Procedures

Procedures

Application 

Practice Direction 30.1 (PD 30.1) issued by the Hong Kong Judiciary offers guidance on how to make applications under the Mental Health Ordinance (MHO) Part II for the appointment of committee for mentally incapacitated persons (MIPs). It supersedes the previous PD 30.1 dated 10 October 2005 and came into effect on 28 October 2024. It sets out the practice and procedures for applications under MHO Part II.

An inquiry under Part II of the MHO involves a two-stage process:

• the Directions Stage – the initial stage in which directions are sought from the court; and 
• the Inquiry Stage – where the actual inquiry into the alleged MIP’s mental health takes place. 

However, if the estate does not involve substantial assets, parties should consider whether to apply for an order under MHO section 24. An order under MHO section 24 allows the relative to manage the alleged MIP’s estate in a direct and inexpensive manner, if the alleged MIP’s estate is not of a significant value or complex composition. As an example, an order under MHO section 24 allows a fixed monthly sum to be paid out of the alleged MIP’s estate to a person named by the Court for the maintenance of the alleged MIP. The payee under MHO section 24 owes a fiduciary duty towards the MIP.

Steps to be taken before applying under the Mental Health Ordinance Part II 

Before making the application, the applicant needs to explore the views of the alleged MIP and their relatives. 

If the application is likely to be contested, the court must be informed ASAP.

Directions Stage 

Applications for directions should be made ex parte (i.e. without notifying or involving any other party). The person applying is named the “Applicant”. There should not be any “Respondent” unless the court joins anyone as a party. 

The application should follow the format of Annex A, being an ex parte Originating Summons. 

The Originating Summons should be filed together with the following supporting documents:

• Certificate of Family and Property (Annex B), setting out, for example, who the MIP’s relatives or closest family members are, what property, money, or assets the MIP owns, personal background of the MIP and the circumstances giving rise to the application.
• Medical evidence (Annex C): Two medical certificates confirming incapacity, prepared by two doctors, and at least one of the certificates has to be provided by a doctor approved by the Hospital Authority who possesses special expertise either in diagnosing or treating mental disorders, or in assessing and determining mental handicaps, as the case may be.
• Consent to Appointment as Committee (Annex D), recording the formal consent the individuals proposed as committee members to be appointed by the court, in cases where the applicant is seeking such an appointment. 
• Draft order (Annex E) containing all relief to be sought in the directions stage.
• Draft order (Annex F) containing all relief to be sought in the inquiry hearing.

The Originating Summons must be served on the Official Solicitor, the alleged MIP, and any relatives that might be interested in the application. 

In case of urgency, the Applicant can consider applying under MHO section 10D and/or section 10A for an urgent order. Upon receiving this application, the Court may consider appointing an interim receiver pending the appointment of the committee.

Hearings 

Usually, there will be no directions hearing, unless it is expected to be a contested application, or the Applicant asks for one, or unless the Court orders one on its own motion. 

After the Official Solicitor confirms that he has no further comments on the draft Orders or other further questions, the Applicant shall inform the Court that the Official Solicitor has given his confirmation, to secure a return date for the Inquiry Hearing. 

The Applicant shall then serve a Notice of Inquiry on the alleged mentally incapacitated person (MIP), and on any other parties as directed.

At the Inquiry Hearing, the court will consider and decide on those matters referred to in Section 10 of the MHO.  The Court will deliver its ruling on whether the person concerned is an MIP. If the Court is satisfied that the person is, by reason of mental incapacity, incapable of managing and administering his/her property and affairs, it may appoint a committee of the estate of the alleged MIP: see MHO section 11.

It should be noted that the application for the appointment of a committee under the Mental Health Ordinance is relatively complicated. The application may encounter further complications if the property of the person concerned is of substantive value, if the proposed appointment is subject to challenge from other parties (e.g. other relatives), or if the Official Solicitor raises requisitions which need to be answered. It is, therefore, advisable to engage solicitors to assist in the application for the appointment of a committee.