Treatment

Treatment

Treatment of mentally incapacitated persons (MIPs) can occur as a decision made on their behalf in their best interests if they lack capacity, or after they have been compulsorily admitted to hospital.

1. Decisions made on their behalf

If the MIP is incapable of understanding the general nature and effect of a treatment that has been recommended to them, the first question will be whether the MIP has a guardian (under Part IVB of the Mental Health Ordinance). If yes, the guardian has power to consent to that treatment (but note: the guardian does not have the power to consent on behalf of the MIP if the MIP is capable of understanding the general nature and effect of the treatment). As discussed above, the capacity required to understand the treatment will vary according to the amount of complexity and risk involved with the treatment.

If there is no guardian, the doctor (or dentist) can go ahead with the treatment if they consider that the treatment is necessary as a matter of urgency, and that it is in the MIP’s best interests.

Treatment in the MIP’s best interests is defined in s 59ZA of the Mental Health Ordinance as treatment needed in order to:

1. save the life of the mentally incapacitated person;
2. prevent damage or deterioration to the physical or mental health and well-being of that person; or
3. bring about an improvement in the physical or mental health and well-being of that person.

2. Compulsory hospitalisation

The compulsory admission and treatment of MIPs (as well as all others) is regulated by Part III of the Mental Health Ordinance (MHO). If the MIP has a mental disorder of a requisite nature or degree and it is in the interests of the MIP’s health and safety or for the protection of others, an application can be made to have the MIP compulsory admitted into a mental hospital for detention and treatment. 

Detention and treatment can be short-term or longer term. Short-term detention and treatment starts at 7 days (section 31 of the MHO), and can be further extended for another 21 days (section 32 of the MHO). Longer term detention is authorized under section 36 of the MHO, and is for an indefinite period of time. Applications for short-term detention and treatment are to be made to a magistrate or District Judge, whereas applications for extension and longer-term detention are to be made to a District Judge.

Those who have been compulsorily admitted can challenge their detention via an application to the Mental Health Review Tribunal (MHRT). If the compulsorily admitted patient or their relative does not exercise their right to apply to the MHRT for a period of 12 months, the medical superintendent is to refer to the patient’s case to the MHRT for consideration. The MHRT has broad powers to (i) direct that a patient be discharged (either absolutely or subject to conditions under section 42B (see para below)), and (ii) make recommendations as it thinks fit in the circumstances. 

For MIPs who have a medical history of criminal violence or a disposition to commit such violence, once they have been compulsorily admitted, they may be discharged conditionally (section 42B of the MHO). In this situation, they will be subject to the conditions imposed on them, which may include a designated place of residence, a requirement to attend a doctor’s appointment, a requirement to take medication, and/or be under the supervision of a social worker. If they breach any of these conditions and it is thought to be in the interests of their health and safety or for the protection of others, they may be recalled to hospital, in which case they will be deemed compulsorily admitted again.