Re Bkr

• Jurisdiction: Singapore
• Judgment Date: 01 October 2013
• Date: 01 October 2013
• Docket Number: Originating Summons (Family) No 71 of 2011 (Registrar's Appeals Subordinate Courts Nos 223 and 224 of 2012)
• Court: High Court (Singapore)

Re BKR

[2013] SGHC 201

Lai Siu Chiu J

Originating Summons (Family) No 71 of 2011 (Registrar's Appeals Subordinate Courts Nos 223 and 224 of 2012)

High Court

Courts and Jurisdiction—Jurisdiction—Area of—Dispute over mental capacity of individual—Evidence suggesting dispute concerned instances of access and undue influence—Whether and when court seized of jurisdiction to entertain application—Whether jurisdiction included vulnerable people—Supreme Court of Judicature (Transfer of Mental Capacity Proceedings to District Court) Order 2010 (S 104/2010) —Mental Capacity Act (Cap 177 A, 2010 Rev Ed)

Mental Disorders and Treatment—General declaration of incapacity made—Whether court had to state specific decisions in declaring incapacity of individual—Section 19 Mental Capacity Act (Cap 177 A, 2010 Rev Ed)

Mental Disorders and Treatment—Management of patients' property and affairs—Appointment of deputies—Evidence suggesting individual not in favour of deputies appointed—Extent wishes of individual taken into account when appointing deputies—Section 6 Mental Capacity Act (Cap 177 A, 2010 Rev Ed)

Mental Disorders and Treatment—Management of patients' property and affairs—Appointment of deputies—Wide-ranging powers granted to deputies—Whether powers granted to deputies were too wide—Section 20 Mental Capacity Act (Cap 177 A, 2010 Rev Ed)

Mental Disorders and Treatment—Mental capacity—Individual exhibiting instances of forgetfulness during clinical interviews—Behaviour of individual during cross examination relied upon—Consistent theme in individual's answers—Applicable legal test to assess mental capacity—Whether individual was unable to make a decision—Sections 4 and 5 Mental Capacity Act (Cap 177 A, 2010 Rev Ed)

In Originating Summons (Family) No 71 of 2011 (‘OSF 71/2011’), the two plaintiffs applied under s 20 of the Mental Capacity Act (Cap 177 A, 2010 Rev Ed) (‘MCA’) for a court declaration that the third defendant, [BKR], was unable to make decisions for herself relating to her property and affairs, and for the court to appoint them (the respondents) as deputies to act in relation to [BKR] 's property and affairs. Apart from evidence relating to the mental capacity of [BKR], the respondents also adduced evidence relating to a number of ‘contemporaneous events’, which were instances where the first and second defendants had allegedly denied access to [BKR] or unduly influenced [BKR] to make certain decisions.

In coming to her decision, the senior district judge (‘the Senior District Judge’) considered, inter alia, the medical evidence, the clinical interviews that [BKR] went through, testimony of the medical experts, [BKR] 's performance during cross examination, as well as the various instances of undue influence and denial of access. The Senior District Judge eventually found, inter alia, that [BKR] lacked capacity to make decisions in relation to her property and affairs, and thus appointed the respondents as deputies to act in relation to [BKR] 's property and affairs. The Senior District Judge also made certain findings pertaining to the contemporaneous events against the first and second defendants.

The first and second defendants and the third defendant were represented by different counsel, and there were two appeals which were brought against the decision of the Senior District Judge. The first and second defendants appealed against the findings pertaining to the contemporaneous events, while the third defendant appealed against the finding of incapacity and appointment of deputies.

Held, granting the appeals:

(1) The jurisdiction of the District Court to hear cases involving mental capacity was derived from paras 2 and 3 of the Supreme Court of Judicature (Transfer of Mental Capacity Proceedings to District Court) Order 2010 (S 104/2010). The jurisdiction pertained to proceedings under the MCA. This meant that jurisdiction was seised only when the dispute involved an individual's mental capacity and matters connected therewith. ‘Matters connected therewith’ did not refer to any event that was merely loosely connected with the mental capacity of an individual, but referred instead to the various matters that were covered within the framework of the MCA. This would refer to the nine different parts of the MCA: at [14] , [17] and [19] .

(2) Under the MCA, the court would not be seised of the jurisdiction to hear the case if the dispute concerned the vulnerability, as opposed to the mental capacity, of the individual. If parties sought to protect the individual from instances of undue influence because of the vulnerability of the individual, they would need to rely on the inherent jurisdiction of the court: at [25] .

(3) The evidence of the respondents and the emphasis they placed on the contemporaneous events leading up to the application strongly suggested that the substantial dispute between the parties was not so much about [BKR] 's mental capacity as about her access and the undue influence which she was allegedly subjected to. As a result, the MCA did not apply and the Senior District Judge erred in finding that she had the jurisdiction to entertain the application: at [31] to [41] , [44] to [52] and [61] .

(4) The findings of undue influence that the Senior District Judge made were set aside as they are irrelevant to the issue of the mental capacity of [BKR] : at [63] .

(5) The legal test prescribed by the MCA to access mental capacity was governed by ss 4 and 5 of the MCA. Section 4 (1) made it clear that it was a two-step test. There was a functional component that the individual ‘is unable to make a decision for himself in relation to the matter’, and a clinical component that this inability stemmed from ‘an impairment of, or a disturbance in the functioning of, the mind or brain’: at [69] and [70] .

(6) Section 5 elaborated on what it meant when an individual was ‘unable to make a decision’. In determining whether an individual was able to make a decision, the requirements of ss 5 (1) (a) to 5 (1) (d) were to be read conjunctively, in that all four requirements had to be met - a person had to be able to understand, retain, and weigh the relevant information, and then communicate his decision if he was to be found able to make a decision. A deficiency in any one of these requirements would mean that the individual lacked mental capacity: at [71]

(7) The core principles of the MCA were to be found in s 3 of the MCA. Pertinently, s 3 (3) further elaborated on the functional component of the test for incapacity (whether an individual was ‘unable to make a decision’). The principle that ‘all practicable steps’ had to be taken to help an individual had to be taken into consideration in deciding whether an individual was unable to make a decision. Read with s 5, this meant that all practicable steps had to be taken to aid an individual to understand, retain, or weigh the relevant information, and to communicate his decision. The legal inquiry at the end of the day is to assess the individual's ability:at [74] and [77] .

(8) The functional component and the clinical component of the test were two separate components which were to be assessed differently. The MCA clearly specified how the functional component of the test was to be evaluated, while the MCA was silent on how one is to assess the clinical component of the test. The trial judge would therefore have to assess the clinical component of the test by considering the totality of the evidence before him, similar to any other issues before him. That said, while the two components were to be distinguished, the clinical component of the test invariably affected the functional component of the test: at [80] and [83] .

(9) The evidence clearly showed that the clinical component of the test was fulfilled - [BKR] was suffering from an impairment of the mind (although the degree of impairment was disputed). This was evidenced by the medical evidence and tests, the clinical interviews, her performance in court, and from the evidence of her bankers: at [94] and [97] to [100] .

(10) The totality of the evidence showed that the functional component of the test was not met. The Senior District Judge did not consider the principle that all practicable help should be given to an individual before determining whether the individual lacked capacity. The criticisms against the clinical interviews were unfounded. There was an over-reliance on [BKR] 's performance under cross-examination: at [108] , [122] and [131] to [135] .

(11) Although [BKR] demonstrated instances of failure of memory and misjudgement or misunderstandings, this had to be balanced by her overall demeanour as a person as well as the general consistency in some of her views. The evidence showed that [BKR] was able to express her views on, inter alia, wanting to invest in low-risk investments, recognising that she needed some form of assistance and wanted to donate to charity: at [140] to [147] .

(12) Consistent with the principles which the MCA enshrined, a declaration of incapacity should be as narrow as possible in order to preserve the autonomy of the individual as much as possible. In declaring the incapacity of an individual, the court was duty-bound to take an ‘issue-specific’ approach: at [165] , [166] and [175] .

(13) In deciding who should be appointed as deputies, the court had to take into account both the individual's past and present wishes and feelings: at [156] and [157] .

(14) The Senior District Judge's findings of the incapacity of [BKR] were too, wide and general as [BKR] was not suffering from such a severe stage of mental impairment. The Senior District Judge should have been more specific in her declaration of incapacity with regard to different transactions of different complexities. Consequentially, the scope of powers granted to the deputies could likewise have been more specific: at [182] and [184] .

(15) Even if...