The University of Hong Kong

Department of Law

Academic Year of 2019-2020

Examiner’s Report

[This report will be posted onto intranet immediately after the release of exam results]

Course code: LLAW/JDOC

6291 Course title: Mental Disability and the Law
Report prepared by: Daisy Cheung Date: 15 June 2020

General Comments

- Overall this was a very good effort by the students, who generally showed that
they spent time carefully reading and applying the materials covered in class.
- Below are a few general comments for improvement:
o First and foremost, students should read the question carefully and tailor
their responses to the parameters of the question. The questions, in
particular where quotations are included, should not be taken as an
invitation to discuss that area of the law generally.
o Students should not include long quotes in their exam unless absolutely
necessary – what is being tested is the student’s understanding of the
material. Similarly, long summaries of what was discussed in class
without analysis tailored towards the question itself are discouraged.
o Many students failed to give sufficient consideration of the normative
aspects of the questions.
o Students should remember to cite their sources at all times, and where
materials not covered in the class are used, the full citation together with
a brief description of the arguments from that source should be presented,
so as to demonstrate their understanding. Students should generally rely
on academic sources rather than magazines for their citations.
o Students are reminded to be careful with word choice – as discussed in
class, the use of words such as “insane” to describe those with mental
disability is considered archaic and unnecessarily stigmatizing.
o Students are reminded that the Mental Health Ordinance does indeed
contain a variety of tests of capacity. While section 2 is definitionally
problematic, there are tests of capacity (though problematic) contained in
the different contexts in which the Mental Health Ordinance is used.

Comments for Question 1

- Around a third of the class chose to answer this question.

- This question was a problem question looking at the capacity of Tina to make
decisions in relation to the doctor’s suggestion of a caesarean section. Part B of
the question asked students to consider whether a caesarean section might be
considered “treatment for mental disorder”, and whether capacity might be an
alternative route to using section 63 of the Mental Health Act.
- Answers for this question were generally of a high quality. Most students who
attempted this question cited the correct cases and provided a good analysis of
how the cases would apply in the hypothetical scenario.
- While some students noted that Tina might not have had capacity when the first
decision was taken when she arrived at the A&E department, very few students
mentioned Lane v Candura or discussed the possibility that capacity issues may
be overlooked in compliant patients.
- Generally, students would have benefitted from a more in-depth discussion of
 what they found problematic about the cases they cited (e.g. Re C, Re MB and
Re T).
- For Part B, several students discussed emergency admission for assessment
applications even though this was specifically excluded in the question. This
highlights the importance of reading the question carefully and tailoring your
response to the parameters of the question.

Comments for Question 2

- More than half the students in the class chose to answer this question.
- This question was an essay question asking students to explore how well the
criminal justice system (either in HK or the UK) caters to mentally disordered
defendants using not more than two issues as examples.
- Most of the answers focused on the AA regime and police powers. Students
generally did satisfactorily with this question, although most of the answers
would have benefited from (i) more consideration of the relevant caselaw and (ii)
a much more critical consideration of the issues (i.e. more exploration of the
problematic aspects of these regimes).

Comments for Question 3

- A little less than half the students in the class chose to answer this question.
- This question was a problem question about Lenny and Michael, two mentally
disordered defendants. Generally speaking, Lenny’s case involved a
consideration of the law regarding fitness to plead, whereas Michael’s case
involved a consideration of the law regarding the trial of facts procedure.
- Answers for this question were generally of a very high quality, with most
students conducting an in-depth consideration of the cases relevant to both
areas of law, as well as nuanced discussions of how the law might be improved.
Some students missed the issue of the need for objective evidence for defences
in the trial of facts procedure, meaning that Michael would not have been able to
raise the issue of mistake.

Comments for Question 4

- Most of the students in the class chose to answer this question.

- This was a difficult essay question that asked students to consider the claim that
compulsory admission and treatment is not controversial because mental
disorder renders individuals without autonomy to make meaningful decisions
about their lives.
- Most answers, while demonstrating a good understanding of the law regarding
compulsory admission and treatment, unfortunately missed the point of the
question, which expected students to consider whether those with mental
disorder lack autonomy on the basis of the different conceptions of autonomy
covered in class.
- Some students interpreted the claim as being that all individuals with mental
disorder lack capacity, which suggests that a more careful reading of the
question is required.
- Students are reminded that compulsory admission and treatment refers to the
use of compulsory powers in an institutional setting and does not include control
in the community.