(Cap 136 section 59Z) [1 February 1999] L.N. 33 of 1999 (L.N. 97 of 1998) Cap 136E s 1 (Omitted as spent) PART I PRELIMINARY (Omitted as spent) Cap 136E s 2 Interpretation (1) In these Rules, unless the context otherwise requires- "Chairperson" (主席) includes a person appointed to act as Chairperson under section 4 of the Schedule to the Ordinance; "directions application" (要求指示的申请) means an application under section 11; "guardianship directions" (监护指示) means directions of the Board falling within section 59K(1)(d) of the Ordinance; "identity card" (身分证) means an identity card within the meaning of section 1A of the Registration of Persons Ordinance (Cap 177); "legal representative" (法律代表) means a counsel or solicitor; "party" (一方、方), in relation to any proceedings of the Board- (a) following a guardianship application, means the applicant, any person who has been sent a copy of the application under section 59N(3)(a) or (c) of the Ordinance and any person who is added as a party by direction of the Board; (b) following a review application, means the applicant, the other persons referred to in section 59U(4)(a), (b) and (c) of the Ordinance entitled to make such an application and any person who is added as a party by direction of the Board; (c) where section 59U(2)(b) or (3) of the Ordinance requires the Board to review a guardianship order, the persons referred to in section 59U(4)(a), (b) and (c) of the Ordinance entitled to make a review application in respect of the order (except the guardian in any case where section 59T(1)(a) of the Ordinance is applicable) and any person who is added as a party by direction of the Board; (d) following a directions application, means the applicant, the mentally incapacitated person, the guardian of the mentally incapacitated person, the Director of Social Welfare and any person who is added as a party by direction of the Board;"proceedings" (法律程序) includes any proceedings of the Board- (a) following a guardianship application; (b) following a review application; (c) where section 59U(2)(b) or (3) of the Ordinance requires the Board to review a guardianship order; or (d) following a directions application;"review" (覆核), in relation to a guardianship order, means a review under section 59U(2) or (3) of the Ordinance of the order; "review application" (覆核申请) means an application referred to in section 8; "secretary" (秘书) means the secretary to the Board; "social enquiry report" (社会背景调查报告), in relation to a mentally incapacitated person, means the social enquiry report required under section 59P of the Ordinance in respect of the person. (2) In these Rules, a reference to a mentally incapacitated person in relation to a guardianship application, review application, review of a guardianship order, or directions application, means the mentally incapacitated person the subject of the application or order, as the case may be. (3) In these Rules, a reference to a form by number is a reference to the form in the Schedule which bears the number. Cap 136E s 3 Making guardianship application PART II GUARDIANSHIP APPLICATIONS A guardianship application shall be- (a) in accordance with Form 1; (b) completed in accordance with such directions and instructions as are specified in the application; and (c) accompanied by such documents as are specified in the application. Cap 136E s 4 Compliance with section 59N(3) of the Ordinance The Board shall comply with- (a) section 59N(3)(a) and (c) of the Ordinance in respect of a guardianship application not later than 14 days after receipt of the application; (b) section 59N(3)(b) of the Ordinance in respect of a guardianship application not later than 14 days after it decides that the relative concerned should be sent a copy of the application. Cap 136E s 5 Social enquiry report required to be submitted to Board The Director of Social Welfare shall, not later than 4 weeks after- (a) if the Director has made a guardianship application, the date on which the application was made; (b) in any other case, receipt of a copy of a guardianship application under section 59N(3) of the Ordinance,send to the Board the social enquiry report in respect of the mentally incapacitated person. Cap 136E s 6 Non-disclosure of certain written reports Where, in the opinion of a registered medical practitioner who has prepared a written report referred to in section 59M(3) of the Ordinance, any part of the report should be withheld from the applicant of a guardianship application or the mentally incapacitated person on the ground that its disclosure would adversely affect the health or welfare of the mentally incapacitated person or others, that part shall be made in a separate document in which shall be set out the reasons for believing that its disclosure would have that effect. Cap 136E s 7 Disclosure of documents (1) Subject to subsection (2), the secretary shall, as soon as practicable, send a copy of every document the Board receives which is relevant to a guardianship application to the applicant and any person who has been sent a copy of the application under section 59N(3)(a) or (c) of the Ordinance, and any of those persons may submit comments thereon in writing to the Board. (2) The secretary shall not send a document referred to in subsection (1) (including any document containing comments referred to in that subsection) to a person referred to in that subsection if the Board, after considering the views, if any, of the person who prepared the document, has stated in writing- (a) that it believes that sending the document to that person would adversely affect the health or welfare of the mentally incapacitated person or others; and (b) its reasons for believing that sending the document to that person would have that effect.(3) Where a document is not to be disclosed pursuant to subsection (2) to a person who has a legal representative, the Board shall nevertheless disclose the document as soon as practicable to the representative. (4) No information disclosed to a legal representative in accordance with subsection (3) shall be- (a) disclosed either directly or indirectly to any other person without the authority of the Board; or (b) used otherwise than in connection with the guardianship application concerned. Cap 136E s 8 Making application to review guardianship order PART III REVIEW OF GUARDIANSHIP ORDERS An application making a request under section 59U(4) of the Ordinance to the Board to review a guardianship order shall be- (a) in accordance with Form 2; (b) completed in accordance with such directions and instructions as are specified in the application; and (c) accompanied by such documents as are specified in the application. Cap 136E s 9 Notice of review of guardianship order Where the Board is to review a guardianship order (whether pursuant to a review application or otherwise), the secretary shall, within 14 days of the receipt of a review application in respect of the order, or of the Board's specification of the date on which it will comply with the requirement of section 59U(2)(b) or (3) of the Ordinance to review the order, as the case may be, send notice of the review to- (a) the applicant where there is a review application; and (b) the persons referred to in section 59U(4)(a), (b) and (c) of the Ordinance entitled to make such an application (and whether or not there is such an application) except the guardian of the mentally incapacitated person where section 59T(1)(a) of the Ordinance is applicable. Cap 136E s 10 Disclosure of documents (1) Subject to subsection (2), the secretary shall, as soon as practicable, send a copy of every document the Board receives which is relevant to a review of a guardianship order to the persons sent notice of the review under section 9, and any of those persons may submit comments thereon in writing to the Board. (2) The secretary shall not send a document referred to in subsection (1) (including any document containing comments referred to in that subsection) to a person referred to in that subsection if the Board, after considering the views, if any, of the person who prepared the document, has stated in writing- (a) that it believes that sending the document to that person would adversely affect the health or welfare of the mentally incapacitated person or others; and (b) its reasons for believing that sending the document to that person would have that effect.(3) Where a document is not to be disclosed pursuant to subsection (2) to a person who has a legal representative, the Board shall nevertheless disclose the document as soon as practicable to the representative. (4) No information disclosed to a legal representative in accordance with subsection (3) shall be- (a) disclosed either directly or indirectly to any other person without the authority of the Board; or (b) used otherwise than in connection with the review of the guardianship order concerned. Cap 136E s 11 Making application for guardianship directions PART IV DIRECTIONS APPLICATIONS An application for guardianship directions may be made to the Board and shall be- (a) in accordance with Form 3; (b) completed in accordance with such directions and instructions as are specified in the application; and (c) accompanied by such documents as are specified in the application. Cap 136E s 12 Notice of directions application (1) After the receipt of a directions application, the secretary shall, subject to paragraph (d), not later than 14 days of a decision, if any, of the Board to decline to dispose of the application under subsection (2), send a copy of the application to such of the following who are not the applicant- (a) the mentally incapacitated person; (b) the guardian of the mentally incapacitated person; (c) the Director of Social Welfare; (d) such relatives of the mentally incapacitated person as the Board thinks fit not later than 14 days after it decides that the relative concerned should be sent a copy of the application.(2) The Board may dispose of a directions application- (a) by giving guardianship directions in writing to the guardian to which the application relates and, if the applicant is not the guardian, sending a copy of those directions to the applicant; or (b) by sending a notice to the applicant stating that the Board declines to give guardianship directions to the guardian and the reasons why it so declines.(3) It is hereby declared that a directions application disposed of as provided in subsection (2) does not prevent the applicant from making any further such application and, in any such case, this section shall apply again accordingly. Cap 136E s 13 Disclosure of documents (1) Subject to subsection (2), the secretary shall, as soon as practicable, send a copy of every document the Board receives which is relevant to a directions application to the applicant and the persons sent a copy of the application under section 12(1)(a), (b) and (c), and any of those persons may submit comments thereon in writing to the Board. (2) The secretary shall not send a document referred to in subsection (1) (including any document containing comments referred to in that subsection) to a person referred to in that subsection if the Board, after considering the views, if any, of the person who prepared the document, has stated in writing- (a) that it believes that sending the document to that person would adversely affect the health or welfare of the mentally incapacitated person or others; and (b) its reasons for believing that sending the document to that person would have that effect.(3) Where a document is not to be disclosed pursuant to subsection (2) to a person who has a legal representative, the Board shall nevertheless disclose the document as soon as practicable to the representative. (4) No information disclosed to a legal representative in accordance with subsection (3) shall be- (a) disclosed either directly or indirectly to any other person without the authority of the Board; or (b) used otherwise than in connection with the directions application concerned. Cap 136E s 14 Application of this Part PART V PROVISIONS APPLICABLE TO GUARDIANSHIP APPLICATIONS, REVIEWS OF GUARDIANSHIP ORDERS AND DIRECTIONS APPLICATIONS (1) The provisions of this Part shall apply to and in relation to- (a) a guardianship application; (b) a review application; (c) a review of a guardianship order where section 59U(2)(b) or (3) of the Ordinance requires the review; (d) a directions application.(2) In this Part, unless the context otherwise requires- "application" (申请) means a guardianship application, a review application or a directions application. Cap 136E s 15 Disqualification of Board members A person shall not be qualified to serve as a member of the Board for the purpose of any proceedings where he has- (a) a personal connection with the mentally incapacitated person concerned; or (b) a conflict of interest with the mentally incapacitated person. Cap 136E s 16 Legal representation (1) In any proceedings before the Board, a party to the proceedings may appear and be heard and be legally represented. (2) The legal representative of a party to any proceedings before the Board shall, as soon as practicable, notify the Board in writing of his name and postal address and the name of the party he represents. (3) The secretary shall send to a legal representative of a party to proceedings before the Board copies of all notices and documents which are by these Rules required or authorized to be sent to the party and the representative may take all such steps and do all such things relating to the proceedings as the party is by these Rules required or authorized to take or do. (4) Unless the Board otherwise directs, in any proceedings before the Board a party to the proceedings appearing before the Board may be accompanied by such other person or persons as he wishes, in addition to any legal representative. Cap 136E s 17 Directions Subject to the provisions of these Rules, the Board may give such directions as it thinks fit to ensure the speedy and just determination of any application or any review of a guardianship order where there is no application. Cap 136E s 18 Further information (1) Before or during any hearing the Board may call for such further information or reports as it may think desirable, and may give directions as to the manner in which the persons by whom such material is to be furnished. (2) Section 7, 10 or 13, as the case may require, shall apply to any further information or reports obtained by the Board. Cap 136E s 19 Adjournment (1) The Board may at any time adjourn a hearing for the purpose of obtaining further information or for such other purposes as it may think appropriate. (2) Before adjourning a hearing, the Board may give such directions as it thinks fit for ensuring the prompt consideration of an application, or review of a guardianship order where there is no application, at an adjourned hearing. (3) Where the applicant (where there is an application), the mentally incapacitated person, the guardian, if any, of the mentally incapacitated person or the Director of Social Welfare requests that a hearing adjourned in accordance with this section be resumed, the hearing shall be resumed provided that the Board is satisfied that resumption would be in the interests of the mentally incapacitated person. (4) Before the Board resumes a hearing which has been adjourned without a further hearing date being fixed the secretary shall give to all parties not less than 14 days' notice (or such shorter notice as all parties may consent to) of the date, time and place of the resumed hearing. Cap 136E s 20 Two or more pending applications, etc. (1) The Board may consider more than one application, whether with or without a review of a guardianship order not arising from an application, in respect of a mentally incapacitated person at the same time and may for this purpose adjourn the proceedings relating to an application or review of a guardianship order where there is no application. (2) Where the Board considers more than one application in respect of a mentally incapacitated person at the same time, each applicant (if more than one) shall have the same rights under these Rules as he would have if he were the only applicant. Cap 136E s 21 Transfer of proceedings Where any proceedings in relation to a mentally incapacitated person have not been disposed of by the members of the Board constituted for the purpose because of the illness or death of any such members, and the Chairperson is of the opinion that it is not practicable or not possible without undue delay for the consideration of those proceedings to be completed by those members, he shall make arrangements for them to be heard by other members of the Board. Cap 136E s 22 Withdrawal of application (1) An application may be withdrawn at any time at the request of the applicant provided that the request is made in writing and the Board agrees. (2) Where an application is withdrawn, the secretary shall so inform the parties. Cap 136E s 23 Notice of hearing The secretary shall give at least 14 days' notice of the date, time and place fixed for the hearing of an application or a review of a guardianship order where there is no application, or such shorter notice as all parties may consent to, to all the parties. Cap 136E s 24 Privacy of proceedings (1) The Board may exclude from any hearing or part of a hearing any person or class of persons, other than a legal representative of an applicant (where there is an application) or of a mentally incapacitated person, and in any case where the Board decides to exclude the applicant, if any, or the mentally incapacitated person or their legal representatives or a legal representative of the Director of Social Welfare, it shall inform the person excluded of its reasons and record those reasons in writing. (2) Except in so far as the Board may direct, information about proceedings before the Board and the names of any persons concerned in the proceedings shall not be made public in any case where the proceedings were conducted wholly or partly in the absence of the public. Cap 136E s 25 Hearing procedure (1) The Board may conduct the hearing in such manner as it considers most suitable bearing in mind the health and welfare of the mentally incapacitated person and it shall, so far as appears to it appropriate, seek to avoid formality in its proceedings. (2) At any time before an application is determined, or the review of a guardianship order is concluded where there is no application, the Board or any one or more of its members may interview the mentally incapacitated person, and shall interview him if he so requests, but no interview shall be held unless there is not less than 1 other individual present in addition to the mentally incapacitated person and the individual interviewing him. (3) At the beginning of the hearing the Chairperson shall explain the manner of proceedings which the Board proposes to adopt. (4) Subject to section 24(1) and section 59O(1) of the Ordinance, any party and, with the permission of the Board, any other person, may appear at the hearing and take such part in the proceedings as the Board thinks proper; and the Board shall in particular hear and take evidence from the applicant, if any, the proposed guardian or guardian, if any, registered medical practitioners, if any, the Director of Social Welfare and, so far as is practicable, the mentally incapacitated person who may all hear each other's evidence, put questions to each other, call witnesses and put questions to any witness or other person appearing before the Board. (5) After all the evidence has been given, the applicant, if any, and the mentally incapacitated person shall be given a further opportunity to address the Board. Cap 136E s 26 Decisions The decision by which the Board determines an application, or concludes a review of a guardianship order where there is no application, shall be recorded in writing and the record thereof shall be signed by the Chairperson and state the reasons for the decision. Cap 136E s 27 Communication of decisions (1) The decision by which the Board determines an application, or concludes a review of a guardianship order where there is no application, may, at the discretion of the Board, be announced by the Chairperson immediately after the hearing of the case and, subject to subsection (2), the written decision of the Board, including the reasons, shall be communicated in writing within 7 days of the hearing to all the parties. (2) Where the Board considers that the full disclosure of the recorded reasons for its decision to the mentally incapacitated person in accordance with subsection (1) would adversely affect the health or welfare of the mentally incapacitated person or others, the Board may instead communicate its decision to him in such manner as it thinks appropriate and may communicate its decision to the other parties subject to any conditions it may think appropriate as to the disclosure thereof to the mentally incapacitated person. (3) Where the applicant, if any, or the mentally incapacitated person was represented at the hearing by a legal representative, the Board shall disclose the full recorded grounds of its decision to the representative, subject to any conditions it may think appropriate as to the disclosure thereof to the mentally incapacitated person. Cap 136E s 28 Time The time appointed by these Rules for the doing of any act may, in the particular circumstances of the case, be extended or, with the exception of the periods of notice specified in sections 19(4) and 23, abridged by the Board on such terms, if any, as it may think fit. Cap 136E s 29 Service of notices, etc. Any document required or authorized by these Rules to be sent or given to any person may be sent by prepaid post or delivered- (a) in the case of a document directed to the Board or the Chairperson, to the secretary; (b) in any other case, to the last known address of the person to whom the document is directed. Cap 136E s 30 Irregularities Any irregularity resulting from the failure to comply with these Rules before the Board has determined an application, or concluded a review of a guardianship order where there is no application, shall not of itself render the proceedings void, but the Board may, and shall if it considers that any person may have been prejudiced, take such steps as it thinks fit before determining that application or concluding that review, as the case may be, to cure the irregularity, whether by the amendment of any document, the giving of any notice or new notice or otherwise. Cap 136E SCHEDULE [section 2(3)] FORMS FORM 1 [section 3] GUARDIANSHIP APPLICATION UNDER SECTION 59M(1) OF THE MENTAL HEALTH ORDINANCE (CAP 136) To: Guardianship Board PART I Information on applicant If the application is NOT made by the Director of Social Welfare- Name: ........................................................................ Sex: (M/F) Identity card no.: ......................................................... Address: ................................................................................................................................ Contact telephone no.: ................................................. If the application is made by the Director of Social Welfare- Name of contact public officer: ............................................................................................... Address: ................................................................................................................................ Contact telephone no.: ................................................. Contact fax no.: .......................................................... Information on the mentally incapacitated person the subject of the application Name: ........................................................................ Sex: (M/F) If known, Identity card no.: ......................................................... Address: ........................................................................................................................... (including the hospital or institution or residential home where the mentally incapacitated person is staying) * The mentally incapacitated person is aged ................. OR [If the age of the mentally incapacitated person is not known]* I (the applicant) believe that the person has attained the age of 18 years. I (the applicant) am the [state relationship] ............................................................. of the mentally incapacitated person/a social worker/a registered medical practitioner/a public officer in the Social Welfare Department*. I (the applicant) have consulted a relative of the mentally incapacitated person, namely his/her* [state relationship and name and address of the relative] .............................................. .............................................................................................................................................. .............................................................................................................................................. .................................................................................... about this application (See Note 1). OR I (the applicant) have been unable to locate any relative of the mentally incapacitated person in Hong Kong (See Note 1). I (the applicant) last saw the mentally incapacitated person on [date] .................... (See Note 2). [If the mentally incapacitated person is a patient detained under the Mental Health Ordinance]* The mentally incapacitated person is detained or liable to be detained under section .................................... of the Mental Health Ordinance. [If the mentally incapacitated person is the subject of a recommendation under section 59E(4)(a)(iii) or (6)(a) of the Mental Health Ordinance]* Details of the recommendation (including the order which the mentally incapacitated person is subject to) are as follows- .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. Reason for making the application I (the applicant) have reason to believe- (a) the mentally incapacitated person the subject of this application is suffering from mental disorder/has a mental handicap* of a nature of degree which warrants his/her reception into guardianship under Part IVB of the Mental Health Ordinance; 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;The reasons for my belief are- .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. I (the applicant) apply for the person to be received into the guardianship of [proposed guardian's name] ............................................ in accordance with section 59O of the Mental Health Ordinance. This application is accompanied by and founded on the attached written reports of 2 registered medical practitioners (neither of whom is the applicant) in accordance with section 59M(3) of the Mental Health Ordinance (See Note 3). Particulars of the 2 registered medical practitioners are as follows- 1. Name: ............................................................................. Address: ........................................................................................................................ Length of period of caring for the mentally incapacitated person: ....................................... Approved under section 2(2) of the Mental Health Ordinance: Yes/No*2. Name: ............................................................................. Address: ........................................................................................................................ Length of period of caring for the mentally incapacitated person: ....................................... Approved under section 2(2) of the Mental Health Ordinance: Yes/No* Signature of the applicant ............................................ Date ............................................ PART II Information on proposed guardian where the proposed guardian is not the Director of Social Welfare Name: ........................................................................ Sex: (M/F) Age: ...................... Identity card no.: ......................................................... Address: ................................................................................................................................ PART III Declaration by proposed guardian where the proposed guardian is not the Director of Social Welfare I, the proposed guardian, am willing to act as the guardian of [name of the mentally incapacitated person] ......................................................................................................... in accordance with section 59O of the Mental Health Ordinance. I (the proposed guardian) am the [state relationship] .................................................... of the mentally incapacitated person. Signature of the proposed guardian ............................................ Date ............................................ * Delete as appropriate. Notes: 1. Delete this paragraph if the applicant is a relative of the mentally incapacitated person. 2. The applicant must have personally seen the mentally incapacitated person within 14 days of the date of the application. 3. A guardianship application should be forwarded to the Guardianship Board within 14 days of the mentally incapacitated person's last examination by a registered medical practitioner before furnishing a written report containing a medical opinion for the purposes of the application (see section 59R(4) of the Mental Health Ordinance). FORM 2 [section 8] REQUEST UNDER SECTION 59U(4) OF THE MENTAL HEALTH ORDINANCE (CAP 136) FOR REVIEW OF GUARDIANSHIP ORDER To: Guardianship Board Information on applicant Name: ........................................................................ Sex: (M/F) Relationship with the mentally incapacitated person: 1* self 2* guardian who is the Director of Social Welfare 3* guardian who is not the Director of Social Welfare 4* relative, please specify: ............................................................................................. 5* other, please specify: ................................................................................................Identity card no. (except in case 2 above): ............................................................................... Address (except in case 2 above): ........................................................................................... Information on mentally incapacitated person Name: ........................................................................ Sex: (M/F) Age: ...................... Identity card no.: ......................................................... Address: ................................................................................................................................ Information on guardian where the guardian is not the Director of Social Welfare Name: ........................................................................ Sex:(M/F) Age: ...................... Identity card no.: ......................................................... Address: ................................................................................................................................ Information on guardian who is a public officer acting on behalf of the Director of Social Welfare Name of public officer acting on behalf of the Director of Social Welfare as guardian: ............... .............................................................................................................................................. Address: ................................................................................................................................ Contact telephone no.: ............................................... Contact fax no.: ......................................................... Information on guardianship order Date on which order was made: .............................................................................................. Powers conferred on the guardian: .......................................................................................... .............................................................................................................................................. .............................................................................................................................................. Reasons for making the application .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. Signature of the applicant ............................................ Date ............................................ * Delete as appropriate. FORM 3 [section 11] DIRECTIONS APPLICATION UNDER SECTION 59K(1)(d) OF THE MENTAL HEALTH ORDINANCE (CAP 136) To: Guardianship Board Information on applicant If the application is NOT made by the Director of Social Welfare- Name: ........................................................................ Sex: (M/F) Relationship with the mentally incapacitated person: 1* self 2* guardian 3* relative, please specify: ............................................................................................... 4* other, please specify: .................................................................................................Identity card no.: ......................................................... Address: ............................................................................................................................... Contact telephone no.: ................................................. If the application is made by the Director of Social Welfare- Name of contact public officer: .............................................................................................. Address: ............................................................................................................................... Contact telephone no.: ................................................. Contact fax no.: .......................................................... Information on guardian if the applicant is not the guardian Name: ........................................................................ Sex: (M/F) Age: ...................... Identity card no.: ......................................................... Address: ............................................................................................................................... Contact telephone no.: ................................................. Information on mentally incapacitated person Name: ........................................................................ Sex: (M/F) Age: ...................... Identity card no.: ......................................................... Address: ............................................................................................................................... Information on guardianship order Date on which order was made: ................................... Powers conferred on the guardian: .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. Directions sought from Guardianship Board .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. .............................................................................................................................................. Signature of the applicant ............................................ Date ............................................
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