Mental Health Ordinance


Published: 1999-02-01

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Cap 136 - MENTAL HEALTH ORDINANCE 1

Chapter: 136 MENTAL HEALTH ORDINANCE Gazette Number Version Date

Long title L.N. 29 of 1999 01/02/1999


To amend and consolidate the law relating to mental incapacity and the care and supervision of mentally incapacitated
persons, to provide for the management of the property and affairs of mentally incapacitated persons, to provide
for the reception, detention and treatment of mentally incapacitated persons who are mentally disordered persons
or patients, to provide for the guardianship of such patients and for mentally incapacitated persons generally, to
make provision for the giving of consent for treatment or special treatment in respect of mentally incapacitated
persons who have attained 18 years of age, to provide for the removal of objectionable terminology relating to
mental incapacity in other statutory provisions and to provide for matters incidental or consequential thereto.

(Replaced 81 of 1997 s. 2)


[19 January 1962] G.N.A. 2 of 1962

(Originally 35 of 1960)

Part: I PRELIMINARY 30/06/1997




Section: 1 Short title 30/06/1997


This Ordinance may be cited as the Mental Health Ordinance.

Section: 2 Interpretation L.N. 29 of 1999 01/02/1999


(1) In this Ordinance, unless the context otherwise requires-
"approved social worker" (認可社會工作者) means a social worker approved for the purposes of this Ordinance by

the Director of Social Welfare; (Added 46 of 1988 s. 2. Amended 81 of 1997 s. 3)
"certified patient" (實證病人) means a person who is detained in a mental hospital in accordance with the provisions

of section 36;
"chairman" (主席) means chairman of the tribunal; (Added 46 of 1988 s. 2)
"Correctional Services Department Psychiatric Centre" (懲教署精神病治療中心) means the Correctional Services

Department Psychiatric Centre set apart as a prison under section 4 of the Prisons Ordinance (Cap 234); (Added
37 of 1973 s. 2)

"Court" (原訟法庭) means the Court of First Instance and any judge of the Court of First Instance; (Replaced 25 of
1998 s. 2)

"Director of Social Welfare" (社會福利署署長) includes an assistant director of social welfare;
"guardian" (監護人)-

(a) in relation to a person under the age of 16 years to whom section 30 applies, means any other person
having charge of that first-mentioned person or the Director of Social Welfare;

(b) in relation to a person under the age of 18 years other than a person to whom paragraph (a) applies,
means any other person having charge of that first-mentioned person;

(c) in relation to a person subject to a guardianship order under Part IIIA, means the Director of Social
Welfare, or such other person as may be specified in the order, as the case may be; or

(d) under Part IVB, means the person so appointed under that Part in respect of a mentally incapacitated
person who has attained the age of 18 years; (Replaced 81 of 1997 s. 3)

"hospital order" (入院令) means an order made in accordance with the provisions of section 45, 49, 54 or 54A or an
order having the effect that a person shall be treated as if he were liable to be detained by an order under any of
those sections; (Amended 37 of 1973 s. 2; 46 of 1988 s. 2)

"IQ" (智商) means intelligence quotient; (Added 81 of 1997 s. 3)
"medical officer" (公職醫生) means a registered medical practitioner in the full time employment of Government or



Cap 136 - MENTAL HEALTH ORDINANCE 2

the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap 113); (Amended 68 of
1990 s. 24)

"medical superintendent" (院長) means the medical superintendent or an assistant medical superintendent of a mental
hospital appointed in accordance with the provisions of section 4;

"mental disorder" (精神紊亂) means-
(a) mental illness;
(b) a state of arrested or incomplete development of mind which amounts to a significant impairment of

intelligence and social functioning which is associated with abnormally aggressive or seriously
irresponsible conduct on the part of the person concerned;

(c) psychopathic disorder; or
(d) any other disorder or disability of mind which does not amount to mental handicap,

and "mentally disordered" (精神紊亂) shall be construed accordingly; (Replaced 81 of 1997 s. 3)
"mental handicap" (弱智) means sub-average general intellectual functioning with deficiencies in adaptive behaviour,

and "mentally handicapped" shall be construed accordingly; (Added 81 of 1997 s. 3)
"mental hospital" (精神病院) means any place declared to be a mental hospital in accordance with the provisions of

section 3;
"mental hospital visitor" (精神病院視察人員) means a person appointed to be a mental hospital visitor in

accordance with the provisions of section 5 while he is so appointed;
"mental incapacity" (精神上無行為能力) means-

(a) mental disorder; or
(b) mental handicap,

and "mentally incapacitated" (精神上無行為能力) shall be construed accordingly; (Added 81 of 1997 s. 3)
"mentally disordered person" (精神紊亂的人) means a person suffering from mental disorder; (Added 81 of 1997 s.

3)
"mentally handicapped person" (弱智人士) means a person who is or appears to be mentally handicapped; (Added

81 of 1997 s. 3)
"mentally incapacitated person" (精神上無行為能力的人) means-

(a) for the purposes of Part II, a person who is incapable, by reason of mental incapacity, of managing and
administering his property and affairs; or

(b) for all other purposes, a patient or a mentally handicapped person, as the case may be; (Added 81 of
1997 s. 3)

"patient" (病人) means a person suffering or appearing to be suffering from mental disorder; (Replaced 46 of 1988 s.
2)

"patient under observation" (接受觀察病人) means a person who is detained in a mental hospital in accordance with
the provisions of section 31 or 32;

"prescribed form" (訂明表格) means a form provided by regulations; (Amended 46 of 1988 s. 2)
"psychopathic disorder" (精神病理障礙) means a persistent disorder or disability of personality (whether or not

including significant impairment of intelligence) which results in abnormally aggressive or seriously
irresponsible conduct on the part of the person concerned; (Added 46 of 1988 s. 2. Amended 81 of 1997 s. 3)

"registered dentist" (註冊牙醫) has the same meaning as in the Dentists Registration Ordinance (Cap 156); (Added
81 of 1997 s. 3)

"registered medical practitioner" (註冊醫生) means a person who is registered or who is deemed to be registered in
accordance with the provisions of the Medical Registration Ordinance (Cap 161);

"Registrar" (司法常務官) means the Registrar of the High Court; (Amended 25 of 1998 s. 2)
"regulations" (規例) means regulations made under section 72; (Added 46 of 1988 s. 2)
"relative" (親屬), in relation to a mentally incapacitated person, means any of the following persons being, in the case

of persons referred to in paragraphs (b) to (i) of this definition, persons who have attained the age of 18 years-
(a) spouse or reputed spouse;
(b) child or child's spouse;
(c) parent or parent-in-law;



Cap 136 - MENTAL HEALTH ORDINANCE 3

(d) sibling or sibling's spouse;
(e) grandparent or grandparent-in-law;
(f) grandchild or grandchild's spouse;
(g) uncle or aunt;
(h) nephew or niece or spouse of nephew or niece;
(i) cousin or cousin's spouse;
(j) any person with whom the mentally incapacitated person resides or has resided; (Replaced 81 of 1997

s. 3)
"sub-average general intellectual functioning" (低於平均的一般智能) means an IQ of 70 or below according to the

Wechsler Intelligence Scales for Children or an equivalent scale in a standardized intelligence test; (Added 81
of 1997 s. 3)

"transfer order" (轉移令) means an order issued in accordance with the provisions of section 52 or 53;
"tribunal" (審裁處) means the Mental Health Review Tribunal established under section 59A; (Replaced 46 of 1988

s. 2)
"Voluntary patient" (自願入院病人) means a person who has been admitted into and is in a mental hospital in

accordance with the provisions of section 30.
(2) Of the medical certificates given for the purposes of section 7(5) or the opinions given for the purposes of

sections 36 and 59M, at least one shall be given by a practitioner approved for the purposes of this section by the
Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap 113) as having special experience in
the diagnosis or treatment of mental disorder or having special experience in the assessment or determination of
mental handicap, as the case may be. (Added 46 of 1988 s. 2. Amended L.N. 76 of 1989; 68 of 1990 s. 24; 81 of 1997
s. 3)

(3) In deducing relationships for the purposes of this section, any relationship of the half-blood shall be treated
as a relationship of the whole blood, an illegitimate person shall be treated as the legitimate child of his mother, and an
adopted child as a child of the adopting parent. (Added 46 of 1988 s. 2)

(4) Any function vested in the Director of Social Welfare or any power conferred on him by or under this
Ordinance may be exercised on his behalf by any public officer authorized in that behalf by the Director of Social
Welfare. (Added 46 of 1988 s. 2. Amended 81 of 1997 s. 3)

(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. (Added 46
of 1988 s. 2)

(6) For the purposes of this Ordinance, any reference to "medical superintendent" may be construed to include
a reference to any alternative title (such as "hospital chief executive") as may be used from time to time by the
Hospital Authority. (Added 81 of 1997 s. 3)

Section: 3 Declaration of mental hospitals 60 of 2000 01/07/1997


Remarks:
Adaptation amendments retroactively made - see 60 of 2000 s. 3


(1) The Chief Executive may by order declare any place which is the property of the Government to be a
mental hospital for the detention, custody, treatment and care of mentally disordered persons.

(2) The Chief Executive on the application of the owner thereof, may, by order, declare any place which is not
the property of the Government to be a mental hospital for the detention, custody, treatment and care of mentally
disordered persons.

(3) Notification of every such order shall be published in the Gazette.
(Amended 60 of 2000 s. 3)


Section: 4 Appointment of medical superintendents and assistant

medical superintendents
L.N. 29 of 1999 01/02/1999



Remarks:
Adaptation amendments retroactively made - see 60 of 2000 s. 3



Cap 136 - MENTAL HEALTH ORDINANCE 4


(1) The Chief Executive may appoint any medical officer to be the medical superintendent or an assistant

medical superintendent of a mental hospital.
(2) On the application of any registered medical practitioner who is not a medical officer, the Chief Executive

may appoint the registered medical practitioner to be the medical superintendent or an assistant medical
superintendent of a mental hospital. (Amended 81 of 1997 s. 4)

(3) Notification of every such appointment shall be published in the Gazette.
(Amended 60 of 2000 s. 3)


Section: 5 Appointment and duties of visitors 60 of 2000 01/07/1997


Remarks:
Adaptation amendments retroactively made - see 60 of 2000 s. 3


(1) The Chief Executive may appoint mental hospital visitors for every mental hospital. (Amended 60 of 2000
s. 3)

(2) Two or more mental hospital visitors appointed in accordance with subsection (1) shall once at least in
every month, together inspect every part of the mental hospital of which they are mental hospital visitors and shall see
and examine so far as circumstances permit, every patient therein and shall enter in a book to be kept for that purpose
any remarks which they may deem proper in regard to the management and condition of the mental hospital and the
patients therein. (Amended 46 of 1988 s. 3)

Section: 6 Delegation 30/06/1997


A medical superintendent may delegate any of his powers and functions under this Ordinance to any registered
medical practitioner and may use and employ to carry out his functions under this Ordinance any employee in a
mental hospital.

Part: II MANAGEMENT OF PROPERTY AND AFFAIRS OF

MENTALLY INCAPACITATED PERSONS*
L.N. 29 of 1999 01/02/1999


_________________________________________________________________
Note:
* (Replaced 81 of 1997 s. 5)

Section: 7 Court may order inquiry L.N. 29 of 1999 01/02/1999


(1) The Court may, on application under this section, make an order directing an inquiry whether any person
subject to the jurisdiction of the Court who is alleged to be mentally incapacitated is incapable, by reason of mental
incapacity, of managing and administering his property and affairs. (Replaced 81 of 1997 s. 6)

(2) Such order may also contain directions for inquiries concerning the nature of the property belonging to the
person alleged to be mentally incapacitated, the persons who are his relative or next-of-kin, the time during which he
has been mentally incapacitated or such other questions as to the Court shall seem proper. (Amended 81 of 1997 ss. 6
& 58)

(3) Application for such inquiry may be made by any relative of the person alleged to be a mentally
incapacitated person, but if no such application is made by the relative, then by-

(a) the Director of Social Welfare;
(b) the Official Solicitor; or
(c) any guardian of that person appointed under Part IVB. (Replaced 81 of 1997 s. 6)

(4) The application referred to in subsection (3) shall be made by an originating summons (within the meaning
of the Rules of the High Court (Cap 4 sub. leg. A)) and those Rules shall apply accordingly. (Added 81 of 1997 s. 6.
Amended 25 of 1998 s. 2)

(5) Despite subsection (4), the application referred to in subsection (3) shall be accompanied by 2 medical
certificates and evidence of the relatives or next-of-kin and the property (if any) of the mentally incapacitated person,
and such other documents or evidence as may be required by the Court. (Added 81 of 1997 s. 6)



Cap 136 - MENTAL HEALTH ORDINANCE 5

(6) In this section-
"evidence of the relatives or next-of-kin and the property" (關於親屬或最近親及財產的證據) means a certificate

made and signed by the applicant or, if the Court so orders in a particular case, an affidavit, giving particulars of
the mentally incapacitated person's relatives or next-of-kin, property and affairs and of the circumstances giving
rise to the application;

"medical certificate" (醫生證明書) means a certificate made and signed by a registered medical practitioner that the
mentally incapacitated person is incapable, by reason of mental incapacity, of managing and administering his
property and affairs. (Added 81 of 1997 s. 6)


Section: 8 Provision as to notice of inquiry L.N. 29 of 1999 01/02/1999


(1) Reasonable notice of the time and place appointed for the inquiry shall be given to the person alleged to be
a mentally incapacitated person:

Provided that if it shall appear that the person alleged to be a mentally incapacitated person is in such a state that
personal service on him would be ineffectual, the Court may direct such substituted service of the notice as it shall
think proper.

(2) The Court may also, if it thinks fit, direct a copy of such notice to be served upon any relative of the person
alleged to be a mentally incapacitated person.

(Amended 81 of 1997 ss. 7 & 58)

Section: 9 Power to examine person alleged to be mentally

incapacitated
L.N. 29 of 1999 01/02/1999



At any time after the application for the inquiry the Court may require the person alleged to be a mentally
incapacitated person to attend at such convenient time and place within Hong Kong as the Court may appoint, for the
purpose of being personally examined by the Court or by any person from whom the Court may desire to have a report
of his mental capacity and condition, and the Court may also make an order authorizing any person or persons named
therein to have access to the person alleged to be a mentally incapacitated person for the purpose of a personal
examination.

(Amended 46 of 1988 s. 32; 81 of 1997 s. 58)

Section: 10 Questions to be decided by Court L.N. 29 of 1999 01/02/1999


(1) At the inquiry, after receiving such reports and hearing such evidence and arguments as it may think fit, the
Court shall decide whether the person who is alleged to be a mentally incapacitated person is incapable, by reason of
mental incapacity, of managing and administering his property and affairs and shall also decide any other questions as
to which an inquiry has been directed. (Replaced 81 of 1997 s. 8)

(2) The Court may make such order as may appear just respecting the costs of the inquiry and may include
therein such remuneration to physicians and surgeons as the Court shall deem reasonable:

Provided that no order for the payment of costs shall be made against an applicant under section 7(3)(a) or (b).
(Amended 81 of 1997 s. 8)

Section: 10A General functions of Court with respect to property and

affairs of mentally incapacitated person
L.N. 29 of 1999 01/02/1999



(1) The Court may, with respect to the property and affairs of a mentally incapacitated person, do or secure the
doing of all such things as appear necessary or expedient-

(a) for the maintenance or other benefit of that person;
(b) for the maintenance or other benefit of members of that person's family;
(c) for making provision for any other person or purposes for whom or for which the mentally

incapacitated person might be expected to provide if he were not mentally incapacitated; or
(d) otherwise for administering the mentally incapacitated person's property and affairs.

(2) In the performance of the functions under subsection (1) the Court shall have regard-
(a) as a paramount consideration, to the requirements of the mentally incapacitated person;



Cap 136 - MENTAL HEALTH ORDINANCE 6

(b) subject to paragraph (c), to the interest of creditors;
(c) to the rules of common law which formerly restricted the enforcement by a creditor of rights against

the property of a mentally incapacitated person under the control of the Court or other judicial
authority (if any), which rules shall apply to property under the protection and management of the
Court; and

(d) to the desirability of making provision for obligations of the mentally incapacitated person
notwithstanding that those obligations may not be legally enforceable.

(Added 81 of 1997 s. 9)

Section: 10B Powers of Court as to mentally incapacitated person's

property and affairs
L.N. 29 of 1999 01/02/1999



(1) Without prejudice to the generality of section 10A, the Court shall have power to make such orders and
give such directions and authorities as it thinks fit for the purposes of that section and in particular may for those
purposes make orders or give directions or authorities for-

(a) subject to section 12, the control and management of any property of the mentally incapacitated
person, including such orders, directions or authorities in respect of the transfer or vesting of property
or the payment into or lodgment in the Court of money or securities;

(b) the sale, exchange, charging or other disposition of or dealing with any property (including the
business premises) of the mentally incapacitated person;

(c) the acquisition of any property in the name, or on behalf, of the mentally incapacitated person;
(d) the settlement of any property of the mentally incapacitated person, or the gift of any property of that

person to any other person or for any purposes described in section 10A(1)(b) or (c);
(e) the execution for the mentally incapacitated person of a will making any provision (whether by way of

disposing of property or exercising a power or otherwise) which could be made by a will executed by
that person if he were not mentally incapacitated;

(f) the carrying on by another suitable person of any profession, trade or business of the mentally
incapacitated person;

(g) the dissolution of a partnership of which the mentally incapacitated person is a member;
(h) the carrying out of any contract entered into by the mentally incapacitated person;
(i) the conduct of legal proceedings in the name of the mentally incapacitated person or on that person's

behalf;
(j) the reimbursement out of the property of the mentally incapacitated person, with or without interest, of

money applied by any other person either in payment of the mentally incapacitated person's debts
(whether legally enforceable or not) or for the maintenance or other benefit of the mentally
incapacitated person or members of his family or in making provision for any other person or for any
purposes for whom or for which he might be expected to provide if he were not mentally incapacitated;

(k) the exercise of any power (including a power to consent) vested in the mentally incapacitated person,
whether beneficially, or as guardian or trustee, or otherwise.

(2) If under subsection (1) provision is made for the settlement of any property of a mentally incapacitated
person, or the exercise of a power vested in that person of appointing trustees or retiring from a trust, the Court may
make as respects the property so settled or the trust property such vesting or other orders as the case may require,
including (in the case of the exercise of such a power) any order which could have been made under the Trustee
Ordinance (Cap 29).

(3) Where under this section a settlement has been made of any property of a mentally incapacitated person,
and the Court is satisfied, at any time before the death of that person, that any material fact was not disclosed when the
settlement was made, or that there has been a substantial change in the circumstances then pertaining, the Court may
by order vary the settlement in such manner as the Court thinks fit, and (if necessary) give consequential directions.

(4) The power of the Court to make or give an order, direction or authority for the execution of a will for a
mentally incapacitated person-

(a) shall not be exercisable at any time when that person is a minor; and
(b) shall not be exercised unless the Court has reason to believe that the mentally incapacitated person is

incapable of making a valid will for himself.
(Added 81 of 1997 s. 9)





Cap 136 - MENTAL HEALTH ORDINANCE 7

Section: 10C Supplementary provisions as to wills executed under
section 10B

L.N. 29 of 1999 01/02/1999



(1) Where under section 10B(1) the Court makes an order or gives a direction or authority requiring or
authorizing another person ("the authorized person") to execute a will for a mentally incapacitated person, any will
executed in pursuance of that order, direction or authority shall be expressed to be signed by the mentally
incapacitated person acting by the authorized person, and shall be-

(a) signed by the authorized person in the name of the mentally incapacitated person, and with the
authorized person's own name, in the presence of 2 or more witnesses present at the same time;

(b) attested and subscribed by those witnesses in the presence of the authorized person; and
(c) sealed with the seal of the Court.

(2) The Wills Ordinance (Cap 30) shall have effect in relation to any such will as if it were signed by the
mentally incapacitated person by his own hand, except that in relation to any such will-

(a) section 5 of that Ordinance (which makes provision as to the signing and witnessing of wills) shall not
apply; and

(b) in any provision of that Ordinance any reference to execution in the manner required by that section of
that Ordinance shall be construed as a reference to execution in the manner required by subsection (1).

(3) Subject to this section, any such will executed in accordance with subsection (1) shall have the same effect
for all purposes as if the mentally incapacitated person were capable of making a valid will and the will had been
executed by him in the manner required by the Wills Ordinance (Cap 30).

(4) So much of subsection (3) as provides for such a will to have effect as if the mentally incapacitated person
were capable of making a valid will-

(a) shall not have effect in relation to such a will in so far as it disposes of any immovable property, other
than immovable property in Hong Kong; and

(b) where at the time when such a will is executed the mentally incapacitated person is domiciled in a
place outside Hong Kong, shall not have effect in relation to that will in so far as it relates to any other
property or matter, except any property or matter in respect of which, under the law of the mentally
incapacitated person's domicile, any question of his testamentary capacity would fall to be determined
in accordance with the law of Hong Kong.

(Added 81 of 1997 s. 9)

Section: 10D Court's powers in cases of emergency L.N. 29 of 1999 01/02/1999


Where-
(a) it is represented to the Court, and the Court has reason to believe, that a mentally incapacitated person

may be incapable by reason of mental incapacity of managing and administering his property and
affairs; and

(b) the Court is of the opinion that it is necessary to make immediate provision for any of the matters
referred to in section 10A(1),

then pending the determination of the question as to whether that person is so incapable, the Court may exercise in
relation to the property and affairs of that person any of the powers conferred on the Court by this Part in relation to
the property and affairs of a mentally incapacitated person so far as is requisite for enabling that provision to be made.

(Added 81 of 1997 s. 9)

Section: 10E Preservation of interests in mentally incapacitated person's

property
32 of 2000 09/06/2000



(1) Where any property of a mentally incapacitated person has been disposed of under this Part, and under his
will or his intestacy, or by any gift perfected or nomination taking effect on his death, any other person would have
taken an interest in the property but for the disposal-

(a) he shall take the same interest, if and so far as circumstances allow, in any property belonging to the
estate of the deceased which represents the property disposed of; and

(b) if the property disposed of was real property any property representing it shall so long as it remains
part of his estate be treated as if it were real property.

(2) The Court, in ordering, directing or authorizing under this Part any disposal of property which apart from



Cap 136 - MENTAL HEALTH ORDINANCE 8

this section would result in the conversion of personal property into real property, may direct that the property
representing the property disposed of shall, so long as it remains the property of the mentally incapacitated person or
forms part of his estate, be treated as if it were personal property.

(3) References in subsections (1) and (2) to the disposal of property are references to-
(a) the sale, exchange, charging or other dealing (otherwise than by will) with property other than money;
(b) the removal of property from one place to another;
(c) the application of money in acquiring property; or
(d) the transfer of money from one account to another,

and references to property representing property disposed of shall be construed accordingly and as including the result
of successive disposals.

(4) The Court may give such directions as appear to it necessary or expedient for the purpose of facilitating the
operation of subsection (1), including the carrying of money to a separate account and the transfer of property other
than money. (Amended 32 of 2000 s. 48)

(5) Where the Court has ordered, directed or authorized the expenditure of money for the carrying out of
permanent improvements on, or otherwise for the permanent benefit of, any property of the mentally incapacitated
person, it may order that the whole or any part of the money expended or to be expended shall be a charge upon the
property, whether without interest or with interest at a specified rate; and an order under this subsection may provide
for excluding or restricting the operation of subsection (1).

(6) A charge under subsection (5) may be made in favour of such person as may be just, and in particular,
where the money charged is paid out of the mentally incapacitated person's general estate, may be made in favour of a
person as trustee for the mentally incapacitated person; but no charge under that subsection shall confer any right of
sale or foreclosure during the lifetime of the mentally incapacitated person.

(Added 81 of 1997 s. 9)

Section: 11 Appointment of committees L.N. 29 of 1999 01/02/1999


(1) If the Court is satisfied that the person who is alleged to be mentally incapacitated is incapable, by reason of
mental incapacity, of managing and administering his property and affairs, the Court may, if it shall think fit, appoint a
committee of the estate, and for this purpose, the Official Solicitor may be so appointed of such person and may make
such order, if any, as to the remuneration of the committee out of such person's estate, and as to the giving of security
by the committee, as to the Court may seem fit. (Amended 81 of 1997 s. 10)

(2) A committee of the estate appointed under this Part shall do all such things in relation to the property and
affairs of the mentally incapacitated person as the Court, in the exercise of the powers conferred on the Court under
sections 10A and 10B, orders or directs the committee of the estate to do and may do any such thing in relation to the
property and affairs of the mentally incapacitated person as the Court, in the exercise of those powers, authorizes the
committee of the estate to do. (Replaced 81 of 1997 s. 10)

(3) The provisions of Order 30, rules 5, 6 and 7 of the Rules of the High Court (Cap 4 sub. leg. A) which apply
to receivers shall apply to a committee of the estate as if the references to "receiver" in those rules were substituted by
references to "committee of the estate". (Added 81 of 1997 s. 10. Amended 25 of 1998 s. 2)

Section: 12 Powers of management of estate of mentally incapacitated

person
L.N. 29 of 1999 01/02/1999



The Court may, on the appointment of a committee of the estate of a mentally incapacitated person, direct by the
order of appointment or by any subsequent order that the person to whom the charge of the estate is committed shall
have such powers for the management thereof as to the Court shall seem necessary and proper, reference being had to
the nature of the property, whether movable or immovable, of which the estate may consist: (Amended 81 of 1997 ss.
11 & 58)

Provided that such powers shall not extend to the sale or charge by way of mortgage of the estate or any part
thereof or to the letting of any immovable property, unless for a term not exceeding 3 years.

Section: 13 Powers of Registrar L.N. 29 of 1999 01/02/1999


(1) The Registrar may, without an order of reference, receive any proposal and conduct any inquiry respecting
the management of the estate of a mentally incapacitated person if such proposal relates to any matter which the



Cap 136 - MENTAL HEALTH ORDINANCE 9

committee of the estate has not been empowered by an order under section 12 to dispose of. (Amended 81 of 1997 s.
58)

(2) The Registrar may likewise, without reference, receive and inquire into any proposal relating to the sale or
charge by way of mortgage of the estate or of any part thereof or to the letting of any immovable property for a term
exceeding 3 years.

(3) The Registrar shall report to the Court on the proposal, and the Court shall, subject to the provisions of this
Ordinance, make such order upon the report and respecting the costs as shall under the circumstances seem just.

Section: 14 What relatives may attend proceedings 30/06/1997


The Court shall once in the matter of each inquiry, and may afterwards from time to time, determine whether
any one or more, and, if any, how many and which of the relatives or next-of-kin shall attend before the Registrar at
the cost of the estate in any proceeding connected with the management thereof, and, if any such relative or next-of-
kin is an infant, may from time to time appoint a fit person to be his guardian for the purpose of such proceeding.

Section: 15 Orders may be made on petition 30/06/1997


The Court may, on application made to it by petition concerning any matter whatsoever connected with the
inquiry, make such order, subject to the provisions of this Ordinance, respecting the application and the costs thereof
and of the consequent proceedings as shall under the circumstances seem just.

Section: 16 (Repealed 81 of 1997 s. 12) L.N. 29 of 1999 01/02/1999




Section: 17 Committee to execute instruments L.N. 29 of 1999 01/02/1999


(1) The committee of the estate of the mentally incapacitated person shall, in his name and on his behalf,
execute all such conveyances and instruments of transfer, relative to any sale, mortgage or other disposition of his
estate as the Court shall order.

(2) In like manner such committee shall, under the order of the Court, exercise all powers whatsoever vested in
a mentally incapacitated person whether the same are vested in him for his own benefit or in the character of trustee or
guardian.

(Amended 81 of 1997 s. 58)

Section: 18 (Repealed 81 of 1997 s. 13) L.N. 29 of 1999 01/02/1999




Section: 19 (Repealed 81 of 1997 s. 14) L.N. 29 of 1999 01/02/1999




Section: 20 (Repealed 81 of 1997 s. 15) L.N. 29 of 1999 01/02/1999




Section: 21 Committee may dispose of lease L.N. 29 of 1999 01/02/1999


Where a mentally incapacitated person is entitled to a lease or under-lease, and it appears to be for the benefit of
his estate that it should be disposed of, the committee of the estate may by order of the Court surrender, assign or
otherwise dispose of the same to such person for such valuable or nominal consideration and upon such terms as the
Court shall think fit.

(Amended 81 of 1997 s. 58)

Section: 22 Transfer of stock of mentally incapacitated person L.N. 29 of 1999 01/02/1999


Where any stock or Government security or any share or debenture in a public company, transferable within



Cap 136 - MENTAL HEALTH ORDINANCE 10

Hong Kong or the dividends of which are payable there, are standing in the name of, or are vested in, a mentally
incapacitated person beneficially entitled thereto or a committee of the estate of a mentally incapacitated person or a
trustee for him, and the committee or trustee dies intestate or himself becomes a mentally incapacitated person or is
out of the jurisdiction of the Court, or it is uncertain whether the committee or trustee be living or dead or he neglects
or refuses to transfer the stock, securities or shares or to receive and pay the dividends to a new committee or trustee,
or as he directs, within 14 days after being required by him to do so, the Court may order some fit person to make such
transfer or to transfer the same and to receive and pay over the dividends in such manner as the Court may direct, and
such transfer or payment shall be valid and effectual for all purposes.

(Amended 46 of 1988 s. 32; 81 of 1997 s. 58)

Section: 23 Transfer of property of mentally incapacitated person

residing out of Hong Kong
L.N. 29 of 1999 01/02/1999



Where any property situate in Hong Kong is standing in the name of or vested in any person residing out of
Hong Kong, the Court, upon being satisfied that such person has been declared to be mentally incapacitated and that
his personal estate has been vested in a committee, curator or manager according to the laws of the place where he is
residing, may order some fit person to make such transfer of the property, or of any part thereof, to such committee,
curator or manager or otherwise, and also to receive and pay over any proceeds or profits thereof as the Court may
think fit; and any act done in pursuance of such order shall be valid and effectual for all purposes.

(Amended 46 of 1988 s. 32; 81 of 1997 s. 16)

Section: 24 Power to order maintenance without appointing committee L.N. 29 of 1999 01/02/1999


If it appears to the Court, having regard to the situation and condition in life of the mentally incapacitated person
and his family and the other circumstances of the case, to be expedient that his property should be made available for
his or their maintenance in a direct and inexpensive manner, the Court may, instead of appointing a committee of the
estate, order that the property, if money, or, if of any other description, the produce thereof when realized, be paid to
such person as the Court may think fit to be applied for the purpose aforesaid, and all payments so made shall be a
good discharge to the person making the same.

(Amended 81 of 1997 s. 58)

Section: 25 Temporary provision for maintenance of mentally

incapacitated person
L.N. 29 of 1999 01/02/1999



If it appears to the Court that the mental incapacity of a mentally incapacitated person is in its nature temporary,
and that it is expedient to make temporary provision for his maintenance or the maintenance of his family, the Court
may in the manner provided by section 24 direct his property or a sufficient part of it to be applied for the purpose
aforesaid.

(Amended 81 of 1997 ss. 17 & 58)

Section: 26 Order for detention of mentally disordered person L.N. 29 of 1999 01/02/1999


When upon any inquiry under this Part any person has been found by the Court to be mentally disordered and
incapable, by reason of mental disorder, of managing and administering his property and affairs, the Court may make
an order for such person to be received into a mental hospital and send him in suitable custody, together with the order
for his reception, to the mental hospital named in such order.

(Replaced 81 of 1997 s. 18)

Section: 26A Order for potential guardianship of mentally incapacitated

person
L.N. 29 of 1999 01/02/1999



When upon any inquiry under this Part any person has been found by the Court to be mentally incapacitated and
incapable, by reason of mental incapacity, of managing and administering his property and affairs, the Court may
recommend the applicant under this Part to make an application for a guardianship order under Part IVB, unless the



Cap 136 - MENTAL HEALTH ORDINANCE 11

mentally incapacitated person has already been received into guardianship under this Ordinance.
(Added 81 of 1997 s. 19)


Section: 26B Variation of powers of committee of the estate or the

replacement of committee of the estate
L.N. 29 of 1999 01/02/1999



(1) The Court may, on an application under subsection (2), make an order-
(a) to vary any powers of a committee of the estate ("relevant committee") appointed under section 11 or

this section;
(b) to replace the relevant committee by another committee of the estate, and where the relevant

committee is not the Official Solicitor he may be so appointed.
(2) An application under this section may be made by any relative of the person alleged to be a mentally

incapacitated person, but if no such application is made by such relative, then by-
(a) the Director of Social Welfare;
(b) the Official Solicitor;
(c) any guardian of that person appointed under Part IVB; or
(d) the relevant committee.

(Added 81 of 1997 s. 19)

Section: 27 Annulling proceedings L.N. 29 of 1999 01/02/1999


(1) When any person has been found to be mentally incapacitated and it shall be shown to the Court, either on
the application of such person or of any other person acting on his behalf or on the information of any other person,
that there is reason to believe that such person has become capable of managing and administering his property and
affairs, the Court may make an order for inquiry whether such person is so capable.

(2) An inquiry under this section shall be conducted in the same manner as an inquiry under section 10(1), and
the power under section 9 to examine a person alleged to be mentally incapacitated shall be applied accordingly.
(Replaced 81 of 1997 s. 20)

(3) If it be found on such inquiry that the person who is the subject of the inquiry has become capable of
managing and administering his affairs, the Court shall order all proceedings in such matter to cease or to be set aside
on such terms and conditions as under the circumstances of the case shall appear proper.

(4) A committee of the estate appointed under this Part for any mentally incapacitated person shall be
discharged by order of the Court on the Court being satisfied that that person has become capable of managing and
administering his property and affairs, and may be discharged by order of the Court at any time if the Court considers
it expedient to do so, and such a committee of the estate shall be discharged (without any order) on the death of the
mentally incapacitated person. (Added 81 of 1997 s. 20)

(Amended 81 of 1997 s. 20)

Section: 28 References to tribunal by medical superintendent L.N. 29 of 1999 01/02/1999


Where the Court has made an order under section 27(3) in respect of any person detained in a mental hospital,
the medical superintendent of the mental hospital shall forthwith, on the production of a certified copy of such order,
refer the case to the tribunal under section 59D(1)(a).

(Replaced 81 of 1997 s. 21)

Part: III RECEPTION, DETENTION AND TREATMENT OF

PATIENTS*
L.N. 29 of 1999 01/02/1999



_________________________________________________________
Note:
*(Amended 81 of 1997 s. 22)

Section: 29 (Repealed 46 of 1988 s. 4) L.N. 29 of 1999 01/02/1999






Cap 136 - MENTAL HEALTH ORDINANCE 12

Section: 30 Voluntary patients 30/06/1997


(1) If a person appears to require treatment in a mental hospital and if he, or in the case of a person under the
age of 16 years, his parent or guardian-

(a) is desirous that such person should receive such treatment; and
(b) completes an application in writing; and
(c) lodges the application with a medical superintendent,

the medical superintendent may admit such person as a voluntary patient.
(2) A voluntary patient-

(a) shall be entitled to leave the mental hospital after the expiration of 7 days from his, or if he is under the
age of 16 years, his parent or guardian, giving notice in writing; or, in the discretion of the medical
superintendent, verbal notice, to the medical superintendent of the intention of the voluntary patient to
leave the mental hospital:

Provided that a medical superintendent may in his absolute discretion discharge a voluntary
patient at any time within such period of 7 days; and

(b) shall leave the mental hospital within 72 hours after he, or if he is under the age of 16 years his parent
or guardian, has received from the medical superintendent notice in writing, signed by the medical
superintendent, stating that the medical superintendent is satisfied that it is not necessary that the
voluntary patient should remain in the mental hospital and that the voluntary patient is required to
leave the mental hospital.

(3) A person who became a voluntary patient when he was under the age of 16 years shall not remain in a
mental hospital as a voluntary patient for more than 28 days after he has attained the age of 16 years unless during
such period of 28 days he shall have completed and lodged with the medical superintendent such application as is
referred to in subsection (1).

(4) A medical superintendent may detain in a mental hospital, for observation and treatment, a person who has
been admitted as a voluntary patient until the expiration of 7 days from the time when such notice as is referred to in
subsection (2)(a) has been given or, in the case of a person who was admitted as a voluntary patient when he was less
than 16 years of age, until the expiration of 28 days after the voluntary patient has attained the age of 16 years.

Section: 31 Detention of a patient under observation 30/06/1997


(1) An application may be made to a District Judge or magistrate for an order for the detention of a patient for
observation on the grounds that the patient-

(a) is suffering from mental disorder of a nature or degree which warrants his detention in a mental
hospital for observation (or for observation followed by medical treatment) for at least a limited
period; and

(b) ought to be so detained in the interests of his own health or safety or with a view to the protection of
other persons. (Replaced 46 of 1988 s. 5)

(1A) An application for an order for the detention of a patient for observation shall be founded on the written
opinion in the prescribed form of a registered medical practitioner who has examined the patient within the previous 7
days, which opinion shall include-

(a) a statement that in the opinion of the practitioner the conditions set out in subsection (1) are satisfied;
(b) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the

conditions set out in subsection (1)(a); and
(c) a statement of the reasons for that opinion so far as it relates to the conditions set out in subsection

(1)(b). (Added 46 of 1988 s. 5)
(1B) Upon receipt of an application under subsection (1) the District Judge or magistrate may make an order in

the prescribed form authorizing the removal of the patient to a mental hospital for the purpose of detention and
observation during the period not exceeding 7 days from and including the date of the order. (Added 46 of 1988 s. 5)

(2) Every such order shall have the effect of authorizing the applicant and every public officer with such
assistance in each case as may be necessary, to use such reasonable force as may be necessary in order to remove to a
mental hospital the patient and if for any reason it is not practicable forthwith to remove him to a mental hospital to
detain him in a place of safety for a period not exceeding 48 hours. (Amended 46 of 1988 s. 5)

(3) Where the patient has requested to see the District Judge or magistrate before such Judge or magistrate
determines whether or not to make an order under subsection (1B)-



Cap 136 - MENTAL HEALTH ORDINANCE 13

(a) the District Judge or magistrate shall not make the order until he has seen the patient; and
(b) a certificate by the registered medical practitioner who furnished the opinion for the purposes of

subsection (1A) as to whether or not the patient has made such a request shall be sufficient evidence of
the fact thereof. (Replaced 46 of 1988 s. 5)

(4) A medical superintendent may detain in a mental hospital for observation, investigation and treatment any
person who is the subject of an order under this section or under section 32.

Section: 32 Extension of period of detention of a patient under

observation
30/06/1997



(1) If a patient under observation in a mental hospital has been examined by 2 registered medical practitioners,
either separately or together, and the 2 registered medical practitioners are of the opinion that it is necessary that the
patient under observation should be detained in a mental hospital for a further period for the purpose of observation,
investigation and treatment, they may complete a certificate in the prescribed form and forward it to a District Judge.
(Amended 35 of 1969 s. 2)

(2) If a District Judge who has received a certificate in accordance with the provisions of subsection (1) is of
the opinion that it is necessary for the person named in the certificate to be detained in a mental hospital for a further
period of observation, investigation and treatment, he shall countersign the certificate and shall forward it to the
medical superintendent of the mental hospital in which the person is detained. (Amended 35 of 1969 s. 2)

(3) Only one extension of not more than 21 days shall be made in accordance with this section to any order
made in accordance with section 31. (Amended 46 of 1988 s. 6)

(4) Subject to section 36, no person shall be detained in a mental hospital after the expiration of the period of
any order made in accordance with section 31 and of any extension thereto made in accordance with this section
unless he has become a voluntary patient. (Amended 46 of 1988 s. 6)

Section: 33 (Repealed 81 of 1997 s. 24) L.N. 29 of 1999 01/02/1999




Section: 34 (Repealed 81 of 1997 s. 25) L.N. 29 of 1999 01/02/1999




Section: 35 (Repealed 81 of 1997 s. 26) L.N. 29 of 1999 01/02/1999




Section: 35A General provisions as to applications L.N. 29 of 1999 01/02/1999


(1) Subject to the provisions of this section, an application under section 31(1) for detention for observation
shall be in the prescribed form and may be made by-

(a) a relative of the patient;
(b) a registered medical practitioner;
(c) a public officer in the Social Welfare Department,

and every such application shall specify which of those persons is making the application and, if made by a relative of
a patient, shall state the relationship.

(2) Before an application under section 31(1) for the detention of a patient for observation is made by a
registered medical practitioner or a public officer in the Social Welfare Department, that practitioner or officer shall
take such steps as are reasonably practicable to inform a person in Hong Kong appearing to him to be a relative of the
patient (if there is such a person) that the application is to be made, and if the medical practitioner or public officer
fails to take such steps prior to the detention of the patient in a mental hospital, the medical superintendent shall, as
soon as practicable thereafter, take them.

(3) No application for detention for observation under section 31(1) may be made by any person in respect of a
patient unless that person has personally seen the patient within the period of 14 days ending immediately prior to the
date of application.

(Added 46 of 1988 s. 7. Amended 81 of 1997 s. 27)




Cap 136 - MENTAL HEALTH ORDINANCE 14

Section: 36 Detention of certified patients L.N. 29 of 1999 01/02/1999


(1) If-
(a) a patient liable to be detained in a mental hospital (otherwise than under this section) or in the

Correctional Services Department Psychiatric Centre; or
(b) a voluntary patient in a mental hospital,

has been examined by 2 registered medical practitioners either separately or together and the 2 registered medical
practitioners are of the opinion that-

(i) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him
to receive medical treatment in hospital; and (Amended 81 of 1997 s. 28)

(ii) it is necessary for the health or safety of the patient or for the protection of other persons that he should
receive such treatment and it cannot be provided unless he is detained under this section,

they may complete a certificate in the prescribed form and forward it to a District Judge. (Replaced 46 of 1988 s. 8)
(2) If a District Judge who has received a certificate in accordance with subsection (1) is satisfied that the

certificate referred to in subsection (1) is in order and there are no grounds for rejecting it, he shall countersign the
certificate and shall forward it to the medical superintendent of the mental hospital in which the person is detained:
(Amended 46 of 1988 s. 8)

Provided that a District Judge shall not countersign a certificate-
(a) in respect of a voluntary patient unless he is satisfied that the voluntary patient, or some person on his

behalf in the case of a voluntary patient of less than 16 years of age, has given notice of the intention
of the voluntary patient to leave the mental hospital in accordance with section 30(2)(a) and that it
would be likely to be dangerous to the voluntary patient or to other persons if the voluntary patient
were discharged from the mental hospital; or

(b) (Repealed 46 of 1988 s. 8)
(3) A medical superintendent may detain in a mental hospital for observation, investigation and treatment any

person who is the subject of an order under this section and may transfer the patient to any other mental hospital.
(4) The procedures described in subsections (1) and (2) may be undertaken notwithstanding that the patient is

detained under a hospital order or because he has been sentenced to imprisonment or is detained by an order of a
court, but where the patient is detained under a hospital order or because he has been sentenced to imprisonment-

(a) such procedures shall not be commenced more than 30 days before the date when he would, in the
absence of such procedures, be released from detention; and

(b) the provisions of Part IV or, where the Criminal Procedure Ordinance (Cap 221) applies, that
Ordinance, shall continue to apply to that patient until that date,

and nothing done under this section shall have the effect of varying any order to a court. (Added 46 of 1988 s. 8)
(5) This section-

(a) applies to a patient who suffers from mental illness or psychopathic disorder; and
(b) applies to a patient other than a patient referred to in paragraph (a) only where the 2 medical

practitioners referred to in subsection (1) are, in addition to being of the opinion described in that
subsection, also of the opinion that the patient is abnormally aggressive or that his conduct is seriously
irresponsible. (Added 46 of 1988 s. 8)

(Amended 35 of 1969 s. 2)

Section: 37 (Repealed 46 of 1988 s. 9) 30/06/1997




Section: 38 Temporary transfer of patients L.N. 29 of 1999 01/02/1999


When it appears to a medical superintendent that it would be for the benefit of any certified patient receiving
treatment or special care or that it is necessary for the purpose of obtaining treatment of a particular nature for any
patient, that he should be temporarily transferred to and maintained in another hospital, institution or place, the
medical superintendent, if the person in charge of the other hospital, institution or place is willing to receive the
patient, may arrange for such transfer.

(Amended 46 of 1988 s. 10; 81 of 1997 s. 29)




Cap 136 - MENTAL HEALTH ORDINANCE 15

Section: 39 Absence on trial 30/06/1997


(1) A medical superintendent may from time to time permit a certified patient or a patient under observation to
be absent from the mental hospital on trial for such periods as the medical superintendent may think proper.
(Amended 46 of 1988 s. 11)

(2) Any absence on trial under this section shall be subject to such conditions as the medical superintendent
may prescribe.

(3) In any case where a patient is absent from a mental hospital in accordance with this section, the medical
superintendent may, subject to subsection (5), by notice in writing in the prescribed form to the patient or to the person
for the time being in charge of the patient, revoke the permission to be absent and recall the patient to the mental
hospital if he is of the opinion that it is necessary so to do in the interests of the patient's health or safety or for the
protection of other persons. (Replaced 46 of 1988 s. 11)

(4) If before the expiry of any period of absence which has been prescribed the medical superintendent certifies
in the prescribed form that it is not necessary that the patient be detained in a mental hospital he shall be deemed to
have been lawfully discharged in accordance with the provisions of this Ordinance. (Amended 46 of 1988 s. 11)

(5) A patient who has been permitted to be absent from a mental hospital in accordance with the provisions of
this section shall not be recalled under subsection (3) after he has ceased to be liable to be detained under this
Ordinance. (Added 46 of 1988 s. 11)

Section: 40 (Repealed 46 of 1988 s. 12) 30/06/1997




Section: 41 (Repealed 46 of 1988 s. 12) 30/06/1997




Section: 42 Discharge of patient before recovery 30/06/1997


(1) Where on behalf of a patient including a voluntary patient a relative or friend of the patient makes
application in writing in the prescribed form to the medical superintendent-

(a) stating the relationship or connection of the applicant with the patient;
(b) requesting that the patient may be delivered over to the applicant; and
(c) undertaking that the patient will receive proper care and will be prevented from doing injury to himself

or to others and, in the case of an application by a person other than the person on whose application
the patient was admitted to a mental hospital, satisfies the medical superintendent that before he made
the application he served on such person notice of his intention so to do,

the medical superintendent shall within 48 hours of the receipt of the application either-
(i) discharge the patient to the applicant notwithstanding that the patient is still a mentally disordered

person; or
(ii) give to the applicant a certificate in the prescribed form stating that he refuses to discharge the patient

on the ground that-
(A) he is satisfied that the patient is dangerous or otherwise unfit to be at large; or
(B) he is not satisfied that the patient will receive proper care.

(2) (Repealed 46 of 1988 s. 13)

Section: 42A Discharge of patient L.N. 29 of 1999 01/02/1999


(1) Subject to section 42B a patient who is for the time being liable to be detained shall cease to be so liable if
there is made in accordance with this section an order in writing discharging him from detention (referred to as an
"order for discharge" in this section and section 42B, but subject to subsection (6) of that section). (Amended 81 of
1997 s. 30)

(2) An order for discharge may be made in respect of a patient-
(a) where the patient is liable to be detained in a mental hospital, by the medical superintendent;
(b) (Repealed 81 of 1997 s. 30)

(Added 46 of 1988 s. 14)



Cap 136 - MENTAL HEALTH ORDINANCE 16


Section: 42B Conditional discharge of patients with propensity to

violence
L.N. 130 of 2007 01/07/2007



Remarks:
For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative
Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.


(1) 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 medical superintendent is of the opinion that the patient may safely be discharged subject to
conditions to be specified in an order for discharge,

the medical superintendent may, in the exercise of his powers under section 42A, but subject to any restriction on such
power imposed by any provision of Part IV, make an order for discharge subject to compliance by the patient
discharged (in this section and section 43 called "the conditionally discharged patient") with conditions.

(2) Without prejudice to the power of the medical superintendent in the exercise of his powers under subsection
(1) to impose such conditions as he thinks fit on an order for discharge, being conditions reasonable in the
circumstances, such conditions may require the conditionally discharged patient-

(a) to reside at a place specified by the medical superintendent;
(b) to attend at an out-patient department of a hospital or at a clinic specified by the medical

superintendent;
(c) to take medication as prescribed by a medical practitioner; or
(d) to be under the supervision of the Director of Social Welfare.

(3) In any case where-
(a) it appears to a medical superintendent that a conditionally discharged patient has failed to comply with

any condition to which his order for discharge is subject; and
(b) the medical superintendent is of the opinion that it is necessary in the interests of the patient's health or

safety, or for the protection of other persons, to recall the patient to a mental hospital,
the medical superintendent may, by notice in writing in the prescribed form to the conditionally discharged patient or
to the person in charge of the conditionally discharged patient, recall the patient to the mental hospital and, upon the
giving of the notice to the patient, or at such subsequent time as may be stated in the notice, the patient may be
detained and section 43(5) shall apply accordingly.

(4) Any conditionally discharged patient recalled to a mental hospital under subsection (3) shall, upon
admission to that hospital, be deemed to have been detained therein under section 31 and, for the purposes of that
section, the patient shall be deemed to have been detained in that hospital in pursuance of an order under section
31(1B) made at the time of admission.

(5) The medical superintendent may at any time by notice in writing to the conditionally discharged patient
vary the conditions of his discharge.

(6) This section shall apply to a person who is admitted to the Correctional Services Department Psychiatric
Centre in pursuance of a hospital order with the following modifications-

(a) references in subsections (1) and (2) to the medical superintendent shall be construed as references to
the Commissioner of Correctional Services and references to the exercise of the medical
superintendent's powers under section 42A as references to any power vested in the Commissioner to
discharge a person from the Centre;

(b) references to an order of discharge shall be construed as references to an order of discharge by the
Commissioner of Correctional Services with the consent of the Chief Executive given under section
47(1A)(b); (Amended 60 of 2000 s. 3)

(c) references in subsections (3), (4) and (5) to the medical superintendent shall be construed as references
to a medical officer authorized for the purposes of those subsections in writing by the Secretary for
Food and Health; and (Amended L.N. 76 of 1989; 68 of 1990 s. 24; L.N. 106 of 2002; L.N. 130 of
2007)

(d) references in subsection (3) or (4) to recall to a mental hospital shall be construed as references to call
to a mental hospital specified by such medical officer in the notice given under subsection (3),

and the power to discharge the patient at any time subsequent to the making of the order of conditional discharge may



Cap 136 - MENTAL HEALTH ORDINANCE 17

be exercised by that medical officer who shall have, in that respect, the power of a medical superintendent under
section 42A.

(Added 46 of 1988 s. 14)

Section: 43 Detention and recapture L.N. 29 of 1999 01/02/1999


(1) Every patient received into a mental hospital under the authority of this Ordinance may, subject to this
Ordinance, be detained therein until he is removed or discharged in accordance with this Ordinance.

(2) Where a patient who is for the time being liable to be detained in a mental hospital under this Ordinance
escapes, he may, subject to the provision of this section, be taken into custody and returned to the mental hospital by
the medical superintendent, any officer or servant of such hospital, any person authorized by the medical
superintendent or any police officer.

(3) Where a person who is for the time being liable to be detained under this Ordinance-
(a) fails to return to the mental hospital on any occasion on which, or at the expiration of any period for

which, permission to be absent was granted under section 39, or upon being recalled under that
section; or

(b) absents himself without permission from any place where he is required to reside in accordance with
conditions imposed on the grant of leave of absence under that section,

he may, subject to this section, be taken into custody and returned to the mental hospital by the medical
superintendent, any officer or servant of such hospital, or any person authorized by the medical superintendent.

(4) (Repealed 81 of 1997 s. 31)
(5) Where a conditionally discharged patient-

(a) fails to return to the mental hospital upon being recalled under section 42B(3) or called there under
section 42B(6)(d); or

(b) absents himself without permission from any place where he is required to reside in accordance with
conditions imposed on his discharge under section 42B,

he may be taken into custody and returned to the mental hospital by the medical superintendent, or any officer or
servant of the hospital, or any other person authorized by the medical superintendent:

Provided that where section 42B(6) applies references in this section to the medical superintendent shall be
construed as referring to the medical superintendent of the mental hospital specified in the notice given under section
42B(3).

(6) A patient shall not be taken into custody under this section after the expiration of 28 days beginning with
the first day of his absence without leave, or, in the case of a failure to return to a mental hospital, the day on which
the obligation to return arose, and a patient who has not returned or been taken into custody under this section within
that period shall cease to be liable to be detained at the expiration of that period: (Amended 81 of 1997 s. 31)

Provided that nothing in this subsection shall apply in the case of a person who is or was liable to detention
under a hospital order which is not endorsed under section 45(1A), whether or not he was, prior to the event giving
rise to the power to take him into custody under this section, in actual detention, absent on permission granted under
section 39 or conditionally discharged from detention under that order.

(7) Where by virtue of this section a person is detained, taken into custody or returned to a mental hospital,
such reasonable force may be used as is necessary for the purpose.

(Replaced 46 of 1988 s. 14)

Section: 44 Removal of patient from Hong Kong L.N. 29 of 1999 01/02/1999


(1) Where an alien or any person not domiciled in Hong Kong is detained as a patient and it appears expedient
that he should be removed to the country of which he is a national, the Chief Secretary for Administration if satisfied
that his removal is likely to be for his benefit, and that proper arrangements have been made for such removal and for
his subsequent care and treatment, may, by warrant, direct the patient to be delivered to the person named in the
warrant for the purpose of removal to the country of which he is a national, and every such warrant shall be obeyed by
the person or authority having the charge of the person named therein. (Amended 81 of 1997 s. 32; L.N. 362 of 1997)

(2) A warrant under this section shall be sufficient authority for the master of any vessel or captain of any
aircraft or the guard on any train to receive and detain the patient on board such vessel, aircraft or train for the purpose
of conveying him to his destination.

(3) Any order of removal made under this section shall be addressed to the medical superintendent of the



Cap 136 - MENTAL HEALTH ORDINANCE 18

mental hospital in which the patient is at the time detained and shall direct him to deliver up the patient to the person
mentioned in such order at such place and in such manner as may be specified in the said order for the purpose of such
removal as aforesaid; and the patient shall be delivered up accordingly.

(4) Any patient removed from Hong Kong in accordance with the provisions of this section shall not return to
Hong Kong except by permission of the Chief Secretary for Administration. (Amended L.N. 362 of 1997)


(Amended 46 of 1988 s. 32)


Part: IIIA GUARDIANSHIP OF PERSONS CONCERNED IN

CRIMINAL PROCEEDINGS
30/06/1997



(Part IIIA added 38 of 1996 s. 2)

Section: 44A Power of court or magistrate to make guardianship order 32 of 2000 09/06/2000


(1) Where-
(a) section 76(1) of the Criminal Procedure Ordinance (Cap 221) applies to a person;
(b) the court or magistrate concerned is satisfied, on the written or oral evidence of 2 or more registered

medical practitioners (of whom not less than 2 shall be psychiatrists on the Specialist Register
established under section 6(3) of the Medical Registration Ordinance (Cap 161)), that- (Amended 32
of 2000 s. 9)
(i) the person is mentally incapacitated to a nature or degree which warrants his reception into

guardianship under this Part; and (Amended 81 of 1997 s. 33)
(ii) it is necessary in the interests of the welfare of the person or for the protection of other persons

that the person should be so received; and (Amended 81 of 1997 s. 33)
(c) the court or magistrate is of the opinion, having regard to all the circumstances of the case, including-

(i) the nature of any act or omission by virtue of which the section referred to in paragraph (a)
applies to him;

(ii) the character and antecedents of the person;
(iii) the other available methods of dealing with him; and
(iv) the advice of the Director of Social Welfare on-

(A) the suitability of an order under this section in the case of the person; and
(B) where applicable, the availability of a suitable person to be authorized under paragraph (i)

if there is an order under this section in the case of the person,
that the most suitable method of disposing of the case is by means of an order under this section,

the court or magistrate may-
(i) by an order ("guardianship order") place the person under the guardianship of the Director of Social

Welfare, or a person authorized by the Director of Social Welfare for the purpose, as may be specified
in the order;

(ii) specify in the guardianship order the period ("validity period") during which the person should be so
placed which shall not exceed 1 year commencing on the date of the order. (Amended 81 of 1997 s.
33)

(2) Section 45(3) shall apply to a guardianship order as it applies to a hospital order.



Section: 44B Effect of guardianship order L.N. 130 of 2007 01/07/2007


Remarks:
For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative
Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.


(1) A guardianship order may confer on the Director of Social Welfare or any other person authorized by the

Director of Social Welfare, as guardian, to the exclusion of any other person one or more of the following powers,
namely-

(a) the power to require the mentally incapacitated person to reside at such place as may be specified by



Cap 136 - MENTAL HEALTH ORDINANCE 19

the guardian;
(b) the power to convey, or to arrange the conveyance of, the mentally incapacitated person to the place so

specified by the guardian, and such reasonable force may be used as is necessary for the purpose;
(c) the power to require the mentally incapacitated person to attend at places and times so specified by the

guardian for the purpose of treatment or special treatment (within the meaning of section 59ZA) or
occupation, education or training;

(d) the power to consent to that treatment (other than special treatment) on behalf of the mentally
incapacitated person but only to the extent that the mentally incapacitated person is incapable of
understanding the general nature and effect of any such treatment;

(e) the power to require access to the mentally incapacitated person to be given, at any place where that
person is residing, to any registered medical practitioner, approved social worker, or other person (if
any) specified in the order;

(f) the power to hold, receive or pay such monthly sum specified in the order on behalf of the mentally
incapacitated person for the maintenance or other benefit of that person as if the guardian were a
trustee of that monthly sum. (Replaced 81 of 1997 s. 34)

(2) (Repealed 81 of 1997 s. 34)
(2A) If any person (other than the Director of Social Welfare) who is the guardian of a mentally incapacitated

person placed under guardianship in pursuance of a guardianship order-
(a) dies; or
(b) gives notice in writing to the Director of Social Welfare that he desires to relinquish the functions of

guardian,
the guardianship of the mentally incapacitated person shall upon that death or the receipt of that notice, as the case
may be, vest in the Director of Social Welfare. (Added 81 of 1997 s. 34)

(2B) If any such guardian, not having given notice under subsection (2A)(b), is incapacitated by illness or any
other cause from performing the functions of guardian of the mentally incapacitated person, those functions shall,
during the guardian's incapacity, be performed on his behalf by the Director of Social Welfare. (Added 81 of 1997 s.
34)

(3) A guardianship order shall cease to be of any effect-
(a) upon the person subject to the order being discharged by the tribunal under section 59E; or (Amended

81 of 1997 s. 34)
(b) upon expiry of the validity period unless the court or magistrate renews the order upon-

(i) an application made-
(A) not less than 3 months before such expiry; and
(B) at the instigation of the Director of Social Welfare; and

(ii) production of such evidence of the need for renewal as the court or magistrate thinks fit;
(c) upon revocation of the order by the court or magistrate. (Added 81 of 1997 s. 34)

(3A) The court or magistrate may, upon an application under subsection (3)(b)(i)-
(a) renew the guardianship order;
(b) renew and vary the guardianship order and in the case of a variation which is a transfer, may place the

person subject to the order under the guardianship of the Director of Social Welfare, or a person
authorized by the Director of Social Welfare,

for a validity period of not more than 3 years commencing on the date of the renewal of the guardianship order.
(Added 81 of 1997 s. 34)

(4) Where a person is placed under guardianship in pursuance of a guardianship order, any previous
guardianship order (including any guardianship order under Part IVB) by which he was liable to be subject to
guardianship shall cease to have effect. (Amended 81 of 1997 s. 34)

(4A) Where a person placed under guardianship in pursuance of a guardianship order becomes liable to be
detained or is detained in a mental hospital or the Correctional Services Department Psychiatric Centre the powers
conferred on a guardian under subsection (1)(a), (b) and (c) in respect of the mentally incapacitated person shall be
suspended and remain suspended until the mentally incapacitated person is discharged. (Added 81 of 1997 s. 34)

(5) The Secretary for Labour and Welfare may, by notice in the Gazette, amend subsection (3)(b)(i)(A) by
substituting a different period or periods for any period specified in that subsection, either generally or to cover a
particular case or class of case. (Amended L.N. 106 of 2002; L.N. 130 of 2007)

(6) It is hereby declared that a notice under subsection (5) is subsidiary legislation.
(7) Where a mentally incapacitated person who is for the time being subject to a guardianship order under this



Cap 136 - MENTAL HEALTH ORDINANCE 20

Part absents himself without the permission or agreement of the guardian from the place where he is required by the
guardian to reside, he may be taken into custody and returned to that place by the guardian or by the Director of Social
Welfare, and such reasonable force may be used as is necessary for the purpose. (Added 81 of 1997 s. 34)

(8) For the purposes of this section-
"monthly sum" (每月款項) means a sum not exceeding the latest median monthly employment earnings of employed

persons, for the time being, specified in the Quarterly Report on General Household Survey published by the
Census and Statistics Department;

"vary" (更改), in relation to a guardianship order, includes transfer. (Added 81 of 1997 s. 34)



Part: IIIB SUPERVISION AND TREATMENT ORDERS

RELATING TO PERSONS CONCERNED IN
CRIMINAL PROCEEDINGS

30/06/1997



(Part IIIB added 38 of 1996 s. 2)

Section: 44C Interpretation L.N. 29 of 1999 01/02/1999


In this Part, unless the context otherwise requires-
"mental incapacity" (精神上無行為能力), in relation to treatment, includes behaviour manifested by a mental

incapacity; (Replaced 81 of 1997 s. 35)
"supervised person" (受監管人) includes a prospective supervised person;
"supervising officer" (監管人員) includes a prospective supervising officer;
"supervision" (監管) includes care;
"treatment" (治療) includes education, training and behaviour management.



Section: 44D Power of court or magistrate to make supervision and

treatment order
32 of 2000 09/06/2000



(1) Subject to the other provisions of this Part, where-
(a) section 76(1) of the Criminal Procedure Ordinance (Cap 221) applies to a person;
(b) the court or magistrate concerned is satisfied, on the written or oral evidence of 2 or more registered

medical practitioners (of whom not less than 2 shall be psychiatrists on the Specialist Register
established under section 6(3) of the Medical Registration Ordinance (Cap 161)), that- (Amended 32
of 2000 s. 10)
(i) the person is mentally incapacitated to a nature or degree which warrants his receiving

supervision and treatment under this Part;
(ii) the mental incapacity is susceptible to treatment; and
(iii) it is necessary in the interests of the welfare of the person or for the protection of other persons

that the person should be so supervised and treated; and (Amended 81 of 1997 s. 36)
(c) the court or magistrate is of the opinion, having regard to all the circumstances of the case, including-

(i) the nature of any act or omission by virtue of which the section referred to in paragraph (a)
applies to him;

(ii) the character and antecedents of the person;
(iii) the other available methods of dealing with him; and (iv) the advice of the Director of Social

Welfare on-
(A) the suitability of an order under this section in the case of the person;
(B) where applicable, the availability of a suitable person acting under the Director of Social

Welfare's authority under paragraph (i) if there is an order under this section in the case of
the person; and

(C) if there is an order in the case of the person, the arrangements that will need to be made for
the treatment intended to be specified in the order,



Cap 136 - MENTAL HEALTH ORDINANCE 21

that the most suitable method of disposing of the case is by means of an order under this section,
the court or magistrate may by an order ("supervision and treatment order") require the person ("supervised person")-

(i) to be under the supervision of the Director of Social Welfare or any person acting under his authority
("the supervising officer") for a period specified in the order of not more than 2 years commencing on
the date of the order; and

(ii) to submit, during the whole or such part of that period as may be specified in the order, to treatment by
or under the direction of a registered medical practitioner (or other appropriately qualified person) with
a view to the improvement of his mental disorder.

(2) Section 45(3) shall apply to a supervision and treatment order as it applies to a hospital order.



Section: 44E Restrictions on the making of a supervision and treatment

order
30/06/1997



(1) The court or magistrate shall not make a supervision and treatment order unless the court or magistrate has
considered a social inquiry report from the supervising officer.

(2) For the purpose of subsection (1), "social inquiry report" (社會背景調查報告) means a report-
(a) compiled by the supervising officer of the supervised person; and
(b) which includes an assessment of the family background, and social and financial situation, of the

supervised person.



Section: 44F Making of a supervision and treatment order and general

requirements
30/06/1997



(1) Before making a supervision and treatment order, the court or magistrate shall explain to the supervised
person the effect of the order.

(2) The supervised person shall keep in contact with the supervising officer in accordance with such
instructions as he may from time to time be given by that officer and shall notify that officer of any change of address.

(3) For the purpose of executing the supervision and treatment order concerned, the supervising officer shall
have the power to convey the supervised person to a place or places as specified in the order.



Section: 44G Obligatory requirements as to medical treatment L.N. 29 of 1999 01/02/1999


(1) A supervision and treatment order shall include a requirement that the supervised person shall submit,
during the whole or part of such period as specified in the order, to treatment (which may include residential treatment
in a hospital) by or under the direction of a registered medical practitioner (or other appropriately qualified person)
with a view to the improvement of his mental incapacity. (Amended 81 of 1997 s. 37)

(2) When the supervised person is under treatment as a residential patient in a mental hospital, the supervision
and treatment order shall be suspended until the supervised person is discharged from that hospital.



Section: 44H Optional requirements as to residence 30/06/1997


A supervision and treatment order may include requirements as to the residence of a supervised person and,
where the supervised person is required to reside in an institution, the period for which he is so required to reside shall
be specified in the order.



Section: 44I Revocation and amendment of a supervision and treatment

order
30/06/1997



Where a supervision and treatment order is in force in respect of any supervised person and, on the application



Cap 136 - MENTAL HEALTH ORDINANCE 22

of the supervised person, a relative of the supervised person or the supervising officer, the court or magistrate is
satisfied that-

(a) having regard to circumstances which have arisen since the order was made, it would be in the
interests of the health or welfare of the supervised person that the order should be revoked, the court or
magistrate, as the case may be, may revoke the order;

(b) the supervised person has persistently refused to comply with the requirements as specified in the
order, but the condition does not require compulsory admission to a mental hospital, the court or
magistrate, as the case may be, may revoke the order or vary the requirements of the order.



Part: IV ADMISSION OF MENTALLY DISORDERED PERSONS

CONCERNED IN CRIMINAL PROCEEDINGS,
TRANSFER OF MENTALLY DISORDERED PERSONS
UNDER SENTENCE AND REMAND OF MENTALLY
INCAPACITATED PERSONS*

L.N. 29 of 1999 01/02/1999



__________________________________________________________
Note:
* (Replaced 81 of 1997 s. 38)

Section: 45 Powers of court or magistrate to make a hospital order L.N. 29 of 1999 01/02/1999


(1) Where-
(a) a person is-

(i) convicted by the Court of First Instance or a District Court of an offence other than an offence
the sentence for which is fixed by law; (Amended 25 of 1998 s. 2)

(ii) convicted by a magistrate of an offence punishable on summary conviction by imprisonment; or
(iii) charged before a magistrate with an act or omission as an offence punishable on summary

conviction by imprisonment and the magistrate is satisfied that such person did the act or made
the omission; and

(b) the court or magistrate is satisfied on the written or oral evidence of 2 registered medical practitioners
received in accordance with section 46 that-
(i) such person is a mentally disordered person; and
(ii) the nature or degree of the mental disorder from which the person is suffering warrants his

detention in the Correctional Services Department Psychiatric Centre or a mental hospital for
treatment; and

(c) the court or magistrate is of the opinion, having regard to all the circumstances including the nature of
the offence and the character and antecedents of such person, and to the other available methods of
dealing with him, that the most suitable method of disposing of the case is by means of an order under
this section,

the court or magistrate may by a hospital order authorize the admission of the person to and his detention in the
Correctional Services Department Psychiatric Centre or a mental hospital specified in the order or, if the person is
under 14 years of age, in a mental hospital specified in the order, and may specify in the order the period during which
such person should be so detained which shall not be greater than the sentence which the court or magistrate could
have imposed in respect of the offence with which such person was charged. (Amended 37 of 1973 s. 3)

(1A) Where under subsection (1) the court or magistrate by a hospital order authorizes the admission of a person
to, and detention in, a mental hospital, and is of the opinion that in all the circumstances of the case the proviso to
section 47(2) should not apply, the judge or magistrate may include a statement to that effect in the hospital order and,
if he does so, that proviso shall not apply. (Added 46 of 1988 s. 15)

(2) A hospital order shall not be made under this section unless the court or magistrate is satisfied that
arrangements have been made for the admission of the person to the Correctional Services Department Psychiatric
Centre or that mental hospital within 28 days after the date of the hospital order, in the event of the hospital order
being made by the court or magistrate. (Amended 37 of 1973 s. 3)

(3) Where a hospital order has been made, the court or magistrate shall not impose a sentence of imprisonment
or a fine or make a probation order in respect of the offence but may make any other order which the court or



Cap 136 - MENTAL HEALTH ORDINANCE 23

magistrate has power to make apart from this section and for the purpose of this subsection "sentence of
imprisonment" (監禁刑罰) includes any sentence or order for detention in a remand home, a reformatory school, a
house of detention or a training centre.

[cf. 1959 c. 72 s. 60 U. K.]

Section: 46 Requirement as to medical evidence L.N. 29 of 1999 01/02/1999


(1) Of the registered medical practitioners whose evidence is received in accordance with section 45(1)(b) or
54(3) at least one shall be a medical officer.

(2) For the purpose of section 45(1)(b) or 54(3) a report in writing purporting to be signed by a registered
medical practitioner may, subject to the provisions of this section, be received in evidence without proof of the
signature or qualifications of the registered medical practitioner but the court or magistrate may require that the
registered medical practitioner, by whom the report was signed, be called to give oral evidence.

(3) Where, in pursuance of the directions of a court or magistrate, a report of a registered medical practitioner is
tendered in evidence in accordance with section 45(1)(b) otherwise than by or on behalf of the accused- (Amended 40
of 1962 s. 2 )

(a) if the accused is represented by counsel or solicitor, a copy of the report shall be given to his counsel
or solicitor;

(b) if the accused is not so represented, the substance of the report shall be disclosed to the accused or, in
the case of a child or young person, to his parent or guardian if present in court; and

(c) in any case, the accused, or in the case of a child or young person, his parent or guardian may require
that the registered medical practitioner who signed the report be called to give oral evidence, and
evidence to rebut the evidence contained in the report may be called by or on behalf of the accused.

(Amended 46 of 1988 s. 16; 81 of 1997 s. 39)
[cf. 1959 c. 72 s. 62 U.K.]


Section: 47 Effect of hospital order L.N. 29 of 1999 01/02/1999


Remarks:
Adaptation amendments retroactively made - see 60 of 2000 s. 3


(1) A hospital order shall be sufficient authority for-
(a) the Commissioner of Correctional Services or any other person directed to do so by the court or

magistrate to convey the person named in the order to the Correctional Services Department
Psychiatric Centre or the mental hospital specified in the order within a period of 28 days from the date
of the order; and

(b) the Commissioner of Correctional Services to admit him to the Correctional Services Department
Psychiatric Centre or the medical superintendent to admit him to the mental hospital and to detain him
therein in accordance with the provisions of this Ordinance. (Amended 37 of 1973 s. 4)

(1A) A person who is admitted to the Correctional Services Department Psychiatric Centre in pursuance of a
hospital order shall be treated, for the purposes of the Prisons Ordinance (Cap 234), as if he had been lawfully
confined in a prison in accordance with section 7 of that Ordinance except that during the period for which he is
ordered to be detained in the Correctional Services Department Psychiatric Centre, or if no period is specified in the
order, while the order is in force-

(a) the power of the Commissioner of Correctional Services to grant leave of absence under the Prisons
Ordinance (Cap 234) shall not be exercised; and

(b) the person shall not be discharged therefrom unless with the prior consent of the Chief Executive.
(Added 37 of 1973 s. 4. Amended 60 of 2000 s. 3)

(2) A person who has been admitted to a mental hospital in pursuance of a hospital order shall be treated, for
the purposes of Part III, as if he had been detained in a mental hospital in accordance with section 36:

Provided that, unless the hospital order has been endorsed under section 45(1A), the power to grant permission
for leave of absence under section 39, to discharge under section 42A or to discharge conditionally under section 42B
shall be exercisable only with the prior consent of the Chief Executive. (Replaced 46 of 1988 s. 17. Amended 60 of
2000 s. 3)

(3) Where-



Cap 136 - MENTAL HEALTH ORDINANCE 24

(a) a person is admitted to the Correctional Services Department Psychiatric Centre; or
(b) a person is admitted to a mental hospital, (Amended 81 of 1997 s. 40)

in pursuance of a hospital order, any previous order by which he was liable to be detained in a mental hospital shall
cease to have effect. (Replaced 37 of 1973 s. 4)

[cf. 1959 c. 72 s. 63 U.K.]

Section: 48 Appeal against hospital order 30/06/1997


Any person who is aggrieved by a hospital order made in respect of him or in respect of a child or young person
of whom he is parent or guardian may appeal against the hospital order in the same manner as any other judgment or
order of the court or magistrate and in any such appeal, the provisions of any other enactment relating to appeals
against orders or judgments of the court or magistrate shall apply.

[cf. 1959 c. 72 s. 70 U.K.]

Section: 49 (Repealed 81 of 1997 s. 41) L.N. 29 of 1999 01/02/1999




Section: 50 Period of detention under this Part L.N. 29 of 1999 01/02/1999


No person shall be detained- (Amended 81 of 1997 s. 42)
(a) in pursuance of a hospital order, being an order authorizing his detention for a specified period, after

the expiration of that period; or
(b) if he is serving a sentence of imprisonment in pursuance of the order of any court, in a mental hospital

or the Correctional Services Department Psychiatric Centre after the expiration of the sentence of
imprisonment,

unless he is detained under Part III otherwise than as applied by this Part.
(Replaced 46 of 1988 s. 18)


Section: 51 Remand L.N. 29 of 1999 01/02/1999


(1) (a) If a court or magistrate is of the opinion that any person who is charged before the court or magistrate
with an offence, including a person in respect of whom an information or charge for an indictable
offence is being heard or has been heard by the magistrate in accordance with the provisions of Part III
of the Magistrates Ordinance (Cap 227), or who has been convicted but not sentenced of an offence
being, in the case of a conviction by a magistrate, an offence punishable on summary conviction by
imprisonment or an indictable offence of which the magistrate has convicted the accused summarily,
may be or is alleged to be a mentally incapacitated person, the court or magistrate may remand such
person- (Amended 46 of 1988 s. 19; 81 of 1997 s. 58)
(i) to a mental hospital; or
(ii) to a prison; or
(iii) to a training centre established under section 3 of the Training Centres Ordinance (Cap 280) in

the case of a person not less than 16 years of age but under 21 years of age; or
(iv) to a place of detention appointed under section 16 of the Juvenile Offenders Ordinance (Cap 226)

in the case of child or young person within the meaning of that Ordinance,
for observation, investigation and treatment for any period not exceeding 14 days and on the making of
any such order shall adjourn the proceedings against such person for such period and may extend such
period of 14 days by further periods of 7 days each so that the total period of remand does not in any
case exceed 42 days.

(b) Without prejudice to the provisions of any other Ordinance, any person remanded under paragraph (a)
to a prison, a training centre or a place of detention for observation, investigation and treatment may be
removed in the custody of an officer of the Correctional Services Department or a public officer
appointed by the Director of Social Welfare in the case of a child or young person, from the prison,
training centre or place of detention for the purpose of attending a Government psychiatric clinic or
Hospital Authority (within the meaning of the Hospital Authority Ordinance (Cap 113)) psychiatric



Cap 136 - MENTAL HEALTH ORDINANCE 25

clinic for observation, investigation and treatment. (Amended 68 of 1990 s. 24)
(c) The Training Centres Ordinance (Cap 280) shall apply mutatis mutandis to any person remanded to a

training centre under paragraph (a) for observation, investigation and treatment.
(d) The Remand Home Rules (Cap 226 sub. leg. D) shall apply to any child or young person remanded to

a place of detention under paragraph (a) for observation, investigation and treatment.
(Replaced 3 of 1968 s. 3)

(2) (a) A court or magistrate may, in lieu of remanding a person under subsection (1), admit him to bail in
accordance with the periods specified in subsection (1) on his procuring or producing such surety or
sureties as the court or magistrate thinks fit.

(b) In the case of any person admitted to bail under paragraph (a) it shall be a condition of the
recognizance-
(i) that he shall undergo observation, investigation and treatment by a medical officer at such mental

hospital or Government psychiatric clinic or Hospital Authority (within the meaning of the
Hospital Authority Ordinance (Cap 113)) psychiatric clinic as may be specified in the
recognizance; or (Amended 68 of 1990 s. 24)

(ii) that he shall undergo observation, investigation and treatment by a suitably qualified medical
practitioner named in the recognizance.

(c) In the case of any person admitted to bail under paragraph (a) it may be a condition of the
recognizance that the person reside in a mental hospital for the purposes of observation, investigation
and treatment for such period, within the period specified in the recognizance, as may be required by
the examining medical officer or medical practitioner.

(d) Notwithstanding any other provision of this Ordinance, where arrangements have been made for the
reception of any person so required to reside at a mental hospital for the purposes of any observation,
investigation and treatment he may be admitted to the mental hospital.

(e) Where a court or magistrate is satisfied by information on oath that a person admitted to bail under
paragraph (a) has failed to observe any of the conditions of the recognizance taken under this
subsection the court or magistrate may issue a warrant for the apprehension of the person; and the
recognizance may be enforced in like manner, as a recognizance may be enforced under the Criminal
Procedure Ordinance (Cap 221) or under Part II of the Magistrates Ordinance (Cap 227), as the case
may be.

(Added 3 of 1968 s. 3)
(3) (Repealed 46 of 1988 s. 19)
(4) Any order made in accordance with subsection (1) or (2) may be made in the absence of the person if the

court or magistrate is satisfied on such evidence as shall be placed before him that no useful purpose might be served
by the personal appearance before the court or magistrate of such person. (Amended 3 of 1968 s. 3; 46 of 1988 s. 19)

Section: 52 Removal to a mental hospital of a person serving a

sentence of imprisonment
60 of 2000 01/07/1997



Remarks:
Adaptation amendments retroactively made - see 60 of 2000 s. 3


(1) If the Chief Executive is satisfied from the report of a medical officer that a person who is serving a
sentence of imprisonment is a mentally disordered person and that the nature or degree of the mental disorder from
which he is suffering warrants his detention in a mental hospital for treatment, the Chief Executive may, by transfer
order, direct that the person be removed to and detained in such mental hospital as is specified in the order.

(2) A transfer order shall cease to have effect at the expiration of a period of 14 days from the date on which it
was made unless within that period the person with respect to whom it was made has been received in the mental
hospital specified in the transfer order.

(3) A person who is admitted to a mental hospital in pursuance of a transfer order shall be treated for the
purposes of Part III as if he had been detained in a mental hospital under section 36 except that-

(a) the power of the medical superintendent to permit absence on trial under section 39 shall not be
exercised; and

(b) the person shall not be discharged therefrom except with the consent of the Chief Executive.
(Replaced 46 of 1988 s. 20)



Cap 136 - MENTAL HEALTH ORDINANCE 26

(4) If the Chief Executive is satisfied from the report from a medical superintendent that a person, who was
transferred to a mental hospital by a transfer order made under subsection (1) and whose sentence of imprisonment has
not expired, no longer requires treatment for mental disorder the Chief Executive may by order direct that the person
be returned to the custody of the Commissioner of Correctional Services or the Director of Social Welfare, as the case
may be, to serve the remainder of his sentence of imprisonment. (Amended 40 of 1962 s. 3)

(5) In this section "sentence of imprisonment" (監禁刑罰) includes any sentence or order for detention in a
remand home, a reformatory school, a house of detention, a detention centre, a training centre or an addiction
treatment centre. (Amended 42 of 1968 s. 12; 12 of 1972 s. 13)

(Amended 60 of 2000 s. 3)
[cf. 1959 c. 72 s. 72 U.K.]


Section: 52A Removal to a Correctional Services Department

Psychiatric Centre of persons detained in a mental hospital
60 of 2000 01/07/1997



Remarks:
Adaptation amendments retroactively made - see 60 of 2000 s. 3


(1) The Chief Executive may, after consultation with the Commissioner of Correctional Services and a medical
superintendent, by order direct that a person detained in a mental hospital in pursuance of an order made under this
Part or under the Criminal Procedure Ordinance (Cap 221), be removed to and detained in the Correctional Services
Department Psychiatric Centre.

(2) An order under subsection (1) shall be sufficient authority for the Commissioner of Correctional Services to
admit the person removed from the mental hospital to the Correctional Services Department Psychiatric Centre and to
detain him therein for the period specified in the order authorizing his detention in the mental hospital, or if no such
period is specified, while that order is in force.

(3) A person who is removed to and detained in the Correctional Services Department Psychiatric Centre in
pursuance of an order under subsection (1) shall be treated, for the purposes of the Prisons Ordinance (Cap 234), as if
he had been lawfully confined in a prison in accordance with section 7 of that Ordinance except that during the period
within which he is liable to be detained-

(a) the power to the Commissioner of Correctional Services to grant leave of absence under the Prisons
Ordinance (Cap 234) shall not be exercised; and

(b) the person shall not be discharged therefrom unless with the prior consent of the Chief Executive.
(Added 37 of 1973 s. 5. Amended 60 of 2000 s. 3)


Section: 52B Removal to a mental hospital of persons detained in the

Correctional Services Department Psychiatric Centre
60 of 2000 01/07/1997



Remarks:
Adaptation amendments retroactively made - see 60 of 2000 s. 3


(1) The Chief Executive may, after consultation with a medical superintendent and the Commissioner of
Correctional Services, by order direct that a person detained in the Correctional Services Department Psychiatric
Centre in pursuance of an order made under this Part or under the Criminal Procedure Ordinance (Cap 221), be
removed to and detained in a mental hospital.

(2) An order under subsection (1) shall be sufficient authority for the medical superintendent to admit the
person removed from the Correctional Services Department Psychiatric Centre to a mental hospital and to detain him
therein for the period specified in the order authorizing his detention in the Correctional Services Department
Psychiatric Centre, or if no such period is specified, while that order is in force.

(3) A person who is removed to and detained in a mental hospital in pursuance of an order under subsection (1)
shall be treated as being detained there in accordance with section 36 except that during the period within which he is
liable to be detained-

(a) the power of the medical superintendent to permit absence on trial under section 39 shall not be
exercised; and

(b) the person shall not be discharged therefrom except with the consent of the Chief Executive.
(Added 46 of 1988 s. 21. Amended 60 of 2000 s. 3)



Cap 136 - MENTAL HEALTH ORDINANCE 27


Section: 53 Removal to a mental hospital of other prisoners 25 of 1998; 60 of

2000
01/07/1997



Remarks:
Adaptation amendments retroactively made - see 25 of 1998 s. 2; 60 of 2000 s. 3


(1) If the Chief Executive is satisfied from the report of a medical officer that a person to whom this section
applies is a mentally disordered person and that the nature or degree of the mental disorder from which he is suffering
warrants his detention of the person in a mental hospital for medical treatment, the Chief Executive may by transfer
order direct that the person be removed to and detained in a mental hospital. (Amended 60 of 2000 s. 3)

(2) This section shall apply to any person who is-
(a) committed in custody for trial in accordance with section 85(2) of the Magistrates Ordinance (Cap

227);
(b) remanded in custody in accordance with section 90 of the Magistrates Ordinance (Cap 227), the

magistrate having made an order of transfer in respect of such person in accordance with section 88 of
that Ordinance;

(c) remanded in custody by a court or magistrate;
(d) remanded in custody by the Court of First Instance or by a District Court to await a judgment or

sentence which has been respited; (Amended 25 of 1998 s. 2)
(e) a civil prisoner, that is to say, a person committed by a court to prison for a limited term, including a

person committed to prison in pursuance of a writ of attachment, not being a person falling to be dealt
with under section 52; or (Amended L.N. 183 of 1972)

(f) detained in any place by virtue of the Immigration Ordinance (Cap 115). (Replaced 55 of 1971 s. 66)
(3) The provisions of section 52(2), (3) and (4) shall apply for the purposes of this section and to any transfer

made in accordance with this section.
[cf. 1959 c. 72 s. 73 U.K.]


Section: 54 Further provisions as to persons committed for trial or

sentence or on remand
60 of 2000 01/07/1997



Remarks:
Adaptation amendments retroactively made - see 60 of 2000 s. 3


(1) A transfer order given in accordance with section 53(1) shall cease to have effect when the case of the
person named in the transfer order has been disposed of by the court or magistrate having jurisdiction to try or
otherwise deal with him; but without prejudice to any power of that court or magistrate to make a hospital order under
this Part in his case. (Amended 34 of 1972 s. 22)

(2) Where a transfer order has been given in accordance with section 53(1)-
(a) if the Chief Executive is notified by a medical superintendent at any time before the person named in

the transfer order is brought before the court or magistrate having jurisdiction to try or otherwise deal
with him, that the person no longer requires treatment for mental disorder, the Chief Executive may by
order direct that such person be remitted to any place where he might have been detained if he had not
been removed to a mental hospital, there to be dealt with as if he had not been so removed, and on his
arrival at the place to which he is so remitted the transfer order shall cease to have effect; (Amended
34 of 1972 s. 22; 60 of 2000 s. 3)

(b) if no order has been made in accordance with paragraph (a) and if it appears to the court or magistrate
having jurisdiction to try or otherwise deal with the person named in the transfer order that it is
impracticable or inappropriate to bring that person before the court or magistrate and the conditions set
out in subsection (3) are satisfied, the court or magistrate may make a hospital order in respect of such
person in his absence and, in the case of a person awaiting trial, without convicting him. (Amended 34
of 1972 s. 22)

(3) A hospital order may be made in respect of a person in accordance with subsection (2)(b) if the court or
magistrate is satisfied, on the written or oral evidence of 2 registered medical practitioners received in accordance with
section 46(1) and (2) that- (Amended 40 of 1962 s. 4)



Cap 136 - MENTAL HEALTH ORDINANCE 28

(a) such person is a mentally disordered person; and
(b) the nature or degree of the mental disorder from which the person is suffering warrants his detention in

a mental hospital for medical treatment,
and the court or magistrate is of the opinion after considering any depositions or other documents required to be sent
to the proper officer of the court, that it is proper to make a hospital order.

(4) When a transfer order has been made in respect of a person remanded in custody by a magistrate, the power
of further remanding such person under section 20 of the Magistrates Ordinance (Cap 227) may be exercised by the
magistrate without such person being brought before the magistrate.

(5) Any transfer order made in respect of a civil prisoner shall cease to have effect on the expiration of the
period during which he would but for his removal to the mental hospital, be liable to be detained in prison.

[cf. 1959 c. 72 s. 75 U.K.]

Section: 54A Hospital order in respect of persons awaiting trial or

sentence
30/06/1997



If it appears to the court or magistrate having jurisdiction to try or otherwise deal with a person specified in
section 53(2)(a), (b), (c) or (d) that-

(a) the conditions set out in section 54(3) are satisfied; and
(b) it is impracticable or inappropriate to bring that person before the court or magistrate,

the court or magistrate may, by a hospital order made in respect of that person in his absence and, if he is a person
awaiting trial, without convicting him, authorize his admission to and detention in the Correctional Services
Department Psychiatric Centre.

(Added 37 of 1973 s. 6)

Section: 55 Removal of prisoners for observation 30/06/1997


(1) If the Commissioner of Correctional Services or, in the case of a person who is detained in a remand home
or a reformatory school, the Director of Social Welfare, has reason to believe that a person who is serving a sentence
of imprisonment as defined by section 52(5) or a person to whom section 53 applies is a mentally disordered person
and that it is necessary or desirable that such person should be forthwith transferred to a mental hospital for
observation or treatment, he may, by writing under his hand, order that such person be taken to a mental hospital for
the purpose of detention, observation and treatment during the period of 14 days from and including the date of the
order. (Amended 40 of 1962 s. 5)

(2) The provisions of sections 51, 52 and 53 may be applied to a person who is detained in a mental hospital in
consequence of an order made under subsection (1) as if no such order had been made.

(3) A person who is detained in a mental hospital in consequence of an order made under subsection (1) shall
be deemed to be in legal custody.

Section: 56 Medical reports on persons on remand L.N. 362 of 1997 01/07/1997


(1) If a person is committed in custody for trial in accordance with section 85(2) of the Magistrates Ordinance
(Cap 227), the Commissioner of Correctional Services-

(a) (Repealed 24 of 1993 s. 18)
(b) if the Secretary for Justice makes application in writing to the Commissioner of Correctional Services

in respect of the prisoner, shall, (Amended 24 of 1993 s. 18)
make an order in accordance with section 55(1), even if the Commissioner of Correctional Services has no reason to
believe that the prisoner is a mentally disordered person.

(2) If the prisoner is the subject of an application by the Secretary for Justice in accordance with subsection
(1)(b), the medical officer of the prison or the medical superintendent of the mental hospital, as the case may be, shall,
not less than 7 days before the date fixed for the trial of the prisoner, submit to the Registrar and to the Secretary for
Justice a report on the mental condition of the prisoner, stating whether or not the prisoner has exhibited any
indication of insanity and whether or not he is fit to plead. (Amended 24 of 1993 s. 18)

(3) A report submitted in accordance with subsection (2) shall not express any opinion as to the degree of
responsibility of the prisoner at the time when the offence with which he is charged was committed but if, from
symptoms exhibited while under observation in the prison or in the mental hospital, the medical officer of the prison



Cap 136 - MENTAL HEALTH ORDINANCE 29

or the medical superintendent of the mental hospital, as the case may be, is of the opinion that insanity exists and has
done so for some time previous to the date when the offence was committed, or that there is any history of insanity,
his report should embody this opinion.

(Amended L.N. 362 of 1997)

Section: 57 Persons ordered to be admitted to a mental hospital under

Criminal Procedure Ordinance
60 of 2000 01/07/1997



Remarks:
Adaptation amendments retroactively made - see 60 of 2000 s. 3


Notwithstanding anything contained in section 76 of the Criminal Procedure Ordinance (Cap 221), the Chief
Executive may order that a person found not guilty by reason of insanity be detained in custody in some other manner
than is specified in that Ordinance.

(Replaced 34 of 1972 s. 22. Amended 60 of 2000 s. 3)

Section: 58 Temporary transfer for specialist medical treatment of

patients concerned in criminal proceedings
30/06/1997



The provisions of section 38 shall apply to persons who are detained in a mental hospital under this Part or under
the Criminal Procedure Ordinance (Cap 221).

(Added 40 of 1962 s. 7. Amended 34 of 1972 s. 22)

Section: 59 Removal to prison of persons subject to a hospital order 60 of 2000 01/07/1997


Remarks:
Adaptation amendments retroactively made - see 60 of 2000 s. 3


If the Chief Executive is satisfied from the report of a medical superintendent that a person, who was transferred
and detained by a hospital order authorizing his detention for a specified period, no longer requires treatment for
mental disorder, the Chief Executive may by order direct that the person be transferred to and detained in prison in the
custody of the Commissioner of Correctional Services for any period not extending beyond the expiration of the
period specified in the hospital order.

(Added 40 of 1962 s. 7. Amended 34 of 1972 s. 22; 46 of 1988 s. 22; 60 of 2000 s. 3)

Part: IVA Mental Health Review Tribunal E.R. 1 of 2012 09/02/2012


(Part IVA added 46 of 1988 s. 23)
(*Format changes—E.R. 1 of 2012)

____________________________________________________________________________
Note:
* The format of Part IVA has been updated to the current legislative styles.

Section: 59A Mental Health Review Tribunal E.R. 1 of 2012 09/02/2012


(1) There shall be a tribunal known as the Mental Health Review Tribunal for the purpose of dealing with
applications and references by and in respect of patients under this Ordinance or mentally handicapped persons
to whom Part IIIA or IIIB applies, as the case may be, ("relevant persons"). (Amended 81 of 1997 s. 44)

(2) The tribunal shall consist of-
(a) a chairman appointed by the Chief Executive and having such legal experience as the Chief Executive

considers suitable;
(b) persons (referred to in this Part as "the medical members") being registered medical practitioners appointed

by the Chief Executive on the recommendation of the Hospital Authority within the meaning of the
Hospital Authority Ordinance (Cap 113); (Amended L.N. 76 of 1989; 68 of 1990 s. 24)

(c) persons (referred to in this Part as "the social work members") appointed by the Chief Executive who have



Cap 136 - MENTAL HEALTH ORDINANCE 30

such experience and knowledge of social work as the Chief Executive considers suitable; and
(d) persons appointed by the Chief Executive and having such experience and knowledge of administration,

clinical psychology, or such other qualifications or experience, as the Chief Executive considers suitable.
(Amended 60 of 2000 s. 3)

(3) The members of the tribunal shall hold and vacate office under the terms of the instrument under which they are
appointed, but may resign office by notice in writing to the Chief Executive. (Amended 60 of 2000 s. 3)

(4) Any member of the tribunal who ceases to hold office shall be eligible for re-appointment.
(5) Subject to the rules referred to in section 59G, the members who are, with the chairman, to exercise the functions

of the tribunal for the purposes of any proceedings or class or group of proceedings under this Ordinance shall
be appointed by the chairman, and of the members so appointed-
(a) one or more shall be appointed from the medical members;
(b) one or more shall be appointed from the social work members; and
(c) one or more shall be appointed from the members who are neither medical members nor social work

members.
(6) Subject to the rules referred to in section 59G, the jurisdiction of the tribunal may be exercised by the chairman

and 3 of its members, and references in this Ordinance to the tribunal shall be construed accordingly.
(7) The Registrar of the High Court may defray the expenses of the tribunal to such amount as he may, with the

consent of the Financial Secretary, determine. (Amended 25 of 1998 s. 2)
(8) There shall be a secretary to the tribunal who shall be appointed by the Chief Executive. (Amended 60 of 2000

s. 3)
(9) The persons recommended to the Chief Executive by the Hospital Authority within the meaning of the Hospital

Authority Ordinance (Cap 113) under subsection (2)(b) shall be persons who, in the opinion of the Director,
have relevant experience in psychiatry. (Amended L.N. 76 of 1989; 68 of 1990 s. 24; 60 of 2000 s. 3)



Section: 59B Applications to the tribunal E.R. 1 of 2012 09/02/2012


(1) An application may be made to the tribunal for the review of the case of any patient liable to be detained in a
mental hospital or the Correctional Services Department Psychiatric Centre; but nothing in this section shall
apply to any person who is serving a sentence of imprisonment in pursuance of the order of any court during the
period within which he is liable to be detained in pursuance of that sentence other than a person detained at the
discretion of the Chief Executive. (Amended 81 of 1997 s. 45; 60 of 2000 s. 3)

(2) An application may be made to the tribunal for the review of any case of-
(a) a patient permitted to be absent on trial under section 39;
(b) a conditionally discharged patient within the meaning of section 42B;
(c) a person admitted to guardianship under Part IIIA; (Replaced 81 of 1997 s. 45)
(d) a supervised person within the meaning of Part IIIB. (Added 81 of 1997 s. 45)

(3) An application under subsection (1) or (2) may be made by-
(a) the person to whom those subsections apply; or (Replaced 81 of 1997 s. 45)
(b) his relative,

and, subject to subsection (5) and to any rules made under section 59G, may be made at any time.
(4) An application under subsection (1) or (2) may be brought for the purpose of reviewing any direction or decision

of a medical superintendent under this Ordinance and, when so brought, shall specify the grounds for applying
for the review.

(5) Except with the leave of the tribunal, no application may be made under subsection (1) or (2)-
(a) by a patient liable to be detained under a hospital order or transfer order, within a period of 12 months after

he is first liable to be so detained; or
(b) within 12 months of the determination of a previous review unless it is for the purpose of reviewing any

direction or decision of the medical superintendent under this Ordinance which could not have been
considered at the previous review.



Section: 59C References to tribunals by Chief Executive E.R. 1 of 2012 09/02/2012


(1) The Chief Executive may, if he thinks fit, at any time refer to the tribunal the case of any patient to whom



Cap 136 - MENTAL HEALTH ORDINANCE 31

section 59B(1) applies. (Amended 81 of 1997 s. 46; 60 of 2000 s. 3)
(2) For the purpose of furnishing information to the tribunal for the purposes of a reference under subsection (1),

any registered medical practitioner authorized by or on behalf of the patient may, at any reasonable time, visit
the patient and examine him in private and require the production of and inspect any records relating to the
detention or treatment of the patient in any hospital and relevant to the reference.


Section: 59D Duty to refer cases to tribunal E.R. 1 of 2012 09/02/2012


(1) Whenever a patient (other than a voluntary patient) or his relative does not exercise his right to apply to the
tribunal under section 59B(1) for a period of 12 months after the right first became available to him- (Amended
81 of 1997 s. 47)
(a) the medical superintendent, if the patient is liable to be detained in a mental hospital; or
(b) the Commissioner of Correctional Services, where the patient is liable to be detained in the Correctional

Services Department Psychiatric Centre,
shall, at the expiration of the period for making the application, refer the patient's case to the tribunal.
(2) For the purpose of furnishing information to the tribunal for the purposes of any reference under this section, any

registered medical practitioner authorized by or on behalf of the patient may, at any reasonable time, visit and
examine the patient in private and require the production of and inspect any records relating to the detention or
treatment of the patient in any hospital and relevant to the reference.

(3) For the purposes of subsection (1), a person who applies to the tribunal but subsequently withdraws his
application shall be treated as not having exercised his right to apply, and where a person withdraws his
application on a date after the expiration of the period mentioned in that subsection, the medical superintendent
or as the case may be, the Commissioner of Correctional Services shall refer the patient's case as soon as
possible after that date.

(4) A medical superintendent or the Commissioner of Correctional Services may, in the event of an application
being made to the tribunal by any other person under section 59B(1), with the leave of the tribunal, discontinue
any review proceedings brought under this section.



Section: 59E Powers of the tribunal E.R. 1 of 2012 09/02/2012


(1) Where application is made to the tribunal under section 59B(1) or (2)(a) or (b) or a case is referred to it under
section 59C(1) or 59D(1), the tribunal may- (Amended 81 of 1997 s. 48)
(a) direct that a patient be discharged, and where it does so the patient shall be discharged in accordance with

its direction; and
(b) make such recommendations in the matter as it thinks fit including recommendations to the Chief Executive

and to any public officer as to the exercise of their powers under this or any other Ordinance. (Amended 60
of 2000 s. 3)

(2) In the exercise of its powers under subsection (1)(a), the tribunal shall direct that a patient be discharged, either
absolutely or subject to the imposition of conditions under section 42B, if it is satisfied-
(a) that he is not then suffering from mental disorder of a nature or degree which makes it appropriate for him

to be liable to be detained in a mental hospital for medical treatment; or
(b) that it is not necessary for the health or safety of the patient or for the protection of other persons that he

should be so detained to receive such treatment.
(3) In determining whether to direct the discharge of a patient, the tribunal shall have regard-

(a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patient's condition; and
(b) to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to

guard himself against serious exploitation.
(4) The tribunal may under subsection (1) direct the discharge of a patient on a future date specified in the direction;

and where the tribunal does not direct the discharge of a patient under that subsection the tribunal may-
(a) with a view to facilitating his discharge on a future date, recommend that-

(i) he be granted leave of absence;
(ii) he be transferred to another mental hospital;
(iii) a guardianship application under section 59M(1) be made to the Guardianship Board (within the

meaning of section 59I) for the purposes of the Board determining whether or not he should be



Cap 136 - MENTAL HEALTH ORDINANCE 32

received into guardianship under Part IVB, and, in such a case, recommend the terms of the
appropriate guardianship order that may be made by the Board under that Part; and (Replaced 81 of
1997 s. 48)

(b) further consider his case in the event of any such recommendation not being complied with.
(5) Where application is made to the tribunal under section 59B(2)(c) or (d) the tribunal may in any case direct that

the person to whom those paragraphs apply be discharged, and shall so direct if it is satisfied that it is not
necessary in the interests of the welfare of that person, or for the protection of other persons, that that person
should remain in guardianship under Part IIIA or remain as a supervised person within the meaning of Part IIIB.
(Replaced 81 of 1997 s. 48)

(6) The tribunal may under subsection (5) direct the discharge of the person to whom section 59B(2)(c) or (d)
applies on a future date specified in the direction, and where the tribunal does not direct the discharge of that
person the tribunal may-
(a) with a view of facilitating his discharge on a future date, recommend that a guardianship application under

section 59M(1) be made to the Guardianship Board (within the meaning of section 59I) for the purposes of
the Board determining whether or not he should be received into guardianship under Part IVB, and, in such
a case, recommend the terms of the appropriate guardianship order that may be made by the Board under
that Part; and

(b) further consider his case in the event of any such recommendation not being complied with. (Added 81 of
1997 s. 48)



Section: 59F General provisions concerning tribunal application E.R. 1 of 2012 09/02/2012


(1) No application shall be made to the tribunal except in such cases and at such times as are expressly provided by
this Ordinance.

(2) An application to the tribunal authorized to be made under this Ordinance shall be made by notice in writing
addressed to the tribunal.

(Amended 81 of 1997 s. 49)

Section: 59G Procedure of the tribunal E.R. 1 of 2012 09/02/2012


(1) Rules may be made by the Chief Justice with respect to the making of applications to the tribunal and with
respect to its proceedings and matters incidental to or consequential on such proceedings.

(2) Rules made under subsection (1) may in particular make provision-
(a) for enabling the tribunal to dispose of an application without a formal hearing where such a hearing is not

requested by the applicant or it appears to the tribunal that such a hearing would be detrimental to the health
of the relevant person;

(b) for enabling the tribunal to exclude members of the public, or any specified class of members of the public,
from any proceedings of the tribunal, or to prohibit the publication of reports of any such proceedings or the
names of any persons concerned in such proceedings;

(c) for regulating the circumstances in which, and the persons by whom, applicants and relevant persons in
respect of whom applications are made to a tribunal may, if not desiring to conduct their own case, be
represented for the purposes of those applications;

(d) for regulating the methods by which information relevant to an application may be obtained by or furnished
to the tribunal, and in particular for authorizing members of the tribunal, or any one or more of them, to
visit and interview in private any relevant person by or in respect of whom an application has been made;

(e) for making available to any applicant, and to any relevant person in respect of whom an application is made
to the tribunal, copies of any documents obtained by or furnished to the tribunal in connection with the
application, and a statement of the substance of any oral information so obtained or furnished except where
the tribunal considers it undesirable in the interests of the relevant person or for other special reasons;

(f) for requiring the tribunal, if so requested in accordance with the rules, to furnish such statements of the
reasons for any decision given by the tribunal as may be prescribed by the rules, subject to any provision
made by the rules for withholding such a statement from a relevant person or any other person in cases
where the tribunal considers that furnishing it would be undesirable in the interests of the relevant person or
for other special reasons;



Cap 136 - MENTAL HEALTH ORDINANCE 33

(g) for conferring on the tribunal such ancillary powers as the Chief Justice thinks necessary for the purposes of
the exercise of its functions under this Ordinance;

(h) for enabling any functions of the tribunal which relate to matters preliminary or incidental to an application
to be performed by the chairman of the tribunal;

(i) for consolidating applications or restricting the number of applications under section 59B which may be
made within any specified period. (Amended 81 of 1997 s. 50)

(3) Subsections (1) and (2) apply in relation to references to the tribunal as they apply in relation to applications to
the tribunal by or in respect of relevant persons. (Amended 81 of 1997 s. 50)

(4) The rules may be so framed as to apply to all applications or references to the tribunal, or to applications or
references of any specified class, and may make different provision in relation to different cases.

(5) Any functions conferred on the chairman by the rules may, if for any reason he is unable to act, be exercised by
another member of the tribunal appointed by him for the purpose.



Section: 59H The tribunal: supplementary provisions E.R. 1 of 2012 09/02/2012


(1) The tribunal shall have power to hear, receive and examine evidence on oath.
(2) The tribunal may, by notice under the hand of the chairman, summon any witness and require the production of

any document or record or other thing which is relevant to the proceedings.
(3) Any person on whom a summons under subsection (2) has been served who-

(a) refuses or neglects, without sufficient cause, to appear or produce any document, record or other thing
required to be produced; or

(b) refuses to be sworn or give evidence,
commits an offence and is liable to a fine at level 2.
(4) The tribunal may pay allowances in respect of travelling expenses, subsistence and loss of earnings to any

person attending the tribunal as an applicant or witness, to the relevant person who is the subject of the
proceedings if he attends otherwise than as the applicant or a witness and to any person (other than counsel or a
solicitor) who attends as the representative of an applicant. (Amended 81 of 1997 s. 51)

(5) The tribunal may, and if so required by the Chief Executive shall, state in the form of a special case for
determination by the Court of First Instance any question of law which may arise before it. (Amended 25 of
1998 s. 2; 60 of 2000 s. 3)

(Amended E.R. 1 of 2012)

Part: IVB Guardianship E.R. 1 of 2012 09/02/2012


(Part IVB added 81 of 1997 s. 52)
(*Format changes—E.R. 1 of 2012)

____________________________________________________________________________
Note:
*The format of Part IVB has been updated to the current legislative styles.

Section: 59I Interpretation and application E.R. 1 of 2012 09/02/2012


(1) In this Part, unless the context otherwise requires-
guardianship application (監護申請) means an application under section 59M(1);
Guardianship Board (監護委員會) or "Board" (委員會) means the Guardianship Board established under section

59J;
guardianship order (監護令) means an order made under section 59O, but does not include a guardianship order

under Part IIIA.
(2) This Part does not apply to a mentally incapacitated person who is subject to a guardianship order under Part

IIIA, other than to such a person who is the subject of a recommendation under section 59E(4)(a)(iii) or (6)(a).






Cap 136 - MENTAL HEALTH ORDINANCE 34

Section: 59J Establishment and composition of Board E.R. 1 of 2012 09/02/2012


(1) There is hereby established a body corporate to be called the Guardianship Board.
(2) Subject to subsection (3), the Chief Executive shall appoint to the Board-

(a) a Chairperson having such legal experience as the Chief Executive considers suitable; and
(b) not less than 9 other members, each being an individual who is not a public officer. (Amended 60 of 2000

s. 3)
(3) Of the members of the Board appointed under subsection (2)(b)-

(a) at least 3 shall be persons who are barristers or solicitors within the meaning of the Legal Practitioners
Ordinance (Cap 159) of such experience as the Chief Executive considers suitable; (Amended 60 of 2000 s.
3)

(b) at least 3 shall be persons who have had experience in assessing or treating mentally incapacitated persons
and may include registered medical practitioners or social workers;

(c) at least 3 shall be persons (other than those referred to in paragraph (a) or (b)) who have had personal
experience with mentally incapacitated persons.

(4) The relevant provisions of the Schedule shall have effect with respect to the Board and its members.
(5) The Board shall not be regarded as a servant or agent of the Government or as enjoying any status, immunity or

privilege of the Government.

Section: 59K Functions and powers of Board E.R. 1 of 2012 09/02/2012


(1) The Guardianship Board shall-
(a) consider and determine applications for the appointment of guardians of mentally incapacitated persons

who have attained the age of 18 years;
(b) make guardianship orders in respect of mentally incapacitated persons and taking into account their

individual needs, including the making of such orders in an emergency where those persons are in danger or
are being, or likely to be, maltreated or exploited;

(c) review guardianship orders;
(d) give directions to guardians as to the nature and extent of guardianship orders made under section 59O

appointing those guardians, including directions as to the exercise, extent and duration of any particular
powers and duties of those guardians contained in such terms and conditions (if any) that those
guardianship orders may be subject under subsection (2) of that section;

(e) perform such other functions as are imposed on it under this Ordinance or any other enactment,
and in so doing shall observe and apply the matters or principles referred to in subsection (2).
(2) The matters or principles that the Board shall observe and apply in the performance of its functions or the

exercise of its powers are as follows, namely-
(a) that the interests of the mentally incapacitated person the subject of the proceedings are promoted, including

overriding the views and wishes of that person where the Board considers such action is in the interests of
that person;

(b) despite paragraph (a), that the views and wishes of the mentally incapacitated person are, in so far as they
may be ascertained, respected.



Section: 59L Attendance of witnesses and others E.R. 1 of 2012 09/02/2012


(1) The Guardianship Board may, by notice under the hand of the Chairperson to the Board, summon any witness
and require the production of any document or record or other thing which is relevant to its proceedings.

(2) Any person on whom a summons under subsection (1) has been served who-
(a) refuses or neglects, without sufficient cause, to appear or produce any document, record or other thing

required to be produced; or
(b) refuses to be sworn or give evidence,

commits an offence and is liable to a fine at level 2.
(3) The Guardianship Board may pay allowances in respect of travelling expenses, subsistence and loss of earnings

to any person attending any proceedings of the Guardianship Board as a witness.




Cap 136 - MENTAL HEALTH ORDINANCE 35

Section: 59M Application for guardianship E.R. 1 of 2012 09/02/2012


(1) A mentally incapacitated person who has attained the age of 18 years may be received into guardianship in
pursuance of an application made to the Guardianship Board in accordance with this section.

(2) A guardianship application may be made in respect of a mentally incapacitated person on the grounds that-
(a) in the case of-

(i) a mentally incapacitated person who is mentally disordered, he is suffering from mental disorder of a
nature or degree which warrants his reception into guardianship under this Part; or

(ii) a mentally incapacitated person who is mentally handicapped, he has a mental handicap of a nature or
degree which warrants his reception into guardianship under this Part; and

(b) it is necessary in the interests of the welfare of the mentally incapacitated person or for the protection of
other persons that the mentally incapacitated person should be so received.

(3) A guardianship application shall be accompanied by and founded on the written reports of 2 registered medical
practitioners (neither of whom being the applicant), and each report shall include-
(a) a statement that in the medical or other opinion of the registered medical practitioners the grounds set out in

subsection (2) are satisfied;
(b) such particulars as may be prescribed of the reasons for that opinion so far as it relates to the grounds set out

in subsection (2)(a); and
(c) a statement of the reasons for that opinion so far as it relates to the grounds set out in subsection (2)(b).

(4) A guardianship application shall state the age of the mentally incapacitated person or, if his exact age is not
known to the applicant, shall state (if it be the fact) that that person is believed to have attained the age of 18
years.


Section: 59N General provisions as to guardianship applications E.R. 1 of 2012 09/02/2012


(1) A guardianship application under section 59M(1) shall be in the prescribed form and may be made by-
(a) a relative of the mentally incapacitated person;
(b) a social worker;
(c) a registered medical practitioner; or
(d) a public officer in the Social Welfare Department,

and every such application shall specify which of those persons is making the application and, if made by a
relative of the mentally incapacitated person, shall state the relationship.

(2) No guardianship application under section 59M(1) may be made by any person in respect of the mentally
incapacitated person unless the applicant has personally seen the mentally incapacitated person within the period
of 14 days ending immediately prior to the date of the application.

(3) On receipt of a guardianship application, the Guardianship Board shall send copies of the application-
(a) to the mentally incapacitated person the subject of the application;
(b) to any relative of that person as the Guardianship Board thinks fit, unless that relative made the

guardianship application;
(c) to the Director of Social Welfare, unless a public officer in the Social Welfare Department made the

guardianship application.
(4) The Guardianship Board shall give notice to the applicant of the time and place appointed for the purpose of

determining whether or not the mentally incapacitated person should be received into guardianship and to any
other person to whom a copy of that application has been sent under subsection (3).


Section: 59O Board may make guardianship orders E.R. 1 of 2012 09/02/2012


(1) Subject to subsection (3), if, after conducting a hearing into any guardianship application made under section
59M(1) for the purpose of determining whether or not a mentally incapacitated person who has attained the age
of 18 years should be received into guardianship and having regard to the representations (if any) of any person
present at the hearing to whom a copy of the guardianship application has been sent under section 59N(3) and
considering the social enquiry report referred to in section 59P(1) the Guardianship Board is satisfied that the
mentally incapacitated person is a person in need of a guardian, it may make an order appointing a guardian in
respect of that person.

(2) Any guardianship order made under subsection (1) shall be subject to such terms and conditions as the



Cap 136 - MENTAL HEALTH ORDINANCE 36

Guardianship Board thinks fit, including terms and conditions (if any) as to the exercise, extent and duration of
any particular powers and duties of the guardian.

(3) In considering the merits of a guardianship application to determine whether or not to make a guardianship order
under subsection (1) in respect of a mentally incapacitated person, the Guardianship Board shall observe and
apply the matters or principles referred to in section 59K(2) and, in addition, shall apply the following criteria,
namely that it is satisfied-
(a) (i) that a mentally incapacitated person who is mentally disordered, is suffering from mental disorder of a

nature or degree which warrants his reception into guardianship; or
(ii) that a mentally incapacitated person who is mentally handicapped, has a mental handicap of a nature or

degree which warrants his reception into guardianship;
(b) that the mental disorder or mental handicap, as the case may be, limits the mentally incapacitated person in

making reasonable decisions in respect of all or a substantial proportion of the matters which relate to his
personal circumstances;

(c) that the particular needs of the mentally incapacitated person may only be met or attended to by his being
received into guardianship under this Part and that no other less restrictive or intrusive means are available
in the circumstances; and (Amended 19 of 2000 s. 3)

(d) that in the interests of the welfare of the mentally incapacitated person or for the protection of other persons
that the mentally incapacitated person should be received into guardianship under this Part.


Section: 59P Report of Director of Social Welfare E.R. 1 of 2012 09/02/2012


(1) For the purpose of section 59O, a report ("social enquiry report") signed by or on behalf of the Director of Social
Welfare and prepared by a public officer in the Social Welfare Department shall, subject to subsection (2), be
received in evidence for consideration by the Guardianship Board.

(2) A copy of the social enquiry report (or the substance of the report) referred to in subsection (1) shall be given or
disclosed to-
(a) an applicant making a guardianship application under this Part;
(b) the mentally incapacitated person the subject of the application; and
(c) the counsel or solicitor representing any person referred to in paragraph (a) or (b).

(3) The social enquiry report shall contain the views and wishes of the mentally incapacitated person, in so far as
they may be ascertained and include an assessment of the family background, and social and financial situation,
of that person.


Section: 59Q Emergency guardianship orders E.R. 1 of 2012 09/02/2012


Despite section 59O and pending a determination under that section, the Guardianship Board may make an order
("emergency guardianship order") appointing a guardian in respect of a mentally incapacitated person if the Board has
reason to believe that-

(a) the mentally incapacitated person is in danger or is being, or likely to be, maltreated or exploited;
(b) the mentally incapacitated person is incapable by reason of mental incapacity of making reasonable

decisions in respect of all or a substantial proportion of the matters which relate to that person's personal
circumstances; and

(c) it is necessary to make immediate provision to protect that person.

Section: 59R Term and effect of guardianship order E.R. 1 of 2012 09/02/2012


(1) Subject to section 59U(5), a guardianship order made under section 59O shall have effect-
(a) in the case of the first guardianship order made under that section in respect of a particular mentally

incapacitated person, for a period not exceeding 1 year from the date of the order; or
(b) in the case of a guardianship order that is renewed or further renewed under section 59U, for a period not

exceeding 3 years from the date of the order.
(2) An emergency guardianship order made under section 59Q shall have effect-

(a) for a period not exceeding 3 months from the date of the emergency guardianship order; or
(b) until such time as a guardianship order is made under section 59O in respect of the same mentally

incapacitated person,



Cap 136 - MENTAL HEALTH ORDINANCE 37

whichever event first occurs.
(3) Subject to subsections (6) and (7), a guardianship order may confer on the guardian appointed under this Part, to

the exclusion of any other person one or more of the following powers, namely-
(a) the power to require the mentally incapacitated person to reside at such place as may be specified by the

guardian;
(b) the power to convey, or to arrange the conveyance of, the mentally incapacitated person to the place so

specified by the guardian, and such reasonable force may be used as is necessary for the purpose;
(c) the power to require the mentally incapacitated person to attend at places and times so specified by the

guardian for the purpose of treatment or special treatment (within the meaning of section 59ZA) or
occupation, education or training;

(d) the power to consent to that treatment (other than special treatment) on behalf of the mentally incapacitated
person but only to the extent that the mentally incapacitated person is incapable of understanding the
general nature and effect of any such treatment;

(e) the power to require access to the mentally incapacitated person to be given, at any place where the
mentally incapacitated person is residing, to any registered medical practitioner, approved social worker, or
other person (if any) specified in the order;

(f) the power to hold, receive or pay such monthly sum (within the meaning of section 44B(8)) specified in the
order on behalf of the mentally incapacitated person for the maintenance or other benefit of that person as if
the guardian were a trustee of that monthly sum.

(4) The period within which a guardianship application is required for the purposes of this section to be forwarded
to the Guardianship Board is the period of 14 days beginning with the date on which the mentally incapacitated
person was last examined by a registered medical practitioner before furnishing a written report containing a
medical opinion for the purposes of the application.

(5) Where a mentally incapacitated person is the subject of a recommendation under section 59E(4)(a)(iii) or (6)(a)
received into guardianship under this Part-
(a) any guardianship order made under Part IIIA; or
(b) any supervision and treatment order made under Part IIIB,

made in respect of the mentally incapacitated person shall cease to have effect, or where the mentally
incapacitated person is subject to detention in a mental hospital or the Correctional Services Department
Psychiatric Centre the Guardianship Board shall direct that he be discharged, and where it does so that person
shall be discharged in accordance with its directions.

(6) Where a mentally incapacitated person received into guardianship under this Part becomes the subject of a
supervision and treatment order under Part IIIB the powers conferred on a guardian in subsection (3)(a), (b) and
(c) in respect of the mentally incapacitated person shall be suspended and shall remain suspended until that order
is revoked or ceases to have effect.

(7) Where a mentally incapacitated person received into guardianship under this Part becomes liable to be detained
or is detained in a mental hospital or the Correctional Services Department Psychiatric Centre the powers
conferred on a guardian in subsection (3)(a), (b) and (c) in respect of the mentally incapacitated person shall be
suspended and shall remain suspended until the mentally incapacitated person is discharged.



Section: 59S Guardians E.R. 1 of 2012 09/02/2012


(1) A person (other than the Director of Social Welfare) shall not be appointed by the Guardianship Board as a
guardian of a mentally incapacitated person received into guardianship under this Part unless the Board is
satisfied that-
(a) the proposed guardian has attained the age of 18 years;
(b) the proposed guardian is willing and able to act as a guardian;
(c) the proposed guardian is capable of taking care of the mentally incapacitated person;
(d) the personality of the proposed guardian is generally compatible with the mentally incapacitated person;
(e) there is no undue conflict of interest, especially of a financial nature, between the proposed guardian and the

mentally incapacitated person;
(f) the interests of the mentally incapacitated person will be promoted by the proposed guardian, including

overriding the views and wishes of that person where the proposed guardian (once appointed) considers
such action is in the interests of that person;



Cap 136 - MENTAL HEALTH ORDINANCE 38

(g) despite paragraph (f), the views and wishes of the mentally incapacitated person are, in so far as they may
be ascertained, respected;

(h) the proposed guardian has consented in writing to the appointment as a guardian.
(2) Where it appears to the Guardianship Board that there is no appropriate person available to be appointed the

guardian of a mentally incapacitated person the subject of a guardianship application, the Guardianship Board
shall make a guardianship order appointing the Director of Social Welfare as the guardian of the mentally
incapacitated person.

(3) In the performance of any functions or the exercise of any powers under this Ordinance the guardian shall
ensure-
(a) that the interests of the mentally incapacitated person the subject of the guardianship order are promoted,

including overriding the views and wishes of that person where the guardian considers that such action is in
the interests of that person;

(b) despite paragraph (a), that the views and wishes of the mentally incapacitated person are, in so far as they
may be ascertained, respected,

and shall comply with directions (if any) given by the Guardianship Board in respect of that guardian and any
regulation made under section 72(1)(g) or (h).


Section: 59T Transfer of guardianship in case of death, incapacity, etc.

of guardian
E.R. 1 of 2012 09/02/2012



(1) If any person (other than the Director of Social Welfare) who is the guardian of a mentally incapacitated person
received into guardianship under this Part-
(a) dies; or
(b) gives notice in writing to the Guardianship Board that he desires to relinquish the functions of guardian,

the guardianship of the mentally incapacitated person shall, subject to a review by the Guardianship Board under
section 59U, upon that death or the receipt of that notice, as the case may be, vest in the Director of Social
Welfare.

(2) If any such guardian, not having given notice under subsection (1)(b), is incapacitated by illness or any other
cause from performing the functions of guardian of the mentally incapacitated person, those functions shall,
during the guardian's incapacity and subject to a review by the Guardianship Board under section 59U, be
performed on his behalf by the Director of Social Welfare or by any other person approved for that purpose by
the Guardianship Board.


Section: 59U Review of guardianship orders E.R. 1 of 2012 09/02/2012


(1) The Guardianship Board may, of its own initiative and in accordance with such procedure as it thinks fit, review
any guardianship order made under section 59O at any time prior to the expiry of the period for which the
guardianship order has effect under section 59R(1).

(2) The Guardianship Board shall review any guardianship order made under section 59O-
(a) at the request of any person entitled to request under subsection (4) a review of the guardianship order; or
(b) prior to the expiry of the period for which the guardianship order has effect under section 59R(1).

(3) the Guardianship Board shall review any guardianship order made under section 59O in the circumstances
described in section 59T(1)(a) or (b).

(4) The following persons are entitled to request the Guardianship Board to review a guardianship order made under
section 59O-
(a) the mentally incapacitated person received into guardianship under this Part and the subject of the

guardianship order;
(b) the guardian of that person;
(c) the Director of Social Welfare;
(d) any other person (including a relative of the mentally incapacitated person) who, in the opinion of the

Board, has a genuine interest in the welfare of the mentally incapacitated person.
(5) Despite section 59R(1), a guardianship order that would otherwise cease to have effect under that section before

the completion of a review under this section shall continue to have effect until the completion of the review.
(6) On reviewing a guardianship order in accordance with this section, the Guardianship Board may-

(a) in the case of a review under subsection (1) or (2)(a)-



Cap 136 - MENTAL HEALTH ORDINANCE 39

(i) vary the guardianship order and, in the case of a variation which is a transfer, may appoint the Director
of Social Welfare or such other person approved by the Guardianship Board for that purpose;
(Amended 19 of 2000 s. 5)

(ii) suspend or revoke the guardianship order; or
(iii) take no further action in relation to the guardianship order;

(b) in the case of a review under subsection (2)(b)-
(i) renew the guardianship order;
(ii) renew and vary the guardianship order and, in the case of a variation which is a transfer, may appoint

the Director of Social Welfare or such other person approved by the Guardianship Board for that
purpose; or

(iii) take no further action in relation to the guardianship order; or
(c) in the case of a review under subsection (3)-

(i) revoke the guardianship order; or
(ii) renew and vary the guardianship order and, in the case of a variation which is a transfer, may appoint

the Director of Social Welfare or such other person approved by the Guardianship Board for that
purpose.

(7) The provisions of this Part apply to the renewal or variation of a guardianship order (including a variation in the
duration of that order) in the same way as they apply to the making of such an order under section 59O.

(8) For the purposes of this section, "vary" (更改) includes transfer.

Section: 59V Absence of mentally incapacitated person without

permission
E.R. 1 of 2012 09/02/2012



Where a mentally incapacitated person who is for the time being subject to a guardianship order under this Part
absents himself without the permission or agreement of the guardian from the place where he is required by the
guardian to reside, he may be taken into custody and returned to that place by the guardian or by the Director of Social
Welfare, and such reasonable force may be used as is necessary for the purpose.

Section: 59W Appeal to Court E.R. 1 of 2012 09/02/2012


(1) Any party to proceedings before the Guardianship Board may appeal to the Court from any decision of the
Board in that proceeding-
(a) on a question of law; or
(b) with the leave of the Court, on any other question.

(2) An appeal by any person under this section shall be instituted-
(a) within the period of 28 days after the day on which any document setting out the terms of the decision of

the Board is sent to the person; or
(b) within such further period as the Court may allow.

(3) On the hearing of an appeal under this section, the Court shall determine the appeal and may make such order as
it thinks fit including the following, namely-
(a) an order affirming the decision of the Guardianship Board;
(b) an order setting aside the decision of the Guardianship Board;
(c) an order remitting the case to be heard and decided again by the Guardianship Board (either with or without

the hearing of further evidence) in accordance with the directions of the Court.
(4) Pending the determination of an appeal by the Court, and subject to any order made by the Court to the contrary,

the appeal operates to stay the decision appealed against.

Section: 59X Proceedings before the Board and procedure E.R. 1 of 2012 09/02/2012


(1) The Guardianship Board is not bound by the rules of evidence but may inform itself on any matter in such
manner as it thinks fit.

(2) Proceedings before the Board shall be conducted with as little formality and legal technicality and form as the
circumstances of the case permit.

(3) Despite subsection (2), the Board shall have power to hear, receive and examine evidence on oath.



Cap 136 - MENTAL HEALTH ORDINANCE 40

(4) Proceedings before the Guardianship Board shall be open to the public unless the Board, in any particular case,
determines that it is in the interests of the mentally incapacitated person the subject of the proceedings, or for
some other good reason, that those proceedings should be conducted wholly or partly in the absence of the
public.

(5) The procedure for any hearing of the Board shall, subject to any rules made under section 59Z, be as determined
by the Board.


Section: 59Y Right of appearance E.R. 1 of 2012 09/02/2012


(1) In any proceedings before the Guardianship Board, the following persons may appear in person or be
represented by counsel or a solicitor, namely-
(a) an applicant making a guardianship application under this Part;
(b) the mentally incapacitated person the subject of the application;
(c) the Director of Social Welfare or a public officer in the Social Welfare Department.

(2) The Guardianship Board may, if it appears to the Board that any person entitled to appear in person before it
under subsection (1) ought to be separately represented by counsel or a solicitor-
(a) order that the person be so separately represented; and
(b) make such other orders as it thinks necessary for the purpose of securing separate representation for that

person.

Section: 59Z Rules E.R. 1 of 2012 09/02/2012


Remarks:
For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative
Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.


(1) Rules may be made by the Secretary for Labour and Welfare with respect to the making of guardianship

applications to the Guardianship Board and with respect to its proceedings and matters incidental, supplementary
or consequential to such proceedings. (Amended L.N. 106 of 2002; L.N. 130 of 2007)

(2) Rules made under subsection (1) may make provision-
(a) for regulating the methods by which documents and information relevant to a guardianship application may

be obtained by or furnished to the Guardianship Board;
(b) for enabling any functions of the Board which relate to matters preliminary or incidental to a guardianship

application to be performed by the Secretary to the Board;
(c) for regulating the circumstances in which the parties to a hearing before the Guardianship Board may be

represented by counsel or a solicitor for the purpose of conducting the case on their behalf;
(d) for regulating the methods by which any social enquiry reports prepared under section 59P(1) and the

written reports (or the substance of those reports) of registered medical practitioners, as the case may be,
relevant to particular guardianship applications may be obtained by or furnished to the Guardianship Board;

(e) for regulating the circumstances in which copies of any social enquiry reports prepared under section
59P(1) and the written reports (or the substance of those reports) of registered medical practitioners, as the
case may be, obtained by or furnished to the Guardianship Board are disclosed or otherwise made available
to the parties to a hearing;

(f) for regulating the circumstances in which copies of any other documents or other information obtained by
or furnished to the Guardianship Board are disclosed or otherwise made available to the parties to a hearing;

(g) for regulating the methods by which the decisions of the Guardianship Board are communicated to the
parties to a hearing and other interested parties;

(h) for requiring the Guardianship Board to furnish such statements to the parties to a hearing of the reasons for
any decision given by the Board, including any decision to make, or refuse to make, a guardianship order
under this Part;

(i) for conferring on the Guardianship Board such ancillary powers as may be necessary for the purposes of the
performance of its functions or the exercise of its powers under this Ordinance.





Cap 136 - MENTAL HEALTH ORDINANCE 41

Part: IVC MEDICAL AND DENTAL TREATMENT E.R. 1 of 2012 09/02/2012


(Part IVC added 81 of 1997 s. 52)
(*Format changes—E.R. 1 of 2012)

____________________________________________________________________________
Note:
*The format of Part IVC has been updated to the current legislative styles.

Section: 59ZA Interpretation E.R. 1 of 2012 09/02/2012


Remarks:
For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative
Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.


In this Part, unless the context otherwise requires-
dental treatment (牙科治療) includes any dental procedure, operation or examination carried out by, or under the

supervision of, a registered dentist and any care associated therewith;
in the best interests (符合最佳利益), in relation to the carrying out of treatment or special treatment, as the case may

be, in respect of a mentally incapacitated person, means in the best interests of that person in order to-
(a) save the life of the mentally incapacitated person;
(b) prevent damage or deterioration to the physical or mental health and well-being of that person; or
(c) bring about an improvement in the physical or mental health and well-being of that person;

medical treatment (醫療) includes any medical or surgical procedure, operation or examination carried out by, or
under the supervision of, a registered medical practitioner and any care associated therewith;

special treatment (特別治療) means medical treatment or dental treatment or both of an irreversible or controversial
nature as specified by the Secretary for Food and Health under section 59ZC and includes proposed special
treatment; (Amended L.N. 106 of 2002; L.N. 130 of 2007)

treatment (治療) means medical treatment, dental treatment or both, and includes proposed treatment but does not
include special treatment.


Section: 59ZB Application and principles E.R. 1 of 2012 09/02/2012


(1) This Part applies to treatment or special treatment of a mentally incapacitated person who has attained the age of
18 years and is incapable of giving consent to the carrying out of that treatment or that special treatment, as the
case may be, but does not apply to-
(a) in the case of a mentally incapacitated person who is mentally disordered, treatment of that person in a

mental hospital or the Correctional Services Department Psychiatric Centre in relation to his mental
disorder; or

(b) in the case of a mentally incapacitated person who is a supervised person (within the meaning of Part IIIB),
treatment of that person pursuant to a supervision and treatment order made under that Part.

(2) A mentally incapacitated person is incapable of giving such consent if that person is incapable of understanding
the general nature and effect of the treatment or special treatment.

(3) The Court when considering whether or not to give consent to the carrying out of treatment or special treatment,
or the guardian when considering whether or not to give consent to the carrying out of treatment, under this Part,
shall observe and apply the following principles, namely to-
(a) ensure that the mentally incapacitated person is not deprived of the treatment or special treatment, as the

case may be, merely because he lacks the capacity to consent to the carrying out of that treatment or that
special treatment; and

(b) ensure that any treatment or special treatment that is proposed to be carried out in respect of the mentally
incapacitated person is carried out in the best interests of that person.





Cap 136 - MENTAL HEALTH ORDINANCE 42

Section: 59ZBA Prohibition against organ transplant E.R. 1 of 2012 09/02/2012


(1) Nothing in this Ordinance shall be construed as enabling the removal, in the course of any treatment or special
treatment of a mentally incapacitated person who has attained the age of 18 years and is incapable of giving
consent to the carrying out of such treatment or special treatment, as the case may be, from that person of any
organ for the purpose of transplanting it into another person.

(2) In this section, organ (器官) has the same meaning as contained in subparagraphs (i), (ii) and (iii) under
paragraph (a) of the definition of "organ" in section 2 of the Human Organ Transplant Ordinance (Cap 465).
(Amended 29 of 2004 s. 22)

(Added 19 of 2000 s. 6)

Section: 59ZC Specification of special treatment E.R. 1 of 2012 09/02/2012


Remarks:
For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative
Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.


(1) The Secretary for Food and Health may in consultation with the Hospital Authority within the meaning of the

Hospital Authority Ordinance (Cap 113) or that authority and other appropriate bodies, by notice in the Gazette,
specify any dental treatment, medical treatment or both, as the case may be, to be special treatment for the
purposes of this Part. (Amended L.N. 106 of 2002; L.N. 130 of 2007)

(2) In this section, other appropriate bodies (其他適當機構) includes-
(a) the Department of Health;
(b) the Hong Kong Medical Association;
(c) the Hong Kong Dental Association.

(3) It is hereby declared that a notice under subsection (1) is subsidiary legislation.

Section: 59ZD Who may give consent E.R. 1 of 2012 09/02/2012


(1) Consent to the carrying out of treatment in respect of a mentally incapacitated person to whom this Part applies
may be given by the guardian of that person appointed under Part IIIA or IVB in respect of whom a guardianship
order has conferred the power to consent under section 44B(1)(d) or 59R(3)(d).

(2) Subject to sections 59ZF(1) and 59ZJ, consent to the carrying out of treatment or special treatment in respect of
a mentally incapacitated person to whom this Part applies may be given by the Court under this Part.


Section: 59ZE Requests for consent E.R. 1 of 2012 09/02/2012


Any registered medical practitioner or registered dentist may request a guardian of a mentally incapacitated person
appointed under Part IIIA or IVB to consent to the carrying out of treatment in respect of that person.

Section: 59ZF When treatment may be carried out without consent E.R. 1 of 2012 09/02/2012


(1) Treatment by a registered medical practitioner or registered dentist may be carried out in respect of a mentally
incapacitated person to whom this Part applies without consent under section 59ZD(1) or (2) if that registered
medical practitioner or registered dentist intending to carry out or supervise the treatment considers that as a
matter of urgency that treatment is necessary and is in the best interests of the mentally incapacitated person.

(2) Subject to subsection (3), treatment by a registered medical practitioner or registered dentist may be carried out
in respect of a mentally incapacitated person to whom this Part applies without consent under section 59ZD(1)
if-
(a) after all reasonably practicable steps have been taken by that practitioner or that dentist to ascertain whether

or not a guardian has been appointed under Part IIIA or IVB responsible for that person, there is, or appears
to be, no guardian so appointed; or

(b) the guardian appointed under Part IIIA or IVB has not been conferred the power to consent in a
guardianship order under section 44B(1)(d) or 59R(3)(d).



Cap 136 - MENTAL HEALTH ORDINANCE 43

(3) Where a registered medical practitioner or registered dentist intending to carry out or supervise the treatment
under subsection (2) considers that that treatment is necessary and is in the best interests of the mentally
incapacitated person, then he may carry out that treatment without the consent of the mentally incapacitated
person or that person's guardian (if any ) accordingly.


Section: 59ZG Applications to Court E.R. 1 of 2012 09/02/2012


(1) Any person, including a medical superintendent, registered medical practitioner or registered dentist, may apply
to the Court for consent to the carrying out of special treatment in respect of a mentally incapacitated person to
whom this Part applies.

(2) Any person, including a medical superintendent, registered medical practitioner or registered dentist, may apply
to the Court for consent to the carrying out of treatment in respect of a mentally incapacitated person to whom
this Part applies in circumstances where a guardian of that person appointed under Part IIIA or IVB who has
been conferred the power to consent in a guardianship order under section 44B(1)(d) or 59R(3)(d)-
(a) is, for whatever reason unable or unwilling to make a decision concerning a request under section 59ZE for

his consent to the carrying out of treatment in respect of that person; or
(b) having failed properly to observe and apply the principles described in section 59ZB(3), refuses to give

such consent.

Section: 59ZH Service of applications E.R. 1 of 2012 09/02/2012


(1) The person making an application under section 59ZG(1) or (2) shall, as soon as practicable after making the
application, serve a copy of the application on-
(a) the mentally incapacitated person the subject of the application;
(b) the person (other than the applicant) who is proposing that treatment or special treatment, as the case may

be, should be carried out in respect of the mentally incapacitated person; and
(c) the guardian (if any) appointed under Part IIIA or IVB who is responsible for that person.

(2) Subject to section 59ZJ(2), any failure to serve a copy of an application under subsection (1)(b) or (c) shall not
affect any decision of the Court in respect of the application, but the Court shall take into account any such
failure in making its decision.



Section: 59ZI Consent of Court E.R. 1 of 2012 09/02/2012


(1) Without prejudice to section 59ZF(1), if, after conducting a hearing into an application under section 59ZG(1) or
(2), the Court is satisfied that it is appropriate that treatment or special treatment, as the case may be, should be
carried out in the best interests of the mentally incapacitated person to whom this Part applies, the Court may
consent to the carrying out of that treatment or that special treatment and make an order to the applicant to that
effect.

(2) Nothing in this section requires the Court to consider an application under section 59ZG(1) or (2) if the Court is
not satisfied that the applicant has a sufficient interest in the health and well-being of the mentally incapacitated
person to whom this Part applies.


Section: 59ZJ Restriction on the giving of consent by Court E.R. 1 of 2012 09/02/2012


(1) The Court shall not consent under this Part to the carrying out of special treatment in respect of a mentally
incapacitated person to whom this Part applies unless the Court is satisfied that the special treatment is the only
or most appropriate method of treating that person or that the special treatment is in the best interests of that
person.

(2) In the case of a failure to serve a copy of an application under section 59ZH(1)(b) or (c), the Court shall not
consent under this Part to the carrying out of treatment or special treatment, as the case may be, in respect of a
mentally incapacitated person to whom this Part applies unless the Court is satisfied that that failure will not
affect the observation and application of the principles referred to in section 59ZB(3).





Cap 136 - MENTAL HEALTH ORDINANCE 44

Section: 59ZK Effect of consent E.R. 1 of 2012 09/02/2012


Consent given under this Part for the carrying out of treatment or special treatment, as the case may be, in respect of a
mentally incapacitated person to whom this Part applies has effect for all purposes as if-

(a) that person had been capable of giving such consent to the carrying out of that treatment or that special
treatment; and

(b) that treatment or that special treatment had been carried out with the consent of that person.



Part: V General provisions E.R. 1 of 2012 09/02/2012


(*Format changes—E.R. 1 of 2012)
____________________________________________________________________________
Note:
*The format of Part V has been updated to the current legislative styles.

Section: 60 Saving of powers E.R. 1 of 2012 09/02/2012


Nothing in this Part shall interfere with or derogate from the power vested in the Court by Part II over any person
found to be a mentally incapacitated person.

(Amended 81 of 1997 s. 58)

Section: 61 Amendment of orders E.R. 1 of 2012 09/02/2012


(1) If after the reception of any patient into a mental hospital it appears that the order or the medical certificate upon
which he was received is defective or incorrect, the same may at any time afterwards be amended, with the
sanction of the medical superintendent, by the person or persons signing the same.

(2) An amendment made under this section shall be effective as from the date of the reception.

Section: 62 Application of property of a mentally incapacitated person

found wandering
E.R. 1 of 2012 09/02/2012



Any movable property which may be in the possession of a mentally incapacitated person found wandering at large
may be sold by order of a District Judge, and the proceeds thereof, or such part of the same as may be necessary,
applied towards the payment of the charge of the lodging and maintenance of such person and of any other expenses
incurred on his behalf.

(Amended 35 of 1969 s. 2; 81 of 1997 s. 58)

Section: 63 Enforcement of cost of maintenance E.R. 1 of 2012 09/02/2012


(1) The Court, on the application of the Secretary for Justice and on being satisfied that a patient including a person
who has been received into a mental hospital in accordance with section 76 of the Criminal Procedure Ordinance
(Cap 221) has property which may be applied towards his maintenance or that any person is legally bound to
maintain the patient and has sufficient means to enable him to do so, may make an order for the recovery of the
cost of the maintenance of the patient, together with the costs of the application, out of the property of the patient
or from such person. (Amended L.N. 362 of 1997)

(2) Any order made in accordance with the provisions of subsection (1) shall be of the same force and effect and
subject to the same appeal as a judgment or order made by the Court in any proceedings in respect of the
property or of the person therein mentioned.


Section: 64 Saving E.R. 1 of 2012 09/02/2012


Nothing in this Ordinance shall effect or take away from the liability of any person to maintain a mentally
incapacitated person.



Cap 136 - MENTAL HEALTH ORDINANCE 45

(Amended 81 of 1997 s. 58)

Section: 65 Offences against patients E.R. 1 of 2012 09/02/2012


(1) Any attendant, nurse, servant or other person employed in a mental hospital who ill-treats or wilfully
neglects any patient shall be guilty of an offence and shall be liable on summary conviction to a fine at level 2 and
imprisonment for 2 years. (Amended 46 of 1988 s. 24)

(2) Without prejudice to section 125 of the Crimes Ordinance (Cap 200), any man who is an officer on the staff
of, or is otherwise employed in-

(a) a mental hospital, and has unlawful sexual intercourse with a woman who is detained in that hospital;
(b) the Correctional Services Department Psychiatric Centre and has unlawful sexual intercourse with a

woman who is detained in that Centre; or
(c) a mental hospital or general hospital, and has unlawful sexual intercourse with a woman who is

receiving treatment for a mental disorder in the mental hospital or the psychiatric unit of the general
hospital, where such intercourse takes place on the premises of the mental hospital or psychiatric unit
or on premises of which the mental hospital or psychiatric unit forms part,

commits an offence and shall on conviction on indictment be liable to imprisonment for 5 years. (Replaced 46 of
1988 s. 24)

(3) Consent shall not be a defence in any proceedings for an offence under subsection (2) if the accused knew,
or had reasonable grounds to suspect at the time when intercourse took place, that the woman with whom he had
sexual intercourse was such a woman as is described in paragraph (a), (b) or (c) of that subsection. (Replaced 46 of
1988 s. 24)

(4) If on the trial of any person for rape the Court or jury is satisfied that the accused is guilty of an offence
under subsection (2) but are not satisfied that he is guilty of rape, the Court or jury shall acquit him of rape and shall
find him guilty of an offence under subsection (2).

(Amended E.R. 1 of 2012)

Section: 65A Sexual intercourse with a woman under guardianship E.R. 1 of 2012 09/02/2012


Any man who has unlawful sexual intercourse with a woman who is received into guardianship, being a woman-
(Amended 81 of 1997 s. 53)

(a) of whom he is the guardian; or
(b) who is otherwise in his custody or care under this Ordinance,

commits an offence and shall on conviction on indictment be liable to imprisonment for 5 years.
(Added 46 of 1988 s. 25)


Section: 66 Construction of laws E.R. 1 of 2012 09/02/2012


Whenever in any written law or other document whatsoever any reference to a lunatic asylum or asylum or mental
hospital is contained, that reference shall be read as a reference to a mental hospital.

(Amended 46 of 1988 s. 26)

Section: 67 Medical orders or certificates E.R. 1 of 2012 09/02/2012


Every order or certificate of a medical officer or a registered medical practitioner shall be evidence of the facts therein
appearing and of the judgment therein stated to have been formed by the person certifying on such facts, as if the
matters therein appearing had been verified on oath.

Section: 68 Copy of reception order to be sent to the person in Charge

of the mental hospital
E.R. 1 of 2012 09/02/2012



The Court making an order under section 26 or a District Judge or magistrate making an order under section 31 shall
forthwith send a certified copy of the order to the medical superintendent of the mental hospital into which any person
is ordered to be received.



Cap 136 - MENTAL HEALTH ORDINANCE 46

(Amended 35 of 1969 s. 2; 50 of 1969 s. 3; 47 of 1997 s. 10)

Section: 68A Duty to give information to detained patients E.R. 1 of 2012 09/02/2012


The medical superintendent of every mental hospital, and the Superintendent of the Correctional Services Psychiatric
Centre, shall take such steps as are reasonably practicable to ensure that every patient in the hospital or the Centre, as
the case may be, and a relative of every patient, understand-

(a) under which of the provisions of this Ordinance the patient is for the time being detained and the effect of
that provision;

(b) what rights of applying to the tribunal are available to the patient in respect of his detention under that
provision; and

(c) what rights are available to the patient to apply for his discharge,
and those steps shall be taken as soon as practicable after the commencement of the patient's detention under the
provision in question.

(Added 46 of 1988 s. 27)

Section: 69 Protection of persons carrying out the provisions of this

Ordinance
E.R. 1 of 2012 09/02/2012



(1) Where a person has made application for the removal or detention of any person under the provisions of this
Ordinance, or signed or carried out, or done any act with a view to signing or carrying out, an order purporting to
be an order for removal or detention, or any report, application, recommendation, or certificate purporting to be
a report, application, recommendation, or certificate under this Ordinance, or has done anything or given any
advice in a professional capacity in pursuance of this Ordinance, he shall not be liable to any civil or criminal
proceedings whether on the ground of want of jurisdiction or on any other ground unless he has acted in bad
faith or without reasonable care.

(2) No proceedings, civil or criminal, shall be brought against any person in any Court in respect of any such matter
as is mentioned in subsection (1), without the leave of the Court, and leave shall not be given unless the Court is
satisfied that there is substantial ground for the contention that the person, against whom it is sought to bring the
proceedings, has acted in bad faith or without reasonable care.

(3) Notice of any application under subsection (2) shall be given to the person against whom it is sought to bring the
proceedings, and that person shall be entitled to be heard against the application.


Section: 70 Penalty for improper reception or detention E.R. 1 of 2012 09/02/2012


(1) Subject to the provisions of section 69 any person who-
(a) otherwise than in accordance with the provisions of this Ordinance receives or detains in a mental hospital a

person who is or is alleged to be a mentally disordered person; or
(b) for gain detains in any place not being a mental hospital 2 or more mentally disordered persons,
shall be guilty of an offence and shall be liable on summary conviction to a fine at level 4 and to imprisonment
for 2 years. (Amended 46 of 1988 s. 28)

(2) No prosecution under this section shall be instituted except by or with the consent of the Secretary for Justice.
(Amended L.N. 362 of 1997))

(3) Nothing in this section shall prevent any general hospital or nursing home which has been recognized as such by
the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap 113) from receiving and
treating any person who is in need of and is desirous of receiving psychiatric treatment. (Amended L.N. 76 of
1989; 68 of 1990 s. 24)

(Amended E.R. 1 of 2012)

Section: 71 Powers of a District Judge and a magistrate E.R. 1 of 2012 09/02/2012


For the purpose of the exercise of the power conferred by section 31 a District Judge and a magistrate may exercise
the powers conferred on a magistrate by the Magistrates Ordinance (Cap 227) of requiring the attendance before him
of any person who may be able to assist him in the exercise of such power and of receiving on oath the evidence of



Cap 136 - MENTAL HEALTH ORDINANCE 47

any person.
(Added 50 of 1969 s. 4. Amended 46 of 1988 s. 29)


Section: 71A Warrant to search for and remove mentally incapacitated

persons
E.R. 1 of 2012 09/02/2012



(1) If it appears to a magistrate on information on oath laid by any person who is authorized under this Ordinance to
take a mentally incapacitated person to any place, or to take into custody or retake a mentally incapacitated
person who is liable under this Ordinance to be so taken or retaken-
(a) that there is reasonable cause to believe that the mentally incapacitated person is to be found on any

premises; and
(b) that admission to the premises has been refused or that a refusal of such admission is apprehended,

the magistrate may issue a warrant authorizing any police officer or other person named in the warrant to enter
the premises and remove the mentally incapacitated person.

(2) If it appears to a magistrate, on information on oath laid by an approved social worker, that there is reasonable
cause to suspect that a person believed to be mentally incapacitated-
(a) has been, or is being, ill-treated, neglected or kept otherwise than under proper control; or
(b) is in need of care or control and, in his own interests or for the protection of other persons, may need to be

taken to a place of safety,
the magistrate may issue a warrant authorizing any police officer or other person named in the warrant to enter

any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to
a place of safety.

(3) In the execution of a warrant issued under subsection (1) or (2) the person named in the warrant-
(a) shall, unless he is an approved social worker or a community psychiatric nurse, be accompanied by an

approved social worker or by a community psychiatric nurse; and
(b) may use such reasonable force as may be necessary to enter the premises and remove the mentally

incapacitated person.
(4) In this section, a "place of safety" (安全地方) means the accident and emergency department of any general

hospital.
(5) Subsections (1) and (3) apply to and in relation to a supervised person within the meaning of Part IIIB as they

apply to and in relation to a mentally incapacitated person and subsections (2), (3) and (4) apply to and in
relation to such a person as they apply to a person believed to be suffering from a mental disorder. (Added 38 of
1996 s. 4)

(Added 46 of 1988 s. 30. Amended 81 of 1997 s. 54)

Section: 71B Mentally disordered persons found in need of care or

control
E.R. 1 of 2012 09/02/2012



(1) If a police officer finds in any place a person whom he reasonably believes to be suffering from mental disorder
and to be in immediate need of care or control, the officer may, notwithstanding the provisions of section 51 of
the Police Force Ordinance (Cap 232), take that person into custody and remove him forthwith to a place of
safety if the officer thinks it necessary to do so in the interests of that person or for the protection of other
persons.

(2) A person who is in, or is removed under this section to, a place of safety may be detained there for a period not
exceeding 24 hours for the purpose of enabling him to be examined by a registered medical practitioner and of
making necessary arrangements for his treatment and care.

(3) Such force as is reasonably necessary may be used for the purposes of taking a person into custody and
removing him to a place of safety, and for detaining him there, under this section.

(4) In this section, a "place of safety" (安全地方) means the accident and emergency department of any general
hospital.

(5) Nothing in subsection (1) shall confer upon any police officer a right to enter upon any premises.
(Added 46 of 1988 s. 30)





Cap 136 - MENTAL HEALTH ORDINANCE 48

Section: 72 Power to make regulations E.R. 1 of 2012 09/02/2012


Remarks:
For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative
Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.


(1) The Secretary for Food and Health may by regulation provide for- (Amended 81 of 1997 s. 55; L.N. 106 of

2002; L.N. 130 of 2007)
(a) the powers and duties of medical superintendents and other persons employed in mental hospitals;
(b) the forms required for the carrying out of the provisions of this Ordinance and of any regulations made

under this section;
(c) the books and records to be kept in mental hospitals;
(d) the conditions and circumstances under which mechanical means of restraint or seclusion may be applied to

patients;
(e) any fees to be charged under this Ordinance or such regulations;
(f) the amounts which may be charged for the maintenance of patients;
(g) regulating the exercise by guardians of mentally incapacitated persons subject to a guardianship order under

Part IIIA or IVB of their powers as such; (Replaced 46 of 1988 s. 31. Amended L.N. 42 of 1989)
(h) imposing on such guardians and on public officers such duties as may be necessary or expedient in the

interests of mentally incapacitated persons; (Added 46 of 1988 s. 31)
(i)-(j) (Repealed 81 of 1997 s. 55)
(ja) the records to be kept of treatment or special treatment under Part IVC carried out in respect of mentally

incapacitated persons to whom that Part applies; (Added 81 of 1997 s. 55)
(jb) regulating the giving or providing of special treatment under that Part; (Added 81 of 1997 s. 55)
(k) any matters required or permitted to be prescribed by this Ordinance; and (Added 46 of 1988 s. 31)
(l) generally, the carrying into effect of the provisions of this Ordinance. (Added 46 of 1988 s. 31)

(2) Such regulations may provide that the contravention of any regulation shall constitute an offence and may
prescribe penalties for any offence not exceeding a fine at level 2 and imprisonment for 6 months.

(3) Regulations under subsection (1)(g) and (h) may in particular make provision for requiring the mentally
incapacitated persons to be visited on behalf of the Director of Social Welfare, on such occasions or at such
intervals as may be prescribed and may provide for the appointment, in the case of every mentally incapacitated
person subject to the guardianship of a person other than the Director of Social Welfare, of a registered medical
practitioner to act as the medical attendant of the mentally incapacitated person. (Added 46 of 1988 s. 31)

(Amended 81 of 1997 s. 55)

Section: 73 Amendment of Schedule E.R. 1 of 2012 09/02/2012


Remarks:
For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative
Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.


The Secretary for Labour and Welfare may, by notice in the Gazette, amend the Schedule.

(Added 38 of 1996 s. 5. Amended L.N. 106 of 2002; L.N. 130 of 2007)

Section: 74 Transitional and savings E.R. 1 of 2012 09/02/2012


Remarks:
For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative
Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.


(1) Subject to subsection (3), despite-

(a) the repeal of sections 34(1) and (5)(a) and 35(1) and (2);
(b) the amendment of sections 42A and 59B(2)(c);
(c) the repeal and substitution of section 59E(5),

("the original provisions") by the Mental Health (Amendment) Ordinance 1997 (81 of 1997) ("the relevant



Cap 136 - MENTAL HEALTH ORDINANCE 49

Ordinance") a person received into guardianship under section 33 (as repealed by the relevant Ordinance) shall
remain under guardianship as if the original provisions had not been repealed or amended, as the case may be,
by the relevant Ordinance. (Amended 32 of 2000 s. 48)

(2) The amendments of Part IIIA by the relevant Ordinance shall not affect the validity of any guardianship orders
made before the commencement of those amendments or the powers conferred by such orders.

(3) Where a guardianship order is made under Part IVB in respect of a person who has been received into
guardianship under section 33 (as repealed by the relevant Ordinance) that guardianship shall cease to have
effect on the making of that guardianship order.

(4) The amendment of section 72(1) by section 55 of the relevant Ordinance shall not affect any regulations made
under that first-mentioned section in force immediately before the commencement of that amendment and those
regulations shall continue to apply- (Amended L.N. 106 of 2002)
(a) after that commencement and before 1 July 2002, as if they had been made by the Secretary for Health and

Welfare;
(b) on and after 1 July 2002 but before 1 July 2007, as if they had been made by the Secretary for Health,

Welfare and Food; and (Replaced L.N. 130 of 2007)
(c) on and after 1 July 2007, as if they had been made by the Secretary for Food and Health. (Added L.N. 130

of 2007)
(5) Despite the repeal of section 12(4) of the High Court Ordinance (Cap 4) by item 1 of Schedule 2 to the relevant

Ordinance, any application made before the relevant date under the provisions of Part VII of the Mental Health
Act 1983 (1983 c. 20 U.K.) as applied to Hong Kong shall be dealt with under Part II, subject to such
modifications as may be necessary, as if the application had been made under Part II and not under the
provisions of Part VII of that Act. (Amended 25 of 1998 s. 2)

(6) The repeal of section 12(4) of the High Court Ordinance (Cap 4) by item 1 of Schedule 2 to the relevant
Ordinance shall not affect the validity of any orders, directions or authorities made or given before the relevant
date under the provisions of Part VII of the Mental Health Act 1983 (1983 c. 20 U.K.) as applied to Hong Kong,
and any receiver appointed under that Part of that Act shall be treated as if he were appointed a committee of the
estate of a mentally incapacitated person under Part II. (Amended 25 of 1998 s. 2)

(7) For the purposes of this section, "relevant date" (有關日期) means the date on which item 1 of Schedule 2 to
the relevant Ordinance comes into operation*.

(Added 81 of 1997 s. 56)
________________________________________________________________________________
Note:
* Commencement date: 1 February 1999.

Schedule: Schedule E.R. 1 of 2012 09/02/2012


Remarks:
For the saving and transitional provisions relating to the amendments made by the Resolution of the Legislative
Council (L.N. 130 of 2007), see paragraph (12) of that Resolution.


[sections 59J(4) & 73]


1. Terms and conditions of appointment of Chairperson of Guardianship Board


(1) Subject to subsection (2), the Chief Executive shall determine the remuneration and terms and conditions of
appointment of the Chairperson.

(2) The Chairperson shall not, without the specific approval of the Chief Executive-
(a) hold any office of profit other than the office of Chairperson;
(b) engage in any occupation for reward outside the functions of that office.

(Amended 60 of 2000 s. 3)

2. Terms of appointment of members of Guardianship Board


(1) Subject to subsection (2), a member of the Guardianship Board shall hold and vacate his office in
accordance with the terms and conditions of his appointment and shall, on ceasing to be a member, be eligible for



Cap 136 - MENTAL HEALTH ORDINANCE 50

reappointment.
(2) A member of the Guardianship Board may at any time by notice in writing to the Chief Executive resign his

office. (Amended 60 of 2000 s. 3)

3. Fees and allowances payable to members of Guardianship Board


The Guardianship Board may pay its members such fees and allowances as the Secretary for Labour and
Welfare, after consulting with the Secretary for Financial Services and the Treasury, determines.

(Amended L.N. 106 of 2002; L.N. 130 of 2007)

4. Absence of Chairperson


In the absence, illness or incapacity of the Chairperson at any meeting of the Guardianship Board another
member (being a member referred to in section 59J(3)(a) of this Ordinance) may be appointed to act as such
Chairperson ("the other member presiding")-

(a) by the Chairperson in advance of the meeting; or
(b) failing such appointment, by the members present at the meeting.


5. Quorum of Guardianship Board


(1) Subject to subsection (2), the quorum of the Guardianship Board shall be not less than 3 members of the
Guardianship Board for the time being.

(2) The 3 members referred to in subsection (1) shall comprise-
(a) the Chairperson or the other member presiding;
(b) at least one member referred to in section 59J(3)(b) of this Ordinance; and
(c) at least one member referred to in section 59J(3)(c) of this Ordinance.

(3) All matters for determination at a meeting of the Guardianship Board shall be decided by a majority of
votes of the members present and voting and where there is an equality of votes the Chairperson or the other member
presiding in the absence, illness or incapacity of the Chairperson shall have a casting vote in addition to the original
vote of the Chairperson or the other member presiding.

(4) The jurisdiction of the Guardianship Board may be exercised by a meeting of the Guardianship Board
constituted in accordance with this section and references in this Ordinance to the Guardianship Board shall be
construed accordingly.

6. Secretary and other employees


(1) The Guardianship Board shall determine-
(a) the remuneration and the terms and conditions of employment of its secretary and other employees;

and
(b) the standards of work and conduct of its employees, and matters relating to their suspension or

dismissal from office.
(2) The Guardianship Board shall determine the remuneration and the terms and conditions of engagement of

technical, medical and other professional advisers (if any), and the manner of their engagement.
(Replaced 81 of 1997 s. 57)

(Format changes—E.R. 1 of 2012)

Related Laws