MENTAL HEALTH REVIEW TRIBUNAL RULES

MENTAL HEALTH REVIEW TRIBUNAL RULES

MENTAL HEALTH REVIEW TRIBUNAL RULES

ARRANGEMENT OF RULES

Rule Page

PART 1

INTRODUCTION

1. Citation .............................C 3
2. Interpretation .......................C 3

PART II

PRELIMINARY
MATTERS

3. Making an application ................C4
4. Notice of application ................C 5
5. Preliminary and incidental matters ...C 5
6. Statements by the responsible authority C 5
7. Notice to other persons interested ...C 6
8. Disqualification of tribunal members .C 6

PART Ill

GENERAL PROVISIONS

9. Representation, etc . ................C 6
10. Medical examination .................C 7
11. Disclosure of documents .............C 7
12. Directions ..........................C 8
13. Evidence ............................C 8
14. Further information .................C 8
15. Adjournment .........................C 8
16. Transfer of proceedings .............C 9
17. Two or more pending applications ....C 9
18. Withdrawal of application ...........C 9

PART IV

THE HEARING

19. Notice of hearing ...................C9
20. Privacy of proceedings ..............C9
21. Hearing procedure ...................C10





Rule Page

PART V

DECISIONS, FURTHER CONSIDERATION AND
MISCELLANEOUS PROVISIONS

22. Decisions ...........................C10
23. Communication of decisions ..........C11
24. Further consideration ...............C11
25. Time ................................C 12
26. Service of notices etc . ............C 12
27. Irregularities ......................C 12
28. Application requiring the leave of the tribunal C 12

PART VI

REFERENCES

29. References ...........................C 13
Schedule. Statements by the responsible authority C 13





MENTAL HEALTH REVIEW TRIBUNAL RULES

(Cap. 136, section 59G)
[29 December 1989]L.N. 420 of 1989

L.N. 305 of 1988 R. Ed. 1988, L.N. 4 of 1989

PART 1

INTRODUCTION

1. Citation

These rules may be cited as the Mental Health Review Tribunal Rules.

2. Interpretation

In these rules, unless the context otherwise requires-

'decision with recommendations' means a decision with recommendations in
accordance with section 59E(1)(b) of the Ordinance;

'guardianship' means guardianship under Part 111 of the Ordinance;

'party' means the applicant, the patient, the responsible authority, and any other
person to whom a notice under rule 7 is sent or who is added as a party by
direction of the tribunal;

'private guardian' in relation to a patient means a person, other than the Director of
Social Welfare, who acts as guardian under the Ordinance;

'proceedings' includes any proceedings of the tribunal following an application or
reference in relation to a patient;

'reference' means a reference under section 59C(1) or 59D(1), of the Ordinance;

'responsible authority' means

(a)in relation to a patient liable to be detained in a mental hospital, or
permitted to be absent under section 39 of the Ordinance, the medical
superintendent;

(b)in relation to a patient liable to be detained in the Correctional
Services Department Psychiatric Centre, the Commissioner of
Correctional Services;

(c)in relation to a patient subject to guardianship, the Director of Social
Welfare; and

(d)in relation to a patient discharged conditionally under section 42B of
the Ordinance





(i) where subsection (6) of that section applies the medical officer
referred to in paragraph (c) of that subsection; and

(ii) in any other case the medical superintendent;

'secretary' means the secretary to the tribunal appointed under section 59A(8)

of the Ordinance.

PART 11

PRELIMINARY MATTERS

3. Making an application

(1) An application shall be made to the tribunal in writing, signed by the

applicant or any person authorized by him to do so on his behalf.

(2) The application shall wherever possible include the following

information-

(a)the name of the patient and the number of any current identity card
issued to the patient under the Registration of Persons Ordinance
(Cap. 177);

(b) the patient's address, which shall include------

(i) the place where the patient is detained; or

(ii)the name and address of the patient's private guardian, and the
number of any current identity card issued to the guardian under
the Registration of Persons Ordinance (Cap. 177); or

(iii) in the case of a conditionally discharged patient or a patient to
whom leave of absence from hospital has been granted, the
place where the patient was last detained or is liable to be
detained, together with the patient's current address and the
address of any psychiatric out-patient clinic that he is required
to attend;

(c)where the application is made by the patient's relative, the name and
address of the applicant, the number of any current identity card
issued to the applicant under the Registration of Persons Ordinance
(Cap. 177), and the relationship of the applicant to the patient;

(d)the section of the Ordinance under which the patient is detained or is
liable to be detained;

(e)the name and address of any representative authorized in accordance
with rule 9 and the number of any current identity card issued to him
under the Registration of Persons Ordinance (Cap. 177) or, if none has
yet been authorized, whether the applicant intends to authorize a
representative or wishes to conduct his own case.





(3) If any of the information specified in subrule (2) is not included in the
application it shall, in so far as is practicable, be provided by the responsible
authority.

4. Notice of application

Within 14 days of the receipt of an applications, or such further time as the
tribunal may allow, the secretary shall send notice of the application to(L.N. 4 of
1989)

(a) the responsible authority; and

(b) the patient (where he is not the applicant).

5. Preliminary and incidental matters

As regards matters preliminary or incidental to an application, the chairman
may, at any time up to the hearing of an application by the tribunal, exercise the
powers of the tribunal under rules 4, 7, 9, 11, 12, 14, 18, 25 and 27. (L.N. 4 of 1989)

6. Statements by the responsible authority

(1) The responsible authority shall send to the tribunal as soon as practicable,
and in any case within 8 weeks of receipt by him of the notice of application, a
statement containing

(a)the information specified in Part A of the Schedule, in so far as it is
within the knowledge of the responsible authority; and

(b) the report specified in paragraph 1 of Part B of the Schedule; and

(e)the other reports specified in Part B of the Schedule, in so far as it is
reasonably practicable to provide them.

(2) Where the patient is a conditionally discharged patient, subrule (1) shall not
apply and the responsible authority shall send to the tribunal as soon as practicable,
and in any case within 8 weeks of receipt by him of the notice of application, a
statement containing

(a)the information specified in Part C of the Schedule, in so far as it is
within the knowledge of the responsible authority; and

(b)the reports specified in Part D of the Schedule, in so far as it is
reasonably practicable to provide them.

(3) Any part of the authority's statement which in the opinion of the
responsible authority should be withheld from the applicant or (where he is not the
applicant) the patient on the ground that its disclosure would adversely affect the
health or welfare of the patient or others, shall be made in a separate document in
which shall be set out the reasons for believing that its disclosure would have that
effect.

(4) The secretary shall send a copy of the authority's statement to the
a applicant and (where he is not the applicant) the patient, excluding any part of





the statement which is contained in a separate document in accordance with
subrule (3).

7. Notice to other persons interested

When the tribunal receives the authority's statement the secretary shall
give notice of the proceedings-
(a)where the patient is subject to the guardianship of a private
guardian, to the guardian;
(b)where the patient's financial affairs are under the control of the
High Court, to the Registrar of the Supreme Court; and
(c)to any other person who, in the opinion of the tribunal, should
have an opportunity of being heard.

8. Disqualification of tribunal members

A person shall not be qualified to serve as a member of the tribunal for the
purpose of any proceedings where he has a personal connection with the patient
or has treated the patient in a professional medical capacity within the
preceding 12 months.

PART III

GENERAL PROVISIONS

9. Representation, etc.

(1) Any party may be represented by any person whom he has authorized
for that purpose, not being-
(a)a person liable to be detained, or subject to guardianship, under
the Ordinance; or
(b)a person receiving treatment for mental disorder at the same
mental hospital as the patient; or
(c)in the case of a patient liable to be detained at the Correctional
Services Department Psychiatric Centre, a person liable to be
detained there.
(2) Any representative authorized in accordance with subrule (1) shall
notify the tribunal of his authorization and postal address.
(3) As regards the representation of any patient who does not desire to
conduct his own case and does not authorize a representative in accordance
with subrule (1) the tribunal may appoint some person to act for him as his
authorized representative.





(4) Without prejudice to rule 11(3), the secretary shall send to an
authorized representative copies of all notices and documents which are by
these rules required or authorized to be sent to the person whom he represents
and such representative may take all such steps and do all such things relating
to the proceedings as the person whom he represents is by these rules required
or authorized to take or do.
(5) Any document required or authorized by these rules to be sent or
given to any person shall, if sent or given to the authorized representative of
that person, be deemed to have been sent or given to that person.
(6) Unless the tribunal otherwise directs, a patient or any other party
appearing before the tribunal may be accompanied by such other person or
persons as he wishes, in addition to any representative he may have authorized.

10. Medical examination
At any time before the hearing of the application, the medical member or,
where the tribunal includes more than one, at least one of them shall examine
the patient and take such other steps as he considers necessary to form an
opinion of the patient's mental condition; and for this purpose the patient may
be seen in private and all his medical records may be examined by the medical
member, who may take such notes and copies of them as he may require, for
use in connection with the application.

11. Disclosure of documents
(1) Subject to subrule (2), the secretary shall, as soon as practicable, send
a copy of every document the tribunal receives which is relevant to the
application to the applicant, and (where he is not the applicant) the patient, the
responsible authority and any of those persons may submit comments thereon
in writing to the tribunal.
(2) As regards any documents which have been received by the tribunal
but which have not been copied to the applicant or the patient, including
documents withheld in accordance with rule 6, the tribunal shall consider
whether disclosure of such documents would adversely affect the health or
welfare of the patient or others and, if satisfied that it would, shall record in
writing its decision not to disclose such documents.
(3) Where the tribunal is minded not to disclose any document to which
subrule (1) applies to an applicant or a patient who has an authorized
representative, it shall nevertheless disclose it as soon as practicable to that
representative if he is-
(a) a barrister or solicitor;
(b) a registered medical practitioner; or
(c)in the opinion of the tribunal, a suitable person by virtue of his
experience or professional qualification:





Provided that no information disclosed in accordance with this subrule
shall be disclosed either directly or indirectly to the applicant or (where he is not
the applicant) to the patient or to any other person without the authority of the
tribunal or used otherwise than in connection with the application.

12. Directions

Subject to the provisions of these rules, the tribunal may give such
directions as it thinks fit to ensure the speedy and just determination of the
application.

13. Evidence

The tribunal may receive in evidence any document or information
notwithstanding that such document or information would be inadmissible in a
court of law.

14. Further information

(1) Before or during any hearing the tribunal may call for such further
information or reports as it may think desirable, and may give directions as to
the manner in which and the persons by whom such material is to be furnished.
(2) Rule 11 shall apply to any further information or reports obtained by
the tribunal.

15. Adjournment

(1) The tribunal may at any time adjourn a hearing for the purpose of
obtaining further information or for such other purposes as it may think
appropriate.
(2) Before adjourning any hearing, the tribunal may give such directions
as it thinks fit for ensuring the prompt consideration of the application at an
adjourned hearing.
(3) Where the applicant or the patient (where he is not the applicant) or
the responsible authority requests that a hearing adjourned in accordance with
this rule be resumed, the hearing shall be resumed provided that the tribunal is
satisfied that resumption would be in the interests of the patient.
(4) Before the tribunal resumes any hearing which has been adjourned
without a further hearing date being fixed the secretary shall give to all parties
not less than 14 days' notice (or such shorter notice as all parties may consent
to) of the date, time and place of the resumed hearing.





16. Transfer of proceedings

Where any proceedings in relation to a patient have not been disposed of by
the members of the tribunal appointed for the purpose, and the chairman is of the
opinion that it is not practicable or not possible without undue delay for the
consideration of those proceedings to be completed by those members, he shall
make arrangements for them to be heard by other members of the tribunal.

17. Two or more pending applications

(1) The tribunal may consider more than one application in respect of a patient
at the same time and may for this purpose adjourn the proceedings relating to any
application.

(2) Where the tribunal considers more than one application in respect of the
patient at the same time, each applicant (if more than one) shall have the same rights
under these rules as he would have if he were the only applicant.

18. Withdrawal of application

(1) An application may be withdrawn at any time at the request of the applicant
provided that the request is made in writing and the tribunal agrees.

(2) If a patient ceases to be liable to be detained or subject to guardianship in
Hong Kong, any application relating to that patient shall be deemed to be
withdrawn.

(3) Where an application is withdrawn, or deemed to be withdrawn, the tribunal
shall so inform the parties.

PART IV

THE HEARING

19. Notice of hearing

The secretary shall give at least 14 days' notice of the date, time and place fixed
for the hearing (or such shorter notice as all parties may consent to) to all the
parties.

20. Privacy of proceedings

(1) The tribunal shall sit in private unless the patient requests a hearing in
public and the tribunal is satisfied that a hearing in public would not be contrary to
the interests of the patient. (L.N. 4 of 1989)





(2) When the tribunal sits in private it may admit to the hearing such
persons on such terms and conditions as it considers appropriate.
(3) The tribunal may exclude from any hearing or part of a hearing any
person or class of persons, other than a representative of the applicant or of the
patient to whom documents would be disclosed in accordance with rule 11(3),
and in any case where the tribunal decides to exclude the applicant or the
patient or their representatives or a representative of the responsible authority,
it shall inform the person excluded of its reasons and record those reasons in
writing.
(4) Except in so far as the tribunal may direct, information about
proceedings before the tribunal and the names of any persons concerned in the
proceedings shall not be made public.

21. Hearing procedure
(1) The tribunal may conduct the hearing in such manner as it considers
most suitable bearing in mind the health and interests of the patient and it shall,
so far as appears to it appropriate, seek to avoid formality in its proceedings.
(2) At any time before the application is determined, the tribunal or any
one or more of its members may interview the patient, and shall interview him if
he so requests, and the interview may, and shall if the patient so requests, take
place in the absence of any other person.
(3) At the beginning of the hearing the chairman shall explain the manner
of proceeding which the tribunal proposes to adopt.
(4) Subject to rule 20(3), any party and, with the permission of the
tribunal, any other person, may appear at the hearing and take such part in the
proceedings as the tribunal thinks proper; and the tribunal shall in particular
hear and take evidence from the applicant, the patient (where he is not the
applicant) and the responsible authority who may all hear each other's
evidence, put questions to each other, call witnesses and put questions to any
witness or other person appearing before the tribunal.
(5) After all the evidence has been given, the applicant and (where he is
not the applicant) the patient shall be given a further opportunity to address the
tribunal.

PART V

DECISIONS, FURTHER CONSIDERATION AND
MISCELLANEOUS PROVISIONS

22. Decisions
(1) Any decision of the majority of the members of a tribunal shall be the
decision of the tribunal and, in the event of an equality of votes, the chairman
of the tribunal shall have a second or casting vote.





(2) The decision by which the tribunal determines an application shall be
recorded in writing; the record shall be signed by the chairman and shall give the
reasons for the decision and, in particular, where the tribunal relies upon any of the
matters set out in section 59E(2) or (5) of the Ordinance, shall state its reasons for
being satisfied as to those matters.

(3) Subrules (1) and (2) shall apply to decisions with recommendations as they
apply to decisions by which applications are determined.

23. Communication of decisions

(1) The decision by which the tribunal determines an application may, at the
discretion of the tribunal, be announced by the chairman immediately after the
hearing of the case and, subject to subrule (2), the written decision of the tribunal,
including the reasons, shall be communicated in writing within 7 days of the hearing
to all the parties.

(2) Where the tribunal considers that the full disclosure of the recorded reasons
for its decision to the patient in accordance with subrule (1) would adversely affect
the health or welfare of the patient or others, the tribunal may instead communicate
its decision to him in such manner as it thinks appropriate and may communicate its
decision to the other parties subject to any conditions it may think appropriate as to
the disclosure thereof to the patient:

Provided that, where the applicant or the patient was represented at the hearing
by a person to whom documents would be disclosed in accordance with rule 11(3),
the tribunal shall disclose the full recorded grounds of its decision to such a person,
subject to any conditions it may think appropriate as to disclosure thereof to the
patient.

(3) Subrules (1) and (2) shall apply to decisions with recommendations as they
apply to decisions by which applications are determined.

(4) Where the tribunal makes a decision with recommendations, the decision
shall specify the period at the expiration of which the tribunal will consider the case
further in the event of those recommendations not being complied with.

24. Further consideration

Where the tribunal has made a decision with recommendations and, at the end
of the period referred to in rule 23(4), it appears to the tribunal after making
appropriate inquiries of the responsible authority that any such recommendation has
not been complied with, the tribunal may reconvene the proceedings after giving to
all parties not less than 14 days' notice (or such shorter notice as all parties may
consent to) of the date, time and place fixed for the hearing.





25. Time

The time appointed by these rules for the doing of any act may, in the particular
circumstances of the case, be extended or, with the exception of the periods of
notice specified in rules 15(4), 19 and 24, abridged by the tribunal on such terms (if
any) as it may think fit.

26. Service of notices etc.

Any document required or authorized by these rules to be sent or given to any
person may be sent by prepaid post or delivered

(a)in the case of a document directed to the tribunal or the chairman, to
the secretary;

(b)in any other case, to the last known address of the person to whom
the document is directed.

27. Irregularities

Any irregularity resulting from failure to comply with these rules before the
tribunal has determined an application shall not of itself render the proceedings void,
but the tribunal may, and shall if it considers that any person may have been
prejudiced, take such steps as it thinks fit before determining the application to cure
the irregularity, whether by the amendment of any document, the giving of any
notice or otherwise.

28. Application requiring the leave of the tribunal

(1) Subject to this rule, where the leave of the tribunal to make an application is
required by section 59B(5) of the Ordinance, these rules shall apply to a request for
leave as if that request were an application.

(2) Subrule (1)(b) and (c) and subrule (2)(b) and (c) of rule 6 and rule 19 shall
not apply to the request for leave and proceedings on such a request unless the
chairman otherwise directs.

(3) Where an application is made which requires such leave, the chairman may
direct that the application be treated as a request for leave and if he does so direct it
shall be deemed to be such a request.

(4) Without derogation from the power of the tribunal to grant or refuse such
leave, such leave may be granted or refused by the chairman who, in the exercise of
his functions under this subrule, shall have all the powers conferred on the tribunal
by these rules.

(5) Notwithstanding anything to the contrary in these rules a request for such
leave may be considered by the chairman or, as the case may be, tribunal, summarily
and without the presence of the person requesting leave or his representative or of
the patient (where he is not the person requesting leave).





PART VI

REFERENCES

29. References

The tribunal shall consider a reference as if there had been an application by
the patient and the provisions of these rules shall apply with the following
modifications

(a) rules 3, 4 and 18 shall not apply;

(b)the secretary shall, on receipt of the reference, send notice thereof to
the patient and the responsible authority:

Provided that where the reference has been made by the
responsible authority, instead of the notice of reference there shall be
sent to the responsible authority a request for the authority's
statement;

(e)rules 5, 6 and 7 shall apply as if rule 6(1) referred to the notice of
reference, or the request for the authority's statement, as the case
may be, instead of the notice of application;

(d)a reference made by the Governor may be withdrawn by him at any
time before it is considered by the tribunal and, where a reference is
so withdrawn, the secretary shall inform the patient and the other
parties that the reference has been withdrawn.

SCHEDULE [rule 61

STATEMENTS BY THE RESPONSIBLE
AUTHORITY

PART A

Information relating to patients (other
than
conditionally discharged patients)

1 The full name of the patient and the number of any current identity card issued to the patient
under the Registration of Persons Ordinance (Cap. 177).

2. The age of the patient.

3. The date of admission of the patient to the place in which the patient is currently detained or
liable to be detained, or of the reception of the patient into guardianship.

4. Details of the original authority for the detention or guardianship of the patient, including the
Ordinance and the section of that Ordinance by reference to which detention was authorized and
details of any subsequent renewal of or change in the authority for detention.

5. The form of mental disorder from which the patient is recorded as suffering in the authority
for detention.





6. The name of the attending medical officer and the period which the patient has spent under
the care of that officer.

7. Where another registered medical practitioner is or has recently been largely concemed in the
treatment of the patient, the name of that practitioner and the period which the patient has
spent under his care.

8. The dates of all previous tribunal hearings in relation to the patient, the decisions reached at
such hearings and the reasons given.

9. Details of any proceedings in the High Court in which the ability of the patient to manage his
affairs was in issue and of any receivership order, or any order for the appointment of a
committee, made in respect of the patient.

10. The name and address of any relative or other person who takes a close interest in the
patient.

11. Details of any leave of absence granted to the patient during the previous 2 years, including
the duration of such leave and particulars of the arrangements made for the patient's residence
while on leave.

PART B

Reports relating to patients (other than
conditionally discharged patients)

1. An up-to-date medical report, prepared for the tribunal, including the relevant medical history
and a full report on the patient's mental condition.

2. An up-to-date social report prepared for the tribunal.

3. The views of the responsible authority on the suitability of the patient for discharge.

4. Any other information or observations on the application which the authority wishes to make.

PART C

Information relating to conditionally
discharged patients

1. The full name of the patient and the number of any current identity card issued to the patient
under the Registration of Persons Ordinance (Cap. 177).

2. The age of the patient.

3. The history of the patient's present liability to detention including details of offence(s), and
the dates of the original order or direction and of the conditional discharge.

4. The form of mental disorder from which the patient is recorded as suffering in the authority
for detention.

5. The name and address of any medical practitioner responsible for the care and supervision of
the patient in the community and the period which the patient has spent under the care of that
practitioner.

6. The name and address of any public officer in the Social Welfare Department responsible for
the care and supervision of the patient in the community and the period which the patient has
spent under the care of that officer.

7. The name and address of any psychiatric out-patient clinic which the patient is required to
attend.





PART D

Reports relating to conditionally
discharged patients

1. Where there is a medical practitioner responsible for the care and supervision of the patient in
the community, an up-to-date medical report prepared for the tribunal including the relevant
medical history, a report on the patient's attendance at any psychiatric out-patient clinic that he is
required to attend and a full report on the patient's mental condition.
2. Where there is a public officer in the Social Welfare Department responsible for the patient's
care and supervision in the community, an up-to-date report prepared for the tribunal on the
patient's progress in the community since discharge from hospital and a report on the patient's
home circumstances.
3. Any observations on the application which the Commissioner of Police wishes to make. (L.N. 4
of 1989)

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