Offences against Patients under the Mental Health Ordinance

VI. Offences against Patients under the Mental Health Ordinance

The Legislation 

Under section 65 of the Mental Health Ordinance (Cap. 136): 

(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. 

(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. 

Explanation 

In other words, section 65 of the Mental Health Ordinance imposes special criminal liability on staff of mental hospitals and related facilities. Subsection (1) provides that any person employed in a mental hospital—whether medical or nursing staff or another employee—who ill-treats a patient in the hospital, or wilfully neglects a patient, commits a criminal offence punishable by up to 2 years' imprisonment. Subsection (2) addresses a more serious situation: any person who is a member of the staff of, or is employed in, a mental hospital, the Correctional Services Department Psychiatric Centre, or the psychiatric unit of a general hospital, and who has sexual intercourse with a female patient who is detained or receiving treatment there, is liable to a maximum of 5 years' imprisonment. It is particularly to be noted that, because mental patients may suffer from impairments of cognition and volition, the law expressly makes sexual conduct of this kind a criminal offence, in order to protect these especially vulnerable persons; and even where the woman concerned appears on the surface to have consented, that is no defence for the defendant. 

Wilful Neglect 

Whether a member of the staff of a mental hospital has wilfully neglected a patient must be assessed on two levels simultaneously: objective conduct and subjective intent. 

The objective level concerns whether the staff member provided care that was "in fact sufficient" for the patient. This is a purely objective question of fact, and the court will assess, having regard to the patient's actual state of health at the time, whether the staff member provided adequate medical and daily assistance. If the staff member becomes aware that the patient has a particular need that he cannot deal with alone (such as emergency medical treatment or surgery), yet fails to seek assistance from other professionals or bodies in good time, this objectively amounts to neglect. 

The subjective level requires proof that the neglect was "wilful". This means that the defendant, knowing that the patient had a pressing need for medical or daily care, deliberately chose to disregard it; or that the defendant, knowing that a failure to provide care would give rise to a risk to health, nevertheless recklessly and heedlessly allowed that risk to materialise. 

Where both the objective failure to provide sufficient care and the subjective element of knowing wrongdoing or recklessness are present, wilful neglect is established in law. 

Ill-treatment 

As regards ill-treatment, the prosecution must prove the following two elements of the offence: 

• the actus reus: that the defendant deliberately engaged in conduct towards the patient that can properly be characterised as "ill-treatment", whether or not that ill-treatment actually harmed or threatened to harm the health of the victim; and 

• the mens rea: that the defendant was at the time aware that he was ill-treating the patient, or was reckless as to that fact. 

   

It is to be noted that the prosecution need not prove that the defendant knew that the victim was a mental patient, that the institution concerned was a mental hospital, or that the conduct in question was of a "treatment for mental disorder" character—so long as those objective facts exist, the offence is made out. 

Aggravated Offence Involving Sexual Conduct 

Section 65(2) of the Mental Health Ordinance creates a more serious offence: any man employed in a mental hospital, a Correctional Services Department psychiatric centre, or the psychiatric ward of a general hospital who has unlawful sexual intercourse with a female patient detained there, or receiving treatment there for mental disorder, commits an offence. On conviction, the maximum penalty is 5 years' imprisonment. Under section 65(3), where the defendant knew, or had reasonable cause to suspect, that the woman was a patient of one of the above categories, consent is no defence.