High Court · Decided 1 October 2013

Re BKR

[2013] SGHC 201Case no. Originating Summons (Family) No 71 of 2011 (Registrar's Appeals Subordinate Courts Nos 223 and 224 of 2012)

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Lai Siu Chiu J:
Introduction
[1] These were appeals to the High Court by way of Registrar’s Appeals Subordinate Courts Nos 223 and 224 of 2012 (“RAS 223/2012” and “RAS 224/2012” respectively, and collectively “the Appeals”) against the decision of a Senior District Judge in Originating Summons (Family) No 71 of 2011 (“OSF 71/2011”). The Appeals relate to an application taken out in the court below (“the application”) under the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”) for the plaintiffs to be appointed as deputies of their sister [BKR] in relation to her property and affairs. The Senior District Judge found, inter alia, that [BKR] lacked mental capacity as she was unable to decide on her property and affairs because of an impairment or disturbance in the functioning of her brain, and thus granted the application.
[2] At the trial below and at the hearing of the Appeals before this court, parties raised a whole host of incidents and issues. I found a number of those issues irrelevant to the main crux of the Appeals (as they were at the hearings below), but shall address them nonetheless since they were raised. While it was commendable of counsel to leave no stone unturned in their preparation for the case of their respective client(s) in the Appeals, a certain amount of discretion should have been exercised as to what facts and issues were really essential. The court is not in favour of a “lock, stock and barrel” approach in litigation. In preparing their cases, counsel is duty-bound to advise their clients as to what really matters, so as not to prolong proceedings unnecessarily.
[3] After taking time to consider the parties’ lengthy arguments, I am allowing both Appeals.
The facts
[4] The parties and their relationships have been succinctly described in the Senior District Judge’s decision and there is no need to repeat them in any detail. If necessary, the parties will be identified where they concern specific findings made by the Senior District Judge. For ease of reference, I shall refer to the main parties in the following manner:
(a) [AUR], who was the first plaintiff in the trial below, and the first respondent in the Appeals;
(b) [CY], who was the second plaintiff in the trial below, and the second respondent in the Appeals;
(c) [AUT], who was the first defendant in the trial below, and the first appellant in RAS 224/2012.
(d) [AI], who was the second defendant in the trial below, and the second appellant in RAS 224/2012; and
(e) [BKR], who was the third defendant in the trial below, and the appellant in RAS 223/2012.
Together with the Appeals, the plaintiffs filed for hearing before this court Summons No 331 of 2013 (“the plaintiffs’ application”) to strike out RAS 223/2012 on the ground that [BKR] lacked capacity to instruct solicitors to file an appeal on her behalf, pursuant to O 99 r 4 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”).
[5] In response to the plaintiffs’ application, [BKR] filed Summons No 2535 of 2013 (“the third defendant’s application”) under O 99 r 8 of the Rules, applying for leave to appoint a litigation representative. I declined to grant the plaintiffs’ application but granted the third defendant’s application to appoint a named third party as her litigation representative in RAS 223/2012 and all ancillary matters.
[6] I should observe at this juncture that in arguing their clients’ cases, parties had drawn this court’s attention (as in the court below) to innumerable incidents leading up to OSF 71/2011, primarily to persuade the court to draw a legal conclusion on the lack of mental capacity of [BKR] and/or the purported undue influence/manipulation by [AUT] and [AI] over [BKR]. The court below had made various findings in relation to those events. Rather than set them out here, I shall elaborate on those findings when addressing the defendants’ arguments in the Appeals.
The decision below
[7] In coming to her decision, the Senior District Judge considered two main threads of evidence. The first thread related directly to [BKR]’s mental capacity, and comprised:
(a) evidence on [BKR]’s mental capacity starting with reports by her Hong Kong doctors in October 2005 and 2009, and also medical reports from October 2010 to February 2011 in relation to her capacity to create a trust;
(b) evidence on [BKR]’s mental capacity from her Singapore medical experts based on their assessments of her conducted in March, June and December 2011, and February 2012;
(c) evidence given in the court below by [BKR] from 12 to 21 February 2012;
(d) evidence of the plaintiffs’ medical experts;
(e) evidence of the bankers who dealt with [BKR] from mid-2009 till end-2010; and
(f) evidence of the family members of [BKR].
[8] The second thread of evidence concerned contemporaneous events from late-2008 until the first quarter of 2011 in the intra-family relationships of [BKR]. This related somewhat to the (irrelevant) incidents I have mentioned at [2] above. The Senior District Judge drew certain inferences of [BKR]’s mental capacity from her behaviour in those incidents. However, parties often gave conflicting accounts of the same events. Hence, the Senior District Judge also went further at times to make certain factual determinations which were generally unrelated to the mental capacity of [BKR] and should not have been taken into consideration in reaching her decision.
[9] After considering both threads of evidence, the Senior District Judge found that [BKR] lacked mental capacity to make decisions on her property and affairs. Attendant thereto, the Senior District Judge also found that [BKR] did not have the capacity to litigate. She then appointed both plaintiffs as [BKR]’s deputies to act in respect of her property and affairs. The powers granted to them as deputies were generally very wide
The issues in the Appeals
[10] There are three broad issues before this court:
(a) Did the Senior District Judge err in law and in fact in finding that she had the jurisdiction to entertain OSF 71/2011, including the issues of purported undue influence (“Issue 1”)?
(b) Did the Senior District Judge err in law and in fact in applying the principles of the MCA wrongly, when considering the medical evidence and other contemporaneous events (“Issue 2”)?
(c) Did the Senior District Judge err in law in the appointment of deputies and the scope of the powers granted (“Issue 3”)?
Given the length of my decision and for good order, I summarise briefly my findings pertaining to these three issues. Under Issue 1, I find that the Senior District Judge did not have the jurisdiction to entertain OSF 71/2011 or the issues of purported undue influence. Under Issue 2, I find that the Senior District Judge had misapplied the principles of the MCA, and therefore erred in law in finding that [BKR] was unable to make a decision under the MCA (this is the functional component of the applicable legal test, as will be addressed later). Finally, under Issue 3, given that the Appeals would have been allowed based on my findings under Issue 1 and/or Issue 2, I observe that the declarations of incapacity (and consequently the powers granted to the deputies) were too wide. I would add that the Senior District Judge should have accorded more weight to [BKR]’s present wishes.
Issue 1 – Did the Senior District Judge err in law and in fact in finding that she had the jurisdiction to entertain OSF 71 including the issues of purported undue influence?
The Law
The jurisdiction of the Senior District Judge
[11] The issue of jurisdiction is often raised by counsel as a threshold issue in many cases. However, the concept is often misunderstood, and many a time arguments of jurisdiction have been misconceived. As described by the Court of Appeal in Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 (“Nalpon”) (at [11]), the word “jurisdiction” is an etymological chameleon that often takes colour from its context. Indeed, as a legal term, it is clear that it has been used to mean many things. For example, Prof Yeo Tiong Min suggests at least six different ways in which the word “jurisdiction” has been employed (see “Jurisdiction of the Singapore Courts” in The Singapore Legal System (Singapore University Press, 2nd Ed, 1999) (Kevin Y L Tan ed)).
[12] Nalpon concerned an appeal against the decision of Chan Sek Keong CJ made pursuant to an application under s 82A(5) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”). Before the Court of Appeal, a preliminary issue of whether there could even be an appeal from a decision made under s 82A(5) of the LPA was raised. The issue therefore concerned the jurisdiction of the Court of Appeal. After some discussion, the Court of Appeal in Nalpon (at [13]) adopted the definition of “jurisdiction” in Muhd Munir v Noor Hidah and other applications [1990] 2 SLR(R) 348 (at [19]):
[13] The court in Nalpon went on to repeat the trite principle that the jurisdiction of a court is primarily derived from statute (see also Ng Chye Huey and another v Public Prosecutor [2007] 2 SLR(R) 106; Blenwel Agencies Pte Ltd v Tan Lee King [2008] 2 SLR(R) 529; Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279).
[14] The jurisdiction of the District Court to hear cases involving mental capacity is derived from paras 2 and 3 of the Supreme Court of Judicature (Transfer of Mental Capacity Proceedings to District Court) Order 2010 (S 104/2010), which provide that:
[15] As can be seen, this jurisdiction relates to “proceedings under the Mental Capacity Act 2008 (Act 22 of 2008)”, which Act was subsequently revised in 2010. The District Court is therefore seised of jurisdiction if the proceedings fall “under the Mental Capacity Act”. Exactly what entails proceedings under the MCA?
[16] In the introductory text of the MCA, it is stated that the MCA is “[a]n Act to make new provision relating to persons who lack capacity and to provide for matters connected therewith”. In the Singapore Parliamentary Debates, Official Report (15 September 2008) vol 85 at col 109, then Minister for Community Development, Youth and Sports, Dr Vivian Balakrishnan, briefly described the MCA in the following terms:
The parliamentary debates went on to consider other features of the proposed regime, which include, inter alia, the appointment of deputies, the lasting power of attorney, and safeguards and protections.
[17] At the risk of stating the obvious and to use the words of the introductory text, it is clear that proceedings under the MCA are proceedings which relate to “persons who lack capacity”. Therefore, jurisdiction is seised only when the dispute involves an individual’s mental capacity and matters connected therewith. In my opinion, “matters connected therewith” does not refer to any event that is merely loosely connected with the mental capacity of an individual, but refers instead to the various matters that are covered within the framework of the MCA. To be precise, this would refer to the nine different parts of the MCA.
[18] The jurisdiction of the court must be strictly circumscribed by the MCA. This interpretation is supported by certain doctrinal issues of jurisdiction the common law faced before the enactment of legislation in the UK. In Blackstone’s Guide to The Mental Capacity Act 2005 (Peter Bartlett) (Oxford University Press, 2nd Ed, 2008) (“Blackstone’s Guide”), at para 2.09, the author explores the development of the common law leading up to the enactment of the UK Mental Capacity Act 2005 (c 9) (after which the MCA is modelled), and states that:
[19] Apart from the issue of jurisdiction, the courts were also facing other problems as well, for example, certain definitional problems, such as defining the “best interests” of the individual. Legislation was therefore enacted specifically to address these problems, the relevant one in question now being the possible lacunae in the law (regarding jurisdiction).Given this background, it would make sense then that jurisdiction is seised only insofar as the statute prescribes – where the substantial dispute revolves around the mental capacity of an individual, or matters connected therewith.
Vulnerable people
[20] A related issue of law which arose was whether “vulnerable” individuals, or those subject to undue influence, fell under the protection of the MCA. Given my observations regarding the law on jurisdiction above, it would only be consistent that the issues which do not involve the mental capacity of the individual would not fall within the protection of the MCA.
[21] This position is supported by the decision of In re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No 2) [2012] 3 WLR 1439 (“In re L”). In that case, the issue arose as to whether the court had the jurisdiction to issue an order to “protect” a vulnerable elderly couple from their violent son, if it were found that the elderly couple were of sound mind (but vulnerable nonetheless). At [38] and [39], McFarlane LJ considered counsel’s argument that the issue of adding “vulnerable adults” into the scope of the MCA had already been considered and that the eventual decision was not to include them:
[22] Eventually, the court found that it did have the jurisdiction to make the relevant protective orders, but this was because of its inherent jurisdiction. To be precise, counsel’s argument there was couched to support her point that because of the English equivalent of the MCA, the court no longer had the inherent jurisdiction to deal with cases falling outside of that Act. After considering counsel’s argument, McFarlane LJ (at [57]) made it very clear that “the Act is expressly limited to ‘people who lack capacity’”, and (at [58]) stated that:
[23] The reference to the court’s inherent jurisdiction is significant, because it meant the source of jurisdiction the court would rely on for cases pertaining to vulnerable people was derived from its inherent jurisdiction, rather than the MCA. This was made even clearer at [63]:
[24] Therefore, even though the court in In re L eventually disagreed with counsel that it no longer possessed the inherent jurisdiction to hear such cases, it is clear that the court accepted counsel’s argument that the MCA did not pertain to individuals who did not lack mental capacity as defined in the Act. That the inherent jurisdiction is invoked to protect such vulnerable people was also explored and accepted by the court in Re SA [2006] 1 FLR 867. There, Munby J (as he then was) said (at [79]):
[25] The real issue is that vulnerable people fall into a category which is separate and distinct from that contemplated under the MCA. Because of this distinction, there is a need to rely on the inherent jurisdiction of the court as the court would not have been seised of the requisite jurisdiction under the MCA. As was observed in LBL v RYJ and another [2011] 1 FLR 1279 at [62], this inherent jurisdiction:
[26] To summarise, under the MCA, the court will not be seised of the jurisdiction to hear the case if the dispute concerns the vulnerability, as compared to the mental capacity, of the individual.
Application of the law
Was the substantial dispute between the parties the mental capacity of [BKR]?
[27] The question before this court is therefore whether the substantial dispute between the parties centres on the mental capacity of [BKR], such that the court below was seised of the requisite jurisdiction under the MCA. Admittedly, this is a threshold question which in most cases should be easily crossed. Understandably, it would only seem normal that if an application is taken out under the MCA, the dispute would definitely concern the mental capacity of an individual. What more could a party do then but to plead the right case? After all, all that the plaintiff has to do is to frame his case such that the dispute is centred on the mental capacity of an individual, and then produce supporting evidence.
[28] The difficulty for the court is therefore discerning when the substantial dispute is in fact something else. To this end, the prayers asked for, the evidence of parties, and the submissions of counsel must be considered in totality before coming to such a conclusion. The motives or purposes of the parties in taking out the action may also help to shed some light. At the end of the day, it is a matter of discretion for the judge to decide what the substantial dispute is. I would add that in most cases, there should be significant evidence proving otherwise before a court would be minded to find that the substantial dispute is something else than what was actually framed.
[29] In this case, the appellants at the trial below had very vigorously argued that the real dispute between the parties was one of access and (purported) undue influence, rather than of mental capacity. The Senior District Judge briefly addressed this point at [87] of her grounds of decision (“GD”), where she concluded that:
[30] After considering the parties’ arguments and the evidence before me, I am of the opinion that the substantial dispute between the parties was not so much about [BKR]’s mental capacity than about her access and the undue influence which she was allegedly subjected to. I draw this conclusion with the following two points in consideration.
(A) Evidence of the respondents
[31] The first point to be noted is that the respondents’ true concerns were borne out of the evidence from the respondents in the trial below. A review of the evidence below would show that the respondents consistently repeated two points:
(a) that when given the right advice and assistance, [BKR] could understand information and make a decision; and
(b) that [BKR] had to be given access to the right people so that they could give her such advice and assistance.
[32] In the cross-examination of [AUR] on 4June 2012, [AUR] had first stated that she would give financial advice to [BKR] to aid her to make certain decisions. The following evidence is revealing:
[33] During the cross-examination of [AUR] on 5 June 2012, [AUR] reinforced her point that [BKR] had to get the right advice from the right person. In answering counsel’s question as to why she ([AUR]) did not want the bank to act on [BKR]’s instructions without her or [CY]’s presence, [AUR] answered that “it must be important that it’s explained to [BKR] what she is purporting – what she’s trying to do” [emphasis added]. The following exchange with counsel then took place:
[34] In the cross-examination of [CY] on 7 June 2012, [CY] also agreed that “with the right advice, the honest advice” from the sisters, [BKR] could make the right decision. In her re-examination which followed, [CY] stated explicitly:
[35] A similar position was taken by [BKR]’s daughter, [NG], as well. In her cross-examination on 15 June 2012 , she stated that
[36] The evidence also hints that the true purpose of the application was really so that [BKR] could have access to the right family members. During [AUR]’s cross-examination on 5 June 2012, [AUR] stated:
[37] One of the strongest intimations of this point surfaced during [AUR]’s cross-examination on 6 June 2012:
[38] During the cross-examination of [BKR]’s son, [CK], on 11 June 2012, he stated that:
[39] Likewise, [NG] during her cross-examination on 15 June 2012 had expressed similar concerns:
[40] Apart from these positions taken during the course of oral testimony, counsel for the appellants has also drawn the court’s attention to other pieces of evidence which reflected a similar sentiment – that the concern was of lack of access to, and of undue influence on, [BKR] and not her lack of mental capacity. For example:
(a) in an email from [CK] to [KG] on 7 December 2010, the former mentioned that “ACCESS is the key point…”; and
(b) in [AUR]’s letter to UBS dated 5 December 2010, she stated that “The Bank must see her in the presence of myself, [IE] or [CY] so that we can all be absolutely clear that [BKR] fully understands the transactions that she is undertaking”.
[41] The position taken by the respondents is further emphasised in their closing submissions in the trial below. At para 9.3.2, p 338 of the respondents’ closing submissions, it is stated that:
[42] Later at para 11.1.2, pp 366–367, it is also stated that:
[43] Leaving aside the question of jurisdiction for the moment, I would observe that it is commendable that the respondents have been truthful about their concerns regarding [BKR] and their motivations for the application. Indeed, they could have easily stated otherwise. However, what this overview of the evidence shows is that at least one of the main concerns for the respondents was access and undue influence. These sentiments were not individual one-off instances, but, as will be seen later, formed a continuous theme which was repeated throughout the whole proceedings.
(B) The sequence and string of events
[44] The second point I took note of was the sequence of events leading up to the application, and the fact that great emphasis was placed on various instances of undue influence that [BKR] was allegedly subjected to.
[45] From the evidence, it appears that the respondents accepted that while [BKR] might have memory problems, up until at least November 2010 [BKR] could make her own decisions. I would note that in any case, [BKR] was used to receiving advice from her loved ones, be it from her husband or siblings, in making her financial decisions. At para 3.1.9(d) of the respondents’ aide-memoire to their closing submissions, it is stated that:
[46] In his closing submissions, counsel for the respondents had also submitted that “the [Respondents] do accept that [BKR] had capacity to make decisions up to December 2010…”, concluding that “we have an individual who had capacity, who knew what she wanted and who chose people whom she loved, had grown up with and trusted to advise her and from whom she was taken away in November 2010”.
[47] I also accept the appellants’ argument that [BKR] had carried out numerous transactions before 2010, and that this was not contested by the respondents. Tellingly, the Senior District Judge had also noted this at [83]–[84] of her GD, where she said:
[48] Therefore, if the respondents were indeed disputing the mental capacity of [BKR], the key time-frame of the dispute would be from November 2010 to February 2011 (the month when the application was taken out). With this in mind, two observations can be made at this juncture.
[49] First, there was a substantial body of evidence pertaining to events that occurred before November 2010. This was so significant that the learned Senior District Judge felt obliged to include those events in the “second thread” of evidence. At [37] of her GD, the Senior District Judge noted that she had considered “two main threads of evidence”. The first thread “relates directly” [emphasis added] to [BKR]’s mental capacity. At [38], the Senior District Judge described the second thread of evidence as follows:
[50] The disputes over those events surfaced during the proceedings in the court below. At [100] to [105] of the GD, the Senior District Judge mentioned a number of those events, which included, inter alia, the disputes between the siblings and [BKR] regarding some property in Hong Kong or London, [BKR]’s late husband’s Malaysian project, letters from [BKR] to [AUT] admonishing [AUT], and rental disputes.
[51] Second, even during the key period, the respondents led evidence detailing numerous instances of undue influence. At [106] to [126] of her GD, the Senior District Judge addressed three of the many events which were raised – the setting up of the [xxx] Trust by [BKR], the isolation of [BKR] when she was brought to Hong Kong, and the purchase of a good class bungalow by [AUT] and [AI]. (To be precise, the Senior District Judge also addressed the issue of conflicting instructions to the bankers at this part of her GD.)
[52] Indeed, much ink has been spilled over those issues. The affidavits of the respondents filed in the trial below were replete with events which were cited as examples to show how [AUT] and [AI] were unduly influencing [BKR]. Details of what happened during the wake and funeral of the respondents’ elder brother [AN] were even brought into the picture. Although in itself inconclusive, the length and extent to which counsel’s submissions addressed these issues both in the trial below and in the Appeals goes to show how significantly the parties viewed the events.
(C) Evaluation of the real dispute
[53] With these two points in mind, I now return to the question which has to be answered – Did the substantial dispute between the parties centre on the mental capacity of [BKR]? To answer this question, the evidence must be examined in its entirety. Having done so, I am of the opinion that the substantial dispute between the parties did not centre on the mental capacity of [BKR].
[54] When the respondents testified in the court below, they repeatedly said that their real concern was of access and undue influence. This was further supported by the fact that a significant amount of evidence was led detailing events which did not directly relate to the mental capacity of [BKR]. As this argument was canvassed by counsel for the respondents, some form of clarification is warranted here – how relevant were the issues of undue influence in deciding the mental capacity of [BKR]?
[55] In their submissions, counsel for the respondents argued that “the undue influence findings are material to OSF 71”. Later on in the submissions, they said:
[56] The Senior District Judge seemed to have taken a similar position that the issues of undue influence were material to the findings on [BKR]’s mental capacity. At [129] of her GD, she said:
[57] With respect to the Senior District Judge and the respondents’ counsel, I cannot agree with the positions taken. I discuss the tests prescribed by the MCA in detail below (at [69]) but for now it suffices to observe that the words of s 4(1) of the MCA are patently clear – the incapacity of the individual must be because “of an impairment of, or a disturbance in the functioning of, the mind or brain”, and nothing else. Even taking the respondents’ case at its highest, I cannot see how the actions of [AUT] and [AI], be they in the purchase of a good class bungalow in Singapore, the “whisking” of [BKR] off to Hong Kong, the prevention of access to other family members, or even the relationship between them and [BKR], are relevant to the determination of [BKR]’s mental capacity. These incidents may justifiably be a cause of concern for the family, and if proven true might even lead to certain forms of legal recourse. However, these actions or events of undue influence cannot, as the respondents have argued, be considered a “contributing factor to [BKR]’s lack of capacity”. The MCA is clear that the only causal factor to be considered is an impairment of the mind.
[58] At the very best, the above events may be of circumstantial value in proving [BKR]’s lack of capacity. A possible syllogistic argument that could have been raised was as follows:
(a) Premise 1 – Individuals lacking mental capacity are more prone to being unduly influenced;
(b) Premise 2 – Given the string of events, [BKR] was shown to be more prone to being unduly influenced;
(c) Conclusion – Therefore, it is likely that [BKR] lacked mental capacity.
[59] However, it is noted that the respondents never explicitly advanced this argument at the trial below or during the course of the Appeals. Furthermore, even giving counsel for the respondents the benefit of the doubt that this argument was impliedly put forth, no arguments or evidence was led to prove the veracity of Premise 1 as well. Even then, this must still be considered against the fact that the respondents had time and again repeated that their real concern was that [BKR] was being subjected to undue influence, and that access to her was prevented. The intention, therefore, was that [BKR] should not be subjected to undue influence and should be brought back. This is in contrast to the hypothetical argument I had considered above, where the eventual concern would be the state of [BKR]’s mental capacity (with the events of undue influence merely proving such). In any case, it is also hard to see how the physical prevention of access (such as preventing [BKR] from answering the telephone, or physically preventing her from meeting her siblings at [AN]’s funeral, etc, which the respondents mentioned throughout the trial) is relevant to proving the mental incapacity of [BKR].
[60] Granted, the respondents tendered to the court below medical evidence and reports contesting the mental capacity of [BKR]. However, given the way the evidence was presented and the weight and significance the respondents attached to events wholly unrelated to the mental capacity of [BKR], I am left with the inevitable conclusion that the respondents were really concerned about something else rather than the mental capacity of [BKR].
[61] I accept that the Appeals are not to determine if the respondents had a secondary or subsidiary motivation behind taking out these MCA proceedings. A secondary or subsidiary motivation will not always be considered an abuse of process, so long as there remains some form of dispute over the mental capacity of the individual. However, in this case, after reviewing the evidence in its totality, I am of the view that the substantial dispute really does not centre on the mental capacity of [BKR]. In fact, it is clear from the evidence of the respondents that with the appropriate help, [BKR] is able to make decisions for herself (which suffices the test prescribed by the MCA – see [69] below). As a result of this finding, the MCA does not apply and the Senior District Judge erred in finding that she had the jurisdiction to entertain the application.
The findings pertaining to undue influence and other factual events
[62] This would be an appropriate juncture to deal with the substance of RAS 224 – that the Senior District Judge had erred in her findings that [AUT] and [AI] had unduly influenced [BKR]. After considering a number of “intra-family matters” from [100] to [126] of her GD, the Senior District Judge made, inter alia, the following findings:
(a) As to the [xxx] Trust – While it is not for the court to rule on the [xxx] Trust, injection of [BKR]’s assets into the trust could give [AUT] some measure of control and say over those assets in her capacity as Protector. In this manner, the role of the Protector as described by [AUT] in her evidence is far different from reality.
(b) As to the purchase of a good class bungalow – [AUT]’s active interest and participation in helping [BKR] move her assets from the other two banks to DBS Bank for injection of those assets into the [xxx] Trust and the purchase was not a mere coincidence. This was because of the similarity between the price of the house and the funds transferred, the timing of the transfer, and parallel attempts to transfer [BKR]’s assets from other banks into her DBS Bank accounts. Since [AUT] was the Protector of the [xxx] Trust with some form of control, there could possibly be some leakage of the funds as well.
(c) There were clear instances of [AUT] prevailing over [BKR]. Given [BKR]’s frugal nature, it was unlikely that [BKR] would have gone to instruct a lawyer to send letters with a deed of undertaking to her children, and therefore she must have done this with the encouragement or at the behest of [AUT]. Another example would be [BKR]’s sudden change of heart when she stated that she would not be attending the annual remembrance prayers for her late father.
(d) [AUT] was intent upon precluding access to [BKR] by members of her family and her bankers except when [AUT] was involved in some way and could somehow control and manage the access in a way that would not interfere with [AUT]’s plans relating to [BKR]’s wealth.
[63] Given my observations above, it would naturally follow that the findings of undue influence that the Senior District Judge made should be set aside as they are irrelevant to the issue of the mental capacity of [BKR]. Counsel for [AUT] and [AI] had very vigorously argued that the evidence supports their case – that the Senior District Judge had no factual basis to reach her findings. I see no need to make any findings regarding this point or the events in [62] above, as they have little bearing on the mental capacity of [BKR]. If the respondents were concerned that [BKR] was vulnerable to undue influence, or that [AUT] and [AI] had been wrongfully preventing access to her, the right recourse would perhaps be to ask the court to invoke its inherent jurisdiction to protect vulnerable people, similar to the situations in In re L or Re SA discussed earlier. However, this argument was also not raised by counsel, and I therefore see no need to belabour the point.
Summary of Issue 1
[64] The following points summarise my findings under Issue 1:
(a) Jurisdiction under the MCA is seised only if the substantial dispute centres on the mental capacity of an individual, or issues connected therewith. The issues connected to the mental capacity of an individual are exhaustively set out under the various parts of the MCA.
(b) Vulnerable people do not fall under the jurisdiction of the MCA, unless they are deemed to lack mental capacity under the MCA.
(c) The oral evidence of the respondents, and the voluminous evidence submitted to the Senior District Judge which did not relate directly to the mental capacity of [BKR] strongly suggests that the dispute did not centre on the mental capacity of [BKR], but instead, on the undue influence she was allegedly subjected to and the prevention of access. In the premises, the Senior District Judge did not have the jurisdiction to entertain the application.
[65] Given that an application under the MCA must centre on the mental capacity of an individual, events which were not materially relevant to this issue fell outside the scope of the MCA. The Senior District Judge had considered and made a number of factual findings on irrelevant events. Since these were outside the scope of the MCA, the Senior District Judge did not have the jurisdiction to make such findings. Therefore, there is no need for this court to make any factual findings regarding those events, although my preliminary observations are that some of the Senior District Judge’s findings were incorrect (such as her suspicion that [BKR] paid for the good class bungalow, when in truth it was purchased by [AUT] in the name of [AI] using her own inheritance from her late father, [EW]).
Issue 2 – Did the Senior District Judge err in law and in fact in applying the principles of the MCA wrongly, when considering the medical evidence and other contemporaneous events?
[66] Given my findings on Issue 1, the Appeals would already be allowed based on the fact that the Senior District Judge had no jurisdiction to entertain the application, much less make any findings on the events of undue influence alleged against [AUT] and [AI]. However, in the event that I am wrong in that there was some form of dispute regarding [BKR]’s mental capacity, I move on to address the issue of whether [BKR] lacks mental capacity as contemplated by the MCA. This does not detract from my view that the alleged events and instances of undue influence remain irrelevant to the findings of mental capacity.
[67] A declaration of the incapacity of an individual is not a trivial one. Effectively, the court is declaring that a particular person no longer has the ability to make a decision for himself and therefore, such decisions are to be effectively disregarded insofar as they no longer have any legal significance. For example, under contract law, agreements made by an individual who lack capacity are deemed void. Under criminal law, incapacity forms an effective defence in many cases. All in all, it is an encroachment upon the autonomy of an individual because the court is declaring that the individual has lost his ability to make a choice, and therefore, society should not take into account the individual’s “decision”. Upon the declaration of incapacity, a common step to take next is for deputies to be appointed who will then decide on the behalf of the individual.
[68] Given the significance of such a declaration, the MCA sets out a number of important principles which are to be strictly followed in determining the capacity of an individual. These are to be found in s 3 of the MCA. Flowing from s 3, the legal test as to whether an individual lacks capacity is found in s 4 and further elaborated on in s 5 of the MCA. Before discussing the core principles of the MCA, it may be helpful to first set out the test for incapacity.
The law
The test for incapacity
[69] The test for incapacity is found in s 4 of the MCA:
[70] Section 4(1) makes it clear that it is a two-step test. There is a functional component that the individual “is unable to make a decision for himself in relation to the matter”, and a clinical component that this inability stems from “an impairment of, or a disturbance in the functioning of, the mind or brain”. Section 5 elaborates on what it means when an individual is “unable to make a decision”, and provides that:
[71] In determining whether an individual is able to make a decision, it must be noted that the requirements of ss 5(1)(a) to 5(1)(d) are to be read conjunctively, in that all four requirements must be met – a person must be able to understand, retain, and weigh the relevant information, and then communicate his decision if he is to be found able to make a decision. A deficiency in any one of these requirements would mean that the individual lacks mental capacity. For precision, I would observe that all four functions engage different forms of cognitive activity – understanding demonstrates an ability of comprehension, retaining demonstrates an ability of memory, weighing demonstrates an ability of logic and reason and finally, the individual must be able to communicate in a way such that others actually understand his decision. This distinction is important as the impairment of the mind takes many forms, and may affect different brain functions. I accept that the first three requirements are usually considered together. As stated in Re F [2009] EWHC B30 (Fam) (at [21]):
[72] To conclude, if an individual is unable to understand, retain, or weigh the relevant information, or to communicate his decision (the functional component), because of an impairment of the mind (the clinical component), he will be found to lack capacity under the MCA.
The relevant principles of the MCA
[73] The core principles of the MCA are to be found in s 3, which provides:
[74] The first three principles (ss 3(2), 3(3) and 3(4)) are directly applicable to the test for incapacity, while the fourth and fifth principles pertain to matters after an individual is found to have lacked capacity. Pertinently, s 3(3) further elaborates on the functional component of the test for incapacity (whether an individual is “unable to make a decision”). “All practicable steps” must be taken to help an individual before determining that he is unable to make a decision. Reading this with s 5, this means that all practicable steps must be taken to aid an individual to understand, retain, or weigh the relevant information, and to communicate his decision. This requirement of assistance is acknowledged in Blackstone’s Guide (at para 3.16):
[75] An example from para 5.2 of the Singapore Code of Practice: Mental Capacity Act 2008 (Office of the Public Guardian, 2010) (“COP”) illustrates this principle of assistance. In an example where Ching Ching needs to make a decision on whether to undergo medical treatment A or medical treatment B, the committee of persons encourages that the following (non-exhaustive) information be provided to Ching Ching:
(a) the purpose and effect of each treatment;
(b) the consequences of each treatment; and
(c) the consequences of not having either treatment.
The COP further indicates that these options should be presented to Ching Ching in a fair manner. All in all, the example advocates that the individual be given appropriate support in making his decision.
[76] Section 3(4) of the MCA states that an individual who makes an unwise decision should not be treated as being unable to make a decision. This sheds some light on how s 5(1)(c), which concerns the individual’s ability to use or weigh that information as part of the process of decision-making, is to be assessed. As Blackstone’s Guide elaborates (at paras 3.27 and 3.28):
[77] The legal inquiry at the end of the day is to assess the individual’s ability. Therefore, it is clear that an individual is not to be found to lack capacity simply because he cannot foresee potential benefits or risks flowing from the various decisions. Only when he is unable to understand such benefits or risks is he then found to lack capacity. There is therefore a difference between a person who consciously makes an unwise decision and another who makes a decision that turns out to be unwise because he lacks the ability to understand, retain, or weigh the information necessary to make the decision. That said, I also note para 3.5.3 of the COP, which states:
I should point out here that I am bound under s 41(6)(a) of the MCA to take the provisions of the COP into account.
[78] Therefore, as I have mentioned above, the detailing of any factual incidents is only helpful insofar as they provide the court with an opportunity to assess whether the individual is consistent in making his decisions. If, for example, the individual continuously makes bizarre decisions with no pattern of consistency between such decisions, the court may be more likely to make a finding of incapacity.
[79] I would also add that a finding of mental capacity is issue-specific, depending on the nature and complexity of a transaction, and time-specific, as capacity may fluctuate.
Difference in assessment between the functional component and the clinical component
[80] It is important to distinguish the functional component and the clinical component of the test because they are two separate components which are to be assessed differently. The MCA clearly specifies how the functional component of the test is to be evaluated. As elaborated above, there are a set of principles to be applied when assessing whether or not an individual is unable to make a decision. However, the MCA is silent on how one is to assess the clinical component of the test. The trial judge will therefore have to assess the clinical component of the test by considering the totality of the evidence before him, similar to any other issues before him.
[81] The distinction between the two components is thus critical because the assessment of the evidence takes on a different perspective depending on which component is being assessed. To illustrate, if factual instances are raised to show that an individual is generally forgetful (alongside expert medical evidence), this may aid the court in finding that the person suffers from dementia, which may satisfy the clinical component of the test. However, there is an additional step to be taken to satisfy the functional component of the test – the court must be further satisfied that the individual is unable to make a decision. To do so, the court is then to be guided by the principles contained in the MCA. In considering the factual instances, for example, the court must consider whether all practicable help had been given. If no such help was given, the court must then be satisfied that even if all practicable help was given in that factual scenario, the individual would still have been unable to make a decision, before finding that he lacks capacity.
[82] There is also legal significance stemming from this distinction. As the assessment of the functional component is premised on the guiding principles in the MCA, an appellate court may reverse the findings of the trial judge if the principles were not followed. However, a finding on the clinical component of the test is essentially a finding of fact, based on the evidence before the judge (including expert medical evidence). The trite principle that an appellate court should be slow to intervene in the trial judge’s findings of fact would apply in this regard.
[83] That said, while the two components are to be distinguished, the clinical component of the test invariably affects the functional component of the test. For example, if an individual is suffering from such a severe state of dementia that it significantly affects his memory, this directly relates to s 5(1)(b) of the MCA, which is the individual’s ability to retain the information. If the retention of information is so compromised such that all practicable steps are still rendered useless, the court will have no choice but to find that the individual lacks capacity. As stated by Neville J in Richmond v Richmond (1914) 111 LT 273 (“Richmond”) at 274:
[84] The above case was cited by the Senior District Judge at [28] of her GD. Although Richmond was decided at a time before significant changes to the mental capacity regime in England were made, I generally agree with Neville J’s observations as to the loss of immediate memory. The court will be more inclined to find an individual lacking in capacity when this memory loss is immediate, as it may be impossible to assist the individual despite all practicable steps taken. However, if the individual is capable of a lengthier period of memory such that all practicable steps can still assist the individual in making his decisions, the court will be less inclined to find that the individual is lacking of capacity. In this manner, the severity and symptoms of the impairment become important factors to consider when determining the functional component of the test.
The Senior District Judge’s decision
[85] From the above discussion, it would appear that the Senior District Judge’s findings can be “separated” into at least two categories – findings pertaining to the clinical component of the test, and findings pertaining to the functional component of the test. The Senior District Judge did not explicitly carry out the separate analysis, and understandably so, because in reality it would be difficult to neatly categorise such findings so precisely. I state this at the outset because it will become apparent later that many of the Senior District Judge’s findings generally show that the clinical component of the test had been met. However, whether or not the functional component of the test was met is another question. As stated above, this must be answered with due consideration to the principles of the MCA.
[86] In addition, I had also observed that the Senior District Judge went on to make certain factual findings which did not necessarily pertain to either component. This was most apparent when she considered the second thread of contemporaneous events. To give an example, after considering a trust set up by [BKR] (the [xxx] Trust) and the purchase of a good class bungalow in Singapore by [AUT] (at [107] to [111] of her GD), the Senior District Judge made a factual finding that “[t]here could also be some leakage of the funds in the trust to persons other than [BKR]” because of certain provisions in the trust documents. As I had observed earlier (at [62(b)] and [63] above), whether or not there could be a leakage of funds has no bearing on either the clinical component or the functional component of the test. This reinforces my finding that the Senior District Judge clearly erred in this regard.
[87] While the Appeals concern all three “categories” of the Senior District Judge’s findings, the central focus under this issue is really the mental capacity of [BKR]. Therefore, it is only the Senior District Judge’s findings with regard to either the clinical or functional component of the test which are directly relevant for this court’s consideration. Bearing this in mind, I now set out my views on the Senior District Judge’s findings based on the evidence adduced before her.
The Senior District Judge’s findings
[88] There was a wealth of evidence before the Senior District Judge and as stated at [134] of her GD, she had only elaborated on details at the level she considered “sufficient to address and meet the issues raised by the defendants”. The voluminous records of appeal reveal the enormity of her task. I see no need to dwell on issues irrelevant to determining the mental capacity of [BKR], as it distracts this court from its task of determining the merits of the Appeals.
[89] After reviewing the evidence, the Senior District Judge arrived at her conclusions at [127] to [134] of her GD. In summary, the Senior District Judge concluded that [BKR]:
(a) had extremely poor memory, faced significant difficulties with orientation as to the day and date, and had difficulty with calculation, focusing and concentration;
(b) had an unrealistic perception of the value of her property and assets, and her estimated monthly expenditure;
(c) at the very least had mild dementia and Alzheimer’s Disease combined with vascular dementia with very poor short-, mid- and long-term memory;
(d) was able to comprehend what was said to her and seemingly respond, but was unable to retain relevant information long enough to weigh and assess that information in context with other relevant information to appreciate the consequences and implications;
(e) had extreme memory deficits and a lack of ability to understand and appreciate the implications of her actions, as well as a lack of executive function to enable her to decide;
(f) was vulnerable and susceptible to undue influence and manipulation; and
(g) did not have the capacity to litigate.
[90] The Senior District Judge stated that [BKR] was subject to confabulation, and demonstrated symptoms of masking (when she did not know how to answer a question).
[91] The Senior District Judge also concluded that [AUT] knew and understood [BKR], and was influencing and causing [BKR] to act in a manner contrary to [BKR]’s best interests. [AUT] was also selectively providing important information on [BKR]’s mental health and treatment.
[92] The Senior District Judge then dealt with the following categories of evidence in coming to her decision:
(a) medical reports and test results of [BKR], performed by both her Hong Kong and Singapore doctors starting from 2005 onwards;
(b) clinical interviews conducted by [BKR]’s experts in Singapore;
(c) MRI and PET scans carried out on [BKR];
(d) [BKR]’s oral testimony in court from 12 to 21 February 2012 (resulting in the conclusion that [BKR] confabulates and masks);
(e) evidence of the bankers who dealt with [BKR] from mid-2009 until end-2010; and
(f) evidence from [BKR]’s family members.
[93] The Senior District Judge had also considered a “second thread” of intra-family matters. The matters were:
(a) events pre-October/November 2010;
(b) letters sent by [BKR] to [AUT];
(c) a request for [BKR]’s Hong Kong medical reports;
(d) the purchase of a good class bungalow by [AUT];
(e) the series of conflicting instructions given by [BKR] to UBS bank to transfer her assets to DBS Bank;
(f) [BKR]’s isolation from her family members; and
(g) “the third trust”.
[94] After considering the arguments and counter-arguments of the parties, I am of the opinion that the clinical component of the test had been fulfilled. The evidence clearly shows that [BKR] is suffering from an impairment of the mind (although the degree of impairment is disputed). However, I am of the view that the functional component of the test was not met. In this connection, the Senior District Judge erred by misapplying the principles of the MCA in deciding that [BKR] was unable to make decisions.
Evidence that the clinical component is met
[95] At the trial below, the medical experts of [BKR] submitted that [BKR] was suffering from either Mild Cognitive Impairment (“MCI”) or, at worst, mild dementia. On the other hand, the respondents’ experts concluded that [BKR] was suffering from at least Stage 4 (Mild Dementia) and probably progressing to Stage 5 (Moderate Dementia) on the Global Deterioration Scale (“GDS”). Although the Senior District Judge did not make a conclusive finding as to exactly which stage of impairment [BKR] suffered from, counsel for [BKR] submitted before me that the views of [BKR]’s medical experts should be preferred (ie, that at the most [BKR] was suffering from MCI or mild dementia).
[96] While there is no need for me to decide conclusively the degree of impairment, I do not think there is any doubt that [BKR] does suffer from an impairment of the mind. This is evidenced by the medical evidence and tests, the clinical interviews, her performance in court, and from the evidence of her bankers. I also had the opportunity to review the videos of the clinical interviews during the course of the Appeals. I shall now make some general observations on the cognitive impairment of [BKR].
[97] In 2005, a report by one Dr [HS] suggested that [BKR]’s memory was starting to suffer, perhaps attributable to a dementing process. Dr [HS] had observed [BKR] on two occasions, once in 2005 and the second time in 2010, where she had administered, inter alia, the Rey-Osterrieth Complex Figure Test. While there was some dispute as to the opinions proffered by the medical experts, I am of the view that the test being “bizarre” and “meaningless” is with reference to the figures used in the test rather than the test itself (meaning that the figure was designed to look bizarre without a certain meaning, rather than the test being bizarre and meaningless). [BKR] scored less than perfect in those tests. Notes of a clinical interview by Professor [LE] (“Prof [LE]”) produced in the course of the Appeals also showed that [BKR] has been taking medication to aid her memory.
[98] In 2011, [BKR] went through a number of tests and clinical interviews. The Senior District Judge observed that [BKR] had a poor orientation to time, and generally had difficulty remembering the day, date, month and year. [BKR] also did not do well on the serial sevens test (although I note that she fared better in spelling “WORLD” backwards, which is an accepted alternative for the serial sevens test). All in all, her Singapore doctors had scored [BKR] an average of 23.5/30 or 22/28 for the Mini-Mental State Examination, which I accept is lower than the average score of someone of similar background to [BKR]. While the errors were not particularly significant, [BKR]’s score on the Clock Drawing Test was also less than perfect.
[99] Having viewed the interview videos, I also found that [BKR], while able to answer questions when asked directly and when guided, sometimes tended to misunderstand questions and gave irrelevant or incorrect answers. There are clear gaps in her memory. For example, [BKR] had mentioned that she had looked after [CY] (the second plaintiff) during the Japanese Occupation, but [CY] was only born after the Second World War. [BKR] could not recall when she had stopped work for Malayan Banking Bhd in Kuala Lumpur. I also note the Senior District Judge’s observations as to how [BKR] at times struggled to grasp monetary values (see [59] and [60] of her GD).
[100] [BKR] demonstrated certain difficulties during her cross-examination. I accept the Senior District Judge’s findings that she had trouble remembering certain dates and/or grasping legal applications. Although she “generally” knew what questions were posed to her, she had difficulty reading and understanding documents, and took a long time to read and re-read documents. There were also instances where she could not recall certain documents that she had read or things she had mentioned earlier. [BKR]’s struggle with numerical figures was also apparent when she could not answer how many years there were within the period 1966 to 2007, when she stayed in Kuala Lumpur.
[101] I also note the evidence of [BKR]’s bankers who had expressed concern about [BKR]’s memory lapses. Suffice it to say, while each individual instance cited above may not conclusively point to an impairment of the mind, the totality of the evidence showed beyond doubt that [BKR] suffered from certain memory deficiencies.
Specific clinical findings
[102] One of the issues that arose in the Appeals was whether the Senior District Judge made too broad a finding when she found that [BKR] suffered from “very poor short, mid and long term-memory”. In my opinion, this statement required some clarification. Undoubtedly, [BKR] suffered/suffers from at least mid-term to long-term memory deficiencies. This is evidenced by the fact that she could not recall the length of her stay in Kuala Lumpur, and certain factual inaccuracies revealed during the clinical interviews. Indeed, counsel for the respondents pointed out numerous instances where [BKR] could not recall her assets or properties to any certain extent. All this pointed to [BKR]’s mid- to long-term memory deficiencies. The Senior District Judge also found that [BKR] had short-term memory loss, based on her observations of [BKR] when [BKR] gave evidence in court. In fact, it was common ground between the parties that [BKR] has very imperfect short-term memory.
[103] While there may have been instances of some form of short-term memory loss on the part of [BKR] as evidenced by her inability to recall certain documents during her cross-examination, this must also be seen in the light of other evidence, such as [BKR]’s ability to carry on a normal conversation during her clinical interviews. On the whole, while there is no exact time-frame which defines what is to be considered “short-term” or “mid-term”, what is clear to this court is that [BKR] does not suffer from severe short-term memory loss such that it cripples her mental capacity. Likewise, while there are certain gaps in her mid- and long-term memory, at the end of the day, the legal inquiry is to decide whether it is so impaired that it affects [BKR]’s ability to make decisions. This is the functional component of the test, which is further elaborated on below.
[104] The Senior District Judge had found that there was coarsening of [BKR]’s emotions, based on the fact that [BKR] had accused one of her daughters of stealing some of her items, and [BKR]’s views on her grandchildren being nice to her only because she was funding their education. From the videos of the clinical interviews that were played in court, I note that [BKR] displayed a range of emotions and views over various issues, including expressing her personal opinions on a number of family members. Her emotional demeanour was consistent with the views she had expressed, be it the activities she had enjoyed or the persons whom she trusted.
[105] During cross-examination, [BKR] was able to respond to personal questions in an appropriate manner, and could even express her dissatisfaction at times (including a number of adverse comments directed to opposing counsel). When questioned about her feelings towards [AI], [BKR] was reluctant to express her views when he was around as she was mindful of not wanting to hurt the feelings of her son-in-law. Therefore, while [BKR] may hold certain paranoid views, it is more likely than not that those were one-off instances. There is no doubt that such views may persist or increase if and when her condition worsens, but in her current condition at this point in time, I find that there was no coarsening of emotions.
[106] As mentioned above, it is not for this court to decide conclusively the degree of impairment that [BKR] is facing. However, given my above observations, as well as having afforded due consideration to the extensive submissions of her counsel and the respondents’ counsel, it appears less likely that [BKR] suffers from Stage 4 (Mild Dementia) progressing to Stage 5 (Moderate Dementia) on the GDS. [BKR] is not prone to coarsening her emotions, and on the whole she does not display the severity of dementia often associated with patients at that degree of impairment.
[107] Nevertheless, it is clear that [BKR] suffers from some memory deficiencies and an impairment of the mind, and therefore the clinical component of the test is satisfied.
Evidence suggesting that functional component of the test is not met
[108] Despite my finding that the clinical component of the test is met, after considering the totality of the evidence I am of the opinion that the functional component of the test is not met – [BKR] is not unable to make a decision according to the principles of the MCA. Before addressing certain findings of the Senior District Judge, it is important at this juncture to discuss the weight that is to be accorded to various types of evidence in determining this functional component.
[109] The experts from both sides agreed that an expert’s observations during clinical interviews involving interaction with a person should be accorded more weight than screening tests (and other forms of “assessment”). Indeed, this was noted and accepted by the Senior District Judge (see [57] of her GD). In this regard, counsel for [BKR] had submitted that, ultimately, capacity is a “clinical judgement and assessment”. I cannot agree with this submission. While due regard must be given to such clinical interviews, it is important to note that whether or not the functional component of the test is met is ultimately a legal inquiry.
[110] At the forefront of this inquiry are the core principles of the MCA which determine exactly when a person is “unable to make a decision”. It is an assessment of the individual as a whole person, and ultimately requires a certain degree of judgment in deciding whether the individual has mental capacity. Therefore, all forms of evidence, including clinical interviews, must be taken into consideration in determining this factor.
Important factual findings pertaining to the functional component
[111] Before examining in detail the Senior District Judge’s findings regarding the functional component of the test, there are two factual findings the Senior District Judge made which merit some discussion. The first pertains to a “medical report” by Prof [LE] and the alleged non-production of this report by [AUT] and [AI]. As stated above, [BKR] saw a number of doctors both in Hong Kong and in Singapore, and those medical reports from 2005 onwards were presented during the trial. The medical report in question referred to a review by Prof [LE] of the condition of [BKR] on 27 August 2010. The court was invited to draw an adverse inference against [AUT] and [AI] because of the initial non-production of the medical report. The Senior District Judge concluded (at [46] of her GD) that:
[112] At [47] of her GD, after considering the fact that [AUT] had instead chosen Dr [HM] to give a report on [BKR], the Senior District Judge also reached the conclusion that Prof [LE] ’s report “could be damaging to [AUT] and [AI]’s case and [BKR]’s case”.
[113] In the Appeals, the appellants explained why the medical report from Prof [LE] was not produced. I am satisfied that no adverse inference should be drawn on the initial non-production of his medical report. In any case, the medical notes were eventually produced by [AUT] and [AI] in the course of the hearing and their innocuous contents contained nothing damaging to their case. At best, the notes revealed that [BKR] had been taking medication to aid her memory and that she was facing some problems with her memory; her memory loss was never denied by the appellants from the very beginning.
[114] The Senior District Judge’s second finding referred broadly to the clinical interviews which [BKR] underwent. In the trial below, there were suggestions that [BKR]’s experts were biased. The Senior District Judge at [61] of her GD also concluded that their evidence was “less than objective”. At the hearing, counsel for the respondents sought to persuade this court to view the experts’ testimony in the same light, giving no less than 19 detailed reasons. Those reasons ranged from the manner in which the interviews were conducted and the specific questions that were asked to the manner of scoring for the various tests that the experts had administered.
[115] I was mindful of counsel’s arguments when viewing the videos and considering the test results; I will address a number of them in the discussion below at [123] on the clinical interviews. However, I found the allegation that [BKR]’s experts started with a “flawed premise” baseless. In the course of the Appeals, counsel for the respondents had suggested that the reports of [BKR]’s Singapore experts were “biased” as they were influenced by the Hong Kong reports (which were similarly assumed to be biased). Yet in the next breath, when insufficient background knowledge of [BKR]’s condition was given, counsel criticised her experts as not having a longitudinal view of [BKR]. The fact that “they knew from the outset that [BKR] had come to see them because her capacity had been challenged” also does not lead to the conclusion that they must have started off from that flawed premise. I will further address this point when considering the “style” of the clinical interviews, but will briefly mention that the objective behind a clinical interview is both diagnostic and facilitative – at the end of the day, the objective is neither to prove or to disprove mental capacity, but really to analyse the patient in totality in coming up with a medical opinion as to the patient’s mental capacity.
[116] The allegation that the evidence of the experts of [BKR] was unreliable because they stood to “gain financially” was also speculative. It is common sense that no party would call an expert to testify against its own case (see Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace) [2010] 1 SLR 1129 at [23]). While the experts may (not must) stand to gain financially by being paid a fee, without further substantive proof, this allegation remains a mere assertion. I am mindful that the experts consulted by [BKR] are some of the leading medical luminaries in Singapore. I do not believe that they would lightly compromise their integrity and professionalism in exchange for fee payments.
[117] There was also a further suggestion by the plaintiffs that [BKR] could have been “coached” or “primed” for the interviews and tests that she underwent. Indeed, the Senior District Judge took heed of and accepted this allegation (see [50] of her GD). With respect to the Senior District Judge, there was no factual basis for her finding. It is a contradiction in terms that the respondents should assert on the one hand that [BKR] lacked mental capacity and suffered from severe memory loss, and on the other hand contend that she could have been coached or primed for her medical tests.
[118] I recognise that medical literature indicates that there can be a small “practice effect” for patients who take such tests repeatedly. However, there is a quantum leap in logic to then draw the conclusion that [BKR] was probably coached and primed because of her fluctuating medical scores. To draw such a conclusion is to start on the premise that [BKR] must have already been suffering certain memory deficits in the first place. On the other hand, the conclusion that she simply scored better is equally plausible. Therefore, without more cogent evidence, this allegation is pure speculation.
[119] The Senior District Judge’s findings were important as they affected the weight to be given to the evidence (in particular, that of [BKR]’s Singapore medical experts). While not explicitly stated, those findings suggested that the Senior District Judge had placed much less weight on the evidence of the medical experts of [BKR] concerning her mental capacity. With the MCA principles in mind, I now set out my observations of the findings of the Senior District Judge pertaining to the functional component of the test.
The Senior District Judge applied the MCA principles wrongly
[120] To recapitulate [69] to [72] above, the functional component of the test pertains to whether the individual is able or unable to make a decision. A person must be able to understand, retain, and weigh the relevant information, and then communicate his decision if he is to be found able to make a decision. As stated earlier, it is clear that [BKR] has problems with her memory, which pertains to her ability of retention. Her problems with her memory, as compared to her ability to understand, weigh, or communicate her decision, appeared to have been the Senior District Judge’s main concern. The Senior District Judge had concluded at [128] of her GD:
[121] The Senior District Judge drew a causative link between [BKR]’s inability to “weigh and assess” the information and her inability to retain the relevant information, ie, that the inability to weigh and assess was more because of her deficiency of memory rather than her deficiency of logic. However, at [76] of her GD, after reviewing [BKR]’s testimony in court, the Senior District Judge concluded that “[BKR]’s performance in court was far worse than can be explained by pure memory impairment alone” [emphasis added], suggesting that based on [BKR]’s performance in court, the Senior District Judge had also drawn the conclusion that [BKR] faced problems with comprehension (understanding the information) and logic (weighing and assessing the information) as well.
[122] Consequently, I am of the view that the Senior District Judge had erred in applying the principles of the MCA in finding that [BKR] was unable to make decisions. It seemed to me that the Senior District Judge did not consider the principle (cited repeatedly by counsel for [BKR]) that all practicable help should be given to an individual before determining whether the individual lacks capacity. This can be seen from the manner in which the Senior District Judge analysed the evidence in coming to her conclusion.
(A) Clinical interviews
[123] The first area was in the Senior District Judge’s criticisms of the clinical interviews. In discussing the conclusions of [BKR]’s experts after her clinical interviews, the Senior District Judge stated that:

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Re BKR

Laws this judgment relies on

Grounds of decision

Introduction

The facts

The decision below

The issues in the Appeals

The Law

The jurisdiction of the Senior District Judge

Vulnerable people

Application of the law

Was the substantial dispute between the parties the mental capacity of [BKR]?

(A) Evidence of the respondents

(B) The sequence and string of events

(C) Evaluation of the real dispute

The findings pertaining to undue influence and other factual events

Summary of Issue 1

The law

The test for incapacity

The relevant principles of the MCA

Difference in assessment between the functional component and the clinical component

The Senior District Judge’s decision

The Senior District Judge’s findings

Evidence that the clinical component is met

Specific clinical findings

Evidence suggesting that functional component of the test is not met

Important factual findings pertaining to the functional component

The Senior District Judge applied the MCA principles wrongly

(A) Clinical interviews