Constitutional Perspectives on Compulsory Treatment in Hong Kong

Abstract

This presentation will focus on the compulsory psychiatric regime in Hong Kong. Under section 36 of the Mental Health Ordinance, which authorises long-term detention of psychiatric patients, a District Judge is required to countersign the form filled out by the registered medical practitioners in order for the detention to be valid. Case law, however, has shown that the role of the District Judge is merely administrative. It will be suggested that, as it currently stands, the compulsory psychiatric regime in Hong Kong is unconstitutional because it fails the proportionality test. In light of this conclusion, two solutions to deal with the issue will be proposed by common law or by legislative reform. The former would see an exercise of 109 discretion by the courts read into section 36, while the latter would involve piecemeal reform of the relevant provisions to give the courts an explicit discretion to consider substantive issues when reviewing compulsory detention applications. It will be argued that these solutions would introduce effective judicial supervision into the compulsory psychiatric regime and safeguard against abuse of process.