Mental Capacity (Amendment) Bill – Speech by Leon Perera

Delivered in Parliament on 5 July 2021

Mr Speaker sir, the Mental Capacity Act Amendment Bill makes changes to bring about the digitalisation of LPA filing, changes in the filing of deputyship reports and the modification of the donor protection framework to help curb abuse. My Party Chair Ms Sylvia Lim has spoken in support of the Bill and has posed important clarifying questions and suggestions, as will my colleague Mr Louis Chua. I shall limit my speech to two technical suggestions for future consideration.

Firstly, under the Bill, making and submitting an LPA in hard copy may still be permitted but only under exceptional circumstances, such as in the case of physical disabilities or if the Office of the Public Guardian Online (OPGO) website is down, for example.

Some donors may not necessarily have physical disabilities but may be uncomfortable with the prospect of transacting purely online over such an important legal act. This phenomenon may have been elevated by the publicity surrounding internet frauds and personal data being compromised through various data breaches.

MSF says it will reach out to users in need through the Citizen Connect Centres at community centres and the Integrated Public Service Centre at Tampines Hub. I would like to ask to what extent will the government preserve this option, going forward, of human staff support for donors at Citizen Connect Centres who wish to register LPAs but who are uncomfortable with submitting the LPA purely online without any interaction with officials at a physical office.

Next, I would like to suggest that it be made mandatory for donees to notify the Public Guardian of their intention to exercise their authority to make very major decisions on behalf of donors that impact the donor’s living arrangements and finances before doing so, to better safeguard persons who lack mental capacity from abuse.

Some jurisdictions require proactive regular reports from donees or guardians, particularly those with financial responsibilities. In Victoria state in Australia, for example, administrators must submit financial statements to the Victorian Civil and Administrative Tribunal on an annual basis and otherwise as directed

The New York Mental Hygiene Law requires guardians to report on their activities. The guardian must file an initial report no later than ninety days after being appointed by the Court. In the initial report, the guardian who has been granted powers with respect to property management must document a complete inventory of properties and financial resources of the ‘incapable’ person. For personal needs, the guardian must provide a plan of care. The guardian must also file an annual report/accounting yearly as prescribed by the Court.

We do not necessarily have to go as far as what is being done in these jurisdictions at this very early stage in the evolution of the LPA landscape, since we also have to avoid imposing overly onerous burdens that may deter persons from becoming donees.  However, a basic requirement to notify the OPG when a donee exercises their powers under the Act as regards major financial and property-related decisions and major living arrangement-related decisions may be worth considering. The definition for what constitutes such major decisions could be clearly spelt out in the legislation.

Such a requirement would provide the OPG with more information on how powers are being exercised under the Act, which would be useful for subsequent policy reviews. Such a requirement may also make the donees take the exercise of their responsibilities more seriously when it comes to making major decisions on behalf of their donors.

I would stress that I am not suggesting that donees be made to file detailed descriptions of every single decision they make on behalf of the donor, or annual reports and so on, as this is too onerous.

Lastly, for the longer-term evolution of this body of law and regulation, would the government consider giving some thought to complementing a substitutive decision-making model for LPAs with a supported decision-making model in the future?

Currently, the Mental Capacity Act (MCA) adopts what can be termed a substitute decision-making model, which differs from the supported decision-making model now encouraged by the committee for the Convention on the Rights of Persons with Disabilities or CRPD.

Substituted decision-making enables a proxy to make decisions on behalf of another person who is incapable; therefore, the concerned individual has no right to make a decision for himself or herself unless the substitutive decision-making framework is reversed or mitigated through some form of legal action.

One counter-argument to this is that the substitutive decision-making model may not be as paternalistic as it sounds. In the words of Associate Professor Chin Jing Ji in an article in the journal of the College of Family Physicians, “Section 6 of the MCA defines best interests to include reasonably ascertainable past and present wishes and feelings, beliefs and values of the person, and other factors of significance [subsections 6(7)(a)-(c)]. Furthermore, the MCA insists that before an act is done, or a decision is made, due consideration must be made to achieve the intended purpose in a way that is less restrictive on the person’s rights and freedom of action.”

But at best, the MCA is ambiguous as to whether it wants primarily to advocate autonomy or beneficence for the person lacking mental capacity. This ambiguity could allow for some interpretation in favour of supported decision making at the practical level, but may also make decision-making challenging for the donee, potentially leading them to err on the side of caution, meaning to err on the side of paternalism.

It is known within the medical community that the best interests of patients can sometimes come into conflict with substitute decision-making. Clinicians may be left in a difficult position when best interest standards are in conflict with each other. Some argue that the role that the managing physician plays in consensus-building is a potential solution. This problem is further complicated by the presence of paid professionals in the LPA system. Professional donees with little knowledge (no more than the doctor) about the donor’s preferences might be more likely to employ a standardised, paternalistic approach towards decision-making.

The concept of supported decision-making is relatively new and is predicated on the basic principle that most people are autonomous beings who develop and maintain capacity as they engage in the process of their own decision-making, even if at some level support is needed.

In the supported decision-making paradigm, the individual receives support from a trusted individual, a network of individuals or entities to make personal, financial and legal decisions that must be followed by third parties such as financial institutions, business, health professionals, and service providers. Depending on the needs of the individual with a disability, the supported person will aid the individual to understand the relevant issues and information and make decisions based on her own preferences. If necessary, the supported person interprets and communicates the individual’s preferences and desires to third parties so that they can be realised.

As described in a paper by researchers Devi, Bickenbach and Stucki, Canada is one of the leading countries in the legal implementation of supported decision-making models, for example, the Vulnerable Persons Living with a Disability Act 1993 from the province of Manitoba. Another example is contained in the province of British Columbia’s Representation Agreement Act (RAA), under which an adult can enter into a ‘representation agreement’ with a trusted person or support service who is empowered to either to assist that individual in making and communicating certain decisions with which he or she needs assistance, or to make decisions for him or her. Another example of a supported decision-making model is the Swedish “legal mentor” who acts as the individual’s agent, with the individual’s consent. Sweden revoked its formal guardianship laws for adults with disabilities in 1989 and replaced it with this supported decision-making model.

Supported decision-making recognises that even people who have difficulty making choices, formulating decisions and communicating their preferences can make positive choices.

The CRPD Committee has repeatedly called for the replacement of substitutive decision-making systems with supported decision-making systems – for example, in its Concluding Observations on Croatia and also General Comment No. 1.

I wonder if the government would give some thought to developing instruments in the future that would enable us to make supported decision-making a legal option that donors can select alongside the options currently provided for. Moving in this direction may better promote and protect the rights of persons who require support in exercising their legal capacity in line with the degree of mental capacity they believe they have.

Thank you.