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- Publisher Website: 10.1016/j.ijlp.2016.10.002
- Scopus: eid_2-s2.0-85009354433
- PMID: 28040228
- WOS: WOS:000393258600004
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Article: The compulsory psychiatric regime in Hong Kong: Constitutional and ethical perspectives
Title | The compulsory psychiatric regime in Hong Kong: Constitutional and ethical perspectives |
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Authors | |
Keywords | Compulsory psychiatric regime Constitutional rights Hong Kong Mental Health Ordinance Proportionality |
Issue Date | 2016 |
Publisher | Pergamon. The Journal's web site is located at http://www.elsevier.com/locate/ijlawpsy |
Citation | International Journal of Law and Psychiatry, 2016, v. 50, p. 24-30 How to Cite? |
Abstract | This article examines the compulsory psychiatric regime in Hong Kong. Under section 36 of the Mental Health Ordinance, which authorises long-term detention of psychiatric patients, a District Judge is required to countersign the form filled out by the registered medical practitioners in order for the detention to be valid. Case law, however, has shown that the role of the District Judge is merely administrative. This article suggests that, as it currently stands, the compulsory psychiatric regime in Hong Kong is unconstitutional because it fails the proportionality test. In light of this conclusion, the author proposes two solutions to deal with the issue, by common law or by legislative reform. The former would see an exercise of discretion by the courts read into section 36, while the latter would involve piecemeal reform of the relevant provisions to give the courts an explicit discretion to consider substantive issues when reviewing compulsory detention applications. The author argues that these solutions would introduce effective judicial supervision into the compulsory psychiatric regime and safeguard against abuse of process. |
Persistent Identifier | http://hdl.handle.net/10722/246981 |
ISSN | 2023 Impact Factor: 1.4 2023 SCImago Journal Rankings: 0.859 |
ISI Accession Number ID |
DC Field | Value | Language |
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dc.contributor.author | Cheung, TMD | - |
dc.date.accessioned | 2017-10-18T08:20:21Z | - |
dc.date.available | 2017-10-18T08:20:21Z | - |
dc.date.issued | 2016 | - |
dc.identifier.citation | International Journal of Law and Psychiatry, 2016, v. 50, p. 24-30 | - |
dc.identifier.issn | 0160-2527 | - |
dc.identifier.uri | http://hdl.handle.net/10722/246981 | - |
dc.description.abstract | This article examines the compulsory psychiatric regime in Hong Kong. Under section 36 of the Mental Health Ordinance, which authorises long-term detention of psychiatric patients, a District Judge is required to countersign the form filled out by the registered medical practitioners in order for the detention to be valid. Case law, however, has shown that the role of the District Judge is merely administrative. This article suggests that, as it currently stands, the compulsory psychiatric regime in Hong Kong is unconstitutional because it fails the proportionality test. In light of this conclusion, the author proposes two solutions to deal with the issue, by common law or by legislative reform. The former would see an exercise of discretion by the courts read into section 36, while the latter would involve piecemeal reform of the relevant provisions to give the courts an explicit discretion to consider substantive issues when reviewing compulsory detention applications. The author argues that these solutions would introduce effective judicial supervision into the compulsory psychiatric regime and safeguard against abuse of process. | - |
dc.language | eng | - |
dc.publisher | Pergamon. The Journal's web site is located at http://www.elsevier.com/locate/ijlawpsy | - |
dc.relation.ispartof | International Journal of Law and Psychiatry | - |
dc.rights | Posting accepted manuscript (postprint): © <year>. This manuscript version is made available under the CC-BY-NC-ND 4.0 license http://creativecommons.org/licenses/by-nc-nd/4.0/ | - |
dc.subject | Compulsory psychiatric regime | - |
dc.subject | Constitutional rights | - |
dc.subject | Hong Kong | - |
dc.subject | Mental Health Ordinance | - |
dc.subject | Proportionality | - |
dc.title | The compulsory psychiatric regime in Hong Kong: Constitutional and ethical perspectives | - |
dc.type | Article | - |
dc.identifier.email | Cheung, TMD: dtcheung@hku.hk | - |
dc.identifier.authority | Cheung, TMD=rp02092 | - |
dc.identifier.doi | 10.1016/j.ijlp.2016.10.002 | - |
dc.identifier.pmid | 28040228 | - |
dc.identifier.scopus | eid_2-s2.0-85009354433 | - |
dc.identifier.hkuros | 281158 | - |
dc.identifier.volume | 50 | - |
dc.identifier.spage | 24 | - |
dc.identifier.epage | 30 | - |
dc.identifier.isi | WOS:000393258600004 | - |
dc.publisher.place | United Kingdom | - |
dc.identifier.issnl | 0160-2527 | - |