Mental Capacity Act 5

Still logging the news on the MCA...


3-W poser for new Bill
Judging mental capacity is a complicated issue
Jasmine Yin

SHOULD the draft Mental Capacity Bill find its way into law, Singaporeans will get to handpick, in advance, their guardians, should they — through stroke, dementia or other unfortunate circumstances — lose the mental ability to make decisions for themselves.

To sign away one's rights to another person takes a lot of trust and judgement. And, as the State kickstarts the process to facilitate a matter as grave as this, every minutia has to be scrutinised and ironed out.

One of the biggest questions that will have to be answered is: How do you determine that someone has lost the capability to make a reasoned decision? When is mental capacity considered "lost"?

In the case of those with severe intellectual disabilities, the answer is pretty clear-cut.

For others, the draft Bill has proposed a two-stage test.

It states a person loses such capacity when he or she is unable to understand, use or weigh information relevant to a particular decision, and to communicate the decision.

But the authorities have not come to a decision on the "who, what and how" to carry out such a test, and they are seeking feedback from the medical fraternity.

What complicates matters further is this — as the Bill recognises — the loss of mental capacity can be permanent or temporary. And, as Dr Vivian Balakrishnan, the Minister for Community Development, Youth and Sports, pointed out, it "may change with time; it may even fluctuate".

In other words, it is not about simply declaring a person "mentally unsound", as the current law does, from one point on.

For example, Mr A, who is 60 and in the early stages of dementia, is still able to decide that he wants to live on his own at home — but he may not be able to manage his household finances. His guardian who takes over can make only money-related decisions on his behalf.

But a few years down the road, Mr A's condition worsens. It may be necessary for his donee to make other, more vital decisions, such as whether to put Mr A in a nursing home, where he can get better care.

So, at which stage does one decide what and how much decision-making power to accord the donee?

One of the issues authorities are reportedly also mulling over, is whether the graver the decision to be made, the more rigorous the assessment of the patient needed — should it be carried out by a psychiatrist instead of the family general practitioner?

But then, what if Mr A's condition gets better, instead? Unlike a victim of permanent brain damage, dementia patients can improve.

If Mr A were to regain mental capacity at some point, would it be incumbent on the guardian to — in Mr A's best interests — encourage him to engage in decision-making once again? But who is to say the guardian would willingly do so?

According to Dr Ang Yong Guan, a psychiatrist, a temporary loss of mental capacity may also arise from conditions such as clinical depression and acute schizophrenia. And the patient may regain mental capacity following treatment.

Hence, Dr Ang feels, the Bill should "only apply" to those suffering from an irreversible condition.

But this raises more questions: Should judgement on whether to transfer decision-making power to the guardian, then, be postponed until the person recovers?

If so, how long should the deferment be?

Another kink that needs to be ironed out is who can be appointed a donee.

You can choose to appoint more than one donee to make decisions on your day-to-day needs — such as handling your savings, property matters and certain healthcare issues. But there are certain barring criteria.

For instance, the authorities are proposing that a donee cannot have been convicted of any sexual or violence-related offence, fraud or dishonesty; nor be an undischarged bankrupt.

The idea is to ensure that someone given such power over your life is a person of character.

But what if, say, Mr A insists he can trust only his son, who was previously convicted of molest? Is it right to presume that the son, because of his record, is unable to care for and act in the best interests of his father?

Also, will there be checks to ensure that the appointment of a donee is not made because of pressure placed on the applicant?

And what if the donee, having taken up the burden of care, is one day unable to handle it anymore? Can she opt out of her legal duties?

Every Singaporean stands to be empowered or limited by the proposed law, given that we all share the risk of growing old and having our minds deteriorate.

In the same vein, the answers to these questions will one day concern you and I.

Hence, it would be a great pity if people do not share their views with the lawmakers — the extended public consultation on the Bill ends on Oct 31 — before the Bill becomes law.

After all, the best way to live out the end part of our lives — even when we are losing the ability to understand the world around us — is to decide how we want to, right now.