01 March 2021
This article was authored by Vincent Chiu.
As reaffirmed in Re TBS  HKCFI 2919; Re CML  3 HKLRD 481, the Court has inherent protective jurisdiction to make orders relating to the welfare of mentally incapacitated persons (or MIPs), including access to an MIP. This note respectfully agrees with the judicial observations that a more practically desirable approach to all matters relating to the finances, health and welfare of MIPs should be dealt with under one single forum instead of through parallel inquiries of the Court and the Guardianship Board. Absent reforms in this area, practitioners are reminded of the bifurcated approach adopted in MIP, and the need to invoke the Court’s inherent protective jurisdiction.
In Hong Kong, broadly speaking, matters relating to MIPs are governed by a bifurcated regime: the property and financial affairs of MIPs are dealt with under Part II of the Mental Health Ordinance (the “Ordinance”), while Part IVB of the Ordinance provides for the establishment of a Guardianship Board for appointments of guardians to address the domestic affairs and welfare of MIPs.
On occasions, this distinction may break down. A good example is when the access to an MIP is in issue (an issue frequently encountered by the Guardianship Board: LWY v Guardianship Board  3 HKLRD 30 at §36). In LWY, Lam J (as Lam VP then was) held that a guardian appointed by the Guardianship Board does not have power under Part IVB to restrict access to an MIP, and that a guardian who encounters such problems has to make an application to the court for coercive declaratory relief.
Recently, the Court was again called upon to adjudicate similar issues, and on those occasions, the Court held that the court had jurisdiction to make an order in respect of access of MIPs:-
(1) In Re TBS  HKCFI 2919, B Chu J held that the Court has jurisdiction to make interim access or care arrangements, arising not from section 10A of the Ordinance but from the inherent protective jurisdiction of the Court (§§36-56). In that case, interim residential, access and care arrangements in respect of an elderly MIP aged 92 were made pending the appointment of a guardian by the Guardianship Board.
(2) In Re CML  3 HKLRD 481, Lok J affirmed that the Court has inherent jurisdiction to make an order concerning the access to the MIP (at §§18-33). On the other hand, on its proper construction, section 59R(3) of the Ordinance (which sets out the six essential powers the Guardianship Board may confer upon a guardian) does not confer upon the Guardianship Board jurisdiction to make an order that a family member, a relative or other person be granted access to an MIP (at §§13-17). Lok J also ruled that section 10A of the Ordinance does not extend beyond financial matters (at §§11-12). Hence, neither the Guardianship Board nor the Court has jurisdiction under the Ordinance to make such orders relating to access to an MIP. On the facts, children of an elderly MIP aged 92 were granted access to the MIP at her residence at specified times.
The implication of the Court’s rulings is this. When access related matters arose, notwithstanding its role in the bifurcated regime, the Guardianship Board does not have jurisdiction to deal with the matter. The guardian and/or the relevant parties must seek relief from the Court as opposed to the Guardianship Board.
As Lam J pointed out in LWY (at §§36-37) and echoed by Lok J in Re CML (at §§41-43), it is not a satisfactory state of affairs for the following reasons:-
• Multiplicity of proceedings in different forums would arise. The Court or the Tribunal would not be able to take a holistic approach in considering the interrelated welfare matters of the MIP. Time and costs would be wasted on legal proceedings instead of being better spent on advancing the interests of the MIP.
• Private guardians and committees might not have the knowledge or resource to conduct these proceedings in different forums.
• Most unfortunately, delay and misunderstandings amongst family members could brew over the course of the multiple proceedings.
While the Courts have repeatedly urged reforms in this area of the law, regrettably, the Government has not taken the initiative for the time being. For those advising family members of MIPs, it would be useful to bear in mind the different functions served by the Court and the Guardianship Board and the possible need to invoke the inherent protective jurisdiction of the Court when access-related matters arise.