PLC Paper No. CB(2) 1233

Ref : CB2/SS/9/97

Paper for the House Committee Meeting
of the Provisional Legislative Council
on 20 March 1998

Report of the Subcommittee on the four items of subsidiary legislation made under the Mental Health Ordinance (Cap. 136)

Purpose

1.This paper reports on the deliberations of the Subcommittee on the four items of subsidiary legislation made under the Mental Health Ordinance (Cap. 136).

The Subsidiary Legislation

2.The four items of subsidiary legislation made under the Mental Health Ordinance (MHO) were gazetted on 20 February 1998 and tabled at the Provisional Legislative Council meeting on 25 February 1998. The four items of subsidiary legislation are as follows -

1. Mental Health Guardianship Board Rules
   
   
2. Mental Health (Specification of Special Treatment) Notice 1998
   
   
3. Mental Health (Guardianship) (Amendment) Regulation 1998
   
   
4. Mental Health Review Tribunal (Amendment) Rules 1998

The Subcommittee

3.The House Committee at its meeting on 27 February 1998 agreed to form a Subcommittee to study the subsidiary legislation set out in paragraph 2 above.

4.Under the chairmanship of Dr Hon TANG Siu-tong, the Subcommittee has held one meeting with the Administration. A membership list of the Subcommittee is in Appendix.

Deliberations of the Subcommittee

5.The Administration has explained that the Mental Health (Amendment) Ordinance 1997 (MH(A)O) enacted in June 1997 aims to strengthen the provisions of the Mental Health Ordinance (MHO) with a view to providing better legal safeguards for mentally disordered and mentally handicapped people, who are collectively referred to as entally incapacitated persons" (MIPs) under the MHO. The four items of subsidiary legislation set out in paragraph 2 above provide for a set of operation rules for the Guardianship Board, specify certain treatments as special treatment and make necessary consequential amendments to the existing subsidiary legislation of the MHO in order to implement the long-awaited improvements brought by the MH(A)O 1997 (81 of 1997).

6.In general, members of the Subcommittee support the four items of subsidiary legislation made under the MHO. The Subcommittee focuses its discussion on the Mental Health (Specification of Special Treatment) Notice 1998 which deals with the specification of sterilisation operations as special treatment under the MHO. The main deliberations of the Subcommittee are summarized in paragraphs 7-14 below.

7.The Administration points out that under Part IVC of the MHO, a medical doctor or a dentist is empowered to administer treatment without the consent of an adult MIP who is incapable of giving valid consent himself/herself, in the event of an emergency or where it is necessary and in the best interests of that person to receive the treatment. However, if special treatment is to be administered on such a person, prior approval from the Court is required. The Administration has explained that it has consulted the Hospital Authority, the Department of Health, the Hong Kong Medical Association, the Hong Kong Dental Association, the Hong Kong Academy of Medicine, the Medical Council of Hong Kong and the Dental Council of Hong Kong as to the type of treatment to be specified as special treatment under the MHO. All of them recommended the specification of sterilisation operations (except for operations that are intended primarily to treat other diseases of the reproductive system but having the effect of sterilisation) as special treatment for the purposes of Part IVC of the MHO.

8.Referring to the submission from the Estate Doctors Association Limited, a member has asked whether consent for special treatment can only be given exclusively by the Court and not the guardians of MIPs. In reply, the Administration has confirmed that under section 59ZD of the MHO, only the Court could give consent to the carrying out of special treatment on behalf of MIPs.

9.The same member has also asked whether the removal of a healthy organ from a MIP falls within the definition of edical treatment", 懀reatment" or pecial treatment" set out in the MH(A)O. He points out that section 59ZB of the MH(A)O specifies that when considering whether or not to give consent to the carrying out of 懀reatment" or pecial treatment" on a MIP, the Court shall ensure that any 懀reatment" or pecial treatment" that is proposed to be carried out in respect of the MIP is carried out in the best interests of that person.

10.The Administration has explained that under section 59ZA of the MHO, the term pecial treatment" is defined as medical treatment or dental treatment or both of an irreversible or controversial nature as specified by the Secretary for Health and Welfare (SHW) under section 59ZC of the MHO. The Mental Health (Specification of Special Treatment) Notice 1998 made by SHW under that section only specifies sterilisation operations as pecial treatment" for the purposes of the MHO. Organ donation by MIPs is not therefore regarded as a special treatment.

11.According to the Administration, the question of whether the removal of a healthy organ from a MIP for the purpose of transplant to another person could be regarded as a treatment or special treatment n the best interests" of the MIP has never been brought up for consideration throughout consultations with professional bodies, parents' groups and non-governmental organisations over the past few years. The Administration has undertaken to follow up on the Estate Doctors Association Limited suggestion that organ donation by MIPs be specified as a special treatment under the MHO so as to provide further protection for the MIPs. The Administration has advised that it will need to seek legal and medical opinions and further consult the relevant bodies before a decision on this matter can be taken. A member has pointed out that since organ transplant involving genetically related persons does not require the permission of the Human Organ Transplant Board under the Human Organ Transplant Ordinance, the Administration should commence the consultation process as soon as practicable with a view to putting in place legislative measures to ensure that MIPs are given adequate protection under the law.

12.In response to a member, the Administration has explained that if it is decided to add another type(s) of treatment as special treatment for the purpose of Part IVC of the MHO, such specification will be made by SHW and published in the Gazette by way of a Notice under section 59ZC of MHO, subject to the approval of the legislature in the normal way.

13.Members have also expressed concern as to when the Guardianship Board (GB) will be set up. The Administration has advised that it would proceed with the recruitment of the Chairperson of the GB and the supporting staff as well as other related matters as soon as the funding request is approved by the Finance Committee at the end of March 1998. The Administration anticipates that the GB will be in operation around mid-1998 subject to the recruitment of staff progressing smoothly.

14.Members have accepted the Administration explanations and concluded that it is necessary for the four items of subsidiary legislation concerned to be made in order to implement the improvements brought by the MH(A)O.

Recommendation

15.The Subcommittee recommends that the four items of subsidiary legislation made under the Mental Health Ordinance and published in the Gazette on 20 February 1998 be supported.

Advice Sought

16.Members are invited to support the recommendation of the Subcommittee set out in paragraph 15 above.


Provisional Legislative Council Secretariat
18 March 1998

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Appendix

Subcommittee on the four items of subsidiary legislation made under the Mental Health Ordinance (Cap. 136)