Case Comment ASSESSING MENTAL CAPACITY

• Author: Gary CHAN Kok Yew1 LLB (Hons), MA (National University of Singapore), MA (Birmingham), LLM, BA (University of London); Professor, School of Law, Singapore Management University.
• Date: 01 December 2020
• Citation: (2020) 32 SAcLJ 287
• Published date: 01 December 2020

BUV v BUU

[2019] SGHCF 15

The assessment of the mental capacity of an elderly person (“P”) is central to the framework under the Mental Capacity Act (Cap 177A, 2010 Rev Ed). This case note discusses the clinical diagnosis and functional aspects of mental capacity and evidence needed to assess P's mental capacity; the importance of examining the functional abilities for particular decisions to be made and how they are applied to P's decision to execute legal documents; the extent to which assistance may be provided to P to make decisions; and the impact of undue influence on mental capacity.

I. Introduction

1 Litigation under the Mental Capacity Act2 (“MCA”) has oftentimes arisen from a potent amalgam of factors: (a) an elderly person (“P”) suffering from dementia or other mental illness; (b) who had decided to create a lasting power of attorney (“LPA”) and/or dispose of substantial property or assets; and (c) family members who were unhappy about P's decisions and/or personal well-being. At the centre of the legal maelstrom may lie a question as to P's mental capacity at the time of decision-making. Is there a clear approach to ascertain the effect of mental incapacity on such decision-making? To what extent is P's mental capacity to be determined by medical or legal experts or both? How does the alleged mental incapacity affect the decisions made or legal documents that may have been executed by P?

2 In BUV v BUU,3 UWP (“the second defendant”) was already 89 years old at the time the legal actions were initiated. She was assessed by doctors to be suffering from dementia, had no formal education and was illiterate. However, she was able to understand and speak in the Teochew dialect. UWP apparently favoured her second son (“the first defendant”) at the expense of the third son (plaintiff) and his wife. In 2016, she had executed an LPA authorising the first defendant as her donee to make decisions in relation to her personal welfare, property and financial matters. In the same year, UWP executed a will which bequeathed moneys to the first defendant amongst others but nothing to the plaintiff.

3 The litigation involved a previous court order relating to some moneys held in a bank account as well as an application under the MCA for a declaration that UWP was unable to make decisions as to her personal welfare, property and financial affairs and for the appointment of court deputies to act on her behalf. There is also a related application for a court order that UWP was not mentally capable of conducting litigation.

4 The Singapore High Court was faced with two main issues: (a) whether the second defendant was mentally incapable of making decisions as to her personal welfare and property and to conduct litigation; and (b) whether the LPA and will respectively ought to be revoked. Upon considering a wide range of medical and non-medical evidence adduced by the parties, Aedit Abdullah J answered both questions affirmatively. His Honour also appointed two joint deputies, namely, UWP's youngest daughter and daughter-in-law, to make decisions as to UWP's property and financial matters including the moneys in the bank account.

5 The decision raises the following challenging issues on the assessment of mental capacity:

(a) the clinical diagnosis and functional aspects of mental capacity and evidence needed to assess P's mental capacity;

(b) the importance of examining the functional abilities for particular decisions to be made and how they are applied to P's decision to execute the legal documents;

(c) the extent to which assistance may be provided to P to make decisions; and

(d) the impact of undue influence on mental capacity.

II. Clinical and functional assessment of mental capacity

6 The statute makes an assumption that P possesses mental capacity and it is for the party arguing otherwise to show that P is mentally incapable.4 The test for mental capacity under the MCA requires the ascertainment of the clinical (ie, the impairment or disturbance in the functioning of the mind or brain) as well as the functional component (ie, the inability to make a decision). With respect to the functional component, the individual is not mentally capable of making a decision if he is unable to (a) understand the information relevant to the decision; (b) retain that information; (c) use or weigh that information; or (d) communicate her decision.5 If P lacks any one of these competencies, she will be adjudged to be mentally incapable of making a decision.6 Further, it must be shown that P's functional inability to make the decision was due to her mental impairment (causal nexus).7

7 In the present case, the medical experts in BUV v BUU agreed that UWP suffered from dementia. One medical expert assessed the dementia to be of mild-moderate severity whilst another expert described the dementia as mild and of the Alzheimer's type.8 The learned judge stated that UWP had an impairment or disturbance in the functioning of her mind.9 His Honour also referred to UWP's memory retention impairment and her inability to make judgments or solve problems.10

8 As for the functional component, Abdullah J noted UWP's lack of memory and inability to follow proceedings and understand questions from counsel11 notwithstanding allowances due to the “stresses of a court environment”.12 UWP's “lapses in memory and deficiencies in comprehension” were “serious”13 according to the learned judge. UWP could not recall the nature and contents of the legal documents she had

executed, the events central to the court proceedings or relationships with her own children.14

9 Abdullah J stated that based on the cross-examination and medical evidence, the second defendant had an “impairment or disturbance in the functioning of the mind”.15 His Honour proceeded to add in the same paragraph that the mental impairment “manifested” in UWP's “inability to recall short-term information, and an impairment in her ability to use and understand information”.16 Here it seems the analysis of the functional component overlaps with the clinical.

10 It is inevitable that certain mental abilities and sources of evidence may overlap for both components. In Re BKR,17 the Singapore Court of Appeal opined that the clinical aspect is an inquiry which requires evidence from medical experts as to the nature of mental impairment and its effect on P's cognitive abilities, whilst the functional inability to make a decision is to be primarily assessed by the court based on the functional components in the MCA rather than by medical experts.18 Reference was made to the clinical interviews and cross-examination of witnesses including P for the purpose of assessing the clinical and functional components.19

11 From a conceptual angle, however, the different objects of inquiry with respect to the clinical and functional components should, as far as possible, be separated at least in so far as clinical and professional assessments of mental incapacity are concerned.20 First, the mental impairment requirement was included to pre-empt the problem of overinclusiveness if it were to be based on the functional component alone.21 Second, persons who suffer from mental impairment may nevertheless be able to make decisions with respect to their personal welfare or financial affairs22 or other decisions. Conversely, a person who is unable to understand or weigh information for a particular decision may not be suffering from any mental impairment. Third, as the assessment

of mental capacity in the MCA requires a causal nexus between the clinical and functional components, there should be a clear method to differentiate the objects of inquiry for each component. The effect of mental impairment on functional ability may differ depending on the nature and severity of the specific mental impairment.

12 Mental impairment includes recognised mental illnesses such as depression and schizophrenia, brain injury, or mental impairment arising from alcohol or drug abuse.23 The impairment may be temporary or permanent in nature. The relevant evidence for establishing mental impairment may include brain scans, symptoms suggesting mental impairment and P's responses to clinical interviews. In clinical diagnosis, reference is often made to the Diagnostic and Statistical Manual of Mental Disorders24 (“DSM-IV”) and “International Classification of Diseases”25 (“ICD-10”) on the requisite symptoms which may include delusions, deterioration of memory and so on. With respect to dementia, the DSM-IV provides specific diagnostic criteria based on symptoms, significance of impairment or decline in functioning which may or may not overlap with the functional component set out in the MCA.26 The MCA does not provide guidelines for determining mental impairment unlike for functional ability. The assessment of functional ability must be made with reference to the legal provisions in ss 3(3), 3(4) and 5 of the MCA.

13 As for clinical interviews and cognitive tests, it is suggested that they may be used for determining both functional and clinical components. One material difference is that the clinical aspect is primarily based on medical expert evidence whilst the functional aspects are to be decided by judges. The interviews and tests allow medical experts to ascertain the nature of the impairment and its effect on cognitive abilities based on diagnostic criteria for the specific impairment. Similarly, judges can draw from the interviews and cognitive tests to assess whether they correspond with the functional components of understanding, retention, use and weighing of information and communication of decision.

14 The closer the clinical interviews and cognitive tests are conducted to the time of execution of the legal documents, the greater their evidential weight for assessing P's mental capacity. Whether such evidence would be useful in a particular case would also depend on the...