ULP and others v ULS

• Jurisdiction: Singapore
• Judge: Colin Tan
• Judgment Date: 07 May 2018
• Neutral Citation: [2018] SGFC 43
• Court: Family Court (Singapore)
• Docket Number: Originating Summons 95 of 2016, Summons 3475 of 2017
• Published date: 16 May 2018
• Year: 2018
• Hearing Date: 18 December 2017
• Plaintiff Counsel: Ms Joni Khoo and Mr Sukhmit Singh (Damodara Hazra LLP)
• Defendant Counsel: Mr Ashok Kumar Rai (Harry Elias Partnership LLP)
• Subject Matter: Mental Capacity Act
• Citation: [2018] SGFC 43

District Judge Colin Tan:

This was a case involving an application by the Plaintiffs to revoke a Lasting Power of Attorney (“LPA”) appointing the Defendant as Donee.

During the course of the proceedings, the Plaintiffs filed SUM 3475 of 2017 in which they sought the following orders: “1. That the Medical Records Office and/or Dr xxxxx at xxxxx Hospital do prepare and/or release medical report(s) relating to P’s mental capacity on and/or immediately before 30 June 2015, which are requested by the Plaintiffs, to the Plaintiffs in respect of the matter herein; 2. That Dr xxxxx file an affidavit affirming/swearing the above medical report(s); 3. Costs of and consequential to this application be paid by the Defendant to the Plaintiffs; and 4. Such further or other relief as this Honourable Court deems fit.”

It was clear from the correspondence exhibited in the affidavits that: the hospital was willing to “release the medical report requested” but they required either the Defendant’s consent or an Order of Court¹; and the Defendant was not prepared to consent to the release of the medical report².

Given that the Plaintiffs were seeking to make out a case that the Donor (“P”) of the LPA did not have mental capacity at the time that the LPA was executed, it was clear that evidence from Dr xxxxx (“P’s doctor”) would be relevant and helpful.

It was also clear that the problem lay in the Defendant’s refusal to consent.

This was also the position taken by the Plaintiffs. In their affidavit, the reason for the application was stated to be as follows:

“It is in the above context of the Defendant’s stubborn refusal to consent to the provision of relevant information on P’s mental condition at the time of creation of the alleged LPA that this Application is now necessitated.”³

Since the problem was the Defendant’s refusal to consent, the following options were open to the Plaintiffs: Section 20(2) of the Mental Capacity Act (“MCA”) provides that the court may, by making an order, make a decision on P’s behalf. It was therefore open to the Plaintiffs to apply to the court to decide on P’s behalf to authorise the release of the medical report to the Plaintiffs. This would have totally overcome the issue of the Defendant’s refusal to consent. Section 18(2)(a) of the MCA provides that the court may give directions with respect to decisions which the donee of a LPA has authority to make. It was therefore open to the Plaintiffs to apply to the court to give directions to the Defendant not to object to the release of the medical report or possibly even to consent to the release of the medical report. It was not entirely clear if the medical report sought by the Plaintiffs actually existed at the time of the application but given that the hospital’s e-mail referred to the “release” of the report, it might have been in existence and just awaiting a consent to release. If the report was already in existence, then the Plaintiffs could have filed an application for discovery against a non-party under rule 467 of the Family Justice Rules (“FJR”). Based on the Plaintiffs’ application, it appeared that what they wanted was P’s doctor to answer the question of whether P had mental capacity at the time that the LPA was executed. If this was all that was sought from P’s doctor, then potentially the Plaintiffs could have filed an application to administer interrogatories to a non-party under rule 495 of the FJR. In addition, if a party wishes to adduce evidence from a person who does not wish to file an affidavit, the attendance at trial of such a person can be compelled by a subpoena.

However, the Plaintiffs chose not to use any of the above options.

Instead, the Plaintiffs chose to base their entire application on section 36 of the MCA⁴ and division 37 of the FJR⁵.

Section 36 of the MCA states:

“The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if — (a) there is reason to believe that P lacks capacity in relation to the matter; (b) the matter is one to which its powers under this Act extend; and (c) it is in P’s best interests to make the order, or give the directions, without delay.”

The Defendant, on the other hand, argued that section 36 did not apply to the current matter. The Defendant’s arguments were as follows: section 36 of the MCA is identical to...