Re Bkr

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judgment Date: 19 May 2015
• Docket Number: Civil Appeal No 27 of 2014
• Date: 19 May 2015

[2015] SGCA 26

Court of Appeal

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

Andrew Phang Boon Leong JA

Civil Appeal No 27 of 2014

Re BKR

Sarjit Singh Gill SC, Terence Seah Yong Guan and Sarah Liyana binte Yazid (Shook Lin & Bok LLP) for the appellants

Lee Eng Beng SC, Kelvin Poon, Low Poh Ling and Wilson Zhu (Rajah & Tann LLP) for the first and second respondents

Alvin Yeo SC, Monica Chong, Aw Wen Ni and Chan Xiao Wei (Wong Partnership LLP) for the third respondent.

A, Re [2011] Fam 61 (refd)

A Local Authority v DL [2011] EWHC 1022 (Fam) (refd)

Cheshire West and Chester Council v P [2011] EWHC 1330 (Fam) (refd)

L (No 2) , Re [2013] Fam 1 (refd)

London Borough of Redbridge, The v G [2014] EWHC 485 (COP) (refd)

R v Cooper [2009] 1 WLR 1786 (refd)

Wandsworth Clinical Commissioning Group v IA [2014] EWHC 990 (COP) (refd)

York City Council v C [2014] Fam 10 (refd)

Mental Capacity Act (Cap 177 A, 2010 Rev Ed) ss 3 (3) , 4 (1) , 5 (1) (consd) ;ss 3, 3 (2) , 3 (4) , 4, 5, 5 (4) , 6, 19 (1) , 20, 20 (2) (b) , 20 (4) (b) , 25 (1) , 25 (5)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 99 r 8 (consd) ;O 99 r 8 (1) , O 99 r 8 (2) , O 99 r 8 (3) , O 99 r 8 (4) , O 99 r 8 (5) (a)

Court of Protection Rules 2007 (SI 2007 No 1744) (UK) rr 95, 120, 121, 130 (1) , 130 (3)

Mental Capacity Act 2005 (c 9) (UK)

Mental Disorders and Treatment—Legal capacity—Woman suffering from mental impairment with nature and degree of that impairment a disputed matter—Woman's sisters alleging that she was unable to make decisions relating to her property and affairs and that she had come under undue influence of her daughter and son-in-law—Assessing mental capacity by taking into account woman's performance in clinical interviews with medical professionals and under cross-examination in court—Whether mental impairment was dementia or ‘Mild Cognitive Impairment’—Whether woman was unable to make decisions relating to her property and affairs—Whether weight should be given to woman's performance under cross-examination in assessing her capacity—Whether woman could be said to lack mental capacity where her inability to make decisions was caused not by her mental impairment alone but by combination of mental impairment and undue influence—Sections 3 (3), 4 (1) and 5 (1) Mental Capacity Act (Cap 177 A, 2010 Rev Ed)

This appeal concerned an application made pursuant to the Mental Capacity Act (Cap 177 A, 2010 Rev Ed) (‘the MCA’) for a declaration that a woman (‘BKR’) was unable to make decisions as to her property and affairs because of an impairment of or a disturbance in the functioning of her mind or brain. This application was made by two of BKR's sisters and supported by a number of BKR's other siblings and two of her three children including her only son (‘CK’). However, it was opposed by BKR herself, as well as her younger daughter (‘AUT’) and AUT's husband (‘AI’).

It was common ground that the functioning of the BKR's mind was impaired in some way, but there was no accord as to the nature or the degree of that impairment. BKR's sisters took the position that BKR had dementia and that this had caused (a) significant deterioration in her memory, (b) a decline in her executive functioning and (c) the development of paranoid and/or false beliefs, such as prevented BKR from being able to make decisions relating to her property and affairs. On the other hand, BKR denied that she had dementia; her case, which AUT and AI aligned themselves with, was that her condition was nothing more serious than ‘Mild Cognitive Impairment’ (‘MCI’) and that the effects of MCI were insufficient to deprive her of decision-making capacity.

Mixed up with this issue of BKR's mental impairment were allegations of undue influence; it was a disputed matter whether these allegations were even relevant to the application under the MCA. BKR's sisters and all who supported the application alleged that AUT and AI had sought to take advantage of BKR's diminished mental capacity to cut her off from her other family members and to manipulate her for financial gain. But BKR's own belief was that the application was in reality an attempt by her son CK, abetted by her sisters, to achieve control of her substantial wealth.

The critical events leading up to the application under the MCA were: (a) BKR's setting up a trust (‘the Trust’) that appeared to bring benefit to AUT but not to herself, (b) BKR's giving a succession of contradictory instructions to her bankers in relation to the transfer of her assets in two banks to a third bank, which culminated in an apparent decision to make such a transfer, and (c) BKR's going overseas to live with AUT and AI and cutting off contact with her other children and her siblings despite their efforts to gain access to her. It was alleged by BKR's sisters that BKR had been unable to make all these decisions because they had been made in the shadow of her dementia and the undue influence exerted over her by AUT and AI.

The application was heard at first instance by a senior district judge in the Family Court (‘the SDJ’), who found that BKR lacked decision-making capacity and appointed BKR's sisters as her deputies. The SDJ also found that AUT and AI had exercised undue influence over BKR and prevented her family members from getting access to her. Dissatisfied with the SDJ's decision, BKR, AUT and AI all appealed and the matter went before the High Court judge below (‘the Judge’). The Judge allowed the appeal. She held that, in the first place, the SDJ had not even had the jurisdiction to entertain the application because the ‘substantial dispute’ in the present case concerned undue influence and access to BKR and not BKR's mental capacity. The Judge consequently set aside the SDJ's findings of undue influence. She also found that, in any event, BKR did not lack capacity within the meaning of the MCA. BKR's sisters were dissatisfied with the Judge's decision and brought the present appeal.

In coming to her conclusion that BKR lacked mental capacity, the SDJ had taken into account BKR's performance in clinical interviews with medical professionals whom she herself had instructed, as well as BKR's performance under cross-examination in court. The Judge, however, took the view that, because of the principle in s 3 (3) of the MCA, cross-examination was of little utility in assessing BKR's mental capacity, and that any such assessment should be based in large part on the clinical interviews instead. Hence the Judge gave little weight to BKR's cognitive deficiencies manifested in her responses under cross-examination. BKR's sisters argued that the Judge had erred in adopting this approach.

The single core issue in this appeal was whether BKR lacked mental capacity - that is, whether she was unable to make decisions within the meaning of s 5 (1) of the MCA because of an impairment of her mind. This issue gave rise to a more general and fundamental issue, namely, what was the approach that the court should take in proceedings under the MCA concerning the mental capacity of a person where there was an interaction between (a) mental impairment afflicting that person and (b) allegations that the person had come under the undue influence of other persons. In addition, BKR's sisters put forward a threshold objection to the Judge's decision, which was that the Judge's appointment of a litigation representative for BKR pursuant to O 99 r 8 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) had been improper, with the consequence that the appeal before the Judge had not been properly constituted to begin with.

Held, allowing the appeal:

(1) The threshold objection relating to the Judge's allegedly improper appointment of a litigation representative should be dismissed because, if the Judge's finding that BKR did not lack capacity were affirmed, it would follow that she never needed a litigation representative at any time, and it would be against all reason and common sense to decline to hold that BKR had capacity on the ground only that a litigation representative had been improperly appointed at some earlier time: at [85] to [87] .

(2) Where there was an interaction between mental impairment and allegations of undue influence in proceedings under the MCA in which a person's mental capacity was in issue, the court had to have regard to the actual circumstances in which that person lived, and ought not to adopt a theoretical analysis that overlooked those circumstances. In so far as the words ‘because of’ in s 4 (1) of the MCA required that there be shown a causative nexus between a person's mental impairment and her inability to make decisions, there was no additional requirement that her mental impairment be the sole cause of the inability to make decisions. The required causative nexus would be established even where the person's inability to make decisions was caused by both her mental impairment and actual circumstances: at [88] to [120] .

(3) Since the court had to have regard to BKR's actual circumstances in determining whether she lacked mental capacity, it followed that the Judge was wrong to have held that the SDJ at first instance had lacked jurisdiction to hear the application under the MCA just because very substantial allegations of undue influence had been raised. It followed also that the Judge was wrong to have set aside the findings of undue influence made by the SDJ: at [121] to [127] .

(4) Furthermore, the Judge was wrong to have held that BKR's responses under cross-examination in court were of little utility in assessing her mental capacity. While cross-examination was a less-than-ideal environment in which to take the measure of a person's mental capacity, BKR's clinical interviews were also an unsatisfactory basis for an assessment of mental capacity in that they had not been rigorous or probing enough, and had been conducted by medical professionals who professed to...