Singapore is one of the world’s fastest aging societies, a development that will bring with it an increase in the number of persons suffering from conditions affecting mental capacity, such as dementia and Alzheimer’s. In that context, the Mental Capacity Act (Chapter 177A) (“MCA”) which came into force on 1 March 2010, was heralded as one of the most groundbreaking pieces of social legislation to be enacted. Its function is to provide clearer rules regarding dealings which relate to a person lacking mental capacity (“a Patient”). The MCA would therefore be relevant to the lawyers, health care professionals and (most importantly) the caregivers of a Patient.
The MCA seeks to balance a Patient’s rights to make his own decisions and the need to protect him when he lacks mental capacity to make those decisions. When a Patient is found to lack capacity, the MCA provides a variety of ways in which the Patient’s interests are safeguarded and potential abuse can be checked.
The crux of the MCA is based on every Patient’s right to autonomy. The key principles fl owing from this fundamental right are statutorily enshrined in Section 3 of the MCA and these form the backbone on which the decisions and dealings relating to a Patient ought to be made.
The fi rst principle is the presumption of capacity. It dictates that a Patient must be assumed to have mental capacity, unless it is established and proved that he does not. Consequential to this are the principles that:-
(i) A Patient is not to be treated as being unable to make a decision unless all practicable steps to help make that decision have been taken without success; and
(ii) A Patient is not to be treated as being unable to make a decision merely because his decision may be considered ‘unwise’.
Once a Patient is proved to lack mental capacity and his right to make his own decisions is subrogated to someone else, then any act or decision made relating to that Patient must be made in his best interests and in a manner which is least restrictive of that Patient’s rights and freedom of action.
Under the MCA, the test for assessing capacity is twofold. First, the Patient must have an impairment or disturbance in the functioning of his mind or brain. Second, this defi ciency must result in the Patient being unable to make a specifi c decision for himself at a specifi c material time.
The MCA also provides that a Patient will be considered to be unable to make a decision for himself if he is unable to carry out any one of the following four actions:-
(i) Understand the information relevant to the decision;
(ii) Retain that information;
(iii) Use or weigh that information as part of the decision-making process; and
(iv) Communicate that decision in any manner (eg, by speech, sign language or any other means).
A lack of capacity cannot be established merely by reference to a person’s age or appearance or some aspect of his behaviour which might lead others to make unjustifi ed assumptions about his capacity. The MCA also provides a list of non-exhaustive nonmedical factors that ought to be taken into consideration when a third party makes a decision on behalf of the Patient. These include whether the Patient is likely to regain capacity and when that would be as well as the Patient’s past and present wishes.
One of the major new highlights of the MCA is that it allows a person to plan for the future, (whilst he still has the mental capacity to do so) by executing a legal document known as a Lasting Power of Attorney (“LPA”). The Patient executing the LPA can appoint another person called a ‘Donee’ (usually a family member or a friend) to make decisions on the Patient’s behalf should he lose mental capacity in the future.
In an LPA, a Donee can be authorized to make decisions about the Patient’s personal welfare. This includes, for example, deciding on where the Patient is to live as well as health care decisions. The Donee can also be authorized to make decisions about the Patient’s property and affairs and direct how the Patient’s assets are to be managed whilst he is still alive but lacking capacity. The LPA will take effect only if and when the Patient loses mental capacity. The LPA can be revoked by the Patient at any time as long as he has the mental capacity to revoke it.
The MCA also deals with situations where a person has lost mental capacity and there is no valid LPA registered. It allows another person to apply to Court to be appointed as the Patient’s Deputy. Once so appointed, the Deputy can then make decisions on the Patient’s personal welfare, property and affairs, subject to any restrictions imposed by the Court and under the MCA.
The MCA also provides for the appointment of the Public Guardian (who is supported by the Offi ce of the Public Guardian (“OPG”) under the auspices of the Ministry of Community Development, Youth and Sports). The OPG’s functions include maintaining a register of LPAs and a register of all Court Orders appointing Deputies. The OPG also supervises the actions of the Deputies and dealings with allegations of abuse by Donees and Deputies.