TWD v TWE

• Jurisdiction: Singapore
• Judge: Colin Tan
• Judgment Date: 28 December 2016
• Neutral Citation: [2016] SGFC 163
• Court: Family Court (Singapore)
• Docket Number: Originating Summons 36 of 2016, SUM 1340 of 2016
• Published date: 07 January 2017
• Year: 2016
• Hearing Date: 18 July 2016,31 May 2016,01 June 2016,21 July 2016
• Plaintiff Counsel: Vivienne Sandhu & Annsley Wong (Clifford Law LLP)
• Defendant Counsel: Nicholas Yong (United Legal Alliance LLC)
• Subject Matter: Mental Capacity Act
• Citation: [2016] SGFC 163

District Judge Colin Tan: Introduction

This case concerned an application under the Mental Capacity Act (“MCA”) for the appointment of Deputies for a person who was alleged to lack mental capacity (“P”).

The Applicants are the mother and sister of P and claimed that, as a result of injuries sustained in a road traffic accident in April 2015, P lacked mental capacity¹.

The person who was liable to pay damages to P in relation to this road traffic accident (“the Intervener”), with the assistance of his insurers, sought to be joined as a Defendant. The reasons for his application were as follows: an order in this MCA application would amount to evidence to support P’s claim for damages against him and would prejudice his rights when defending such a claim; and there was evidence which called into question the extent of P’s incapacity which he wished to adduce in these proceedings.

In response to concerns raised about privacy, confidentiality and the scope of his challenge in this application, the Intervener confirmed that he was prepared to limit the scope of his involvement in these proceedings to the issue of P’s mental incapacity only².

Applicants’ medical report on P

The key portions of the Applicants’ psychiatrist’s report on P, based on an examination of P on 20th November 2015, were as follows: “At the time of assessment (about 8 months after the accident), he was independent in the basic activities of daily living but needed supervision and assistance in the instrumental activities of daily living such as taking public transport or making small purchases. He is able to do crossword puzzles and prepare a meal for himself. He is not able to return to school yet.”³ “He was calm, forthcoming and interacted appropriately with me and his mother. His mood was euthymic but his affect was blunted. He was slow to respond and gave simple and concrete answers to my questions. He was able to report his daily routine, abilities and weaknesses accurately. He was unaware of the amount of savings he has, the legal process that he is going through and the purpose for it, and is unaware of the financial payout that is pending. He was able to give good estimates of his daily expenditure but needed guidance to estimate his monthly expenditure. He was able to estimate how much a meal in a restaurant would cost and how much a shirt would cost, but was unable to estimate how much a car or a flat would cost. When asked what he would do if he had $100,000, he said he would put it in the bank and withdraw what he needs from the Automated Machine (ATM) every day. He was unable to demonstrate forward planning and organisation when given a hypothetical situation such as finding his way to a new place. He denied any delusions, hallucinations or suicidal thoughts. He had partial insight into his cognitive difficulties as he believed that he could go back to school straightaway and handle his own finances. However, he did not and would not disagree with receiving help from his family in this respect.”⁴ P was able to understand, retain and communicate information relating to his personal welfare and property and affairs but was unable to weigh such information as part of the process of making a decision⁵. “He is still recovering neurologically and is expected to improve further over the next 2 years.”⁶ P is likely to regain mental capacity and a further assessment should be carried out in 2 years’ time⁷. P would understand if he were to be informed of this MCA application⁸.

It was therefore clear on the face of the Applicants’ own medical report that P’s mental lack of mental capacity was not a clear-cut matter since there were many things which he was capable of doing and also his condition was improving and was likely to continue to improve further to a point where he would be likely to regain mental capacity.

In respect of the likelihood of P regaining mental capacity, the medical report form provided three options: (a) yes, (b) no, (c) not sure. Given that P’s doctor had selected “yes” instead of “not sure”, it appeared that P’s doctor was pretty confident that P would eventually regain mental capacity.

P was notified of this application by the Applicants but he did not take any steps in these proceedings⁹.

Interim order

The Applicant’s counsel sought an interim order appointing Deputies for P in order for the interim payment from the insurers to be handed over to them.

As the only evidence available at that point in time showed that P appeared to lack mental capacity to deal with this payment and as P, despite having been notified of these proceedings, had not taken any steps to object and, furthermore, as the cheque made out to P was about to expire, I granted an interim order appointing the Applicants as Deputies for P with powers limited to the following: depositing the cheque from the insurers into P’s bank account; and instructing P’s bank that there were to be no withdrawals from this bank account by any party until further order by the court¹⁰.

Intervener’s evidence

In support of his application, the intervener submitted a private investigator’s surveillance report which showed the following: On 1st October 2015, P was seen “walking by himself” and also “keying on his hand phone whilst walking at the void deck”¹¹. On 3rd October 2015, P was seen “walking by himself” and “chatting with the family” at Ngee Ann City Shopping Mall¹².

Tan Tock Seng Hospital document produced by the Applicants

The Applicants exhibited a document from Tan Tock Seng Hospital entitled “Financial Counselling Form” in their affidavit¹³.

This form covered the following matters (based on the headings of the various paragraphs): estimated bill size and length of stay; deposit top-up which would be requested if interim expenses were to exceed the deposit paid; outpatient follow up after discharge; Medisave / Medishield Life or Medisave-approved Integrated Shield Plan / Medifund schemes; change of ward class during the hospital stay; discharge time; and over-staying.

It also contained an acknowledgement which was as follows:

“I hereby acknowledge that I have undergone financial counselling on page 1 and 2 and irrevocably agree and undertake to pay in full the final hospital charges arising from the intended treatment / procedure(s), including all or any treatment / procedure(s) necessitated by all or any complications arising from such treatment / procedure(s), notwithstanding that the final Hospital charges may differ from or exceed the initial estimates given to me or the patient, depending on the actual treatment / procedure(s) and care administered.

I understand that l / the patient may be transferred to the ward for the level of medical care as deemed appropriate by the doctors and / or the Hospital.”

I noted that the form was signed by P on 14th April 2016 and the form also bore the signature of the member of the hospital staff who conducted the financial counselling.

I was of the opinion that this form lent support to the Intervener’s allegation that there were serious questions about P’s alleged lack of mental capacity since it appeared, on the face of the form, that the hospital staff who conducted the financial counselling must have felt that P was able to understand the information given and to sign the form.

Furthermore, the form envisaged situations where the explanation would be given to, and acknowledged by someone other than the patient as the form had an option for it to be signed by a relative or even a non-relative of the patient. The options available were: (a) parent, (b) spouse, (c) child, (d) friend, (e) work supervisor, (f) employer, (g) others.

Therefore, the fact that the form was signed by P rather than someone else gave support to the view that the hospital staff must have felt that P was able to understand the matters set out in the form.

Intervener’s submissions

The Intervener relied on the following: Rule 178(2) of the Family Justice Rules which states:

“The Court may order that a person be joined as a party, if the Court considers that it is desirable to do so.”

The view of Professor Jeffrey Pinsler in Singapore Court Practice 2014 where he stated:

“However, the court has a broad discretion to add a person as a party in the proceedings, as provided by the words ‘considered that it is desirable to do so’ in r4(2).”¹⁴

That both the Family Justice Rules and Practice Directions envisage a situation where a person who is not a relevant person can apply to be joined as a party in MCA proceedings¹⁵. If the Applicants obtain an order for the appointment of Deputies, it would prejudice the Intervener in the civil suit concerning the application as “there would be a presumption that P’s injury was severe enough to require the appointment of deputies”¹⁶. There was evidence from surveillance which called into question P’s alleged mental incapacity¹⁷. The English Court of Appeal case of Gurtner v Circuit [1968] 2 WLR 668 where the Motor Insurers’ Bureau was added as a defendant in proceedings on the basis that the determination of the action would directly affect their rights since they had to pay damages. The Singapore High Court case of People’s Parkway Development Pte Ltd v Ramanathan Yogendran [1990] 2 SLR(R) 338 where the court held that the defendant, who was in a position analogous to an insurer, had not been informed of the proceedings between the plaintiff and a third party and was therefore not liable on an earlier undertaking given by the defendant to pay sums ordered against the third party.

The position in Gurtner v Circuit, while not identical to the current case, nevertheless bore a certain similarity to the position in this case, and it was summarised by Lord Denning MR as follows:

“If the Motor Insurers’ Bureau are not allowed to come in as defendants what will...