Revisiting conditional discharge and the rights of psychiatrised people
25 November 2025
In 2018, I conducted an empirical study of the law and practice of ‘conditional discharge’ (CD) for psychiatric patients in Hong Kong as part of my LLM in Human Rights at the University of Hong Kong, which was later published in the Asia-Pacific Journal on Human Rights and the Law.
Drawing on interviews with psychiatrists who had experience with the mechanism, I argued that CD, which allows practitioners to impose any ‘such conditions as [they think] fit’ (s.42B, Mental Health Ordinance) upon the discharge of compulsory patients, grants overbroad powers to medical professionals with few safeguards for patients’ rights. Most egregiously, there is no legal provision which enables the termination of CD orders, which means discharged individuals are technically subjected to what are often coercive and arbitrary conditions—when to take medication, where they must live, who they can see—indefinitely. Nor are they given sufficient (or any, in many cases) information about the possibility of challenging their order at the Mental Health Review Tribunal. One interviewee expressed the view that, under CD:
Psychiatrists have the power to impose even injunction-like conditions but without the same intensity of scrutiny that judges may face.
7 years later, there is finally some judicial affirmation of the right to access to justice for those discharged under this mechanism. In a judicial review brought by Ha Che Wai in relation to his own CD appeal history ([2025] HKCFI 5681), Coleman J found that the Hospital Authority is under a duty to ‘take such steps as are reasonably practicable to ensure that [CD subjects] understand their rights … to make an application to the Tribunal for discharge or review’ [217]. This is, however, not to be accompanied by a ‘positive duty on the Tribunal to advise applicants of their right to be represented, legally represented, or to the possibility of obtaining legal aid’ [215].
Though the declaration is an extremely limited one (and the intrusion of compulsory conditions into discharged patients’ lives remains very much underplayed), given the history of these voices being ignored in courts on the very basis that they have been psychiatrised, this is a big step forward which will hopefully bring further changes to psy practice in Hong Kong.
On a more personal note, the CD study was my very first foray into empirical legal research and has been cited in further studies (Cheung 2022, Lui 2023, Petersen 2025) on psy practice and human rights in Hong Kong. It cemented my interest in different aspects of the compulsory mental health regime and, later, legal mechanisms concerning dis/order in other areas of law as well. I’m really glad to see that positive change is afoot—if only gradually.
Further reading:
Urania Chiu, ‘Compulsory treatment in the community in Hong Kong: Implications of the current law and practice on the rights of persons with mental illnesses’ (2019) 20 Asia-Pacific Journal on Human Rights and the Law 60 (Preprint | Journal site)
Urania Chiu, ‘Overprotecting professionals from “vexatious” claims under the Hong Kong Mental Health Ordinance: The question of access to justice for persons with mental illness’ (2021) 28 International Journal of Mental Health and Capacity Law 54 (Open access)
Daisy Cheung, ‘Control in the community: A qualitative analysis of the experience of persons on conditional discharge in Hong Kong’ (2022) 82 International Journal of Law and Psychiatry 101791 (Open access)
Edward Lui, ‘First aid administrative law: Patching the conditional discharge regime’ (2023) 53 Hong Kong Law Journal 701
Daisy Cheung and Edward Lui, ‘Conditional discharge, statutory interpretation and the Mental Health Review Tribunal’ (2023) 55 Hong Kong Law Journal 29
Carole J Petersen, ‘Disability rights in Hong Kong: Incomplete progress and an uncertain future’ (2025) 26 Australian Journal of Asian Law 5 (SSRN)