This paper aims as discussing the implications of Mental Health (Amendment) Ordinance 1988 to mental health in Hong Kong from a social legislation perspective.
Major Provisions of the Present Legislation
Definition of mental disorder
s2(1) : "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind.
s2(1) : "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct one the part of the person concerned.
s2(5) : Nothing in subsection (1) shall be construed as implying that a person may be dealt with under this Ordinance as suffering from mental disorder, or from any form of mental disorder described in that subsection, by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.
The definition of Mental disorder here is problematic. "Mental disorder means mental illness" is not better than a circular reasoning. "Mental illness" is not defined and becomes wholly dependent on the medical profession's interpretation. " Arrested or incomplete development of mind" includes mental retardation and receives much criticism from parents of the mentally handicapped people. It is not clear what "abnormally aggressive or seriously irresponsible conduct" means and whether this represents a serious physical threat to "the person concerned" or others (Shum, 1988:43). "Any other disorder or disability of mind" may cause intrusion to civil rights. This last catch-all category of "mental disorder" does not become clearer even when the Exclusion Clauses of Section 2(5) is included. One might ask: What about "activities or the expression of any political opinion"?
Note also that no indication of the severity of the condition is included in the definitions. The law may apply to both of two persons one suffering from simple phobia and the other schizophrenia.
Still some other definitions related to mental disorder may be subjected to abuse. For example, the term "unsound mind" in s10(1) which is the criteria for judging whether the alleged mentally disordered person should retain the right to manage his property.
Social workers may think that the present Ordinance represents the state's approval of social work contribution in the mental health field. Representatives of the profession are now appointed to sit in the newly formed Mental Health Review Tribunal. Another provision is the "approved social worker ", the concern of this section.
In line with English legislation, certain new powers are added to the Hong Kong ordinance to deal with emergency cases (Lo, 1991: 215). Under section 71A, an "approved social worker" may apply for a warrant to enter any premises and "if thought fit", remove to a place of safety people who are reasonably believed to be suffering from mental disorder and in need of care and control, for his own interests or for the protection of other persons. In the execution of the warrant he may use "reasonable force" to do so, although practically the force will be taken up by the police.
This section is probably added to legitimate the Social Welfare Department the use of force to enter one's house after the Kwok Ah-Nui Affairs, which aroused much public criticism for state intervention. According to Common Law a man's house is his castle which should not be unreasonable trespassed by the others (Chan, 1986:182). In the section there is no clear criteria as to judge what is meant by in need of care and control, for one's own interest, for the protection of others and reasonable force and is totally subjected to the social worker's interpretations. In the Ordinance "approved social worker" means " a social worker approved for the purposes of this Ordinance by the Director of Social Welfare" (s2(1) and there is no written requirement that the social worker has received proper training in the mental health field. Although in actual situation the "reasonable force" is taken up be the police, our training may not permit us to take up the leadership role to coordinate the police power at the same time protecting our client's from unnecessary harm. There is no safeguard whether the use of force may stimulate the emotions of the alleged person and mental state of the person worse. Some writer has pointed out that the social worker should not be equipped with police power, especially when there is no statutory Code of Practice mentioned in the Ordinance (Chan, 1986). Moreover the section does not require the approved social seven days be authorized by a Justice of the Peace in a simple application without any medical certificate. Now the application for an order for detention must be sent to the District Judge or magistrate and is based on the opinion of a registered medical practitioner who has examined the patient within the previous seven days. However the new procedures of compulsory detention and extension of detention period still has many problems.
There are view points which express that the procedures concerning compulsory detention and admission to hospital should be as simplified as possible, so as to minimize the "criminal flavor" and reduce stigmatization and upsetting of the patients during detention, as the same time providing them treatment in a short time so as to protect the patient's own interests (Choi, 1988:54). Other say that mental health legislations give purely legal considerations too much weight than the medical considerations *WHO, 1955).
The above viewpoints do not start from the assumption that the person alleged to be mentally ill are people like anyone else and should be entitled to the same rights as other people and than ask what will entitle us to take away those right. They just conclude that the person needs treatment, and the best place for the patient is hospital. But what call s a person's "own interests" is defined by them. In a democratic society, we cannot take away a person civil rights just because we think that he or she has a health problem. Medical professions may concern health but civil commitment is a legal issue. We must have justifiable ground before we think that compulsory admission to hospital is for one's own good".
The major problem of the present procedure for detention and admission to hospital is its neglect on the alleged person's legal rights. Nothing mentioned in the law says that the person is entitled to legal aid and be represented by a lawyer in safeguarding the person's legal rights. Nor does the District Judge need to see the person before authorizing the detention, although be need to do so if the person knows that he can request this. In the case of suspected criminals, the representative lawyer may apply to the High Court for Writ of Habeas Corpus (the protection order), if he thinks that his client is illegally detained. Nothing similar is mentioned In the Ordinance.
The person detained for observation may become a certified patient requiring compulsory detention in the mental hospital for treatment, applied by two medical practitioners to the District Court judge. There is no limit of time for the duration of certificate. No public hearing is required. The person is not needed to be heard nor represented by his lawyer. The judge just receives " evidence" from the medical professions. Research indicates that the presence of a lawyer lengthens the duration of the hearing and increase the probability that the person is not required to go to hospital (Wenger and Fletcher, 1969). The presence Ordinance is certainly failed against the due process model of justice (Bean, 1978).
It is surprising to find that, the Ordinance mentions nearly nothing about treatment in the mental hospital. The important section about Consent to Treatment in the Part 4 of the Mental Health Act of 1983 of England and Wales is totally deleted. Certain types of treatment which produce permanent effects like operation involving surgical destruction of brain tissue, implantation of hormones, electric-convulsive therapy are still permitted without the patient's consent (Lo, 1991:217). The 1983 Act states that the Secretary of State shall prepare and from time to time revise a code of practice whose purpose is to guide registered medical practitioners, managers, staff of hospitals, members of other professions, etc. on the medical treatment of patient suffering from disorder. Section 121 of the 1983 Act establishes a Mental Health Act Commission which puts the operation of detention institutions under systematic supervision (Whitehead, 1983). The significance of these omissions will be discussed later.
Discharge of patient from the mental hospital
Under the present Ordinance, a voluntary patient (there is no provision the volunteer makes his decision through informed consent) who applies for discharge can be detained in the mental hospital by the medical superintendent. Again no public hearing is needed unless the patient appeal to the Mental Health Review Tribunal (discussed later).
A new provision, called Conditional Discharge, enables the medical superintendent to discharge certain patients with specified conditions, e.g. to reside at a specified place, to attend follow-up, to take prescribed medication and to be supervised by social workers. The section is applicable where:
(a) it appears to the medical superintendent that a patient has a medical history of criminal violence or a disposition to commit such violence; but
(b) … the patient may safely be discharged subjected to specified conditions.
The power given to the medical superintendent is even greater than the judicial power of the Mental Health Review Tribunal! If the power of the medical superintendent is confined in the mental hospital there is no reason for such power to be exercised in the community.
Next, what is meant by "a disposition to commit violence"? Some writer has pointed out that the assessments of this "have yet to be shown to be more accurate than chance." (Steadman and Ribner, 1982: 1641-47). The inclusion of this criteria may be a response to the Yuen Chow Estate Affairs so has to reduce the anger and anxiety of the public. The concept seems reveal little than it intends to say.
Social workers may regard the introduction of guardianship as a major step to community care(e.g. Choi,. 1988). It permits a mentally disordered person on the certification of two registered practitioners to be placed in the care of a guardian who is given the power to wield effective control over the person's daily life, including place of residence and acceptance of medical treatment. Guardianship provides an alternative to hospital care and may relieve the stigma of hospitalization. It also gives an opportunity for the patient to lead a normalized life in the community.
But I don't think that there is substantive evidence to support that guardianship leads to good community care. Care in the community facilities. These include half-way houses, community homes, sheltered workshops, out-patient clinics, day hospitals, social centers, selective placement service, community psychiatric nursing, home help, etc., plus the positive attitudes of the public to the mentally-ill patients so as to promote equal respects. Certainly I Hong Kong the "lack of resource" is the most legitimate excuse for government retrieval of their responsibility. Recently the opposition to a social center for the mentally patients in Lai Kong City reveals how poor the image of the deprived group in the eyes of the public. We must be alert not to simply think decarceration is good in itself.
One of the problem about guardianship is that the Director of Social Welfare is the approving authority yet he can be the applicant too, so that a role conflict exists. As the head of an administrative body it also holds judicial power. Another shortcoming of the provisions is there is little talked in the Ordinance about the responsibilities of the guardian to maintain a reasonable quality of life for the patient. We don't have statutory code of practice for the guardians nor quality assurance of the residence and service assigned. They may provide a less restrictive alternative but it is equally that they become a secondary institution for community detention of the patients (Yip, 1991:196).
Mental Health Review Tribunal
The Mental Health Review Tribunal serve to safeguard the civil rights of the detained patients and is really a revolutionary concept when compared with the former Ordinance where the discharge of a patient was subjected to the mercy of two hospital visitors.
The most important provision is the automatic reference. The medical superintendent of the mental hospital has a duty of refer all detained cases after twelve months, if no application by the patients or their relatives has been made. There is hearing. The independent body has the power to hear appeals for discharge by or on behalf of detained patients, persons placed under guardianship and conditional discharge. It has the power to discharge the patients and make recommendation, e.g. transfer to guardianship, reside in a half-way house and to attend follow-up out-patient treatment.
The Tribunal does not concern with whether a patient was admitted under the correct procedures or the medical treatment which the patient is receiving. Wrong detention may remain unquestioned. The members of the Tribunal are appointed legal specialists, medical practitioners, social workers, clinical psychologists and other professionals which may provide a more balanced viewpoints to the needs and rights of the patient. The experienced social worker may bring important perspectives regarding the living environment of the patients into the Tribunal, assessing whether there is adequate family and community support, and whether the living circumstance is conducive to the patient's recovery, thus preventing the case from over-medicalization.
The function of the Tribunal is to decide whether a patient is fit for discharge from the detained institution. Some writers argue that the Tribunal may be more like a case conference or "patient's welfare assessment panel" than a judicial body (Fennell, 1977). The normal model of adjudication, based upon the application of fixed rules to proven facts may not apply (Hoggett, 1984). At the same others welcome the informality of the hearing, claiming that legal definition of the burden of proof, i.e. the case must be proved "beyond reasonable doubt" lead to a contest between lawyers with little benefits for the patient (Jones, 1991). Again it is a dilemma when the civil liberty of the patient is subjected to professional judgments who "know" what is best for the patient. Another issue about such an "informal tribunal" is that the usual judicial vigilance is relaxed (Lo, 1991: 213). The official viewpoints (we have to bear in mind that the patient being heard may have been hospitalized for some time and have received various labels) and the dominant medical model simply are not challenged. Or, we take Pearson's words, "Amongst other things, it may be necessary to be willing to challenge medical opinion, for members to be knowledgeable about alternatives to hospital care, and to insist on minimal standards of good practice being met. "(1988)
The Tribunal may contribute to a significant step in promoting community care, since it has the power to discharge the patients and make recommendation. Is it enough? Certainly not. The patients who appeal to tribunals may have a long history of mental illness. Having spent in years in hospitals, they may lack the necessary skills and resources for leading an independent existence and even lack of contact or support from their relatives. The crux is the availability of after-care services (Greenland, 1970:91-105). The lack of adequate facilities and a positive community attitudes will condemn the patient to a life of poverty, aimlessness and community discrimination, making the discharge a social problem. In fact, some writers have argued discharging patients from hospital may serve to help the state to save money and at the some time shouldering the burdens to the good will of community and family, even if such "good will" is mere imagination (Pearson, 1986).
In general, the name "Mental Health Ordinance" is highly misleading. Most of the provisions are about the procedures leading to patients' detention in and discharge from mental hospitals. Little is mentioned about the promotion of mental health in Hong Kong. The Ordinance should probably be called "Mental Hospital Ordinance"! It seems that the obsolete concepts of "asylum" and "unsound mind" are still in the minds of the legislators.
As expected, the legislation represents the domination of medical powers. The ultimate claim of paternalism lies with the medical profession, who define what is meant by "for the health or safety of the patient" and " for the protection of other persons'. There is no secondary rules as to regulate the formal presentation of any evidence, nor do they involve any cross-examination of witnesses, to support the hypothesis that the patient is in need of care and control. The discretion may just take place outside the public scrutiny and opens the way to double, since what is called the "needs" of the patient is a result of selection of values (Bean, 1980:47-53). The most obvious outcome is, the "social" origin of problems and needs of the patients is being medicalized and individualized.
One phrase Harold Garfinkel uses to describe the psychiatric interview leading to civil commitment to the closed institution is "degradation ceremony" (Garfinkel, 1956). The psychiatric patient, communicating his problem of living (Szasz, 1969), his perception of himself and the world around him through symptoms, is isolated from the rest of the problematic community to an impersonal, total institution (Goffman, 1970) in which his own interest is not guaranteed. The assumption of "someone, somewhere, knows best" legitimates the bureaucratic authority of the mental hospital in structuring life goals for the detained patients. After discharged he receives various subhuman labels and is stigmatized by his original community. During the process the status of the individual sharply declines, starting from the psychiatrist's use of labels, to the degree that he might even be rejected by his own profession, his colleagues and downward shifted to the underclass of the society (Yip, 1991:188. Can a medical student continues his profession had he a certified patient? But the problematic community, the "social" context remains there. This is precisely why Thomas Szasz and R.D.Laing condemn at the mental hospital which should be shut down.
Under the present Ordinance, although the admission of the person to the mental hospital depends on the judgment of the medical practitioners for "the health or safety" and "protection of other persons", the law says little about how the health of the person is secured. When compared to the UK 1983 act, important provisions like Consent to Treatment, Duty to Provide After-care, Code of Practice, Mental Health Act Commission etc. are omitted. It does not mention any about the standard or quality of the treatment provided in the mental hospital or the community, nor does it define the positive responsibility of guardianship. It just conveys to the public the message that mental health is something about hospitalization, losing one's right to manage property and affairs, entering into guardianship and other unfavourites. It marginalizes the mentally ill patients and creates segregation. It acts more as a means to legitimate compulsory removal and isolation of the "person in need of care or control", "abnormally aggressive" or "seriously irresponsible" than claiming responsibility for decent treatment to the patients, which in my opinions, is just a response to the Kwok Ah Nui Affairs. It simply does not care about the suffering patients and the community stigmatization which follows.
When compared to the ideals of "normalization", "integration" and "community care", the weakness of the legislation as a welfare law is even more evident. Structured and conforming life in the mental hospitals deprives the certified patients at least the following civil rights:
1. Right to property
2. Right to freedom of movement
3. Right to choose one's own life style
4. Right to enjoy family life
5. Right to recreational activities
6. Right to social activities
7. Consent to treatment
8. Right to privacy
9. Right to correspondence
Some people may think that such deprivation is acceptable since the patient definitions of "mental disorder" and other related concepts in the legislation is concrete and specific and there is nothing wrong with the professional discretion by the medical practitioners. As mentioned above many concepts in the legislation is vaguely defined. Moreover there may be no one able to verify the opinions of the medical practitioners (He may be the District Court judge, but does be know any about DSM-III-R and knowledge in mental health?). Thomas Szasz has argued that psychiatrist inevitably must employ norms in making their judgments (Szasz, 1960). Do we give a bad faith to the medical profession's objectivity?
Even if such objectivity does exist and the present concepts are clearly defined, there is no evidence to support that a mentally disordered person is unable to exercise such rights, unless we know that the precise mental qualities of him which supports the disqualification. The minimum capacity for making a will proposed by some writers is know what one is about (Hoggett, 1984:68). Certainly our law says little about this .
As a social expression of justice, the mission of law is to promote harmonious interpersonal relationship. To foster normalization and integration and to match with the social policy of community care, the law could have taken a much more active role than the present. The law might have protected the ex-mentally patients from discrimination (equal treatment and salary on job and anti-stereotyping in Mass Media, say), an essential element of normalization. To help the patient to lead a normal life in his community, it could have secured the patients with the right to have mentally patients from discrimination (equal treatment and salary on job and anti-stereotyping in Mass Media, say), an essential element of normalization. To help the patient to lead a normal life I his community, it could have secured the patients with the right to have a job after recovery, right to normal living standard (though social security, say) right to housing (e.g. compassionate housing). It could have devised quality standards and code of practice for the guardians and community services. However, conservative budgeting seems to be the most important obstacles to the mental health development in Hong Kong. I deeply feel that the legislation is just an instrument of social control, running against the ideals of normalization and integration.
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