Mental health — compulsory detention at hospital — action for alleged personal injury arising out of compulsory detention — application for leave to commence proceedings under s. 69(2) — reasonably arguable case that hospital acted in bad faith or without reasonable care in respect of detention not established — application dismissed — Mental Health Ordinance (Cap.136) s.69, 69(2)
Tort — negligence — medical negligence — wrongful diagnosis — claim for wrongful diagnosis in context of Mental Health Ordinance (Cap. 136) ss. 31, 32 — Bolam test applicable
X had complained about a repeated tapping noise from the unit above his (the “upstairs unit”) since 2013. In October 2015, X attended the management office of his estate and had a conflict with the staff. Police were summoned and escorted X to Tuen Mun Hospital, where he was assessed by a nurse of the consultation-liaison psychiatric team. The nurse recommended consideration by a psychiatrist of whether psychiatric inpatient treatment would be needed to prevent the potential risk of X harming others and to ensure safety. On the next day, an application for the compulsory detention of X was made pursuant to ss. 35A(1) and 31(1) of the Mental Health Ordinance (Cap. 136) (the “MHO”) referring to X’s display of unstable emotion and stating that, as no evidence was found to support X’s complaint of the alleged noises, he was suspected to have psychotic symptoms. The application was supported by a doctor’s certificate containing a presumptive diagnosis of psychosis. Upon the application being granted, X was removed to Castle Peak Hospital (“CPH”) for detention and observation for not more than seven days. His family members were then contacted and confirmed his version of noises from the upstairs unit. X was subsequently examined by two doctors who both considered that X suffered from delusional disorder. An order was made in terms of the doctors’ recommendation for a further detention period of 21 days for the purpose of observation, investigation and treatment pursuant to s. 32 of the MHO. X was eventually discharged on 6 November 2015 with further stress-coping and anger management skills counselling recommended. After X’s discharge, staff of CPH’s community psychiatric service visited his home and heard noises from the upstairs unit. In 2018, X commenced an action in the District Court against the Hospital Authority (the “HA”), alleging that Tuen Mun Hospital’s wrongful diagnosis led to his compulsory detention, as well as pain and suffering being caused to him and his family (the “DC Action”). The DC Action was stayed pending X’s present application under s. 69(2) of the MHO for retrospective leave in the Court of First Instance.
Held, dismissing the application, that:
1. Section 69 of the MHO was for the protection of the persons, medical staff and hospitals in particular, who had done things in connection with the making and the carrying out of the removal or detention order pursuant to the MHO from unreasonable and groundless claims. The scope was wide and covered acts done by the staff of hospitals in discharge of their day to day duties in control of the patients. The test for granting leave was that such ground must be “reasonably arguable” instead of “substantial” as worded in s. 69(2). The test of arguability was not potential arguability, and therefore only a claim that enjoyed a realistic prospect of success would be considered as reasonably arguable for leave to be given. Here, the question was whether X managed to demonstrate to the satisfaction of the Court that he had in the DC Action a reasonably arguable case that the HA had acted in bad faith or without reasonable care in his detention and management pursuant to the MHO (Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 陳碩謙 v 醫院管理局 (CACV 189/2012,  CHKEC 980) applied). (See paras. 6–10.)
2. The claim of wrongful diagnosis, albeit in the context of ss. 31 and 32 of the MHO, was no different from that of medical negligence. The law was trite that in order to bring such claim the plaintiff must adduce medical expert evidence to substantiate the alleged breach of duty and that such alleged breach caused the alleged injury – the so called Bolam test. The case of Montgomery v Lanarkshire Health Board did not replace but merely distinguished the Bolam test as being inapplicable in the context of that case, in that an adult patient of sound mind was entitled to decide which, if any, of the available forms of medical treatment to undergo, and her consent had to be obtained beforehand. In such context, it was the reasonable duty of a medical practitioner to advise the patient of the material risks of a particular treatment in order to obtain the latter’s informed consent (Bolam v Friern Hospital Management Committee  1 WLR 582 applied; Montgomery v Lanarkshire Health Board  2 WLR 768 distinguished). (See paras. 35, 43–45.)
3. X had not established that he had reasonably arguable grounds for saying that the nurse or the doctors, and thus the HA, had acted in bad faith or without reasonable care in carrying out the matters in connection with his detention pursuant to the MHO. The nurse and the doctors exercised professional judgment on the basis of their own observations of X’s state and the information available (including conflicting versions and evidence as to the existence of noises from the upstairs unit). (See paras. 29, 31–32, 34.)
4. The information about noises from the upstairs unit from CPH’s community psychiatric service was not available prior to X’s discharge. It could not discredit or undermine the professional assessment made based on information available at the material time. The application for extension of X’s detention (after his family confirmed the existence of noises from the upstairs unit) was made in view of X’s need for observation and treatment based on the doctor’s professional assessment of X’s condition in coping with the alleged noises. (See paras. 33–34.)
5. As for the medical certificate produced by X, in addition to its admissibility being an issue, it lacked relevance. The medical certificate contained no opinion on the assessment and diagnosis by nurse and doctors at the material times for the purposes of ss. 31 and 32 of the MHO, the clinical management of X during his detention or consequentially whether what the nurse or the doctors did at the material times fell short of what was reasonably expected of them or whether the same caused X damage. The opinion therein related to X’s current condition on the basis of his complaint as well as information and examination available after X’s discharge. It could not serve as evidence of wrongful diagnosis at the material times as alleged by X. (See paras. 36–42.)
This was an application for retrospective leave for the applicant to commence his personal injury action arising out of his compulsory detention at a hospital pursuant to s. 69(2) of the Mental Health Ordinance (Cap. 136). The facts are set out in the judgment.