"Consent from patient is necessary before we perform any examination or procedure. A person's right to self-determination: respect for autonomy. This right is protected in law." ^[1]

Without consent, touching a patient is legally assault/battery. Without adequate information, treating a patient is negligence. Consent exists at the intersection of:

• Respect for autonomy (patient's right to decide)
• Beneficence/non-maleficence (doctor's duty to help/not harm)
• Protection from harm (both legal and physical)

The slide 7 branching diagram is showing two different failures: no valid permission for the touching points toward battery/assault, whereas a deficient explanation despite apparent agreement points toward negligence. It is a conceptual map rather than an automatic legal classification; the facts and current law still govern.

For consent to be valid, the patient must: ^[1]

1. Be given relevant information relating to the nature and purpose of the treatment and its risks and benefits
2. Have the capacity to make the decision
3. Give consent voluntarily: able to exercise choice, free from manipulation or undue influence

Consent may be express (e.g. saying 'yes' clearly) or implied (e.g. holding an arm out and rolling up his sleeve when asked to have a blood test). ^[1]

The law does not require consent to be in written form. Having a signed consent form does not automatically mean a patient has given consent. It is only evidence, and may be questioned in court. ^[1]

The treating doctor. Ensure the three components of a valid consent are in place. ^[1]

Treat the slide's wording as a responsibility principle, not a magic rule about who may hold the form. The responsible doctor must ensure that valid consent has been obtained; whoever explains the procedure must be sufficiently trained, know the proposed intervention and its alternatives, and be able to answer the patient's questions. A signature collected by someone who cannot give an adequate explanation is not informed consent. The doctor must:

• Give appropriate information in simple terms ^[1]
• Ensure patient has capacity and is voluntary ^[1]
• Note limits of consent given ^[1]

If there is material change in situation ^[1] Do not do more than consented to, even if additional treatment is of benefit to patient, except in life-saving situations. ^[1]

Example from Ryan Ho notes: A patient consents to hysterectomy for fibroids. Intraoperatively, the surgeon discovers the patient is pregnant. The surgeon should NOT remove the uterus — this is a material change. Similarly, don't remove a gallbladder just because you found gallstones incidentally during another procedure. ^[2]

Exception: In a life-saving emergency, you may go beyond the original consent.

Information in 'broad terms': the nature of problem, the treatment recommended and its pros and cons, the alternatives and their pros and cons. Give information using simple, clear, jargon-free language. You must respond honestly to any questions the patient raises and answer as fully as the patient wishes. ^[1]

The current MCHK Code frames this as a patient-specific explanation: it must be clear, balanced and sufficient for this patient to decide. It should include treatment options (including no treatment), significant risks, and risks with serious consequences even when their probability is low. ^[8]

N.B. Presumption of Capacity ^[1]

This is the starting point for EVERY patient encounter. Do not presume incapacity without a reason to doubt it; when doubt exists, assess and document the patient's functional abilities for the particular decision. You cannot assume someone lacks capacity because they:

• Have a psychiatric diagnosis
• Are elderly
• Make a decision you disagree with

Capacity is: ^[1]

• Related to a person's abilities to make that decision (functional approach)
• Decision-specific and time-specific
• NOT determined by the outcome of the decision
• NOT determined by a person's diagnosis or status

A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (Cases of Re T, Re MB) ^[1]

Capacity is commensurate with the gravity of the decision ^[1]

Read this cautiously. The abilities being assessed do not change with the outcome or with whether the patient consents or refuses. Greater consequences justify more careful explanation, support, checking and documentation; they do not justify inventing a different test merely because the clinician dislikes the decision.

Capacity may be diminished by illness, false assumptions, misinformation or overbearing influence by another person ^[1]

This is important — capacity isn't just about cognitive function. External factors (e.g., a controlling relative, incorrect information given by another healthcare worker) can impair it.

Common law (from case of Re C): Relevant abilities for refusal of treatment: ^[1]

1. Understanding and retaining the information
2. Believing the information
3. Weighing the information in balance to arrive at a choice

This three-part test from Re C (1994) — a case involving a paranoid schizophrenic patient with gangrene who refused amputation — became the foundation of capacity law. The court found he HAD capacity because he could understand, believe, and weigh the information, even though his decision seemed unwise.

Statutory definition in the Mental Health Ordinance section 59ZB(2): Incapacity for consent to treatment = inability to understand the general nature and effect of the treatment or special treatment. ^[1]

Note: The MHO definition is narrower than the common law test — it focuses only on understanding. In practice, clinicians use the fuller common law framework (understand + believe + weigh) when assessing capacity.

When a patient lacks capacity, beneficence and non-maleficence become more prominent, but autonomy does not disappear. The patient's known wishes, values and preferences remain part of the decision:

The treatment will: save the life of the patient; prevent damage or deterioration; bring about an improvement to his/her physical/mental health and wellbeing. ^[1]

If possible, include: consideration of previously expressed wishes and adopting the least restrictive alternative. ^[1]

Can treat in the patient's 'best interests' under the principle of necessity. ^[1]

Best interests is NOT simply what the doctor thinks is medically optimal. It should incorporate:

• The patient's previously expressed wishes (when they had capacity)
• The least restrictive alternative that achieves the treatment goal
• The patient's values and beliefs (if known)

If urgent: can treat straight away. In an emergency, where consent cannot be obtained, you may provide medical treatment to anyone who needs it, provided the treatment is limited to what is immediately necessary to save life or avoid significant deterioration in the patient's health. Don't Wait! ^[1]

No one can give or withhold consent to treatment on behalf of a mentally incapacitated adult (unless there is a legally appointed guardian). Asking a next of kin to sign a consent form has no legal authority. Treatment can be provided under Part IVC of the MHO (best interests principle). ^[1]

Mentally Incapacitated Person: Adults with a mental disorder or mental handicap (e.g. dementia, brain injured, mental illness, mental retardation) ^[1]

The quoted expressions “mental handicap” and “mental retardation” are legacy/statutory terms reproduced from the slides and Ordinance. In ordinary clinical writing, use intellectual disability and person-first language. Do not infer decision-making incapacity from an intellectual-disability diagnosis.

Not all Mentally Incapacitated Persons lack mental capacity! ^[1]

• MIP: defined by diagnosis/condition
• Incapacity: defined by inability to understand

This distinction is crucial. Being an MIP is a diagnostic label. Having incapacity is a functional assessment. A patient with mild dementia (MIP by diagnosis) may still have full capacity for many decisions.

A doctor/dentist may give urgent or non-urgent medical or dental treatment to a MIP who lack capacity to consent, when the treatment is necessary and in his/her best interests. ^[1]

This is under Part IVC of the MHO — it provides the legal framework for treating MIPs who lack capacity even without guardianship.

The dense slide 31 diagram is best read as three checkpoints rather than as a list of labels:

1. Start with the patient's own decision. Agreement and refusal each still require a decision-specific capacity assessment when there is reason for doubt. Inability to communicate by speech is not itself incapacity: first use interpreters, hearing/visual aids, augmentative communication and other practicable support.
2. If the patient is capable, stop. Give treatment only on valid consent, or respect the capable refusal.
3. If the patient is incapable, separate urgency from proxy authority. Urgent necessary treatment may proceed; for non-urgent treatment check whether a guardian actually has a treatment-consent power, but absence of a guardian does not by itself prevent necessary best-interests treatment under Part IVC.

The visual therefore separates capacity, urgency and legal authority. It does not say that diagnosis, disagreement or physical resistance automatically equals incapacity.

There is no need to apply for guardianship in most cases. Guardianship applications take months to process! ^[1]

When guardianship IS useful: ^[1]

• Disagreement between family members and healthcare team or within family
• MIP strongly resists treatment that is in his/her best interests
• Doctors unwilling to provide treatment without a guardian's proxy consent

Current SWD guidance likewise says the Guardianship Board must consider whether a less restrictive or intrusive mechanism is available and whether a guardianship order is needed at that time. ^[11]

• Check whether someone has a guardian through the Guardianship Board / HAHO ^[1]
• Verify whether the legal guardian has authority under the MHO to consent to medical treatment ^[1]
• The guardian's decision should be made based on the best interests principle (subject to review) ^[1]
• If the guardian cannot be reached, treatment can still be given in the best interests of the patient ^[1]

Powers include: ^[1]

• Require the person to reside at a specific place
• Bring the person to a specific place (using reasonable force)
• Require attendance for medical/dental treatment, special treatment, education
• Consent to medical/dental treatment if the person is incapable of understanding the general nature and effect
• Require access to the person by specified professionals
• Hold/receive/pay a specified monthly sum (the current Guardianship Board limit is HK$20,000/month; check for revision before relying on it) ^[12]

When a guardian wrongfully refuses to give consent; when the treatment is controversial e.g. withdrawal of life-sustaining treatment, overwhelming resistance from family; existence of a dubious advance directive; 'Special treatments': organ donation, sterilisation. ^[1]

This slide is a prompt to obtain senior and legal advice, not a rule that every disputed case automatically goes to court. Since 31 July 2026, Cap 651 provides a statutory framework for advance medical directives (AMDs) refusing life-sustaining treatment and for DNACPR orders. First verify whether an AMD is valid, applicable to the present clinical state and has not been revoked; genuine ambiguity or unresolved conflict may then require institutional legal advice or court involvement. ^[10]

The MHO addresses: care and supervision of MIPs; management of property and affairs of MIPs; reception, detention and treatment of mentally incapacitated persons who are mentally disordered; guardianship; consent for treatment for MIPs who have attained 18 years of age. ^[1]

Mental Incapacity includes: (a) mental disorder; or (b) mental handicap. ^[1]

Excludes: (a) promiscuity or other immoral conduct; (b) sexual deviancy; (c) dependence on alcohol or drugs. ^[1]

The quoted exclusions and definitions below preserve the Ordinance's current legal wording, including terms that are dated or stigmatizing in modern clinical language. Reproduce them when a question asks for the statute; do not use them as ordinary descriptions of patients. ^[7]

'Mental disorder' includes: (a) mental illness; (b) a state of arrested or incomplete development of mind which amounts to a significant impairment of intelligence and social functioning which is associated with abnormally aggressive or seriously irresponsible conduct; (c) psychopathic disorder; (d) any other disorder or disability of mind which does not amount to mental handicap. ^[1]

'Psychopathic disorder': a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct. ^[1]

'Mental Handicap': sub-average general intellectual functioning with deficiencies in adaptive behaviour. Sub-average = IQ of 70 or below (Wechsler Scale or equivalent). ^[1]

'Patient': a person suffering or appearing to be suffering from mental disorder. ^[1]

'Mental hospital': any place declared to be a mental hospital under section 3. ^[1]

The slide's four-name shorthand is incomplete and imprecise. The current Cap 136B schedule identifies five declared hospitals/observation units: Castle Peak Hospital, Kwai Chung Psychiatric Observation Unit, Pamela Youde Nethersole Eastern Psychiatric Observation Unit, New Territories East Psychiatric Observation Unit and Kowloon Psychiatric Observation Unit. Because declarations can change, use the current Cap 136B schedule rather than memorising a permanent “only four hospitals” rule. ^[13]

The reasons for detention are: (1) To protect the person detained from further harm, e.g. detention of actively suicidal patients, patients in serious state of self-neglect; (2) To protect society from the person detained; (3) Both of the above. ^[1]

These powers are there REGARDLESS of mental capacity. ^[1]

This is a key distinction: detention under the MHO is NOT the same as lacking capacity. Detention authority is also not a blanket finding that the person is “dangerous,” nor is it blanket consent to every intervention. Apply the precise statutory criteria to the individual, use the least restrictive lawful option, and assess consent/capacity separately for each treatment decision. ^[7]

Voluntary patients; Patient under observation; Certified patient ^[1]

Grounds for admission: suffering from mental disorder of a nature or degree which warrants his detention in a mental hospital for observation (or for observation followed by medical treatment) for at least a limited period; AND ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons. ^[1]

Required Forms: ^[1]

• Form 1: Application by a relative, registered medical practitioner or SWD public officer
• Form 2: Medical recommendation by a doctor
• Form 3: Order by a district judge or magistrate

Patient has a right to request to see the District Judge or Magistrate. ^[1]

The slides state that this period may be extended by an approved doctor. ^[1]

Current statutory sequence: s31 authorizes no more than 7 days from and including the date of the order. Under s32, after examination by two registered medical practitioners, a certificate may be sent to a District Judge; if countersigned, there may be one extension of no more than 21 days. The slide's “approved doctor” shorthand omits these statutory steps. ^[7]

Grounds for detention: suffering from mental illness, amounting to mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital; AND it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained. ^[1]

The slide states: “Need at least one recommendation from approved doctor.” ^[1]

That is not the complete current s36 test. Certification requires examination by two registered medical practitioners, their completed certificate, and countersignature by a District Judge. Section 36 itself does not impose the slide's “one approved doctor” requirement. ^[7]

Note the key differences between observation and certification:

A statutory body to protect the rights of patients. Application may be lodged by the patient or a relative. If neither exercises the right for 12 months after it first becomes available, the medical superintendent must refer the case. The Tribunal can direct absolute or conditional discharge. [1,7]

This is a safeguard against unjustified continuing detention. The Tribunal is independent and may direct discharge when the statutory detention criteria are no longer satisfied. The medical superintendent must also take reasonably practicable steps to ensure that the patient and a relative understand the detention basis, Tribunal rights and discharge rights (MHO s68A). [7,14]

Patients might not seek help if the information they give doctors are not kept secret. Autonomy and respect for privacy: there is an implied 'promise' that a doctor will keep patient information confidential. BUT often there is a conflict between confidentiality and the interests of others, e.g. dangerous patient. ^[1]

A patient, Prosenjit Poddar, confided to Dr Moore, a psychologist that he intended to kill his former girlfriend, Tatiana Tarasoff. Dr Moore believed him and notified his superior and the police. No action was taken to warn the woman, whom Poddar eventually killed. ^[1]

The California Supreme Court ruled: 'When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.' ^[1]

Teaching point, not a Hong Kong rule: Tarasoff is a California decision. It illustrates why reasonable protective action may be justified when a patient presents a serious threat to an identifiable person, but it does not create an automatic Hong Kong “duty to warn.” In Hong Kong, apply the current MCHK Code, the PDPO/common-law duties, any applicable statute and local risk-escalation policy. [8,9]

W is a patient detained in a secure hospital having killed five people. He applied for discharge. Dr Egdell, appointed by W's solicitors, believed W was still dangerous and wrote a report opposing the application. W's solicitors withheld the report. Dr Egdell forwarded a copy to the hospital and ultimately the Home Secretary. W sued for breach of confidentiality. ^[1]

The court ruled: '…the private interest of W set against the public interest served by the disclosure…I find the weight of the public interest prevails.' ^[1]

Teaching point, not direct Hong Kong authority: W v Egdell is an English case illustrating that a sufficiently weighty public-safety interest can justify proportionate disclosure. It is not a licence to release an entire record whenever “public interest” is asserted.

Should get consent. Exceptional circumstances without consent: (1) necessary to prevent serious harm to patient or others; (2) required by law. Should weigh carefully the pros and cons of disclosure without consent. Should consult senior colleagues, medical defence organization, professional organization or ethics committee. (MCHK Code 1.4) ^[1]

The August 2025 amendment to MCHK 1.4.3 retains that advice but adds an important urgency qualifier: seek advice when in doubt provided that doing so would not cause undue delay. Any disclosure still has to be justified and limited to what is necessary. ^[8]

Immediate danger to self or others; child abuse cases (after referral to and consultation with MSW); serious crime e.g. murder, manslaughter, rape, gunshot wound victims, multiple chop wounds; sexual abuse or battered spouse (referral to MSW or report to Police WITH victim's consent); under 13 pregnancy. ^[1]

It is the responsibility of the Police to justify the request and provide sufficient background information. ^[1]

N.B. 'In the public interest' ≠ 'what the public is interested in' ^[1]

The slide's officer-rank/endorsement requirements and its list of reportable scenarios should be learned as historical HA operational teaching, not as universal statutory rules. Items such as child abuse, sexual violence, serious injury and pregnancy in a child are safeguarding red flags: follow current multidisciplinary child/adult protection and institutional policies, assess immediate danger, seek consent where appropriate, and disclose without consent only on a lawful and proportionate basis. A clinical record is not automatically open to police because a serious offence is being investigated.

1. Presume capacity — don't assume refusal means incapacity
2. Assess capacity using the Re C framework:
   • Can they understand the information? (ask them to paraphrase)
   • Do they believe it applies to them? (assess insight)
   • Can they weigh the information? (explore reasoning process)
3. If capable: Respect their decision, even if unwise. Document clearly.
4. If incapable:
   • Is it urgent/emergency? → Treat under necessity
   • Is it non-urgent? → Treat under best interests (Part IVC MHO)
   • Consider previously expressed wishes, least restrictive alternative
5. If mental disorder is present: Consider the exact MHO detention criteria; capacity and detention are separate questions
6. Always document your capacity assessment and reasoning

1. With valid consent → disclose only the information and to the recipient covered by that consent
2. Without consent:
   • Is disclosure required or authorized by law, warrant or court order? Verify scope.
   • If relying on PDPO s58, is the specified purpose established, and would non-disclosure likely prejudice it? The exemption permits; it does not compel.
   • If relying on prevention of serious harm/public interest, is the threat sufficiently serious and is the proposed disclosure necessary and proportionate?
3. Minimize: disclose only what is necessary, to the appropriate recipient.
4. Escalate and document: consult the privacy office/senior, MDO or legal/ethics service when uncertain; record the request, legal basis, information released and reasoning.

1. Vignette-based MCQ: Patient refuses treatment → assess capacity → what to do next?
2. SAQ: "List the components of valid consent" or "Describe how you would assess capacity"
3. Minicase: Ethical scenario involving confidentiality vs public safety
4. Four principles application: Given a scenario, identify which principles are at stake

The confidentiality section of this lecture directly feeds into GC 174, which goes deeper into the Tarasoff duty, W v Egdell, and the MCHK framework. Know both lectures as a pair.

Ryan Ho's notes provide a concise summary that aligns with the lecture slides. Key additions include practical examples of consent limits (hysterectomy/gallbladder scenarios) that are useful for exam answers.

Informed consent in research follows similar principles but with additional safeguards: IRB approval, written informed consent forms (mandatory in research, unlike clinical practice), right to withdraw without consequences.