MENTAL CAPACITY BILL

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MENTAL CAPACITY BILL: Debate resumed.

6.06 pm

Ms Sylvia Lim: Madam, as mentioned by the Minister in his Second Reading speech, the Bill was modelled after the UK Mental Capacity Act 2005. I have done a comparison with that UK Act and I noted that there were some interesting departures from the UK model on which I would like to ask the Minister for some clarifications.

The first concerns the Lasting Powers of Attorney (LPA) which confers powers on the donee to deal with the property of the donor who is called "P" in the Act. Clause 14 allows a donee to make gifts out of P's property. Since the gifting will be done while P is alive, the donee should act conservatively so as not to deplete P's property which can be used for P's healthcare and other needs. However, there is no mention in the Bill about who the donee can make gifts to or for what

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purpose. In contrast, the UK legislation specifies that gifts should be made by the donee only on customary occasions, eg, anniversaries or birthdays, and to persons related or connected to P, or to charities as P would have done. Is it not prudent that we should similarly write into the Act the conditions under which the donee can make gifts on P's behalf?

Madam, the next few issues relate to the role of the court under the proposed Act.

First, I note that, in the UK, a special court of protection is set up to handle applications under the Mental Capacity Act. This clearly signals the protective function of the courts in such applications, and will develop judicial expertise and smooth interfacing between the court and social agencies involved in such matters. By contrast, the Bill provides for such applications to be heard in the High Court, presumably by generalist judges. Did the Government consider the benefits of setting up a special court instead?

Second, under clause 23(1), the court can make certain decisions on P's behalf, including the execution of a will, which the Minister touched on earlier. While I note that the UK provisions also have this provision, I have some discomfort over this as my question is: when would it be right to execute a will on behalf of P? People die intestate every day, as mentioned, and the rules of intestacy will apply to distribute property to family members in a certain default order. On the other hand, if there had been a will previously executed by P while he had capacity, it should not be easily rewritten. People are entitled to make quirky decisions on their own property.

Earlier, the Minister mentioned that the re-execution of the will or the

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execution of the will by the court will be made in the person's best interests and not in the beneficiary's best interests. I wonder if he could clarify this statement further, because the will only kicks in when the person is dead. So, it obviously has to be made in the interests of the beneficiaries. Will we have a case where the court is substituting its own judgment as to what is a fair distribution of property and taking that away from P?

Next, the UK Act provides for a service called the Independent Mental Capacity Advocates (IMCA) service for persons who are mentally incapable and may not have next-of-kin or appointees. These independent advocates are provided by the state and function as independent persons to watch out for P's welfare when he is faced with two types of decisions:

(1) whether to undergo serious medical treatment; or

(2) whether to effect a change of accommodation.

Such an advocate would support P in various ways. For instance, he would look at the options available, ascertain what P's feelings and wishes are likely to be, and work collaboratively with the healthcare professional or administrator before decisions are made. Since there is nothing in the Bill about this, would the Minister like to explain how this gap will be closed? For instance, if there is a destitute dementia patient with no family, how would his interests be protected?

Next, the Bill also gives the Public Guardian very wide powers to ask for information and documents, for example, under clause 32. Under the UK Act, the kinds of documents that the Public Guardian can call for are health, social records and care records. By contrast, our Bill does not limit the power to any particular class of documents. It is further

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provided that the Public Guardian is to be given "full and free access" to buildings, books, papers and electronic records. These powers seem very draconian. The only people exempted from compliance are lawyers who need not disclose confidential client information. What about others with duties of secrecy, for example? Are we now to assume that P's bankers are required to disclose information about P's property without any court order?

Finally, Madam, the Public Guardian's annual report. Clause 34 requires the Public Guardian to present his report to the Minister – presumably the Minister for Community Development, Youth and Sports – but not to Parliament. Under the UK law, the Public Guardian presents his report to the Lord Chancellor who must, within one month, lay the report before Parliament. I wonder why the Minister does not adopt a similar disclosure of the report to Parliament.

6.12 pm

Mr Hri Kumar Nair (Bishan-Toa Payoh): Mdm Deputy Speaker, I rise in support of the Bill. I apologise for my lack of voice. I am down with a flu.

Let me first declare my interests. In 1999, I was a member of a sub-committee of the Academy of Law chaired by a High Court Judge, which recommended extensive changes to then Mental Disorders and Treatment Act. This Bill is a vast improvement over various provisions of the old Mental Disorders and Treatment Act. The most significant change is the recognition of the concept of limited incapacity, ie, that while an individual may lack the capacity to make some kinds of decisions, he may well have capacity to make others. The old Act did not make that distinction. Further, an application under the old Act to appoint a Committee of Estate or Person required a finding that the subject

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was “unsound” and incapable of managing his affairs. That was because the old Act was based on the English Lunacy statutes, which have long since been repealed. Hopefully, applications under this Bill will not carry the same stigma.

I also applaud the introduction of the Lasting Powers of Attorney as this enables individuals to have as much say as possible over their own welfare and property even after they no longer have capacity to make decisions.

Mdm Deputy Speaker, let me touch on some technical aspects of the Bill and seek some clarifications.

Firstly, the issue of abuse and publicity. Under clause 38(2), and save for a narrow class of persons set out in clause 38(1), any person may apply to appoint a deputy over another person with the permission of the Court. However, any application under the Bill, even one for permission to apply, may cause embarrassment to the subject and his family. The fact of the application may be reported by the newspapers using their right to report on judicial proceedings. In the circumstances, while a frivolous application will no doubt be dismissed by the Court, the damage from the adverse publicity to the subject and his family may already be done. I therefore believe it would be preferable for any application for permission of the Court under clause 38(2) be heard in camera. This will protect the subject and his family. If the application for permission has merit, the main application can be heard in open court consistent with the principle of open justice.

Secondly, there should be stricter rules relating to those who apply. In particular, the applicant should be made to declare if there are any conflicts or facts relating to him which may make him

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unsuitable to be appointed a deputy, eg, where he has previously been made bankrupt or convicted of any offence involving dishonesty or sexual misconduct. The Bill does not provide for any obligation to disclose.

Thirdly, there should be greater supervision of the appointed deputy. Clause 24(10) provides that the Court may require the deputy to submit to the Public Guardian such reports as the Court may direct. The Bill should make clear that, unless the Court otherwise directs, such reports should include regular medical reports on the subject person. If there is a change in the subject person’s health, the deputy’s appointment may no longer be necessary. But where the deputy finds himself in an advantageous position, he may be reluctant to give up his appointment. The Public Guardian may not have the resources to supervise or scrutinise each case. It would therefore be prudent to allow an independent third party, such as a doctor, to have regular access to the subject person to ensure that his interests are being taken care of and there is a need to continue the appointment of the deputy.

Fourthly, clause 32(4) and (5) gives extraordinary powers to the Public Guardian to have full and free access to all buildings, places, documents, etc, and to take away such documents in the discharge of his duties. There is already a provision under clause 32(1) which gives the power to the Public Guardian to require any person to deliver any information or documents under the pain of penalty. So what is the purpose of these wide powers under clause 32(4) and (5)? If there is any suspicion of criminal offence, the Public Guardian should enlist the assistance of the police, and the provisions relating to search and seizure under the Criminal Procedure Code

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will apply. If there is no suspicion of any criminal offence, it is difficult to see why the Public Guardian requires such wide powers under clause 32(4) and (5). Even if necessary, such power should only be exercised with the leave of the Court.

In this regard, I have some concerns with respect to clause 32(9). This provides that clause 32 shall not compel a professional legal adviser to disclose or produce any privileged communication made by or to him in that capacity. This recognises the principle of legal privilege and the importance of preserving the confidentiality of privileged communication. There are, however, two problems with clause 32(9). First, the common law definition of legally privileged information does not just include communication made by or to the professional legal adviser. Why therefore have that qualification? Will the Minister confirm that the exception under clause 32(9) will apply to all communications which the common law regards as privileged?

Second, the privileged communication on document will in all likelihood also be in the possession of the client. But the Bill only gives protection to the legal adviser from disclosure. The Bill, therefore, suggests that the client is required to produce all legally privileged materials in his possession. If so, that undermines the fundamental basis of legal privilege. Could the Minister clarify whether this is the intention of the Bill?

Finally, and in conclusion, this Bill has wide-ranging implications. It is a good Bill and Singaporeans and others should be made aware of the various avenues available to them to help manage the personal and property affairs of those who are mentally incapable. In this regard, I share the call of the MPs before me that the Ministry devotes enough resources to educate Singaporeans on this law.

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6.18 pm

Assoc. Prof. Kalyani K Mehta: Thank you, Mdm Deputy Speaker, for giving me the opportunity to speak on the Mental Capacity Bill.

It symbolises the determination and the concern of the Government to protect the interests of persons who lack the capacity to make decisions for themselves due to, I quote, "impairment of, or disturbance in the functioning of, the mind or brain." Importantly, an assessment by a certified medical practitioner is required to establish that the individual lacks capacity. In Singapore it has been documented that there are 22,000 persons suffering from dementia, and each year 7,000 are diagnosed with the disease. (This is from a Straits Times' report "Alzheimer’s set to grow with ageing Singapore", 22nd September 2007). With an ageing population, this group of dementia patients will definitely grow, and their welfare has to be protected, as the Minister has described earlier. On the other hand, the lifespan of mentally disabled persons is also increasing. Hence, we face the future scenario of a sizeable sector of older people, who are likely to be neglected or abused, unless individuals are empowered by state legislation to do proper planning.

The Bill addresses the difficult question that troubles many elderly: how can I ensure that good and proper care will be exercised if and when I am not capable of deciding about my own medical treatment, day-to-day decisions, financial matters or even housing? The Bill provides for the nomination of a donee (or donees) in an affordable way, through the Office of the Public Guardian. The Bill clearly spells out the limitations of the donee’s power as well as age, ie, minimum 21 years. The donee cannot change the will, Advance Medical Directive, or CPF nomination made earlier by the donor.

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There are safeguards in place to limit the lasting Power of Attorney of the donee as well as the deputy, who is appointed by the court if a certain situation requires the appointment of a deputy. To carry out the work spelt out in the Bill, the Minister would appoint the Public Guardian as well as the Public Guardian Board. To assist the work of the Public Guardian, a Board of Visitors would also be appointed.

Mdm Deputy Speaker, I would like to mention some of my concerns and recommendations, which I hope that the Minister for Community Development, Youth and Sports will consider.

First, for the establishment of whether a person lacks capacity, it is stated in clause 2 that, "it does not matter whether the impairment or disturbance is permanent or temporary". This means that, at the moment in time when the assessment is done, if the donor was in a momentary unstable state, either due to effects of stress or depression, the potential donee could take over his financial/property/personal welfare/housing decisions if he/she has been nominated at an earlier period. I think that it would be better if the medical practitioner suspects a temporary unstable state, the donor could be brought back for a second assessment perhaps a week later. A family physician who knows the donor well may "smell" something suspicious and may not be comfortable with immediately classifying the donor as mentally incapable. Through my conversations with GPs I have learnt that they find this task of assessment quite “heavy” in terms of the responsibility they are required to undertake. Such an option of a second assessment would allay the anxiety of medical practitioners, in cases of doubt. Tom Kitwood, a well-known British psychology expert on dementia, has written in his book titled, "Dementia Reconsidered", about physical conditions that can have side effects that 'mimic' dementia. Some of these physical

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conditions are confusional symptoms that accompany or follow pneumonia, delirium, chronic infections such as that of the urinary system, and even inadequate nutrition over a lengthy period. I would add that the stigma and shock that accompany the diagnosis of dementia, especially Alzheimer’s disease for the patient and his family members, deserve a second assessment, whenever some doubt exists in the doctor’s mind.

Second, clause 42 refers to ill-treatment and/or neglect of the donor by the donee or deputy appointed by the court. As it is not uncommon in wealthy families for one sibling to be jealous of another sibling, and in order to inflict punishment, may argue that "emotional injury" has been inflicted upon the donor by his/her sibling donee. The motive could be revenge. Another scenario could be that in the course of the duty of care, the donee may have just uttered once a negative complaint of the aggressive behaviour of the donor. Does this constitute ill-treatment? The clear definitions of ill-treatment, injury and abuse should be set out in the Bill or in the Code of Practice so that all parties concerned are clear and room for maneuvering is diminished.

I would request the Minister to assure the House that in the implementation of this aspect of the Bill, extra caution and professional assessment be exercised in the process, so that family caregivers would not be discouraged from taking on the roles and responsibilities of a donee.

Third, the current Singapore Mental Capacity Bill has many similarities with the British Mental Capacity Act (2005) as my earlier colleagues have mentioned. Since then the UK has adopted the Code of Practice in April 2007 and subsequently the Deprivation of Liberty Safeguards in June 2008. Since there is

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a reference to a Code of Practice under clause 41, I would like the Minister to inform the House when can we expect the Code of Practice in Singapore to be ready and available for the public and professionals to use? I am especially concerned that when this Bill comes into effect, if the Code of Practice is not ready and available, those professionals who have the "duty of care" towards the mentally incapable will face many problems in explaining to the public and informing them about the meaning and the reach of the Mental Capacity Bill or Act.

The UK website of the Office of the Public Guardian is very informative and the Code of Practice carries relevant examples to enlighten the public. I urge the Minister to look into the possibility of such information being easily accessible in Singapore, as the baby boomer generation would make full use of it. The list of certified medical practitioners who are trained to do the assessments of mental incapacity should also be posted on the website. Some of this information could be posted in different languages on the website as well as flyers and posters on public notice boards.

Madam, the Bill does not specify the qualifications needed for a deputy to be appointed by the court. In my view, there should be a short but comprehensive training provided to the deputies, as the kinds of issues they are likely to face could be highly complex, and not just legal. A reasonable amount of time should be given to the deputy to complete his or her investigations, as quality could be compromised in the name of efficiency.

On a final note, I would like to enquire from the Minister whether he has any plans to assist those families whose aged relative may already be diagnosed with dementia and they have legal and financial problems that require the application for a Lasting Power of Attorney. Currently, the

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family would have to approach a lawyer and incur heavy costs in order to obtain an LPA. For these families, the Mental Capacity Bill has come too late, as it were. Perhaps, the MCYS could set up a team of pro bono lawyers who could assist such average or low-income distressed families to deal with the problems faced. My conversations with service providers on the ground has indicated that this is a gap in the current provision of social service delivery that should be looked into, in the same spirit that the Mental Capacity Bill is being seriously considered today in front of us.

With that, Madam, I support the Bill.

6.28 pm

Mdm Halimah Yacob: Mdm Deputy Speaker, I rise in support of this Bill.

This Bill provides a statutory framework to protect vulnerable people, caregivers and professionals. It makes it clear who can take decisions in which situations and how they should go about this.

The current law is restrictive as it lacks sufficient safeguards to protect those who lack the mental capacity to provide for their needs. The ambit of the current law, which covers only mentally disordered persons who are of unsound mind and incapable of managing himself or his affairs, excludes those who may be mentally sound but are incapacitated for a variety of reasons such as old age or sickness. The Bill provides a wider coverage. It provides all persons who lack capacity because of an impairment of, or a disturbance in the functioning of the mind or brain. What is more important also is, unlike the old Act, the Bill covers functional incapacity as it talks about a person who lacks capacity in relation to a matter "if at the material time he is unable to make a decision for himself in relation to that matter". This is in contrast to the

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old Act which talks about a person "being incapable of managing himself or his affairs" which suggests that the Act could kick in only if there is general incapacity, that is, the person is incapable of totally handling himself in all regards. So, this Bill is certainly an improvement.

However, there are a couple of points in this Bill for which I would like to seek clarifications from the Minister, particularly to ensure that there is adequate protection for the person who is mentally incapacitated. First, could the Minister clarify whether the existing definition of what constitutes the best interests of a person lacking in capacity is sufficient to protect his interest?

Ensuring that whatever is done is in the best interests of a person is a key element of this Bill to prevent abuse, exploitation and decisions adverse to the person lacking in capacity. Section 6 elaborates what must be taken into account in order to determine what is in the best interests of the person. However, this definition is not too clear. A patient’s interest is reduced to the subjective "wishes and feelings" of the patient. No mention is made of the need to take into account interests in relation to the life and health of the patient. While these are not the only aspects of a person’s welfare, life and health are certainly important aspects that should have been stipulated in the law.

Secondly, could the Minister clarify whether there are sufficient safeguards to protect the interests of the person who lacks capacity, particularly in relation to the extensive powers given to those appointed under the Lasting Powers of Attorney? The Bill gives significant powers to proxy decision makers and grants them legal status in the context of healthcare. There are, however, risks in giving such powers to those not medically qualified who are not like doctors held accountable for medical negligence, and who may even have a conflict of interest such as a financial expectation on the

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patient’s death. As presently drafted, the Bill gives proxy decision makers power without too much accountability. At the very least, there needs to be a prescribed duty of care and accountability in law for decisions taken by the donee in a Lasting Power of Attorney. The donee should be required to give due weight to a patient’s health interests, and not simply to the patient’s desire expressed at some earlier time.

Thirdly, I join the hon. Member of Parliament, Mr Sin Boon Ann, in asking the Minister whether he could clarify why the Bill prohibits an undischarged bankrupt from being appointed as a donee of a Lasting Power of Attorney in relation to a person’s property and affairs but allows someone who has been convicted of fraud, theft, misappropriation or criminal breach of trust to be appointed as a donee of a person’s property and affairs. If the prohibition on undischarged bankrupts holding office as donees is because of the fear that they might be tempted to abuse their position by dipping into the coffers of the person lacking mental capacity, would not that same concern apply to those who have criminal convictions for theft, fraud, CBT or misappropriation? In fact, people can be made bankrupts for so many reasons and some of it may not even be due to their lack of integrity, as in the case of someone who stood as a guarantor for a friend who subsequently disappeared leaving him saddled with the debt, or someone whose business failed despite his best efforts and who lost a considerable amount of his own savings. Are these people who became undischarged bankrupts more reprehensible than or even as reprehensible as someone who has been repeatedly convicted and jailed for theft or other crimes related to property? If bankrupts are excluded, could the Minister clarify why these other convicted criminals are not similarly excluded? Likewise, could the Minister

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clarify why sexual offenders are not excluded, an important consideration, in my view, particularly if the person who lacks capacity is a woman?

Finally, Madam, could I also join the others in asking the Minister what steps will be taken to educate the public on the contents of this Act, eg, their rights to appoint the Lasting Powers of Attorney or to get appointments of the deputies. This is not a simple Act to understand but it benefits members of the public considerably.

6.34 pm

Mr Sam Tan Chin Siong (Tanjong Pagar): Mdm Deputy Speaker, thank you for allowing me to speak on this Bill, whose main purpose is to provide a legal framework to enable a person to voluntarily make advance plans for his own financial and personal affairs should he lose his mental capacity. The proposed Mental Capacity Bill also criminalises ill-treatment and wilful neglect of mentally incapacitated people. With the rising number of older people and an ever rising incidence of dementia, I think we need this Bill.

This law does not deal with a remote possibility but a real eventuality. According to Alzheimer's Disease Association Singapore, there were 20,000 people with dementia in 2006 and in 12 years' time, this number will balloon to 50,000.

During my house-to-house visits to the HDB rental blocks in my ward, where the residents are mostly poor, I have come across elderly parents who are in financial hardship and still willing to look after their mentally-ill children. Their love is truly unconditional. They see their children not as burdens to be borne, but treasures to be cherished.

On the other hand, I have people coming to my MPS asking for their

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mentally or physically ill parents or relatives to be put in nursing homes. They say they cannot take care of their mentally or physically ill parents or relatives due to work commitments or family problems.

Well, it is easy for us to condemn this behaviour, to say that the children ought to behave better. But, first, let us take the log out of our own eyes, before we can see better, to take the speck out of this group of people.

Day to day, if we have to take care of someone who cannot control his toilet, who dribbles when he eats, who goes missing due to failing memory, it will strain our patience and drain our emotions, especially if that someone is a doddery old man or old lady, rather than a plump new baby.

Madam, there is no warm glow of romance and sentimentality in old age for some Singaporeans. Too many of us can justify putting our older relatives in homes with all kinds of reasons, such as we need to work to provide for the children. We need to have time for ourselves. The old folks would be happier in nursing homes because there would be nurses taking care of them. They would also have friends there. They would have regular excursions and outings. They would not notice where they are, actually, since they have dementia, etc. But if we were to ask the older people – would they prefer to be in their own homes? Almost everyone would say yes.

This law does not prevent people from taking the easy options of putting older people in nursing homes. But it does make sure that those who have the capacity and the means, will be able to dictate how they want to be taken care of, in the dark days when they can no longer make the decision themselves. Hence, I do hope that all of us can take a little time to

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reflect on this, and make advance plans for ourselves. This is a little like making a will – to prepare for an eventuality that we would rather not think about, but it is far wiser to spend a few hours or even days going through the process than have our families face all the difficulties from our inaction now.

Now, I come to something that is harder to do. This law gives us some black and white in our society. But laws cannot regulate private behaviour. It cannot force people to take what are ultimately private decisions.

I recall some of the debate that went on in this House, when we first thought of legalising the need for children to take care of their parents – it ended up in the passing of the Maintenance of Parents Bill.

It is harder to regulate such things as filial piety but we have managed to do so. In the last two years, the Tribunal for Maintenance of Parents had received 870 reports of children not supporting their parents. It is a tangled web of name calling, of failed duties and recriminations – but the law gets the job done. Or does it?

We all know of the unequal burdens borne by some offspring who provide more for their parents than their siblings. We also know of the many nieces and nephews who are paying for the old person’s stay at a nursing home, if their cousins do not ante up. We know of the grudging payments, the shame of elderly parents begging for money from their sons and daughters.

This Mental Capacity Bill will not prevent any of these private sufferings and humiliations. It will merely ensure that the public conform to the barest minimum. But that is the role of laws in a society and the rest is up to the private individuals.

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So what lies before us today is not an amendment to an existing policy but a moral choice. This debate is not about neglect or ill treatment.

It is, indeed, about our providing for how we want to be treated when we ourselves can no longer know how we are being treated. It is also about how we can become criminals if we do not treat those who are mentally ill well. In short, it is about how we should act, and how we want others to act, when no one is watching.

Moral values and conscience are the best care for our elderly who are no longer able to care for themselves. Unfortunately, values and conscience cannot be shaped by the laws. Hence, we need to go beyond this Bill to care for older people who have lost their mental capacity.

So we have the Second Reading of this Bill today. And I support this Bill because it shows what we stand for as a society.

Having put the Bill in place, I would say that our next duty is to make sure that the law is used as it is intended. To achieve this, we need to educate our children, by our own behaviour to our parents, and by our compassion to fellowmen.

There is a story in India which is as old as time. It is about a coconut shell and this is how the story goes. When a man turns old, he becomes useless and cannot contribute to the family. So, his son does not allow him to eat with the family. The old man is given a coconut husk and told to sit outside in the wind. He is not allowed a room in the house but given an old cloak against the storm when he sleeps outside.

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Finally the old man dies. His son wants to throw away the coconut husk. "But wait!" a little boy cries. "Why? Grandpa is dead, we don’t need this anymore," says the man to his son. "I want to keep it," says the boy. "What in the world for?" asks the man, amused. "So I can give it to you when you grow old," says the boy. This is when the penny drops.

Now, I must quickly add that we need to teach our children to be sensitive to this call of conscience for the right reason. We treat our parents well, not because we are afraid of being given the coconut husk one day, but because it is the right thing to do.

In the recent Jack Neo’s movie, there was a scene where a filial son was persuaded by his family that it is the "kinder" thing to send his ageing mother to a nursing home. No laws against that, but his conscience would not allow him to do so lightly. Those who have watched this part of the movie will have a heavy heart like mine. The old woman has clearly not lost any of her mental capacity, but the way she was treated was clearly not in line with her wishes. Her problems, like that of many other ageing people in society, are clearly more complex than can be wished away by a new Bill.

Mdm Deputy Speaker, we have many challenges to tackle in the road ahead, as more of us become older and some of us become mindless. The law is our ally in making sure that the worse does not happen. However, to be the best that we can be, we need a moral voice and a strong conscience which can only be upheld by Singaporeans ourselves, not the laws. Hence, we need to do more in our classrooms and our homes on moral education.

Mdm Deputy Speaker, with that, I support the Bill.

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Dr Vivian Balakrishnan: Mdm Deputy Speaker, let me first begin with some good news. Yip Pin Xiu, our Paralympian swimmer in Beijing, has just won Singapore's first Paralympic Gold Medal and I believe, very shortly, we should be hearing Majulah Singapura being sung by our small but loud group of supporters in the Beijing Water Cube. So that is good news indeed.

I thank all the speakers for their contributions to today's debate. We are creating a new Act, a new law; we are preparing for the future. Their points are all valid. Allow me to summarise the contributions by all the previous eight speakers. Many of you have asked us to compare our Bill to the England and Wales Mental Capacity Act which, by the way, was only enacted in 2005 and, in fact, only implemented last year. They have also queried the definitions of capacity and best interests. Some Members have also asked relevant questions on the safeguards provided by this Bill and also the way we will implement them. And the fourth group of questions and comments were with respect to execution – I think that is one of Ms Denise Phua's favourite words, "execution" – insofar as public communication, the formulation of the rules of court and the Code of Practice are concerned. So allow me to attempt to respond.

I suspect that I may miss out a few points but Members can always raise them later if Mdm Deputy Speaker allows.

First, let us look at the similarities and differences between the Bill that we have put before this House and what the UK has enacted. First, the key similarities. Our definition of "mental capacity" is the same. Our approach to providing statutory protection for caregivers is also the same. We have the same concept of payment for necessary goods and services, except, in the case of Singapore, I restricted it a little bit so that, unlike the UK system, donees cannot use the incapacitated

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person's assets to be pledged as credit. The concept of a Lasting Power of Attorney is also largely similar. The only difference being that in the UK, the properties and affairs of Lasting Power of Attorney can be used even while the person still has capacity. I did not want to be so liberal.

As far as court power is concerned, it is largely similar. But, yes, the Member is right, there is a dedicated court in the UK to decide on all matters pertaining to this Act. They call it a Court of Protection. In our case, I will rely on the High Court. Of course, subsequently, if the Judiciary decides that they want to have a special court like the way they have a Family Court, that is something which may evolve in due time. But the point is – we are fully committed, both as far as legislation and judicial processes are concerned, to making sure that this legislation will work and none of us are pulling any punches. And I can assure Members that MCYS, MinLaw and the courts will do their best to make sure things are done properly.

As far as statutory wills are concerned, we have also basically used the same framework that the UK is using. Many Members have asked, under what circumstances, would a court need to either execute or revoke a will? And this was the same question which I asked when the Law Society first came with this proposal. They have listed some of the situations for me and I will just quote this for Members' own consideration. For instance, where a person has remarried after making his first will, but before he makes his second will, suddenly becomes mentally incapacitated, and the result of the intestacy in those circumstances may be inappropriate. A second example where the primary beneficiary has predeceased the mentally incapacitated person so that, in effect, the latter is now intestate. The third example is where a property intended to be a legacy in an

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existing will no longer exists, for example, the court may have to order its sale so that its proceeds can be used for the medical care of the incapacitated person and therefore some other provisions will need to be made for a beneficiary. The fourth example, which I was given, was where there has been a major change in the mentally incapacitated person's circumstances or in his relationship with the beneficiaries in his will, for example, his spouse has divorced him. So the point is that there may be circumstances where a court may need to intervene. But this is a power which, I am sure, will be exercised very, very carefully and very stringently, and not something which, I believe, any of our courts will enter into lightly.

Now, let me deal with the provisions which are unique to Singapore. We have gone into some detail to define "best interest". But one aspect which is different in ours compared to the UK is that we have gone on to emphasise this precept that the property must be preserved for the maintenance of the incapacitated person. So, in fact, our framework for allowing donees to make gifts is actually more restricted than that with the UK. In the UK, the donee is able to say that this was the customary gift he used to make on this occasion to his favourite standard charity, and so on, and so forth. So he could make such a gift as a continuation of past practice. We are more restrictive. We have said that the donee cannot make gifts unless, first of all, it is provided for expressly in the instrument setting up the Lasting Power of Attorney and, in any case, you cannot make gifts to a level which will compromise the adequacy of assets which will be used to provide for the mentally incapacitated person. So I assure Ms Sylvia Lim we are actually being more careful in Singapore than in the UK.

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Another area where we are different from the UK is that we have restricted decisions under the Lasting Power of Attorney in so far as the Advance Medical Directive is concerned and also we have said that the donee or the deputy cannot make decisions with respect to the continuation or cessation of life sustaining and extraordinary medical treatment. One criticism which has been made about the UK legislation, although it may not be a fair criticism, is that if you give donees excessive power on medical decision, you may be providing a back door for euthanasia to be executed on the instructions of a donee who may, as several Members have quite rightly pointed out, have a conflict of interest. So, in our case, we have been very careful with the scope that medical decisions, especially the treatment necessary for life or treatment which if withheld would lead to significant deterioration are off-limits and medical professionals will exercise judgment in those areas.

Another area where we differ from the UK is that in cases where, for instance, a transaction involves a sale of property or a house or a flat, our banks have requested that they have a right to insist that they will not enter into such a transaction unless the donee can show medical evidence that the incapacity is permanent, and not something that waxes and wanes, which was a concern of Prof. Kalyani Mehta.

Another area where we are different is in our definition of "wilful neglect" and "ill treatment". Basically, we have used a similar framework to that which we used in the Children and Young Persons Act. The UK, in fact, does not have a definition for "wilful neglect" and "ill treatment" in their Mental Capacity Act.

Another area where we are different, and I think it is worth highlighting, is that we have a specific whistle blower

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protection clause in our Bill. This, we have provided for after receiving feedback from the legal fraternity. So we have accorded healthcare workers immunity from liability for reporting suspected cases of ill treatment or wilful neglect of a mentally incapacitated person. This immunity does not extend to bankers and lawyers who are governed by the Banking Act and the Code of Professional Ethics respectively. The UK Act does not have a specific whistle blower protection provision in their Act.

There are further details of excluded decisions which I can provide to Members subsequently. But let me assure this House that, in fact, we have been more careful than in a similar analogous framework which the UK has chosen to use.

Many Members have raised questions about the definition of "capacity". I think it is worth highlighting that the legislation recognises that capacity can wax and wane. You may be capable of making a decision on this specific topic today, but you may not be tomorrow, or you may recover the day after. We recognise this and that is why we have ensured that the presumption is that the person has capacity until established otherwise. So the question of someone being just arbitrarily or prematurely defined as "incapacitated" and therefore a donee stepping in and exercising power inappropriately is a scenario which we did consider in the legislation. And Members are quite right that as we formulate the code of practice and the subsidiary legislation, we will make sure this protection is catered for.

Similarly, in defining "best interest", the point is that it is very difficult to come up with an encyclopedic, comprehensive definition of "best interest". What you see in the Bill before you is a checklist of things that a donee needs to go through before he makes a specific decision. The

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checklist includes respecting the person's past and present express wishes, feelings, beliefs, values and also consulting with other persons who were close to the incapacitated person. In addition, we have also included this point that property must be preserved for the maintenance of the person.

Our Bill does not allow donees or deputies to make decisions on behalf of incapacitated persons in relation to life sustaining treatment or treatment that is needed to prevent serious deterioration of health. This is a point which I alluded to earlier when I compared our legislation to that of the UK. Our Bill also gives precedence to the Advance Medical Directive, and I hope that these points will give some assurance to Mdm Halimah and Mr Sin Boon Ann that where there is any conflict of interest, the proxy decision-makers must be guided by the best interest of the person and the legislation will hold him or her to this standard of care and duty.

The Bill also sets another key principle that we recognise fluctuating capacity and variable degradation of capacity, and therefore we need to make sure that there is appropriate mechanism to determine capacity. We could have made it pseudo accurate and very difficult by insisting, for instance, that only a psychiatrist could define "capacity". But I think even my colleague here, Dr Ong Seh Hong, will agree that there are not enough psychiatrists to go round. It would be onerous and it would ultimately be expensive. So we got agreement from the College of Family Physicians who had said that GPs can be trained so that they will be able to certify capacity or lack of capacity, either on a short-term or on a permanent basis. So we have to achieve the right balance between security and convenience. And, again, with consultation and with the participation of other stakeholders in this field, I think it is workable.

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There were also several questions raised by many Members with respect to the qualifying conditions for being a donee, specifically why did we exclude people who are bankrupts. As I said earlier, I had to make a choice between being very, very rigorous and having a long list of exclusions or having no exclusions at all. The argument for having a long list of exclusions is that people need protection and there are some people whom you cannot trust. The argument for having zero or minimal restriction is that it gives people a choice – they are choosing their own family members, their own friends, their own colleagues whom they trust. Well, we lean more towards giving people a choice.

However, in the case of people who are bankrupts, I want to emphasise, we were not casting any value judgments about their honesty or ability. We decided to exclude bankrupts simply because an undischarged bankrupt has legal impediments to him performing certain functions such as, for instance, acting as a trustee or acting as a company director. And we felt that these legal impediments may complicate their work in so far as they were performing the work of a donee on property and affairs. Even in the UK, they have kept this disqualification against people who are bankrupt. I also want to emphasise that people who are bankrupts can act as donees as far as the personal welfare of the person who is mentally incapacitated is concerned. This disqualification is restricted only to the management of property and affairs. But it is not meant to be a value judgement or to cast aspersions on the ability and on the love and devotion of people who may be bankrupt for a variety of reasons.

There were also questions, I think from Prof. Kalyani and also from Mr Hri Kumar, with regard to some process issues. For instance, Mr Hri Kumar has a

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good suggestion that there may be some proceedings which are better heard in camera in order to protect the privacy of the people concerned, and clause 39, which sets out the system for generating rules of court, does provide inter alia for hearings in camera. This is something which the court can generate subsequently

if it feels it is warranted. Similarly, this issue of disclosure, especially where there are conflicts of interest, I believe can also be covered under the rules of court or under the code of practice which we intend to generate over the next few months to a year. Clause 24(10)(b) also imposes a duty on the deputies to submit reports which the court can specify from time to time with respect to the performance of his or her duty. So the point is that there are safeguards and there will continue to be new safeguards which we will need to evolve but we will do so using the rules of court and the code of practice and we will do so in close consultation with all the stakeholders. I also want to reassure Mr Hri Kumar that this Bill does not change the principle of legal privilege. I think as a lawyer, he wants that assurance. I will give that to him. I made sure. I checked with the AG's Chambers before I gave this assurance to him.

We will have to set up the Office of Public Guardian. As I said in my earlier speech, it will contribute to the protection of those who lack capacity. Some of you are worried that we may have vested too much investigative power into the Office of Public Guardian. I think this is a matter of judgment. At this point in time, my view is that people with mental incapacity are specially vulnerable. We have been quite liberal as far as allowing persons to qualify as donees and deputies. The quid pro quo there is that I want to make sure that this office is in a position to investigate fully and quickly and expediently any potential abuses of powers by donees and deputies. I am sure this is not the last word on this topic

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but I am asking the indulgence of this House that these are new areas, new laws, new offices and new processes we are setting up. Let us do so carefully. If later on we find that we really do not need to vest such powers in this office, then we can review or consider an amendment, but not at this stage. I prefer to be careful at this point.

There will also be a Board of Visitors that will support the Office of Public Guardian and the court in carrying out investigations on matters relating to the exercise of powers under this Act. This Board will investigate possible abuse, in addition to checking on the general well-being of incapacitated persons. The Board will comprise professionals and have healthcare expertise as well as lay persons without medical qualifications. Mr Sin has quite rightly emphasised that the Board of Visitors and the Public Guardian must pursue their duties rigorously and I give Members the assurance that my Ministry will provide the resources to this Office so that they will do a good job.

I hope that Mdm Halimah and Mr Sin Boon Ann are assuaged by the precautions that we have set out in this Bill. I have also heard Prof. Kalyani's concern that some family members may be reluctant to be donees. They may be afraid of being punished for ill-treatment because, as she said, someone may have just laid one accusation against them. I am sure Members will appreciate that we need to strike a balance. On the one hand, we need sufficient safeguards. On the other hand, the safeguards should not be so excessive that they deter people from serving as donees. We have considered this issue very carefully and we have sought to achieve the right balance in drafting the legislation. But I think we will have to do more work in coding the code of practice because that is when we can give more guidance, go

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into greater detail and granularity about the circumstances which things may or may not be said or done and ensure the right balance between protecting people who are mentally incapacitated and protecting their family members who are caring for them.

The staff at the Office of Public Guardian will be trained. This will be a specialised task and we will ensure that they can assist families and ordinary folks who would need information on making the Lasting Power of Attorney. As I said earlier, the England and Wales Mental Capacity Act was only enacted in 2005 and only fully implemented in October last year. They are still on a learning journey and I give Members the assurance that we will watch their learning journey and make adjustments accordingly.

One point which Ms Sylvia Lim asked about was that, in the UK, they have set up an independent advocate. That is a pilot scheme which they have set up. I think they have appointed 144 people, costing them a grand sum of £6.5 million. I am not in a hurry to go and start up more bureaucracy and more inspectors. The difference is that families in Singapore are available by and large. This is a small place and I think there will be very few people who truly are destined to have no one else to look after their interests. For those people in Singapore, particularly those who are destitute and in our homes, the Ministry, my staff and the voluntary welfare organisations will have to play such an advocate role. But I am not keen at this stage to set up an elaborate Government bureaucracy at great expense to do this. Anyway, it is a pilot project, even in the UK. Let us watch and see before we jump into setting up this machinery.

So let me end by saying that this is a new legislation and I am sure this is not the last word. Mr Sam Tan has also emphasised that this is not just about

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legislation. At the end of the day, it is about values, attitudes, a sense of responsibility, duty and obligation, and we cannot legislate all these. It is worth reminding all of us that it still starts with family relations and friendships, and making sure our community continues to treasure people who are old. That they are not people whom we would give a coconut husk and tell them that they are disposable. Instead, people who are old, disabled or mentally incapacitated have value and dignity and deserve protection and choice, and this legislation is one small piece of the safety net, which all of us will have to build in the coming years.

Question put, and agreed to.

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Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Dr Vivian Balakrishnan].

Bill considered in Committee; reported without amendment; read a Third time and passed.