTS CONCERNED IN CRIMINAL PROCEEDINGS
AND TRANSFER OF PATIENTS UNDER SENTENCE

45. Powers of court or magistrate
to make a hospital order
(1) Where-
(a) a person is-
(i) convicted by the High Court or a District Court of an
offence other than an offence the sentence for which is fixed
by law;





(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 an 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.
(Amended37of 1973s. 3)
(IA) 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. (Added46 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' 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.]

46. Requirement as to medical evidence

(1) Of the registered medical practitioners whose evidence is received in
accordance with section 45(1)(b), 49(3) or 54(3) at least one shall be a medical
officer.
(2) For the purpose of section 45(1)(b), 49(3) 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) or 49(3) 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.
(Amended46of 1988s. 16)
[cf. 1959 c. 72 s. 62 U.K.]

47. Effect of hospital order

(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. (Amended37of 1973s.4)
(IA) 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 Governor. (Added37of 1973s.4)
(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 Governor. (Replaced 46
of 1988 s. 17)
(3) Where-
(a)a person is admitted to the Correctional Services Department
Psychiatric Centre; or
(b) a patient is admitted to a mental hospital,
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
1973s.4)
[cf. 1959 c. 72 s. 63 U.K.]

48. Appeal against hospital order

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.]





*49. Hospital Order Appeal Tribunal

(1) For the purpose OF of considering petitions to the Governor in Council

in accordance with section 50, there shall be a tribunal to be known as the
Hospital Order Appeal Tribunal which shall consist of a chairman and not
more than 5 other members appointed by the Governor.

(2) Members of the tribunal shall hold office for 3 years from the dates of their
respective appointment and may be reappointed or removed by the Governor at his
pleasure.

(3) There shall be a secretary to the tribunal who shall be appointed by the
Governor.

(4) The tribunal may make standing orders for its procedure in the transaction
of its business and maintenance of good order at its meetings:

Provided that a copy of each such standing order shall be furnished to the
Chief Secretary and shall be subject to disallowance or amendment at any time by
the Governor.

(5) The quorum necessary for the transaction of the business of the tribunal
may be fixed by standing orders and, unless so fixed, 3 members shall form a
quorum.

50. Period of detention under this Part

Subject to section 49, no person shall be detained

(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)

51. Remand

(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 111 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

*To be repealed and replaced by 46 of 1988 s. 18-see L.N. 420 of 1989





imprisonment or an indictable offence of which the magistrate
has convicted the accused summarily, may be or is alleged to be a
mentally disordered person, the court or magistrate may remand
such person- (Amended 46of 1988s. 19)
(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 for
observation, investigation and treatment.
(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 as may be specified in the
recognizance; or

(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)

52. Removal to a mental hospital of a person

serving a sentence of imprisonment

(1) If the Governor 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 Governor 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 111 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 Governor. (Replaced 46 of 1988 s. 20)
(4) If the Governor 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 Governor
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' 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)
[cf. 1959 c. 72 s. 72 U.K.]

Psychiatric Centre of persons detained in a
mental hospital

(1) The Governor 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 Governor.

(Added37of 1973s. 5)

detained in the Correctional Services
Department Psychiatric Centre

(1) The Governor 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 Governor.

(Added46of 1988s. 21)

53. Removal to a mental hospital of other prisoners

(1) If the Governor 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 Governor may by transfer
order direct that the person be removed to and detained in a mental hospital.





(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 High Court or by a District Court to await
a judgment or sentence which has been respited;

(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)

detained in any place by virtue of the Immigration Ordinance (Cap.
115). (Replaced 55 of 1971 s. 66)

(3) The provisons 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.]

54. Further provisions as to persons committed

for trial or sentence or on remand

(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 34of 1972s. 22)

(2) Where a transfer order has been given in accordance with section 53(1)

(a)if the Governor 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 Governor 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 34of 1972s. 22)

(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- (Amended40 of 1962s. 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.]

54A. Hospital order in respect of persons
awaiting trial or sentence

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 1973s. 6)

55. Removal of prisoners for observation

(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.

56. Medical reports on persons on remand

(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) if the prisoner is charged with a capital offence, may; and

(b) if the Attorney General makes application in writing to the
Commissioner of Correctional Services in respect of the prisoner,
whether the prisoner is charged with a capital offence or not, shall,

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 has been committed in custody for trial charged with a capital
offence or if he is the subject of an application by the Attorney General 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
Attorney General 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.

(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.





57.Persons ordered to he admitted to a
mental hospital under Criminal
Procedure Ordinance

Notwithstanding anything contained in section 76 of the Criminal Procedure
Ordinance (Cap. 221), the Governor 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)

58. Temporary transfer for specialist medical
treatment of patients concerned
in criminal proceedings

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).

(Added40 of 1962s. 7. Amended 34 of 1972s. 22)

59. Removal to prison of persons
subject to a hospital order

If the Governor 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
Governor 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.

(Added40 of 1962s. 7. Amended 34 of 1972s. 22;46of 1988s. 22)

PART IVA

MENTAL HEALTH REVIEW
TRIBUNAL

59A. 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. (2) The tribunal shall consist of

(a)a chairman appointed by the Governor and having such legal
experience as the Governor considers suitable;





(b)persons (referred to in this Part as 'the medical members') being
registered medical practitioners appointed by the Governor on the
recommendation of the Director of Hospital Services; (AmendedL.N. 76
of 1989)

(e)persons (referred to in this Part as 'the social work members')
appointed by the Governor who have such experience and knowledge
of social work as the Governor considers suitable; and

(d)persons appointed by the Governor and having such experience and
knowledge of administration, clinical psychology, or such other
qualifications or experience, as the Governor considers suitable.

(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 Governor.

(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 Supreme Court may defray the expenses of the tribunal
to such amount as he may, with the consent of the Financial Secretary, determine.

(8) There shall be a secretary to the tribunal who shall be appointed by the
Governor.

(9) The persons recommended to the Governor by the Director of Hospital
Services 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)

59B. Applications to the tribunal

(1) An application may be made to the tribunal for the review of the case of any
person 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 until Her Majesty's pleasure is known.

(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;

(e) a person admitted to guardianship.

(3) An application under subsection (1) or (2) may be made by

(a) the patient; or

(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.

59C. References to tribunals by Governor

(1) The Governor may, if he thinks fit, at any time refer to the tribunal the case
of any person to whom section 59B(1) applies.

(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.

59D. Duty to refer cases to tribunal

(1) Whenever a person (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





(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 patent 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.

59E. Powers of the tribunal

(1) Where application is made to the tribunal under section 59B(1) or (2) or a
case is referred to it under section 59C(1) or 59D(1), the tribunal may

(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 Governor and to any public officer as to the
exercise of their powers under this or any other Ordinance.

(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 of facilitating his discharge on a future date, recommend
that he be granted leave of absence or transferred to another mental
hospital or into guardianship; and

(b)further consider his case in the event of any such recommendation
not being complied with.

(5) Where application is made to the tribunal by or in respect of a patient who is
subject to guardianship under this Ordinance, the tribunal may in any case direct
that the patient be discharged, and shall so direct if it is satisfied

(a) that he is not then suffering from mental disorder; or

(b)that it is not necessary in the interests of the welfare of the patient, or
for the protection of other persons, that the patient should remain
under such guardianship.

59F. General provisions concerning tribunal application

(1) No application shall be made to the tribunal by or in respect of a patient
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 by or in respect of a
patient under this Ordinance shall be made by notice in writing addressed to the
tribunal.

59G. Procedure of the tribunal

(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 patient;





(b)for enabling the tribunal to exclude members of the public, or
any specified class of members of the public, from any
proceedings of the tribunal, or to prohibit the publication of
reports of any such proceedings or the names of any persons
concemed in such proceedings;
(c)for regulating the circumstances in which, and the persons by
whom, applicants and patients in respect of whom applications
are made to a tribunal may, if not desiring to conduct their own
case, be represented for the purposes of those applications;
(d)for regulating the methods by which information relevant to an
application may be obtained by or furnished to the tribunal, and
in particular for authorizing members of the tribunal, or any one
or more of them, to visit and interview in private any patient by
or in respect of whom an application has been made;
(c)for making available to any applicant, and to any patient in
respect of whom an application is made to the tribunal, copies of
any documents obtained by or furnished to the tribunal in
connection with the application, and a statement of the substance
of any oral information so obtained or furnished except where
the tribunal considers it undesirable in the interests of the patient
or for other special reasons;
for requiring the tribunal, if so requested in accordance with the
rules, to furnish such statements of the reasons for any decision
given by the tribunal as may be prescribed by the rules, subject to
any provision made by the rules for withholding such a statement
from a patient or any other person in cases where the tribunal
considers that furnishing it would be undesirable in the interests
of the patient or for other special reasons;
(g)for conferring on the tribunal such ancillary powers as the Chief
Justice thinks necessary for the purposes of the exercise of its
functions under this Ordinance;
(h)for enabling any functions of the tribunal which relate to matters
preliminary or incidental to an application to be performed by
the chairman of the tribunal;
(i)for consolidating applications or restricting the number of
applications under section 59B which may be made within any
specified period.
(3) Subsections (1) and (2) apply in relation to references to the tribunal
as they apply in relation to applications to the tribunal by or in respect of
patients.
(4) The rules may be so framed as to apply to all applications or
references to the tribunal, or to applications or references of any specified class,
and may make different provision in relation to different cases.





(5) Any functions conferred on the chairman by the rules may, if for any reason
he is unable to act, be exercised by another member of the tribunal appointed by him
for the purpose.

59H. The tribunal: supplementary provisions

(1) The tribunal shall have power to hear, receive and examine evidence on
oath.

(2) The tribunal may, by notice under the hand of the chairman, summon any
witness and require the production of any document or record or other thing which
is relevant to the proceedings.

(3) Any person on whom a summons under subsection (2) has been served
who

(a)refuses or neglects, without sufficient cause, to appear or produce any
document, record or other thing required to be produced; or

(b) refuses to be sworn or give evidence, commits an offence and is liable
to a fine of $5,000.

(4) The tribunal may pay allowances in respect of travelling expenses,
subsistence and loss of earnings to any person attending the tribunal as an
applicant or witness, to the patient who is the subject of the proceedings if he
attends otherwise than as the applicant or a witness and to any person (other than
counsel or a solicitor) who attends as the representative of an applicant.

(5) The tribunal may, and if so required by the Governor shall, state in the form
of a special case for determination by the High Court any question of law which may
arise before it.

(Part IVA added 46 of 1988 s. 23)

PART V

GENERAL PROVISIONS

60. Saving of powers

Nothing in this Part shall interfere with or derogate from the power vested in
the Court by Part II over any person found to be a mentally disordered person.

61. Amendment of orders

(1) If after the reception of any patient into a mental hospital it appears that the
order or the medical certificate upon which he was received is defective or incorrect,
the same may at any time afterwards be amended, with the sanction of the medical
superintendent, by the person or persons signing the same.





(2) An amendment made under this section shall be effective as from the date of
the reception.

62. Application of property of a mentally

disordered person found wandering

Any movable property which may be in the possession of a mentally disordered
person found wandering at large may be sold by order of a District Judge, and the
proceeds thereof, or such part of the same as may be necessary, applied towards the
payment of the charge of the lodging and maintenance of such person and of any
other expenses incurred on his behalf.

(Amended 35 of 1969 s. 2)

63. Enforcement of cost of maintenance

(1) The Court, on the application of the Attorney General and on being satisfied
that a patient including a person who has been received into a mental hospital in
accordance with section 76 of the Criminal Procedure Ordinance (Cap. 22 1) has
property which may be applied towards his maintenance or that any person is legally
bound to maintain the patient and has sufficient means to enable him to do so, may
make an order for the recovery of the cost of the maintenance of the patient, together
with the costs of the application, out of the property of the patient or from such
person.

(2) Any order made in accordance with the provisions of subsection (1) shall be
of the same force and effect and subject to the same appeal as a judgment or order
made by the Court in any proceedings in respect of the property or of the person
therein mentioned.

64. Saving

Nothing in this Ordinance shall effect or take away from the liability of any
person to maintain a mentally disordered person.

65. Offences against patients

(1) Any attendant, nurse, servant or other person employed in a mental hospital
who ill-treats or wilfully neglects any patient shall be guilty of an offence and shall
be liable on summary conviction to a fine cif $5,000 and imprisonment for 2 years.
(Amended 46 of 1988 s. 24)

(2) Without prejudice to section 125 of the Crimes Ordinance (Cap. 200), any
man who is an officer on the staff of, or is otherwise employed in

(a)a mental hospital, and has unlawful sexual intercourse with a woman
who is detained in that hospital;





(b)the Correctional Services Department Psychiatric Centre and has
unlawful sexual intercourse with a woman who is detained in that
Centre; or

(c)a mental hospital or general hospital, and has unlawful sexual
intercourse with a woman is receiving treatment for a mental disorder
in the mental hospital or the psychiatric unit of the general hospital,
where such intercourse takes place on the premises of the mental
hospital or psychiatric unit or on premises of which the mental
hospital or psychiatric unit forms part,

commits an offence and shall on conviction on indictment be liable to imprisonment
for 5 years. (Replaced 46 of 1988 s. 24)

(3) Consent shall not be a defence in any proceedings for an offence under
subsection (2) if the accused knew, or had reasonable grounds to suspect at the time
when intercourse took place, that the woman with whom he had sexual intercourse
was such a woman as is described in paragraph (a), (b) or (c) of that subsection.
(Replaced 46 of 1988 s. 24)

(4) If on the trial of any person for rape the Court or jury is satisfied that the
accused is guilty of an offence under subsection (2) but are not satisfied that he is
guilty of rape, the Court or jury shall acquit him of rape and shall find him guilty of
an offence under subsection (2).

65A. Sexual intercourse with a woman
under guardianship

Any man who has unlawful sexual intercourse with a woman who is received
into guardianship pursuant to an application under section 33, being a woman

(a) of whom he is the guardian; or

(b) who is otherwise in his custody or care under this Ordinance, commits
an offence and shall on conviction on indictment be liable to imprisonment for 5
years.

(Added46of 1988s. 25)

66. Construction of laws

Whenever in any written law or other document whatsoever any reference to a
lunatic asylum or asylum or mental hospital is contained, that reference shall be read
as a reference to a mental hospital.

(Amended46of 1988s. 26)

67. Medical orders or certificates

Every order or certificate of a medical officer or a registered medical practitioner
shall be evidence of the facts therein appearing and of the judgment





therein stated to have been formed by the person certifying on such facts, as if the
matters therein appearing had been verified on oath.

68. Copy of reception order to he sent to the
person in charge of the mental hospital

The Court making an order under section 26 or a District Judge, magistrate or
justice of the peace making an order under section 31 shall forthwith send a certified
copy of the order to the medical superintendent of the mental hospital into which
any person is ordered to be received.

(Amended 35 of 1969 s. 2; 50 of 1969 s. 3)

68A. Duty to give information to detained patients

The medical superintendent of every mental hospital, and the Superintendent of
the Correctional Services Psychiatric Centre, shall take such steps as are reasonably
practicable to ensure that every patient in the hospital or the Centre, as the case may
be, and a relative of every patient, understand

(a)under which of the provisions of this Ordinance the patient is for the
time being detained and the effect of that provision;

(b)what rights of applying to the tribunal are available to the patient in
respect of his detention under that provision; and

(c) what rights are available to the patient to apply for his discharge, and
those steps shall be taken as soon as practicable after the commencement of the
patient's detention under the provision in question.

(Added46of 1988s. 27)

69. Protection of persons carrying out
the provisions of this Ordinance

(1) Where a person has made application for the removal or detention of any
person under the provisions of this Ordinance, or signed or carried out, or done any
act with a view to signing or carrying out, an order purporting to be an order for
removal or detention, or any report, application, recommendation, or certificate
purporting to be a report, application, recommendation, or certificate under this
Ordinance, or has done anything or given any advice in a professional capacity in
pursuance of this Ordinance, he shall not be liable to any civil or criminal
proceedings whether on the ground of want of jurisdiction or on any other ground
unless he has acted in bad faith or without reasonable care.

(2) No proceedings, civil or criminal, shall be brought against any person in any
Court in respect of any such matter as is mentioned in subsection (1), without the
leave of the Court, and leave shall not be given unless the Court is





satisfied that there is substantial ground for the contention that the person, against
whom it is sought to bring the proceedings, has acted in bad faith or without
reasonable care.

(3) Notice of any application under subsection (2) shall be given to the person
against whom it is sought to bring the proceedings, and that person shall be entitled
to be heard against the application.

70. Penalty for improper reception or detention

(1) Subject to the provisions of section 69 any person who

(a)otherwise than in accordance with the provisions of this Ordinance
receives or detains in a mental hospital a person who is or is alleged
to be a mentally disordered person; or

(b)for gain detains in any place not being a mental hospital 2 or more
mentally disordered persons,

shall be guilty of an offence and shall be liable on summary conviction to a fine of
$20,000 and to imprisonment for 2 years. (Amended 46of 1988s. 28)

(2) No prosecution under this section shall be instituted except by or with the
consent of the Attorney General.

(3) Nothing in this section shall prevent any general hospital or nursing home
which has been recognized as such by the Director of Hospital Services from
receiving and treating any person who is in need of and is desirous of receiving
psychiatric treatment. (AmendedL.N. 76 of 1989)

71. Powers of a District Judge and a magistrate

For the purpose of the exercise of the power conferred by section 31 a District
Judge and a magistrate may exercise the powers conferred on a magistrate by the
Magistrates Ordinance (Cap. 227) of requiring the attendance before him of any
person who may be able to assist him in the exercise of such power and of receiving
on oath the evidence of any person.

(Added50of1969s.4. Amended46of 1988s. 29)

71A. Warrant to search for and remove patients

(1) If it appears to a magistrate on information on oath laid by any person who
is authorized under this Ordinance to take a patient to any place, or to take into
custody or retake a patient who is liable under this Ordinance to be so taken or
retaken

(a)that there is reasonable cause to believe that the patient is to be
found on any premises; and

(b)that admission to the premises has been refused or that a refusal of
such admission is apprehended,





the magistrate may issue a warrant authorizing any police officer or other
person named in the warrant to enter the premises and remove the patient.
(2) If it appears to a magistrate, on information on oath laid by an
approved social worker, that there is reasonable cause to suspect that a person
believed to be suffering from mental disorder-
(a)has been, or is being, ill-treated, neglected or kept otherwise than
under proper control; or
(b)is in need of care or control and, in his own interests or for the
protection of other persons, may need to be taken to a place of
safety,
the magistrate may issue a warrant authorizing any police officer or other
person named in the warrant to enter any premises specified in the warrant in
which that person is believed to be, and, if thought fit, to remove him to a place
of safety.
(3) In the execution of a warrant issued under subsection (1) or (2) the
person named in the warrant-
(a)shall, unless he is an approved social worker or a community
psychiatric nurse, be accompanied by an approved social worker
or by a community psychiatric nurse; and
(b)may use such reasonable force as may be necessary to enter the
premises and remove the patient.
(4) In this section, a 'place of safety' means the accident and emergency
department of any general hospital.
(Added46of 1988s. 30)

71B. Mentally disordered persons found
in need of care or control

(1) If a police officer finds in any place a person whom he reasonably
believes to be suffering from mental disorder and to be in immediate need of
care or control, the officer may, notwithstanding the provisions of section 51 of
the Police Force Ordinance (Cap. 232), take that person into custody and
remove him forthwith to a place of safty if the officer thinks it necessary to do
so in the interests of that person or for the protection of other persons.
(2) A person who is in, or is removed under this section to, a place of
safety may be detained there for a period not exceeding 24 hours for the
purpose of enabling him to be examined by a registered medical practitioner
and of making necessary arrangements for his treatment and care.
(3) Such force as is reasonably necessary may be used for the purposes of
taking a person into custody and removing him to a place of safety, and for
detaining him there, under this section.
(4) In this section a 'place of safety' means the accident and emergency
department of any general hospital.





(5) Nothing in subsection (1) shall confer upon any police officer a right to
enter upon any premises.

(Added46of 1988s. 30)

72. Power to make regulations

(1) The Governor in Council may by regulation provide for-

(a)the powers and duties of medical superintendents and other persons
employed in mental hospitals;

(b)the forms required for the carrying out of the provisions of this
Ordinance and of any regulations made under this section;

(e) the books and records to be kept in mental hospitals;

(d)the conditions and circumstances under which mechanical means of
restraint or seclusion may be applied to patient;

(e)any fees to be charged under this Ordinance or such regulations; the
amounts which may be charged for the maintenance of patients;

(g)regulating the exercise by guardians of patients received into
guardianship under Part 111 of their powers as such; (Replaced
46of1988s.31. Amended L.N. 42 of1989)

(h)imposing on such guardians and on public officers such duties as
may be necessary or expedient in the interests of patients; (Added46
of 1988 s. 31)

(i)any matter which may be prescribed under the regulations by
section35(4); (Added46of 1988s. 31)

(j)the application of Part Ill to a patient transferred in the manner
described in section35(4); (Added46of 1988s. 31)

(k)any matters required or permitted to be prescribed by this
Ordinance;and (Added46of 1988s. 31)

(1)generally, the carrying into effect of the provisions of this Ordinance.
(Added46of 1988s. 31)

(2) Such regulations may provide that the contravention of any regulation shall
constitute an offence and may prescribe penalties for any offence not exceeding a
fine of $1,000 and imprisonment for 6 months.

(3) Regulations under subsection (1)(g) and (h) may in particular make provision
for requiring the patients to be visited on behalf of the Director of Social Welfare, on
such occasions or at such intervals as may be prescribed and may provide for the
appointment, in the case of every patient subject to the guardianship of a person
other than the Director of Social Welfare, of a registered medical practitioner to act as
the medical attendant of the patient. (Added46of 1988s. 31)

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