1. Mentally Incapacitated Patients (“MIP”)
MIP are persons who are incapable, by reason of mental incapacity, of managing and administering their property and affairs; or persons suffering from mental illness or psychopathic disorders or having significant impaired intelligence.
Detailed definitions can be be found in Section 2(1) of the Mental Health Ordinance, Chapter 136, Laws of Hong Kong (“MHO”).
Part IVC of MHO governs consent to treatment in relation to an MIP who has attained the age of 18 and is incapable of giving consent.
A MIP is incapable of giving such consent if that person is incapable of understanding the general nature and effect of the treatment (Section 59ZB(2) of the MHO).
So if a MIP can understand the general nature and effect of the treatment, he or she is able to give consent.
For MIP who is incapable of understanding the general nature and effect of the treatment, consent may be given by the guardian of the patient under Part IIIA or IVB of the MHO in respect of whom a guardianship order has conferred the power to consent under Sections 44B(1)(d) or 59R(3)(d).
Where consent cannot be obtained from guardians, according to section 59ZF(1) of the MHO, a registered medical practitioner or registered dentist can carry out or supervise a treatment if it is a matter of urgency and that treatment is necessary and is in the best interests of the MIP.
The exceptions are sterilization and removal of organs for transplantation, even if the treatment is a matter of urgency and is necessary and is in the MIP’s best interests. (Sections 59ZA, 59ZC, 59ZG and 59ZBA of the MHO)
In such circumstances, consent may be given by the Court upon application by any person (including a medical superintendent, registered medical practitioner or registered dentist).
Under section 59ZB(3), when considering whether or not to give consent the Court shall observe and apply the following principles, namely to:
"(a) ensure that the mentally incapacitated person is not deprived of the treatment merely because he lacks the capacity to consent to the carrying out of that treatment; and
(b) ensure that any treatment that is proposed to be carried out in respect of the mentally incapacitated person is carried out in the best interests of that person."
“In the best interests” , according to section 59ZA of the MHO, means in the best interests of the MIP in order to:
“(a) save the life of the MIP;
(b) prevent damage or deterioration to the physical or mental health and well-being of that person; or
(c) bring about an improvement in the physical or mental health and well-being of that person.”
If the Court is satisfied that the treatment should be carried out “in the best interests” of the MIP, the Court may consent to the carrying out of the treatment and make an order to the applicant to that effect.
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