MIP or not MIP?

In F v W [2025] HKCFI 3032, the Court of First Instance considers the mental incapacity of an elderly man, LKS, under Part II of the Mental Health Ordinance, as to whether he is capable of managing his property and affairs. F is the son of LKS, while W is the niece.

Part II of the Mental Health Ordinance (Cap 136) empowers the court to inquire into whether a person is, by reason of mental disorder, incapable of managing and administering his property and affairs, and, if so, to make protective orders. LKS’s family split into two sides, each engaging two doctors. The four doctors were split and could not reach an agreement as to the man’s mental capacity.

Initially, the court was of the view that in such a two-on-two situation, a single independent expert should be engaged to assist the court. This is particularly because the application is inquisitorial in nature. However, it did not go as planned, as F failed to cooperate.

Instead, the court inquired directly with LKS, whose mental capacity was in question. The court was satisfied that he was capable of handling his own affairs. As to the medical evidence, the court considered F’s failure to cooperate and his changing stance and preferred reliance upon the doctors engaged by W.

When the doctors split two against two, the court can – and sometimes must – speak directly to the person whose capacity is in doubt. Medical opinion is important, but it is not decisive. The judge who actually hears from the man may reach a different conclusion from the experts.