(Delivered in Parliament on 18 May 2018)
This Bill seeks to give the State certain powers to protect adults from abuse, neglect and self-neglect, and focuses on adults who are not able to protect themselves. Nobody can quarrel with such an aim.
Even as our intentions are noble, our perception of what is in the vulnerable adult’s best interest may not accord with theirs. There is a Bible passage that literally captures the powerlessness that older people feel as they become more dependent on others. In the Acts of the Apostles, Jesus is recorded as saying to his disciple Peter: “…When you were younger, you used to dress yourself and go where you wanted, but when you grow old, you will stretch out your hands, and someone else will dress you and lead you where you do not want to go”.
In this regard, I endorse the fundamental principles set out in Clause 4 of the Bill. Clause 4 provides that in exercising any of the powers under the Bill, a vulnerable adult must be respected and have the right of self-determination, and not be subject to any unnecessary restrictions on his rights and freedom of action.
While I support the rationale for the Bill, there are a few aspects of the Bill that concern me, which I shall summarise as follows:
1) What will be the division of work between the Ministry under the Bill and the Office of the Public Guardian?
2) What is the rigour of assessment to be applied before the State decides to intervene to change a person’s living arrangements? I am worried about possible government over-reach, causing unnecessary institutionalization of vulnerable adults, which itself would have harmful effects.
3) Would the definitions of “abuse”, “neglect” and “self-neglect” in the Bill inadvertently discriminate against the poor?
I raise these issues so that the Ministry can clarify, in order to have greater public understanding of how the Bill will operate.
In addition, I will touch on some areas that need further attention to enable vulnerable adults to live fuller lives.
DIVISION OF WORK UNDER BILL & OFFICE OF PUBLIC GUARDIAN
Under the Mental Capacity Act, the Public Guardian’s office was set up to perform certain functions vis-à-vis mentally impaired persons. These functions include supervising the way donees and deputies perform their duties under Lasting Powers of Attorney and Court Orders. The Public Guardian is tasked with looking into complaints about donees or deputies who do not act in the person’s best interest, either in managing his personal welfare or his property and affairs.
When this Bill is in place, there will be some overlap when it comes to a vulnerable adult’s personal welfare. I assume that this Bill will tackle the cases where there is no donee or deputy appointed. But the Bill also covers cases where there are donees and deputies, as seen e.g. in Clause 6. The question then arises: Should there be a case involving donees or deputies that requires State intervention, to whom should a complaint be made, to the Director of Social Welfare under this Bill, or to the Public Guardian under the Mental Capacity Act? Or can both be pursued concurrently?
Additionally, the Bill does not cover abuse of a vulnerable adult’s financial assets. Where there are donees or deputies appointed, a complaint can be made to the Public Guardian that the donee or deputy has acted in bad faith. But if there is no donee or deputy, the Ministry has stated that the police would investigate any criminal offences reported. While the criminal justice system is geared towards punishment, how does one undo or reverse financial transactions, so as to restore monies or properties to the vulnerable adult? One can always apply to Court if one has the means; but what if a person does not have the means or does not have any family member to do so?
RIGOUR OF ASSESSMENT, RISK OF GOVERNMENT OVER-REACH
In discussing this area, my concern is about mentally impaired persons and the State’s power to remove a vulnerable adult from his current residence. The State can do this if the person is assessed to be suffering from abuse, neglect or self-neglect.
I believe that the government would not wish to be overzealous in exercising such powers. Earlier, the Minister affirmed that social work interventions would need to be exhausted first before the Bill is utilised. Indeed, excessive intervention will harm the vulnerable adults and also be an unreasonable burden on public resources.
To this end, the State’s power under the Bill is correctly limited.
According to Clause 4, a vulnerable adult’s views must be respected if he is able to make his views known. Clause 4(b) states that where he has mental capacity, he is generally best placed to decide how he or she wishes to live and whether or not to accept any assistance. Even where he lacks mental capacity, Clause 4(c) makes it clear that his views, whether past or present, wishes, feelings, values and beliefs, where reasonable ascertainable, must be considered.
Ascertaining the wishes of a person with dementia can be tricky. From my personal experience with family members and constituents with dementia, dementia is not a static condition. There are good days and bad days, with moments of lucidity when the person seems to think normally. Dementia patients may speak clearly at times, but do they understand the implications of the wishes they are expressing?
I would be slow to support the institutionalisation of dementia patients even if things are not ideal at home. Being institutionalized generally comes with a loss of pride and a loss of autonomy, having to live by an institution’s rules. Dementia patients can be very agitated and difficult to handle in unfamiliar environments or when surrounded by strangers. Moving such a person from his home to an institution would likely be very damaging to the person’s psychological and emotional well-being.
What rigour of assessment will be used before such drastic intervention will be triggered? What standard of care do we expect from caregivers when they care for vulnerable adults?
We usually see caregivers being spouses or children, who love their family members deeply. However, caring for dementia sufferers is onerous, exhausting and physically risky. Spouses are often elderly and frail themselves. Caregivers may also have other obligations, such as work or caring for other family members. The Minister’s earlier example of Mdm Chua and her family illustrate this point. Caregivers are often not medical or healthcare professionals. By what yardstick will they be assessed if a complaint is made?
In this regard, there are somewhat wide definitions in the Bill about what amounts to abuse, neglect and self-neglect.
According to Clause 2, a vulnerable adult may be considered to be abused if he is subject to physical, emotional or psychological abuse, is subject to domination or has been unreasonably deprived of liberty of movement or well-being. This raises some pertinent questions.
For instance, if a caregiver decides not to bring the person out because she cannot manage him in public, is that an unreasonable deprivation of liberty? As for being unreasonably deprived of well-being, the illustrations need closer scrutiny.
Let’s take Illustration (b). It states that if a caregiver does not dress the adult after bathing her, and leaves her unclothed in a room with windows open that can be seen by neighbours, that amounts to depriving a person of her personal dignity. While the modesty of the individual certainly needs respect, there could be valid reasons why the caregiver left the adult as such after a bath. For instance, it could be that the caregiver needed some time to prepare medicines that need to be applied on the person’s body. Perhaps the caregiver needed to attend to an urgent phone call or other task. Illustration (c), too, is worth noting. It speaks of a caregiver who refuses to allow a vulnerable adult to receive visitors. But what if the caregiver did so because the adult had reacted badly to visitors in the past, shouting at them and even pushing them away? What if the visitors are young children, who might be traumatized to witness such behaviour?
Before the State exercises its drastic powers of intervention, I would expect that a case by case, subjective assessment would have to be made.
INADVERTENT DISCRIMINATION AGAINST THE POOR?
How will the definitions of “abuse”, “neglect” and “self-neglect” impact poor families or individuals? For instance, we sometimes see multi-generation families living in small rental flats; will a vulnerable adult sleeping on a mattress without a proper bed be considered “neglected”? What if the vulnerable adult would benefit from certain treatment which requires payment, but he does not have the means to pay for it? For instance, there are psychiatric drugs to treat aggression, but some of these drugs are not subsidized and are costly especially when prescribed long-term. Will the vulnerable adult be considered neglected if the family cannot afford such treatment?
How will the government approach such cases? I am not saying that the Bill intends to discriminate against the poor, but could this be an inadvertent result?
AREAS FOR REVIEW
The government has been increasingly active in addressing issues such as aging and mental health. For instance, the government has enabled parents of disabled children to access a simplified, low-cost procedure to be appointed as deputies when their children reach adulthood.
Another scenario I have come across is that of adults who lose their mental capacity later in life, and have modest bank balances. From time to time, they also receive some top-ups from the government, which go into their bank accounts. Because of their lack of capacity, they are unable to sign documents and family members are unable to access those monies for their medical treatment or upkeep. With small balances like say $5,000 or $10,000, it does not make sense for family members to fork out say $6,000 in legal fees to apply to Court to be appointed deputies, especially when the money has to be paid upfront by them. Can the government look into how the process of deputyship in such cases can also be streamlined and made cost-effective?
My next point is about increasing the social space for vulnerable adults to engage in public activities.
We have made concrete efforts to introduce barrier-free access for those who have physical disabilities. In the case of mental impairment, however, there is less public understanding of the condition.
Families with dementia sufferers tend to limit their social lives, due to the discomfort caused in public by the odd behaviour of their family members. Families often reduce or even avoid outings. This is an area that we can continue to work on. With greater public understanding of dementia and its manifestations, society can show kindness and support towards families and individuals stricken with mental illness, and be more welcoming and understanding towards such families. Public education efforts can be stepped up to increase awareness of conditions like dementia. I agree with Minister that all of us can play a part in this.
Finally, if institutionalising a vulnerable adult is unavoidable, how can we cushion the transition to institutional life? The institutions involved could make life more bearable by little gestures to preserve the person’s individual identity and autonomy. For instance, instead of requiring residents to wear a uniform, could they be allowed to don their own clothing? Could residents be encouraged to have a space to place family photographs and other effects from home? These seemingly small gestures will go a long way to reassure the individual in an unfamiliar institutional environment.
In summary, I am in support of the government’s efforts in the Bill to plug a gap in protecting vulnerable adults. As mentioned earlier, the powers given in the Bill need to be judiciously used, so as not to result in government over-reach and unnecessary separation of vulnerable adults from their home and family settings. There is also room for improvement to give vulnerable adults the assurance that society as a whole understands their plight and sees them as integral members.