C v. S

HCMP 929/2017 [2019] HKCFI 1592 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 929 OF 2017 _______________________ IN THE MATTER of N, female, a child born on the 20th day of November 2008 in Hong Kong and IN THE MATTER OF Section 26 of the High Court Ordinance (Cap. 4) and IN THE MATTER OF Order 90 rule 1 of the Rules of High Court (Cap. 4A) and IN THE MATTER OF Section 3 of the Guardianship of Minors Ordinance (Cap. 13) and IN THE MATTER OF the Inherent Jurisdiction of the High Court ______________________ BETWEEN C Plaintiff and S Defendant ______________________ Before: Hon B Chu J in Chambers (Not Open to Public) Date of Hearing: 29 May 2019 Date of Official Solicitor’s Supplemental Written Submissions: 17 June 2019 Date of Plaintiff’s Further Written Submission: 18 June 2019 Date of Defendant’s Further Written Submissions: 18 June 2019 Date of Decision: 21 June 2019 __________________________________ D E C I S I O N (On Directions to Medical Professionals) ____________________________________ Introduction The detailed background of these wardship proceedings has been set out therein and in the numerous published judgments of the Family Court and the Court of Appeal in relation to the ward N. I shall not repeat the same. The present summons was taken out by the Official Solicitor (“OS”) on behalf of N on 7 May 2019 (“Summons”). In brief, the OS seeks an order that all medical professionals of the Yaumatei Child and Adolescent Mental Services (“YMT Child Service”) be authorized to formulate any treatment plan, interview sessions for N that may involve either or both parties. The Summons was fixed for a 30 minutes hearing on 29 May 2019. Unfortunately, the matter could not be agreed. This Court then gave further directions, as the Father sought time to file evidence, and that after further evidence and submissions from parties, the matter be dealt with on paper. Background leading to the Summons On 20 June 2018, this Court made an order (“Order”) for N to receive treatment or service at the YMT Child Service as well as continuing to receive treatment from a private psychiatrist Dr Joanna Lam, and amongst other things, N is to be accompanied by her parents jointly to YMT Child Service but neither parent is to be present at the time of treatment (“Paragraph 3”). Since Mr Li Chi Keung Ben became the handler of this case for the OS, he had had various telephone contacts with some of the medical professionals and Dr Lily Ho Nga Lei (“Dr Ho”) who is currently the treating psychiatrist of N at the YMT Child Service. In Mr Li’s affirmation in support of the Summons, he explained that he had a telephone conversation and discussion with Dr Ho on 1 March 2019 during which Dr Ho opined that she would like to have a free hand in treating N and that it is usual for her to design treatment programme that may involve either/both parents. She expressed concern that her so doing might breach paragraph 3 of the Order. It was as a result of Dr Ho’s concern that Mr Li had tried to discuss with the parties to try and ease their tension over N’s consultation and he had earlier prepared a consent form respectively for the Father and the Mother to sign, which was then duly signed by N’s parents (“Consent Form”). N’s follow up medical consultation at the YMT Child Service went smoothly on 28 March 2019. Mr Li said Dr Ho had repeatedly raised with him again the matter that she needs to treat N in the way that she professionally considers most appropriate and this may include holding individual interview sessions with a combination with different parties, such as N with the Mother, N with the Father and N with both parents. Dr Ho was concerned over the wording of Paragraph 3 of the Order which may not allow her to formulate a programme that will contain holding interview sessions with different parties. It was in light of the above concerns of Dr Ho that Mr Li then wrote to the parties on 29 March 2019 inviting them to give their respective consent to allow Dr Ho, or any medical professionals at the YMT Child Service to have the authority to treat, interview, assess N in any way professionally considered appropriate. The Mother duly signed her consent on 4 April 2019. However, the Father claimed that given the importance of the matter, he needed 14 days to reply. As the next follow up treatment was on 14 May 2019, there was some time, and Mr Li agreed to give the Father the time requested, instead of making an immediate application to the Court. It was only on the last day of the 14 day deadline, namely on 15 April 2019, that the Father’s solicitors wrote. Suffice to say at his stage, I do not understand why the Father would need 14 days to consider the matter. First of all, in the letter, the Father requested that OS and Dr Ho to see him individually allowing him to present the facts to them and to have the open exchanges with both the OS and any medical professionals such as Dr Ho before OS making an application to the Court. As I understand it, the Father’s reasons were: N is more likely affected by stress, pressure, anxiety, the deep worries of needs of taking side and repeated alienation harm happening to her, and that the Father would like to facilitate the treating doctors with the full picture and treat N with his/her professional knowledge; The Father claimed that despite signing the Consent Form, he still could not talk to Dr Ho individually and that the Mother had obstructed Dr Ho to talk to him without her presence, even in the presence of the OS; The Father says it is his role to protect N and that parents have the responsibilities to safe-guard and protect the medical wellbeing of their children and that he cannot neglect his duty in monitoring the medical wellbeing for N; The Father does not agree to uplift the restrictions in Paragraph 3 of the Order and that the Consent Form stated clearly that the treating doctor could talk to either parent when exercising his/her professional knowledge. In short, the Father did not agree to the OS’s suggestion and instead requested that the OS and Dr Ho to see him individually first. Mr Li said he then tried to contact the Father’s handling solicitors regarding their letter of 15 April 2019 but failed. This led to OS writing to the Father’s solicitors on 24 April 2019 to explain and clarify that that the Consent Form only addressed the cooperation that the parties would render at the request/directions of any medical professionals. What Dr Ho wants is she be authorised to design such programme to treat N. The Father’s solicitors then replied that the Father will support Dr Ho’s refined treatment plan for N after he has the chance to talk to Dr Ho and the OS soonest. On 25 April 2019, Mr Li wrote to highlight the point that it was Dr Ho who raised the request for having the autonomy to treat N, and that does not mean that she must first see the Father before she can medically formulate anything and that there should not be a prerequisite set for the treating doctor. Further, as the Father was legally represented and OS failed to see why the Father insisted on seeing OS direct. The Father claimed that Dr Ho had requested to communicate with him and that this was obstructed by the Mother, and appeared to still want to communicate with the OS direct. Although the Father then seemed to say that he was not aiming at setting a pre-requisite for Dr Ho, there was no indication from his solicitors’ letter of 26 April 2019 that the Father was consenting to OS’s proposal. On 30 April 2019, OS sent the draft summons with the proposed amendments to the Order for the Father’s consideration. There being no agreement from the Father, OS then issued the summons on 7 May 2019. Thereafter, suddenly on 23 May 2019, the Father’s solicitors wrote to say that the Father was just notified by the Queen Mary Hospital that he had to attend two full day medical examination appointments on both 22 May 2019 and 29 May 2019 and sought an adjournment of the summons for a substantive hearing for the summons on a date to be fixed with 2 hours reserved and sought, amongst other things, 28 days to file an affirmation in reply to OS’s affirmation. Naturally, the OS did not consent to any adjournment for substantive argument for 2 hours or the time table proposed by the Father. Then, on 25 May 2019, the Father’s solicitors suddenly sent a letter claiming that there was a misunderstanding and that it was not the Father’s stance that the treating doctor must talk to him before formulating any treatment plan, but the Father then sought to add further terms to the OS’s proposed order. This was followed by another letter sent by the Father’s solicitors the day before the hearing, with a proposed consent summons containing the direction sought by the OS and 4 additional directions. OS objected to 2 out of those 4 directions, and the Mother objected to all 4 of them. Due to the lack of consent coming from the Father to the terms sought by OS in the Summons prior to 15 May 2019, it was most unfortunate that the original follow up consultation for N at the YMT Child Service had to be postponed from 15 May 2019 to 4 July 2019. Discussion First of all, there was no evidence at all from the Father as to when he made those “medical appointment” at the Queen Mary Hospital, which I understand were usually made by telephone, nor was there any evidence as to when he was notified of those “medical appointments”. I note from the “Scan Appointment Notice” sent from Queen Mary Hospital to the Father that those appointments were for a scan/ “Myocardial Perfusion” and there was no reason given by the Father as to why the dates could not be moved. Further, the Notice seemed to indicate that the appointments were made on 7 May 2019, the date of the issue of the Summons. Further, there was also no reason why the Father would require 28 days to file any affirmation in reply or a 2 hours hearing. Secondly, there was clearly no consent from the Father to the amendments proposed by OS, and those letters from the Father’s solicitors gave this Court an impression that he was first trying to place unnecessary reservations on OS’s proposal and then he was trying to delay the matter. In short, the impression I got was that the Father was being, to say the least, uncooperative, making no positive suggestions until the last minute, apart from saying he wanted to see Dr Ho and the OS direct. There was no justification from the Father’s legal representatives as to why there needed to be a two hours substantive argument on the matter or that the Father needed 28 days from 23 May 2019 to file an affirmation. The Father’s own counsel, Ms Crystal Lai, had in her submissions said that it was a relatively simple matter made unnecessarily complicated. I have to say it was made unnecessarily complicated only by the Father. Ms Lai in her “Speaking Note” for the hearing on 29 May 2019 had said that the Father’s stance of him needing to see and meet Dr Ho and the OS before he would consent to the summons was so that before Dr Ho proceeds to formulate a medical plan for N, it would be in the best interests of N for Dr Ho to be updated and informed by the Father (and possibly the Mother, if she wishes) on N’s needs and well-being. It was submitted on behalf of the Father that his stance should be uncontroversial and that it was surprising that both OS and the Mother were not willing to consent to the Father’s course of action. First of all, neither the words in the brackets above, nor the Father’s reasons, were ever made clear to the Mother or the OS. It was never made clear to the Mother or the OS that the Father was suggesting both of them could go to see Dr Ho before Dr Ho proceeds to formulate her medical plan. What was clear from those letters was that the Father, as he had said, he would support Dr Ho’s refined treatment plan for N after he had had the chance to talk to Dr Ho and the OS. This was the Father’s stance prior to the issue of the Summons. In any event, if any update is required, in light of the history of this matter, I am of the view that it is in the best interests of N for such update to be provided by the OS to the treating doctor, and not from the Father or the Mother individually. There was no submission from Ms Lai in her Speaking Note as to what reasons the Father had for wanting to see the OS direct before consenting to the Summons. In her subsequent written submissions, Ms Lai submitted that as Dr Ho is treating N’s psychiatric problems and OS is representing N, it accords with common sense that the Father, in discharge of his parental obligations and responsibilities should remain in effective and close communications with these parties and that it should not cause any concern to anyone that there be an effective channel of communications between the Father and Dr Ho. It was further the Father’s evidence that Dr Ho had requested to talk to him without interruptions and obstructions of the Mother many times and that Dr Ho had requested that the Mother be absent for Dr Ho to conduct a private individual session with him on 28 March 2019. Indeed, if as the Father’s evidence was that Dr Ho had requested to talk to him in the absence of the Mother, then I see no reason at all why the Father cannot simply leave the matter with Dr Ho and let her have a free hand as she is the professionally qualified person and not the Father. Instead of making the matter simple, he then proposed to include 4 further directions, which then cause further delay in the matter. In any event, if the Father was prepared to consent to the OS’s proposed amendments, he should have simply made his stance clear at the outright. As pointed out by Mr Li, if the Father wanted further directions and such could not be agreed, there was nothing to stop the Father issuing his own summons. At this stage, I do not see how any of those directions sought by the Father would assist Dr Ho or any treating doctor at the YMT Child Service in formulating a treatment plan for N. The treating doctor at the YMT Child Service, whether Dr Ho or not, should be allowed to formulate his/her own treatment plan for a patient. As submitted on behalf of the Mother, the Father’s case put to the highest, and even if all those allegations made by him were true, this had nothing to do with the Summons which was about Dr Ho and her treatment plan for N. Conclusion In light of the above, I find it is in the best interest of N for an order to be made in terms of paragraph (1) of the Summons. I am not prepared to order any other directions as sought by the Father. I see no reason why costs of the Summons should not follow the event. As I have said earlier, those letters from the Father’s solicitors indicated his stance was to say in the least, un-cooperative and not conductive to an early resolution of this matter. Costs are to be summarily assessed and paid within 14 days from the date of assessment. OS and the Mother to submit their statements of costs within 7 days, and the Father to submit his list of objections within 7 days thereafter. (Bebe Pui Ying Chu) Judge of the Court of First Instance High Court Ms Crystal Lai, instructed by Chan & Chan, for the plaintiff Mr Karl Wong of Stevenson Wong & Co, for the defendant Mr Li Chi Keung Ben of the Official Solicitor, for the ward