(A) Introduction
Ha Che Wai v. Medical Superintendent of the Pamela Youde Nethersole Eastern Psychiatric Observation Unit and others, HCAL 2374/ 2023, date of judgment: 24 November 2025 [1] is a landmark judicial review application concerning the rights of “patients” in Hong Kong, which is defined in Section 2 of the Mental Health Ordinance, Cap. 136 (“MHO”) as “a person suffering from or appearing to suffer from mental disorder”.
The main issue was whether the Medical Superintendent of the Pamela Youde Nethersole Eastern Psychiatric Observation Unit (the “Superintendent”), the Hospital Authority (the “HA”) and the Mental Health Review Tribunal (the “Tribunal”) were under a duty to take steps to ensure that the patients and their relatives understood their rights to representation, legal representation and legal aid on applications to the Tribunal for the review of their cases and in respect of their detention.
The Court held that while no such duty arose under Section 68A of the MHO for conditional discharge patients, the common law imposed a duty on the HA and the medical superintendents of mental hospitals to take reasonably practicable steps to ensure that the patients subject to a conditional discharge order under Section 42B of the MHO understand their rights to make an application to the Tribunal for discharge or review under Section 59B of the MHO.
This case provides useful guidelines on the procedural rights of individuals defined as “a person suffering from or appearing to suffer from mental disorder” and affirms the role of the common law in ensuring their rights are “practical and effective” for this vulnerable group in our society.
(B) Facts
The Applicant is a “patient” defined under Section 2 of the MHO. He had a long history of mental illness and was first diagnosed with paranoid schizophrenia with referential delusion in 1995. [2]
In 2010, the Applicant was detained at the Pamela Youde Nethersole Eastern Hospital (the “Hospital”) under Section 31, then Section 32 and later Section 36 of the MHO. He was subsequently conditionally discharged (“CD”) under Section 42B of the MHO. [3]
The Applicant remained unaware of his right to apply to the Tribunal to challenge his status until 2014, when a social worker informed him that he could apply to the Tribunal for a review. Between 2014 and 2019, he made four separate applications to the Tribunal without legal representation, all of which were unsuccessful. [4]
A main issue in the judicial review was that, between 2010 and 2014, the Applicant was never informed of his right to apply to the Tribunal concerning his CD. [5] His challenge, set out in an Amended Form 86 (“AF 86”), alleged that the Superintendent, the Hospital Authority and the Tribunal had failed to take steps to ensure that he, other patients and their relatives understood their rights to representation, legal representation and legal aid for Tribunal proceedings. As the Applicant's case was not an isolated incident, the challenge was framed as a systemic one, alleging breaches of both statutory and common law duties that undermined procedural fairness, the right to liberty and a fair hearing. [6]
The AF 86 set out two “umbrella” grounds of judicial review: [7]
(1) Ground 1: Breach of statutory duty under section 68A of the MHO and section 4 of the Hospital Authority Ordinance Cap 113 / Illegality. This ground was directed at the acts or omissions of the Hospital and the HA.
(2) Ground 2: Procedural unfairness / impropriety, breach of natural justice. This ground was aimed at the acts or omissions of the Tribunal.
(C) Decision
Statutory Interpretation of Section 68A of the MHO
The Court framed the case as a question of statutory interpretation concerning Section 68A of the MHO, which centered on two essential contests: [8]
(1) Whether the duty to provide information applies to patients subject to a CD Order.
(2) Whether the scope of the required information extends to notifying patients of their rights to representation, legal representation, and the ability to obtain legal aid.
Section 68A of the MHO Does Not Apply to Conditionally Discharged Patients
The Court held that Section 68A applies only to patients in detention and not to those who have been absolutely or conditionally discharged on the following grounds: [9]
(1) The MHO draws a clear distinction between (a) a patient who is detained, or who is liable to detention, and (b) a patient who has been discharged from detention, or who is no longer liable to detention (evident in Sections 42A, 42B, and 59E of the MHO).
(2) The ordinary meaning of “detention” and “discharge” are mutually exclusive. A conditionally discharged patient is legally regarded as discharged, not detained, unless recalled.
(3) The legislative history and purpose of Section 68A of the MHO confirm that it was intended to inform every patient “being detained” of their rights.
(4) The wording of Section 68A(a) of the MHO refers to the provision under which “the patient is for the time being detained”, which is inapplicable to a discharged patient.
(5) The duty is triggered “as soon as practicable after the commencement of the patient’s detention”, tying it to the start of detention, not its end via discharge.
No Duty to Inform about Representation or Legal Aid under Section of 68A of MHO
As the Court held that Section 68A of the MHO did not apply to CD patients, it was strictly unnecessary to decide the scope of information. [10]
However, it clarified that, on its proper construction, Section 68A does not impose a positive duty on the Hospital or HA to inform patients or their relatives of the patient’s right to representation, to legal representation, or the availability of legal aid on an application to the Tribunal. [11]
The Common Law Imposes a Duty to Inform CD Patients of Tribunal Rights
The Court held that the common law fills the gap left by the statute. [12] To ensure procedural fairness, the common law imposes a duty on the HA and medical superintendents to take reasonably practicable steps to ensure that a patient subject to a CD Order understands his right to apply to the Tribunal pursuant to Section 59B of the MHO. [13] The Court noted that the current relevant forms (found at Appendices II and IV to the 2023 CD Guidelines) should be amended to provide this information clearly. [14]
No Positive Duty on the Tribunal
The Court found that the Mental Health Review Tribunal Rules (“MHRT Rules”) provided sufficient procedural safeguards for the fairness of the procedures and that there was no positive duty on the Tribunal itself to advise applicants of their rights to representation or legal aid. [15]
Extension of Time Granted
Although there was a significant delay for the Applicant to commence proceedings, the Court granted an extension of time. It found good reason to do so because the application raised questions of general public importance regarding effective access to an independent review of detention, or release from detention upon the imposition of certain conditions, where the patients affected are intrinsically likely to suffer some degree of incapacity in the procedural process. [16]
Relief
In light of the above, the Court granted a declaration that the HA and the medical superintendents of mental hospitals are under a duty to take such steps as are reasonably practicable to ensure that patients the subject of an order for conditional discharge under Section 42B of the MHO understand their rights under Section 59B of the MHO to make an application to the Tribunal for discharge or review. [17]
(D) Key Takeaways
This case provides helpful guidance on the rights of mental health patients and the interplay between statute and common law. Its significance lies in the following key principles:
(1) Common Law Supplements Statutory Gaps for Fairness: This case is an important example of the common law filling a legislative gap to ensure fundamental fairness. The Court held that where the statute (Section 68A) was silent regarding conditionally discharged patients, the common law would step in to protect their rights to the same extent.
(2) Clear Distinction Between Detained and Discharged Patients: The Court affirmed that the MHO draws a clear distinction between detained patients and those who have been conditionally discharged. As such, the statutory duties under Section 68A apply only to detained patients and do not extend to those who are conditionally discharged.
(3) The Common Law Duty for CD Patients: While Section 68A does not apply to conditionally discharged patients, the common law imposes a duty on the HA and the medical superintendents of mental hospitals to take reasonably practicable steps to ensure those patients understand their right to apply to the Tribunal under Section 59B of the MHO.
(4) Clarification of the Scope of the Duty: This case clarified the limits of the duty. The Court found that there was no positive duty on the Tribunal itself to advise applicants of their rights to representation or legal aid as the MHRT Rules provided sufficient procedural safeguards for the fairness of the procedures.
[1] https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=174744
[2] Ha Che Wai v. Medical Superintendent of the Pamela Youde Nethersole Eastern Psychiatric Observation Unit and others, HCAL 2374/ 2023, date of judgment: 24 November 2025, §2
[3] Ibid, §3
[4] Ibid, §4
[5] Ibid, §5
[6] Ibid, §6
[7] Ibid, §47-§48
[8] Ibid, §139, §141
[9] Ibid, §161
[10] Ibid, §164
[11] Ibid, §179
[12] Ibid, §196
[13] Ibid, §198
[14] Ibid, §201
[15] Ibid, §202, §207
[16] Ibid, §212 -§213
[17] Ibid, §217
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