Values and Participation of Individuals Without Mental Capacity in Hong Kong

Abstract

<p>Mental capacity law in Hong Kong, much like most areas of law pertaining to those with mental disability, is riddled with deficiencies, both in terms of its theoretical basis and the problematic values that underpin its regimes. This chapter examines the latter, exploring in particular the role of the subjective values of the individual without capacity, as well as the participation of such individuals in hearings granting the power to make decisions on their behalf. The chapter begins with a brief introduction to the two key mental capacity law regimes in Hong Kong, the Part II Committee regime and the Part IVB adult guardianship regime of the Mental Health Ordinance (Cap 136) (MHO). It then examines the extent to which the views and wishes of the individual without capacity are ascertained and considered in decisions under both regimes. The chapter further considers whether such individuals take part in these decisions, and where they do, what the nature of this participation involves. A critical evaluation of these aspects of the two regimes is then provided, and the chapter ends with a brief conclusion.<br></p>