Cases to determine mental capacity need independent expert: Apex court

SINGAPORE — Calling for a change in the way court cases that determine a person’s mental capacity to run his personal affairs are conducted, the apex court said a more “sensible” approach would be for judges to direct the inquiry with input from an independent medical expert.

Currently, such cases under the Mental Capacity Act (MCA) are largely adversarial in nature, where duelling parties put forward their own medical experts to better their chances of being appointed deputy and take over control of what is usually a loved one’s personal affairs.

In a judgment released yesterday, the Court of Appeal said such hearings should take an inquisitorial approach instead because the interests of the person whose mental capacity is being assessed are “paramount”.

“The court’s role is a protective one and it should not shy away from taking control of MCA proceedings and directing parties on the evidence that it requires in order to reach its decision,” wrote Chief Justice Sundaresh Menon, who has also overseen reforms in the justice system recently to help families settle disputes less acrimoniously.

The court, comprising Appeal judges Chao Hick Tin and Andrew Phang as well, added that time and costs would also be saved if evidence are adduced in a more targeted manner.

The judges’ comments came in their decision on such a case involving a wealthy woman from a prominent family. Her siblings and two of her children wanted to be made deputies, arguing that she was suffering from dementia. But the woman herself, along with her youngest daughter and her husband, resisted their bids, saying she merely suffered from a condition known as Mild Cognitive Impairment.

During the hearing, the woman refused to have her mental capacity assessed by an independent medical expert, resulting in the matter being determined by way of cross-examination. And when her cross-examination did not speak well of her capacity, her lawyer sought to persuade the court that little or no weight should be given to it.

In its grounds of decision, the Court of Appeal said: “This was unsatisfactory and it illustrates the need for a sensible approach to be taken by parties, especially in the conduct of such cases.”

The judges added: “In our judgement, such cases under the MCA may be better dealt with if the court were to direct the inquiry, if need be, with an assessor.”

The court found the woman incapable of making “relatively complex decisions” concerning her property and affairs, and ruled that deputies should be appointed to make decisions on the woman’s behalf.

However, who these will be will be decided only after both sides make submissions on the precise scope of deputyship, the judges said. The appointment of an independent legal adviser accountable to the court will be considered, they added.

Commenting on the mooted change, family lawyer Belinda Ang said a court-appointed independent assessor would not only provide an impartial evaluation, but also help ensure that a mentally incapacitated person would not have to endure an arduous cross-examination.

“Family disputes are often very emotional and a person who is already mentally incapacitated should not have to go through a lengthy process in court. The best way would be to appoint an impartial expert to give an evaluation,” Ms Ang said.

Mr Koh Tien Hua, who is also a family lawyer, agreed that a court-appointed third-party independent assessor would lessen the adversarial nature of such court proceedings.