Mental Capacity Act 2

An interesting article on what are some of the possible implications of the Mental Capacity Act being looked at in parliament now:


The capacity to ease suffering
Proposed legislation – if properly enacted – could solve many problems for mentally-incapacitated

THOMAS KOSHY

A WOMAN lies mentally incapacitated by a stroke a day after delivering her newborn child. Her distraught parents take the new mother home to care for her. Later, when her husband wants her back, a "tug-of-love" ensues between parents and husband.

Eventually, the matter goes to court for a decision on who has the right to decide where she should live.

This was a real-life scenario in Singapore five years ago, and the High Court's ruling — in favour of the husband — was finalised only three years later.

Now, a piece of legislation proposed last week in Parliament by the Minister for Community Development, Youth and Sports, Dr Vivian Balakrishnan, may pave the way for families to avoid such uncertainty.

The Mental Capacity Act (MCA), according to his ministry, is meant to "help Singaporeans plan ahead to ensure their personal and financial well-being in the event that they lose their mental capacity to conditions such as dementia, traumatic brain damage and stroke".

Currently, it is only after mental incapacity manifests in a patient that a court may appoint a representative to make decisions for him or her.

The MCA will allow individuals to designate a representative beforehand, and the requirement for an application to court may also be removed.

The advantages are obvious: Simplicity and certainty.

Simplicity in doing away with cumbersome court applications. Certainty in knowing that the wishes of the patient are being honoured. After all, in the absence of a nomination, a court can only guess whom the patient would have appointed as his representative.

One question is what bearing the MCA will have on the Advance Medical Directive (AMD) Act. Unlike a living will, an AMD currently is a standard form which does not allow individuals to specify in any detail which medical procedures they would rather not undergo.

The AMD Act may benefit if individuals could specify in greater detail than they are currently allowed to, through a living will, which medical procedures they would rather not undergo.

With the introduction of the MCA, would the appointed representative have the authority to decide whether certain courses of medical treatment should be pursued? If so, such a representative could be akin to an autonomous "living will" of the mental patient.

Would that then mean the representative has the right to revoke the patient's AMD or to opt the patient out of the Human Organ Transplant Act (Hota)?

The drafters of the MCA will have to decide the parameters of the directions a patient may leave to an appointed representative, and when specifically these powers are transferred over. Would some sort of mental illness be a pre-requisite or would unconsciousness be an adequate trigger?

Simple issues like the definition of "mental incapacity" and specification of the circumstances in which a person may revoke or alter his choice of representative can also present fundamental challenges.

Individuals should not be left with a lingering fear that they may end up trapped in a nightmare scenario of being unable to alter their choice because they are deemed not to have the mental capacity to do so.

Leaving the assessment of mental capacity to another person always leaves open the possible peril of being found mentally incapable even though the patient himself feels fine.

When all is said and done, though, one suspects that the biggest obstacle to the efficacy of the proposed MCA will be simply getting people to use it. It is quite likely the MCA may go down the same avenue as the AMD Act, which was enacted a decade ago but has had only about 4,000 takers.

Would it be feasible to have a system whereby, for example, all persons reaching the age of majority have to be informed in person of the various issues that each individual should ideally address — including whether to opt out under Hota, whether to execute an AMD and whether to appoint a representative under the proposed MCA.

A formal procedure would help Singaporeans think critically about these end-of-life and caregiver issues.

The proposed MCA will be a boon to Singaporeans as it gives them greater choice. Practically speaking, though, what is more important is whether that choice is exercised or lies buried in the law.

The writer is a lawyer. These are his personal views.