Urania Chiu and Daisy Cheung on Claiming Wrongful Diagnosis under the Mental Health Ordinance: The Impossibility of Building a Reasonably Arguable Case (HKLJ)

"Claiming Wrongful Diagnosis under the Mental Health Ordinance: The Impossibility of Building a Reasonably Arguable Case"

Urania Chiu and Daisy Cheung
Hong Kong Law Journal, 

2020, Vol. 50, Part 3 of 2020, pp. 837-850

Abstract: In the recent Court of First Instance decision Bhatti Bhupinder Singh v Hospital Authority, the judge refused to grant leave under s 69 of the Mental Health Ordinance (Cap 136) (MHO) to the claimant for his wrongful diagnosis and wrongful detention claims against the Hospital Authority. This article considers this decision in detail, arguing that the judge’s reasoning was highly flawed due to its lack of consideration of a crucial factual context of the case, as well as its lack of scrutiny of the decisions made by the various medical professionals involved, in particular in relation to whether the criteria specified by each relevant section of the MHO was satisfied. The resulting approach demonstrates an unacceptable level of deference towards the judgment of medical professionals, to the extent that it is difficult to see how a reasonably arguable case could ever be mounted under s 69 of the MHO — a problematic outcome, given the implications of s 69 on the important right to access to courts. Given that compulsory admission and treatment is a highly draconian regime involving deprivation of liberty and the administration of powerful, mind-altering drugs, the court cannot simply be a rubber stamp and must exercise its supervisory role in a much more meaningful manner.