Introduction

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

Overview of legislative framing

Definitions

The MHO is the primary piece of legislation that regulates matters relating to persons with mental disability, with many of its provisions inherited from various versions of the Mental Health Act in the UK. The MHO approach to mental capacity is highly piecemeal in nature, with separate regimes regulating different aspects of an individual's affairs, as will be discussed further later in this chapter. While the concept of ‘mental incapacity’ is defined at the outset, the relevant definitions fail to include a general functional capacity test, although various functional capacity tests are then included in the different regimes to assess the individual's decision-making ability in those particular contexts.

Under the MHO, mental incapacity is defined in s 2 with two similar and equally problematic terms. The first is ‘mental incapacity’, which is defined as ‘mental disorder or mental handicap’. This definition incorrectly equates mental incapacity with mental disability, with no functional capacity test to assess the decision-making ability of the individual in question, as already mentioned.