PROVISIONAL LEGISLATIVE COUNCIL
PANEL ON WELFARE SERVICES

MEETING ON 13 MARCH 1998
Remuneration for the Chairperson, honoraria for non-official members and allowances for witnesses of the Guardianship Board to be established under the Mental Health Ordinance (Cap. 136)

Purpose

This paper briefs Members of the proposed remuneration for the Chairperson, honoraria for non-official members and allowances for witnesses of the Guardianship Board to be established under the Mental Health Ordinance (Cap. 136) (MHO). The Administration will seek the Finance Committee's approval of the proposal at its meeting on 27 March 1998.

Background

2. The Mental Health (Amendment) Ordinance 1997, which was enacted on 27 June 1997, aims to strengthen the provisions of the Mental Health Ordinance (Cap. 136) with a view to providing better legal safeguards for mentally disordered and mentally handicapped persons, as well as their carers. One of the major improvements is to provide for the establishment of an independent Guardianship Board (the Board) to enforce new guardianship provisions for mentally disordered or mentally handicapped persons (collectively known as mentally incapacitated persons in the amended MHO) who have attained the age of 18 years or above.

3. In accordance with section 59J(2) and (3) of the amended MHO, the Board will comprise a Chairperson and not less than nine other non-official members to be appointed by the Chief Executive. The Chairperson of the Board should have such legal experience as the Chief Executive considers suitable. Of the non-official members to be appointed :

1. at least three shall be persons who are barristers or solicitors;

2. at least three shall be persons who have experience in assessing or treating mentally incapacitated persons, such as registered medical practitioners, social workers or psychologists; and

3. at least three shall be persons who have had personal experience with mentally incapacitated persons [other than those referred to in paragraphs (a) and (b) above], such as parents of mentally incapacitated persons.

4. The Board will be supported by a secretariat comprising four non-civil servant staff, whose terms and conditions of employment will be determined by the Board with the proviso that they should not be more favourable than the normal civil service package for comparable jobs. The structure of the Board is at Annex I.

5. The main functions and powers of the Board are to -

1. consider and determine applications for the appointment of guardians;

2. make guardianship orders;

3. review guardianship orders; and

4. give directions to guardians as to the nature and extent of guardianship orders.

6. When appointing any person as guardian, the Guardianship Board should be satisfied that, amongst other things, he/she is capable of taking care of the mentally incapacitated person. The guardian may be empowered to -

1. require the mentally incapacitated person to reside at a specified place;

2. require the mentally incapacitated person to attend at specified places and times for treatment, occupation, education or training;

3. require access to the mentally incapacitated person to be given to any registered medical practitioner, approved social worker, or other person specified in the guardianship order;

4. convey the mentally incapacitated person to specified places and to use such reasonable force as may be necessary;

5. give consent to medical and dental treatment on behalf of the mentally incapacitated person; and/or

6. hold, receive or pay a monthly amount of money as specified by the Guardianship Board for the maintenance or other benefit of the mentally incapacitated person.

7. Before making any decisions on guardianship applications or reviews, the Board will examine medical reports and other documents submitted by concerned parties such as the applicants and the Social Welfare Department (SWD). It will have to conduct hearings into such cases and witnesses may be summoned. The parties to the proceedings may have legal representation.

The Proposal

Chairperson of the Board

8. The Chairperson will chair the hearings and guide Board members in determining whether an application is fully substantiated or whether further information or evidence is required. He/she has to ensure the efficient operation of the Board's secretariat especially, in complying with the statutory duties and requirements. He/she is also required to promote understanding of the work of the Board and the new guardianship provisions of the amended MHO. These complex and time-consuming tasks require a person with strong legal experience, commitment, leadership and interpersonal skills.

9. We propose to remunerate the Chairperson at a level equivalent to Point D3 of the Government Directorate Pay Scale. Details of the proposed remuneration for the Chairperson are at Annex II. In considering the ranking of the Chairperson, we have drawn reference to the Mental Health Review Tribunal (the Tribunal) which is presently chaired by a District Court Judge (basic salary equivalent to D3 level). The Tribunal's main responsibilities are to review the period of detention of mental patients in mental hospitals as well as the guardianship and supervision and treatment orders of mentally incapacitated persons arising from criminal proceedings under the MHO.

Members of the Board

10. Non-official members of the Board have to examine documents and interview mentally incapacitated persons where necessary prior to the hearings, as well as to take evidence and hear representations. These duties and level of responsibilities are comparable to those of non-official members of the Tribunal. We, therefore, propose to adopt the same rates of honoraria as the Tribunal and put lawyers in the same group as registered medical practitioners. Details of the proposed rates of honoraria are at Annex III.

Witnesses

11. The Board may summon witnesses to attend the Board's proceedings. Since the type of individual likely to be summoned is similar to that by the Tribunal, we propose to adopt the same rates of allowances. Details of the proposed rates of allowances are at Annex IV.

The Way Forward

12. Subject to the Finance Committee's approval, we will proceed with the recruitment of the Chairperson and appointment of Board members. We aim to bring the Board into operation as early as possible in Mid 1998.

Advice Sought

13. Members are invited to note this paper.

Health and Welfare Bureau
March 1998

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Annex II

Proposed Remuneration for the Chairperson of the Guardianship Board

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Annex III

Proposed Honoraria for Non-official Members of the Guardianship Board

Non-official Member	Rates of honoraria
Barrister/solicitor/registered medical practitioner	$3,000 per day or $1,500 per half-day
Social worker/psychologist	$2,000 per day or $1,000 per half-day
Others	$800 per day or $400 per half-day

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Annex IV

Proposed Allowances for Witnesses Summoned to the Guardianship Board

Witness	Rates of allowances
Professional or expert witness	$200 per day or $100 per half-day
Others	$90 per day or $45 per half-day