Mental Capacity Act 2008

JurisdictionSingapore
Coming into Force31 March 2010
Act Number(Original Enactment: Act 22 of 2008)
Enactment Date01 March 2010
Record NumberCap. 177A
Published date31 March 2010
Mental Capacity Act
(CHAPTER 177A)

(Original Enactment: Act 22 of 2008)

REVISED EDITION 2010
(31st March 2010)
An Act to make new provision relating to persons who lack capacity and to provide for matters connected therewith.
[1st March 2010]
PART I
PRELIMINARY
Short title
1. This Act may be cited as the Mental Capacity Act.
Interpretation
2.—(1) In this Act, unless the context otherwise requires —
“appropriate consent” has the same meaning as in the Human Biomedical Research Act 2015;
[Act 29 of 2015 wef 01/11/2017]
“clinical trial” means a clinical trial within the meaning of the Medicines Act (Cap. 176) or the Health Products Act (Cap. 122D);
“court” means the General Division of the High Court or a Family Court;
[Act 27 of 2014 wef 01/10/2014]
[Act 40 of 2019 wef 02/01/2021]
“deputy” has the meaning given to it in section 20(2)(b);
“donee” has the meaning given to it in section 11(1);
“lasting power of attorney” has the meaning given to it in section 11;
“life-sustaining treatment”, in relation to a person, means treatment which, in the view of another person providing health care for that person, is necessary to sustain life;
“professional deputy” means a person —
(a) who offers or provides the services of a deputy for remuneration; and
(b) who is registered with the Public Guardian as a professional deputy;
[Act 10 of 2016 wef 01/09/2018]
“professional donee” means a person —
(a) who is a professional deputy or is within a class of persons prescribed as qualified to be a professional donee; and
(b) who offers or provides the services of a donee for remuneration;
[Act 10 of 2016 wef 01/09/2018]
“property” includes any thing in action and any interest in real or personal property;
“Public Guardian” means the Public Guardian appointed under section 30(1) and, unless the context otherwise requires, includes any Assistant Public Guardian appointed under section 30(1A);
[Act 10 of 2016 wef 30/06/2016]
“registered medical practitioner” means any person who is registered as a medical practitioner under the Medical Registration Act (Cap. 174);
“treatment” includes a diagnostic or other procedure;
“will” includes codicil.
(2) In this Act, references to making decisions, in relation to a donee of a lasting power of attorney or a deputy appointed by the court, include, where appropriate, acting on decisions made.
PART II
PERSONS WHO LACK CAPACITY
The principles
3.—(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or a decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
[UK MCA 2005, s. 1]
Persons who lack capacity
4.—(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to —
(a) a person’s age or appearance; or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act (other than proceedings for offences under this Act), any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
(5) Subject to section 21, no power which a person (“D”) may exercise under this Act —
(a) in relation to a person who lacks capacity; or
(b) where D reasonably thinks that a person lacks capacity,
is exercisable in relation to a person below 21 years of age.
[UK MCA 2005, s. 2]
Inability to make decisions
5.—(1) For the purposes of section 4, a person is unable to make a decision for himself if he is unable —
(a) to understand the information relevant to the decision;
(b) to retain that information;
(c) to use or weigh that information as part of the process of making the decision; or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of —
(a) deciding one way or another; or
(b) failing to make the decision.
[UK MCA 2005, s. 3]
Best interests
6.—(1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of —
(a) the person’s age or appearance; or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the steps specified in subsections (3) to (8).
(3) He must consider —
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question; and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as is reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment, he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(5A) Where the determination relates to the giving, refusal or revocation of —
(a) appropriate consent of the person concerned under the Human Biomedical Research Act 2015, the person must take into account such matters, considerations and procedures as may be prescribed under Part 3 of that Act; or
(b) consent of the person concerned under any written law relating to a clinical trial, the person must take into account such matters, considerations and procedures as may be prescribed in such written law.
[Act 29 of 2015 wef 01/11/2017]
(6) Where the determination relates to the disposition or settlement of the person’s property, he must be motivated by a desire to ensure, so far as is reasonably practicable, that the person’s property is preserved for application towards the costs of the person’s maintenance during his life.
(7) He must consider, so far as is reasonably ascertainable —
(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity);
(b) the beliefs and values that would be likely to influence his decision if he had capacity; and
(c) the other factors that he would be likely to consider if he were able to do so.
(8) He must take into account, if it is practicable and appropriate to consult them, the views of —
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;
(b) anyone engaged in caring for the person or interested in his welfare;
(c) any donee of a lasting power of attorney granted by the person; and
(d) any deputy appointed for the person by the court,
as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (7).
(9) The duties imposed by subsections (1) to (8) also apply in relation to the exercise of any powers which —
(a) are exercisable under a lasting power of attorney; or
(b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.
(10) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (8)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
(11) In subsection (2), “relevant circumstances” are those —
(a) of which the person making the determination is aware; and
(b) which it would be reasonable to regard as relevant.
[UK MCA 2005, s. 4]
PART III
ACTS IN CONNECTION WITH CARE OR TREATMENT
Acts in connection with care or treatment
7.—(1) If a person (“D”) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if —
(a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question; and
(b) when doing the act, D reasonably believes —
(i) that P lacks capacity in relation to the matter; and
(ii) that it will be in P’s best interests for the act to be done.
(2) D does not incur any liability in relation to the act that he would not have incurred if P —
(a) had had capacity to consent in relation to the matter; and
(b) had consented to D’s doing the act.
(3) Nothing in this section —
(a) excludes a person’s civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act;
(b) affects the operation of the Advance Medical Directive Act (Cap. 4A);
[Act 29 of 2015 wef 01/11/2017]
(c) applies to the conduct of a clinical trial;
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