Court of Appeal · Decided 19 May 2015

Re BKR

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[2015] SGCA 26Case no. Civil Appeal No 27 of 2014

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Laws this judgment relies on

Mental Capacity Act 2008

Grounds of decision

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Sundaresh Menon CJ (delivering the judgment of the court):
[1] This appeal concerns an application made pursuant to the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“the MCA”) for a declaration that the third respondent is unable to make decisions as to her property and affairs because of an impairment of or a disturbance in the functioning of her mind or brain, and for a consequential order that deputies be appointed to make all decisions relating to her property and affairs on her behalf. The application was made by the appellants, both of whom are sisters of the third respondent. It is also supported by a number of their siblings and two of the third respondent’s three children – one son and one daughter – though none of these others are named as parties to the proceedings. Opposing the application are the third respondent herself and the first and second respondents, who are wife and husband respectively. The first respondent is the third respondent’s daughter and youngest child.
[2] It is common ground that the functioning of the third respondent’s mind is impaired in some way, but there is no accord as to the nature or the degree or extent of that impairment. The appellants take the position that the third respondent has dementia. They say that this has caused (i) significant deterioration in her memory, (ii) a decline in her executive functioning – which refers broadly to the cognitive abilities essential for goal-directed behaviour – and (iii) the development of paranoid and/or false beliefs. They claim that these consequences of her dementia prevent her from being able to make decisions relating to her property and affairs. The respondents, on the other hand, deny that she has dementia; according to them what she has is a condition referred to as Mild Cognitive Impairment (“MCI”). They accept that this has had an effect on her memory but they contend that this is not so pronounced as to have deprived her of the capacity to make decisions.
[3] It is useful to note at the outset that this appeal abounds in allegations of undue influence and ulterior motives. It is a disputed matter whether these allegations are even relevant to the appeal. The parties come from a prominent and very wealthy family. It is against this background that the third respondent has repeatedly expressed the belief that these proceedings brought under the MCA are in reality an attempt by her son, abetted by the appellants, to achieve control of her substantial wealth. On the other hand, the appellants and all who support their application maintain that they have no interest in the third respondent’s money, and that it is in fact the first and second respondents who seek to manipulate her for financial gain.
[4] The application was heard at first instance by a Senior District Judge in the Family Court (“the SDJ”), who agreed with the appellants and found that the third respondent lacked decision-making capacity. The appellants were duly appointed as the third respondent’s deputies. The SDJ’s written decision was published as [2012] SGDC 489 (“the First Instance GD”). All three respondents appealed and the matter went before the High Court judge below (“the Judge”). In her judgment reported as Re BKR [2013] 4 SLR 1257 (“the Judgment”) the Judge reversed the decision of the SDJ. The appellants now appeal to this court.
[5] As this is a long judgement, it may be of assistance to the reader if we signposted it by providing a broad outline of how its contents have been organised:
(a) We begin with a brief summary of the facts and the background to the case ([6]–[37]);
(b) We then review the course of the litigation in the Family Court and the High Court ([38]–[51]);
(c) Next we set out the broad contours of the law on mental capacity ([52]–[57]). This is done essentially to set the context against which the decisions of the two earlier courts may be considered and understood;
(d) We then consider the two earlier decisions from which this appeal arises ([58]–[75]);
(e) Then we set out the broad issues that arise for our determination ([76]–[79]);
(f) We then set out our decision. There are several parts to our decision:
(i) We first deal with a preliminary objection that the third respondent’s litigation representative in the High Court proceedings was not properly appointed ([80]–[87]);
(ii) We then deal with the central issue of law which we were presented with, which is the proper approach that should be taken by the court in dealing with applications of this sort and more specifically, to what extent the court may have regard to the actual circumstances in which the subject of the application is placed and where overlapping allegations of undue influence have been raised ([88]–[127]);
(iii) We then consider the question of whether the third respondent lacks capacity. In this section we examine the medical evidence that was led, as well as the evidence that was given by the third respondent herself and by the other factual witnesses. We also examine the evidence in relation to two specific sets of events or transactions ([128]–[205]);
(iv) We then set out our findings on the issue of capacity ([206]–[207]) and our conclusions and further directions ([208]–[210]);
(g) We end with a post-script where we offer some observations as to how matters of this nature may be conducted in a manner that may be preferable to what transpired in this case ([211]–[216]).
Facts and background
[6] The litigation commenced when the appellants made an application under the MCA by way of Originating Summons (Family Matters) No 71 of 2011 on 18 February 2011. The critical events leading to the application began about four months earlier, in late October 2010, as a result of behaviour on the part of the third respondent that might fairly be said would cause an objective and reasonable observer to ask whether she might lack decision-making capacity and/or be acting under the influence of the first and second respondents. In particular, this behaviour consisted of (i) setting up a trust, which we shall call “the Trust”, on terms and in circumstances that might be said to be questionable, (ii) giving a succession of contradictory instructions to her bankers in relation to the transfer of her assets that had been held in two banks to a third, and (iii) going to live with the first and second respondents in Hong Kong and then cutting off contact with her other children and her siblings despite their efforts to gain access to her.
[7] As to the facts that are relevant to the issues, we are primarily concerned with events that took place in the last months of 2010 and the early part of 2011. But it is first necessary to go back a little so as to locate those events within their proper context. We touch on two points in particular. First, we describe the state of the relationships within the third respondent’s family; then we trace the decline of the third respondent’s memory in the period from 2005 to 2010. This will lead us to the events in the critical period from the end of 2010.
The third respondent’s family
[8] As mentioned above, the third respondent has three children, of whom the first respondent, a psychiatrist, is the youngest. Her son, the middle child, is a barrister practising in Hong Kong. We refer to him as “CK” as was done in the Judgment. Her eldest child is a doctor in general practice and we refer to her as “NG”.
[9] When the third respondent’s father passed away in 2004, he left her and her various siblings a vast legacy. By July 2010, her share approached $200 million. The third respondent’s late husband was himself well-to-do with a considerable fortune and when he passed away in 2007, the distributable part of his estate was to be divided in the proportions of 30% each to NG and the first respondent, and 20% each to CK and CK’s son.
[10] Unfortunately, the relationship between the third respondent’s children could not be described as harmonious. There had long been friction but matters deteriorated after their father passed away. The lines were drawn with CK and NG on one side and the first respondent on the other, but the antagonism was strongest between CK and the first respondent. There were a number of specific disagreements between them as summarised by the SDJ at [101] of the First Instance GD. It is not necessary to go into them in any detail.
[11] The animosity between her children vexed the third respondent, and on many occasions following her husband’s death, she wrote letters in which she lamented their inability to get along and urged them to work past their differences. Most of these letters were addressed to the first respondent alone and copied to her siblings, and these contained some form of criticism of the first respondent. It appears that the third respondent would ask CK and the first appellant for assistance in drafting these letters, a circumstance which has led the first respondent to question the degree to which these letters truly reflect her mother’s sentiments.
[12] As we have said these family tensions came to a head towards the end of 2010 and culminated in the appellants’ filing the MCA application on 18 February 2011. We will turn to that shortly, but first, we touch on the matter of the third respondent’s memory.
The third respondent’s declining memory from 2005 to 2010
[13] It is not controversial that the third respondent’s memory is far from satisfactory. This had been evident from as far back as a decade or so ago: in a report dated 12 October 2005, a clinical psychologist from Hong Kong found that the third respondent had “significant impairment” in memory when tested with immediate recalls and 20- to 30-minute delayed recalls; that her “ability to acquire new materials after repeated presentations was limited”; and that her “ability to recognise what had been presented was also impaired”. Her ability to recall verbal materials on a test known as the California Verbal Learning Test was two to three standard deviations below what was expected of her age group, based on a research sample from the United States. It also appears that in 2006 the third respondent started taking “Prophylactic medication” for “Senile Dementia”.
[14] Moreover, there is documentary evidence that various persons who interacted with the third respondent found her memory deficits sufficiently significant to warrant comment from at least 2009. For instance, in a handwritten note dated 10 March 2009, one of the third respondent’s sisters informed NG that the sisters had noticed that the third respondent’s memory was “not so good” and that she “[kept] on repeating a lot of questions”, and that “it might be a good idea to bring her to consult a geriatrician to advise whether some medication may be helpful for her symptoms”.
[15] More noteworthy is documentary evidence that reflects concerns about the third respondent’s mental fitness expressed in the middle of 2009 by her bankers at JP Morgan, with whom she had opened accounts in late 2006 or early 2007. In notes attached to an e-mail exchange on 22 June 2009, she was described as having “shown some signs of being forgetful and incoherent lately”, and another internal note, sent with an e-mail on 23 June 2009, suggested that her forgetfulness might mean that she was “unsuitable for [redacted] with us going forward especially on more complex products”. A month later on 24 July 2009 an e-mail recorded the fact that some action had been taken “due to client’s deteriorated capacity”. In another e-mail a few days later, a bank officer wrote that having conversed with her, he had begun to “realise that her memory has deteriorated especially in the last couple of months”. In an e-mail of 28 July 2009 it was written: “Banker/Investor brought the case to our attention in June when they found that client could not remember [redacted] she placed with us”.
[16] Furthermore, there was the testimony in court of a former JP Morgan banker who had been her investment advisor at the bank in 2009 and 2010. He testified that, in early 2009, he had received from the third respondent faxed instructions to send all her bank statements to the first respondent in Hong Kong. At the time of these instructions, the third respondent was living in Hong Kong with the first respondent, and when she subsequently returned to Singapore and met in person with this banker, she had no recollection that she had given such an instruction, and was in fact “very upset” that the statements had been sent to her daughter. The banker also recounted how the third respondent would discuss with him the carrying out of a transaction, in particular transactions pertaining to renminbi, and after the transaction had been completed, she would suggest carrying out the same transaction as if it were a fresh idea. The banker added that JP Morgan’s concerns about the third respondent’s capacity eventually reached a point where it decided that it would no longer accept her oral instructions to trade on her account unless another party also reviewed and confirmed those instructions – she designated her son CK for this purpose. The evidence of this banker as to JP Morgan’s decision to cease accepting her oral instructions was corroborated by another JP Morgan banker who also testified in court.
The creation of a trust dated 26 October 2010
[17] We turn to the critical events near the end of 2010, and we begin with the Trust. The date that appears on the Trust documents is 26 October 2010 but, as we shall later describe, it appears that the third respondent signed the relevant documents on 6 and/or 26 November. In any event, nothing turns on this. The bank with which the Trust was created was DBS. By way of background, the third respondent had previously in 2007 created two other trusts with two different banks. One was with JP Morgan and broadly speaking it was to provide for herself; the other was with UBS and it was to provide for the education of her eight grandchildren. According to the first appellant, the idea of setting up both these trusts had originated with her: she had previously set up similar trusts for herself and her own grandchildren, and upon her guidance and advice, the third respondent followed suit.
[18] The third respondent has said that the Trust has two objectives. The first is to provide for herself during her lifetime, and the second is to make donations to charitable organisations after her death. The Trust names one specific beneficiary, a company which we refer to as “[B] Ltd”, and one class of beneficiaries, being “Charities to be determined”. The trustee of the Trust is a BVI trust company, and it has “absolute discretion” in applying the money in the Trust for the benefit of either of the beneficiaries. In a separate letter signed by the third respondent, the first respondent was appointed as Protector of the Trust. It would appear that she remains the Protector to this day.
[19] In a letter of wishes also dated 26 October 2010, the third respondent expressed her wishes that (i) an amount of $5 million be settled into [B] Ltd’s bank account and be replenished periodically, (ii) upon her death, [B] Ltd should have its bank account balance topped up to $10 million and [B] Ltd should then become the sole property of the Protector, and (iii) after her death, the trustee should apply the trust property to charitable causes as recommended by a philanthropic panel to be chaired by the first respondent. Until 27 July 2012, it does not appear that there was any express provision as to what the money in [B] Ltd’s bank account would be used for during the third respondent’s lifetime; it was only on that day that a deed of understanding was entered into between the third respondent, the trustee and the first respondent which provided that [B] Ltd’s monies would be used for the “exclusive purpose of maintaining [the third respondent]”.
[20] The Trust stipulates a class of persons called Excluded Persons who are entirely excluded from enjoying any benefits under the Trust. The Trust as it was originally drawn up named two Excluded Persons, namely NG and CK; in addition, any trustee or Protector was an Excluded Person for the duration of their occupation of those offices. The appellants’ complaint is that this aspect of the Trust favours the first respondent over her siblings because she would no longer be an Excluded Person should she relinquish her office of Protector. We were informed by counsel for the third respondent that, although he considered this complaint to be groundless, the wording of the Trust has since been “tighten[ed] up” so as to “make it clear that none of the children can benefit from the assets in the Trust”. But counsel also indicated that the provision of a gift of $10 million to the first respondent on the passing of her mother has been retained.
[21] Much of the evidence on the circumstances in which the Trust was set up proceeded from the first respondent. She testified that the third respondent came up with the idea of setting up the Trust after speaking to two individuals. One was a close friend of the third respondent’s late husband whom we call “Mr Z”. Mr Z is a wealthy businessman and he is also chairman of the company that wholly owns the Trust’s corporate trustee. The other was a Singapore lawyer whom we call “Mr L”. Mr Z had previously referred the third respondent and her family to Mr L for legal assistance in relation to an estate matter.
[22] According to the first respondent, Mr Z told the third respondent sometime in the second half of 2010 that she should take care of her money lest CK get his hands on it. Acting on that advice, the third respondent personally called Mr L and arranged to meet him so that he could assist her in taking steps to protect her money. Mr L duly came over to Hong Kong and met her. The first respondent testified that, although she had not been present when Mr L took her mother’s instructions, she subsequently met her mother and Mr L, and on that occasion Mr L told her what her mother’s instructions had been, which were that she wanted to set up something so that no one could touch her money, and that she desired to give most of her money away to charity upon her passing. Mr L thus advised the third respondent about setting up the Trust. Eventually, the third respondent signed the Trust documents (as well as related banking documents) in Singapore on two separate occasions in November 2010, in circumstances we shall describe below.
[23] The third respondent also gave evidence on the genesis of the Trust and her account was in certain respects at variance with that of the first respondent. In the third respondent’s version of events, Mr Z and Mr L had a fairly limited role in setting up the Trust. She said that no lawyers had been involved in advising her, although she did also say elsewhere in her evidence that she had asked Mr L to “set up a trust for [her]”. As for Mr Z, his participation seems to have been confined to choosing the trustee. The primary actor was instead a senior DBS banker whom we shall call “Ms D”: the third respondent testified that Ms D had come over to Hong Kong and explained the Trust documents to her, and that she had thereafter signed a single document, also in Hong Kong, with no one present except Ms D.
[24] There is an important point on which the first and third respondents are in agreement, and that is the first respondent’s lack of involvement in the setting up of the Trust. The first respondent’s position is that she “did not provide any input in the setting up or structuring of” the Trust, and the third respondent denied in cross-examination that the first respondent had made any suggestions in relation to the Trust.
Events from November 2010 to 18 February 2011
[25] Following the creation of the Trust, the third respondent gave a series of conflicting instructions to her bankers over a period of more than a month and, in the midst of this, went to live with the first and second respondents in Hong Kong. This move to Hong Kong was not in itself unusual given that prior to this she had periodically spent significant time there. However, what was unusual on this occasion was that she appeared not to want to have any meaningful contact with her siblings and with NG and CK.
[26] On 1 November 2010, the third respondent – who was in Hong Kong at this time – signed a limited power of attorney in favour of the first respondent concerning the operation of her UBS accounts. A few days later, on 5 November 2010, the third respondent arrived in Singapore with the first respondent. The first respondent testified that, the following day, she attended a meeting between her mother, Mr L, Ms D, two relationship managers from DBS and representatives of the Trust’s corporate trustee. At this meeting, the third respondent signed some documents relating to the Trust and/or banking arrangements ancillary to the Trust. On 8 November 2010, UBS received a letter in which the third respondent stated that she wished to transfer all her assets that were kept or maintained with UBS to DBS within a week. According to the third respondent, she requested this transfer in order to inject funds into the Trust; it is possible that the letter was one of the documents that she signed at the meeting on 6 November. On 10 November 2010, a female banker from UBS whom we shall call “Ms B” contacted the third respondent. Ms B’s testimony in court was that, during this conversation, the third respondent had no recollection of the 8 November letter and instructed her not to act on the instructions contained there.
[27] On 19 November 2010 the third respondent again wrote to UBS. She expressed her unhappiness at the bank’s failure to carry out her instructions in the 8 November letter, and demanded that this be rectified within four days. In response, UBS arranged a face-to-face meeting with her and this took place on 23 November 2010. The first appellant was present at this meeting, as was Ms B. By the time the meeting concluded, the third respondent had signed a number of documents. The first revoked her instructions to transfer all her assets held in UBS to DBS. The second revoked the limited power of attorney granted to the first respondent on 1 November. The third authorised UBS to disclose the third respondent’s account information to four persons, namely, the two appellants, CK and the third respondent’s personal assistant.
[28] On 25 November 2010, the first respondent arrived in Singapore. As noted above, she had flown into Singapore with the third respondent on 5 November and following that, she returned to Hong Kong on 7 November. On the next day, 26 November, the first and third respondents had a meeting with at least Mr Z and Ms D, and here the third respondent signed other documents relating to the Trust and/or the associated banking arrangements. On 28 November 2010, the third respondent left Singapore for Hong Kong in the company of the first respondent. The following day, 29 November 2010, a letter signed by the third respondent was faxed to UBS containing fresh instructions to transfer all her assets held in UBS to DBS within a week. In response, UBS wrote back on 2 December 2010 requesting a face-to-face meeting. The third respondent replied on the same day without addressing the bank’s request for a meeting but instead reiterating her instructions in the 29 November letter. Further, this letter of 2 December identified a specific account in DBS into which her UBS assets were to be transferred.
[29] Meanwhile, on 29 November 2010, CK wrote to the appellants informing them that the third respondent was in Hong Kong. He asked the second appellant to conduct a land search on a bungalow in Singapore that the first respondent had apparently purchased in her name (“the Bungalow”). This purchase had taken place fairly recently – the option to purchase had been granted on 30 October and it was exercised on 19 November. The second appellant conducted the land search the day after being requested to do so and it turned out that the Bungalow was being purchased in the name of the second respondent rather than the first respondent. The appellants conveyed this to CK.
[30] Arising from this discovery concerning the Bungalow, CK and NG decided to visit the home of the first and second respondents in Hong Kong on the morning of the following day, 1 December 2010. They arrived intending to meet the third respondent, who was residing there. However, they were prevented from doing so. The second respondent evidently stood at the front doorway and physically blocked them from entering; at the same time the third respondent remained in an upstairs bathroom with the first respondent. The encounter ended with CK and NG being escorted from the premises by security personnel.
[31] Those involved put forward conflicting accounts of what had transpired. The second respondent said that he had obstructed CK and NG because they were being aggressive and unruly; the first respondent said that her mother went to hide in the upstairs bathroom because she was surprised and frightened by the commotion that CK and NG were causing; and on the other hand, CK and NG maintained that they had conducted themselves appropriately and politely and that the second respondent’s refusal to permit them entry was unreasonable. On the next day, solicitors acting for the first and second respondents sent CK a letter warning him not to attempt to enter their residence again.
[32] A few days later, on 6 December 2010, CK showed up at an acupuncture clinic in Hong Kong where the third respondent was having treatment while accompanied by the first respondent. There was something of a confrontation there between them; once again the protagonists are not in agreement as to what exactly happened. CK said that his mother was pleased to see him and that he was unable to interact with her only because his sister came between them without good reason; on the other hand, the first respondent said that she was merely trying to stop her brother from harassing their mother into signing legal documents of an undetermined nature. Whatever the case, this did not prevent the trio from going for tea thereafter together with NG and the second respondent. Subsequently, the third respondent wrote by hand a letter dated 8 December 2010 addressed to CK and NG in which she castigated them, and CK in particular, for their attempt to enter the home of the first and second respondents on 1 December.
[33] Returning to the third respondent’s dealings with her banks, on 13 December 2010, bankers from JP Morgan met her in Hong Kong at the residence of the first and second respondents. Also present were the Singapore lawyer Mr L and two bankers from DBS. According to a contemporaneous attendance note prepared by the JP Morgan bankers, this meeting had been arranged in order that the JP Morgan bankers might obtain instructions from the third respondent face-to-face. It was also recorded in the attendance note that the third respondent did not speak much at this meeting. Instead it was Mr L who mainly spoke on her behalf. Parts of the note were redacted due to considerations of banking secrecy and for this reason it cannot be unequivocally ascertained exactly what the meeting was about, but it may be inferred that it had to do with the transfer of the third respondent’s assets in JP Morgan to DBS. The first appellant’s evidence was that, on 24 November 2010 – about three weeks before the meeting – a DBS officer had turned up at the third respondent’s apartment with letters for her to sign. These letters were addressed to JP Morgan and contained instructions to transfer her funds in the bank to DBS. The first appellant also testified that the third respondent refused to sign the letters at the time. Given the context, it is probable that this meeting on 13 December 2010 concerned those letters and the instructions therein.
[34] Two days later, on 15 December 2010, bankers from UBS, including Ms B, met the third respondent. This was a follow-up to the bank’s request about two weeks earlier for a face-to-face meeting with her in order to clarify her instructions on the transfer of funds to DBS. Once again, Mr L was present with two bankers from DBS. According to Ms B, the third respondent was unable to recall the previous conflicting instructions she had given, but she did personally confirm that she wanted to close her UBS account. Ms B also testified however that, at the conclusion of the meeting, the third respondent asked her more than once to purchase more renminbi products, apparently having forgotten that the entire purpose of the meeting was to close the UBS account.
[35] On 17 December 2010, CK met the third respondent while she shopped at a crafts shop. Little was said about this meeting in evidence except that the third respondent testified that she had been “quite happy to see him”. A few days later, solicitors acting for the third respondent wrote identical letters dated 21 December 2010 to CK and NG demanding that they furnish undertakings not to harass their mother. However, the third respondent then had lunch with all her children and grandchildren on Christmas day, 25 December 2010. On this occasion, they did not speak about financial matters or the intra-familial conflicts; in NG’s words, “superficially it was like a happy Christmas lunch”.
[36] On 27 December 2010, solicitors for UBS wrote to the third respondent setting out the chronology of events since 1 November. They traced the contradictory and conflicting instructions they had been given as to transferring her UBS-held assets to DBS, and informed her that UBS would need her to receive independent legal advice and to provide medical proof of mental capacity. To that end, on 13 and 20 January 2011, medical reports were submitted by two doctors certifying her capacity to execute statutory declarations.
[37] Subsequent to this, between 21 January and 18 February 2011, correspondence flowed between Shook Lin & Bok LLP, counsel for the appellants, and WongPartnership LLP, counsel for the third respondent, the gist of which was that the third respondent declined to return to Singapore and meet her sisters face-to-face as requested. On 18 February 2011, the appellants commenced proceedings under the MCA.
The litigation
Pre-trial interlocutory applications and clinical examinations
[38] When the appellants filed their MCA application on 18 February 2011 it was accompanied by a summons in which they sought, among other things, an order that the third respondent attend alone before “a neurologist and a psychiatrist and/or any other reputable independent medical specialists” for the purpose of evaluating her capacity to deal with her property and financial affairs. These medical specialists were to be engaged by the appellants and approved by the court. The appellants were evidently anxious to ensure that any clinical examination of the third respondent be carried out in a neutral way by impartial medical experts.
[39] The appellants’ summons was not heard until 22 July 2011; by then the third respondent had sought out a number of medical experts with whom she had had no previous relationship and requested that they examine her. These experts comprised three psychiatrists and two neurologists: the psychiatrists were Dr Calvin Fones (“Dr Fones”), Dr Tan Chue Tin (“Dr Tan”) and Dr Ung Eng Khean (“Dr Ung”), and the neurologists were Dr Tang Kok Foo (“Dr Tang”) and Dr Wong Meng Cheong. Over several days in the first half of March 2011, the five experts took turns to examine the third respondent; on one occasion, three of the doctors conducted a joint examination of the third respondent but the other meetings were private and involved only a single doctor with the third respondent.
[40] The examinations of the third respondent consisted of informal interviews in which she was asked questions on such topics as her life history, family, finances, beliefs, and likes and dislikes. In addition, a number of formal standardised mental tests that are widely used by clinicians for the purpose of assessing cognitive function were administered. The tests are meant to be administered according to clearly-defined instructions and use a fairly strict scoring system. The unanimous opinion of all five experts following this round of clinical examinations was that the third respondent remained in possession of her decision-making capacity.
[41] Since the appellants’ prayer for an order that the third respondent be examined by independent medical specialists had not yet been adjudicated upon, the appellants had no means of compelling the third respondent to undergo an examination by any medical expert nominated by them. Nonetheless, on 7 July 2011, three experts instructed by the appellants – namely, Professor Kua Ee Hock (“Prof Kua”), a psychiatrist, Dr Chan Kin Ming (“Dr Chan”), a geriatrician, and Dr Benjamin Ong, a neurologist – produced opinions on the third respondent’s mental health. They based their opinions on the factual material asserted in the affidavits that had been filed by the parties to the litigation, as well as on the medical reports put forward by the third respondent’s five experts in March 2011 and also on various other medical reports produced by her Hong Kong doctors prior to the commencement of the MCA proceedings. The appellants’ experts all expressed concerns about the third respondent’s ability to manage her property and affairs but none of them went so far as to say that she lacked capacity to make decisions. Instead the consensus among them was that it was imperative that the third respondent be clinically evaluated by a panel of independent specialists.
[42] In early July 2011, the third respondent was again examined over a few days by three of her own medical experts, namely Dr Fones, Dr Tang and Dr Ung, individually. In their affidavits, the experts stated that these examinations were requested by the third respondent in order to ascertain if there had been “any changes in her clinical and mental status” since the earlier examinations. All three experts repeated their earlier conclusion that she was mentally capable of making decisions.
[43] A few weeks later, on 22 July 2011, the SDJ heard the appellants’ application for an independent clinical examination of the third respondent. This was heard together with two applications which had been made two months earlier, one by the first and second respondents and the other by the third respondent. Both the latter applications sought an order that all the deponents of affidavits in the proceedings be cross-examined; among these deponents was the third respondent herself. Thus, in effect, she had sought an order that would necessarily expose her to cross-examination.
[44] The hearing of the applications spilled over to a second day before the SDJ in August 2011. On 13 September 2011, she gave her decision. She allowed the respondents’ applications for cross-examination but made no order on the appellants’ application for independent medical examination. The appellants were dissatisfied with this and lodged three appeals relating to the SDJ’s decisions in the three applications. The appeals were heard by the High Court on 1 February 2012, less than two weeks before the trial in the Family Court was scheduled to begin. At the conclusion of the hearing, all of the appeals were dismissed. But the High Court judge gave some directions as to how the cross-examination should be conducted, including a direction that the third respondent be cross-examined first.
[45] The determinations on these interlocutory matters had two key consequences; first, the third respondent would have to undergo cross-examination in court; and, second, the medical experts instructed by the appellants would not have the opportunity of examining the third respondent in a clinical setting. Thus, their opinions on her mental capacity would have to be based on what they knew of her clinical interviews with the experts instructed by her, as well as their own observations from her examination in court.
Examination of the third respondent in and out of court
[46] The trial in the Family Court began with the examination of the third respondent on 13 February 2012. This continued for eight days and ended on 22 February 2012. It consisted almost entirely of cross-examination conducted by counsel for the appellants. Whereas the usual objective of cross-examination is to establish facts by eliciting evidence relevant to those facts, the cross-examination of the third respondent was meant in large part to test her mental functioning. Thus she was asked, for instance, to explain what an affidavit was and what her understanding was of the terms of the Trust. Even though it has not been suggested that counsel for the appellants was anything other than polite and courteous throughout this process, the third respondent generally adopted an attitude of suspicion and hostility towards him. Following cross-examination by counsel for the appellants, counsel for the first and second respondents indicated that he had no questions to ask her, and her own counsel then indicated that he also had no questions to ask her by way of re-examination.
[47] On 23 February 2012, the day after the completion of the third respondent’s examination in court, she met four of her experts – Dr Fones, Dr Tan, Dr Ung and Dr Tang – for a clinical interview. No formal cognitive tests were administered; the entirety of the interview was a conversation between her and the four experts, and much of this traversed the ground that had been covered in cross-examination. The appellants complain that, since counsel for the third respondent had chosen not to re-examine her in court, this clinical interview in effect was a “leading re-examination” of the third respondent calculated to mitigate the damage done by her poor performance under cross-examination. But the opposing perspective is that the adversarial and stress-inducing nature of cross-examination does not provide an appropriate environment in which to assess a person’s true mental capacity and that a more accurate measure of this would be the person’s responses given in the kinder and gentler setting of a sympathetic clinician’s office. We will deal with this divergence of views in due course.
Joint conference of the medical experts in court
[48] After the examination of the third respondent, the medical experts were examined in joint conference. The third respondent brought six experts, among whom were the three psychiatrists and one neurologist who had conducted the clinical interview of 23 February 2012 with her. On their part, the appellants brought five experts, including Prof Kua, Dr Chan and Dr Michael Yap (“Dr Yap”), a neurologist. During this phase of the trial, the experts did not give evidence individually in the usual way but instead took the stand together and gave evidence concurrently. In this manner, they were able to respond immediately to one another’s views, and questions from counsel and the SDJ could be put to all the experts at once. Each side’s complement of experts included a radiologist and a nuclear medicine physician. They gave evidence on brain scans that the third respondent had undergone prior to the commencement of the MCA proceedings.
[49] The medical experts’ conference lasted five days, during which time they discussed (i) the brain scans, (ii) the results of the formal cognitive tests administered to the third respondent by her experts, (iii) excerpts from the transcripts of her clinical interviews with her experts, and (iv) the transcripts of her cross-examination in court by counsel for the appellants. From this mass of material, two quite different conclusions were advanced. As we have mentioned, the third respondent’s experts took the position that although she had MCI, she did not lack the ability to make decisions. The appellants’ experts on the other hand, were of the view that she was suffering from a mixture of Alzheimer’s disease and vascular dementia – which is dementia that is linked to inadequate blood supply to the brain – and that the effect of these conditions was that she did not have decision-making capacity.
Examination of the other witnesses
[50] After the joint conference of the medical experts, the appellants and six witnesses aligned with them took turns to give evidence. These six witnesses were the third respondent’s children, CK and NG, and four bankers. Finally the trial concluded with the testimony of the first and second respondents.
[51] The SDJ reserved judgment after hearing submissions and gave her decision some months later. Before we turn to her decision (and then to the decision of the Judge against which this appeal has been brought) it would be useful for us first to describe the legal framework governing matters of mental capacity in Singapore as this will provide useful context for understanding the two earlier decisions. At this stage, we limit ourselves to a broad overview of this framework.
The law on mental capacity under the MCA
[52] Under s 19(1) of the MCA, the court “may make declarations as to whether a person has or lacks capacity to make a decision specified in the declaration” or “decisions on such matters as are described in the declaration”. That is what we are being asked to do in this appeal. Following the MCA, we refer to the person whose capacity to make decisions is under consideration as “P”; to illustrate, P in the present case is the third respondent.
[53] In relation to the capacity to make decisions, there are definitions laid down in the MCA. Under those definitions, P lacks capacity if he is “unable to make a decision for himself” because of an impairment of, or a disturbance in the functioning of, the mind or brain: s 4(1). The MCA then goes on in s 5(1) to explain when P will be considered to be “unable to make a decision for himself”. There are four possible situations: (i) he is unable to understand the information relevant to the decision, (ii) he is unable to retain that information, (iii) he is unable to use or weigh that information as part of the process of making the decision, or (iv) he is unable to communicate his decision by whatever means. The remainder of s 5 elaborates on these four situations, eg, s 5(4) expands on the meaning of “information relevant to [the] decision”.
[54] For ease of reference we reproduce the material parts of ss 4 and 5 of the MCA:
[55] In the Judgment, the Judge observed (at [70]) that the test for capacity in s 4(1) of the MCA contains a functional as well as a clinical component. The functional component is that P is “unable to make a decision for himself”, and the clinical component is that this inability stems from an impairment of the mind. We would emphasise that there must be a causal connection between the inability to make decisions and the mental impairment – going back to the statutory language, P must be unable to make a decision “because of” his mental impairment.
[56] Moving to other material parts of the MCA, s 3 sets out a number of principles that are of overarching importance, the first three of which – contained in subsections (2) to (4) – apply to the question of whether P has or lacks capacity. It will be seen that the starting premise is that a person has capacity. The question for the court is whether the lack of capacity has been established (see s 3(2)). For purposes of the instant appeal, a material principle is that contained in s 3(3), which is that P is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. What precisely this entails is a matter that we turn to later in this judgment. Again for ease of reference we reproduce s 3:
[57] When P is found to lack capacity, the court may appoint deputies to make decisions on his behalf: s 20(2)(b) of the MCA. The powers of deputies are potentially wide-ranging but the MCA contains provisions that circumscribe them. In particular, when deciding whether it is in P’s best interests to appoint deputies, the court must have regard to the principle that the deputies’ powers should be as limited in scope and duration as is reasonably practicable: s 20(4)(b). Furthermore, s 25(5) mandates that deputies have regard to the best interests of P and s 25(1) provides that deputies do not have power to make a decision on behalf of P if they know or have reasonable grounds for believing that he has capacity in relation to the matter. As to what constitutes P’s best interests, this is explained in s 6.
Decisions below
Decision of the SDJ in the First Instance GD
[58] Perhaps the central finding that the SDJ made was that the third respondent was “generally unable to understand or appreciate the relevance or importance” of information in context due to her “poor memory”, and that she had “very poor” short-, mid- and long-term memory: at [30] and [128] of the First Instance GD. The key concern in the SDJ’s view was that the third respondent was not able to retain relevant information long enough for her to be able to use and weigh that information when she had to make a decision.
[59] Broadly speaking, the SDJ identified two “main overlapping threads of evidence”. The first was directly connected to the third respondent’s mental capacity and it consisted of the evidence of the medical experts taken together with the third respondent’s performance under cross-examination, among other things. The second bore a more indirect relation to the question of capacity and it concerned the intra-family relationships and events from late 2008 to the first quarter of 2011: at [37]–[38] of the First Instance GD.
[60] On the first “main thread” of evidence, the SDJ began by considering the results of the formal cognitive tests administered to the third respondent. She found that the third respondent had poor orientation to time, which is to say she had difficulty supplying the correct day of the week, date, month or year when asked: at [50] of the First Instance GD. The SDJ added that the third respondent had “poor concentration” (at [52]) and “very significant memory problems” (at [53]).
[61] Next, the SDJ considered the clinical interviews of the third respondent by her medical experts. The SDJ did not agree with the experts’ view that these interviews showed the third respondent to be a “well-functioning individual”. This was because the interviews had not been “rigorous” and “probing” and did not feature “focused and detailed questions” such as would probe the “rationality or consistency of her answers”; all told, the interviews sometimes resembled a “somewhat deferential social conversation” and did not go beyond merely “accepting [her] statements and her efforts at ‘masking’ her deficiencies by giving generalised or evasive answers”. The SDJ opined that the interviews had not so much been a test of mental capacity as they had been a “platform” for the third respondent to state her views on a variety of subjects “with a view to making submissions on [her] behalf”: at [57]–[58] of the First Instance GD. Moreover, the SDJ found that the evidence of the third respondent’s experts was “less than objective” in that they were “in sympathy with and were trying to help” her “obviate a possible finding by the court that [she] lacked capacity”: at [61].
[62] Turning to the third respondent’s performance in court under cross-examination, the SDJ held that it demonstrated a “memory impairment so severe that she cannot retain information for a short while and definitely not long enough to be able to use and weigh the information in context together with other longer term information”: at [68] of the First Instance GD. The third respondent was found to be unable to keep track of lines of questioning; unable to recall documents she had read or things she had been told moments earlier; and to have difficulty reading and understanding documents: at [66]–[67]. This was so despite the fact that, in the SDJ’s view, the third respondent had not been “tense” during her cross-examination, as evidenced by the fact that she had engaged in banter with counsel for the appellants who in his cross-examination of her had been “patient and non-threatening” and had extended due respect, courtesy and consideration to her: at [66].
[63] The SDJ then dealt with the evidence of the witnesses of fact. She found the evidence of the four bankers “credible” and considered that some of that evidence tended to show diminished capacity on the third respondent’s part: at [78]–[82] of the First Instance GD. The bankers had testified that she would give instructions verbally and forget about them, sometimes repeating the same instruction moments later as if it were a fresh one. They had also given evidence that was suggestive of her susceptibility to manipulation and in particular manipulation by the first and second respondents. Likewise, the SDJ found the appellants to be “credible witnesses” whose concern over the third respondent’s failing memory and consequent vulnerability was “genuine”: at [86]. She thus found that, prior to the events of November 2010, the appellants had been “trusted sisters and advisers” to the third respondent, but all this changed after she left for Hong Kong on 28 November 2010: at [83]–[84]. The SDJ found CK to have been a “credible witness” as well (at [90]), and although she did not expressly apply that epithet to NG it can be inferred that the SDJ found NG credible too as she was said to be “the most spontaneous in giving evidence”: at [93].
[64] By contrast, the SDJ found that the first respondent had been “evasive and less than truthful in her answers” and “selective in her memory”: at [96] of the First Instance GD. As for the second respondent, it would appear that the SDJ was unimpressed by his performance on the witness stand. She highlighted the inherent incredibility of the second respondent’s claim that the third respondent’s memory in 2012 was little different from what it had been when she was working at the legal department of a major bank decades ago: at [98].
[65] In dealing with the second “main thread” of evidence, the SDJ examined the terms of the Trust and although she said that it was not her role to rule on the Trust, she put forward some observations suggesting that the way the Trust was structured made it open to abuse. She noted the fact that, shortly after the creation of the Trust, the second respondent had purchased the Bungalow using money from the first respondent. The SDJ found that, given the first respondent’s “active interest and participation” in helping her mother move the assets that she held in JP Morgan and UBS to DBS, it was “not a coincidence” that the attempts to move funds into DBS for the purposes of the Trust had taken place around the time of the purchase of the Bungalow, and that the purchase price of the property was similar to the approximate amount of funds in the third respondent’s DBS accounts. In short, the SDJ appeared to think that the first respondent might have engineered the creation of the Trust as well as the migration of her mother’s funds into DBS from other bank accounts in order that she might get her hands on those monies: at [111] of the First Instance GD.
[66] The SDJ proceeded to the conflicting instructions that the third respondent had given to her bankers in November and December 2010, and opined that this showed that the third respondent had been “in a very confused state” and had had “difficulty following and understanding the meetings and discussions with her bankers”: at [119] of the First Instance GD. Finally, the SDJ considered the events that had occurred after the third respondent returned to Hong Kong on 28 November 2010, and her conclusion was that the first respondent had been “intent upon precluding access to [the third respondent] by members of her family and her bankers” so that there would be no interference with the first respondent’s self-interested plans relating to her mother’s property and affairs: at [126].
[67] Summing up, the SDJ found that events beginning in the middle of 2009 and continuing to 2011 and 2012 showed that the third respondent had “extremely poor memory”, faced “significant difficulties with orientation as to day and date”, had difficulty with “calculation, focusing and concentrating”, and had an “unrealistic perception of the value of her property and assets”: at [127] of the First Instance GD. The SDJ further found that the third respondent had at the very least “mild dementia, Alzheimer’s Disease combined with vascular dementia with very poor short, mid and long-term memory”, and that due to these “extreme memory deficits” and “consequent lack of ability to understand and appreciate the implications of her actions”, she did not “have the executive functioning to enable her to decide on her property and affairs”. The third respondent, it was found, was “not able to recognise if and when she needs help and if so, what sort of help and to whom she may turn for help”: at [128].
[68] The SDJ also found that the third respondent was “vulnerable and susceptible to undue influence and manipulation” (at [129] of the First Instance GD), and that in fact the first respondent had been “influencing and causing [the third respondent] to act in a manner that [was] contrary to [her own] best interests”: at [130]. Finally, the SDJ also found that the third respondent did not have capacity to litigate: at [132]. For all these reasons the SDJ granted the appellants’ application and appointed them as deputies to make “all decisions” on their sister’s behalf “in relation to her property and affairs”.
[69] The respondents were dissatisfied with the SDJ’s decision and lodged an appeal accordingly. This appeal came before the Judge and we now turn to summarise the essence of the judgment.
Decision of the Judge in the Judgment
[70] The Judge considered that she could dispose of the case simply on a point of jurisdiction. She started from the premise that the court has jurisdiction under the MCA only where the substantial dispute revolves around the mental capacity of an individual or matters connected therewith: at [17] and [19] of the Judgment. It followed that the court would not have jurisdiction if the dispute concerned the vulnerability rather than the mental capacity of the person: at [26]. She said that it was “a matter of discretion for the judge to decide what the substantial dispute is” in a given case: at [28].
[71] In the Judge’s view the substantial dispute in the present case was “not so much” about mental capacity as it was about access to the third respondent and “the undue influence which she was allegedly subjected to”: at [30] of the Judgment. Central to this conclusion was the fact that the appellants, CK and NG had all opined at various points in their evidence that if the third respondent were afforded access to the right people to give her proper advice, she would be capable of making decisions: at [31]–[43]. Noting also the emphasis placed by the appellants and those associated with their case on what the SDJ had termed the “second thread” of evidence, which concerned events and relationships that were only indirectly related to the question of capacity, the Judge thought that they were “really concerned about something else rather than the mental capacity of [the third respondent]” (at [60]). On the totality of the evidence, the Judge held that the “substantial dispute” in the case before her “really does not centre on the mental capacity of [the third respondent]”, meaning that the SDJ had “erred in finding that she had the jurisdiction to entertain the appellants’ application”: at [61]. The Judge also set aside the findings of undue influence made by the SDJ on the basis that they were “irrelevant” to the question of mental capacity: at [63].
[72] Even though the Judge would have allowed the appeal against the SDJ’s decision on the jurisdiction point alone, she went on to consider whether, on the evidence that was adduced, the third respondent could be said to lack capacity. Noting the distinction between the clinical and functional components of the test for incapacity, the Judge found that there was no doubt that the third respondent did suffer from an impairment of mind: at [96] of the Judgment. As to the extent of that impairment, the Judge did not think that she had to make a definite finding on this but nonetheless ventured some views. She thought that it appeared “less likely” that the third respondent suffered from mild dementia progressing to moderate dementia, as the appellants’ experts said she did (at [106]), and the basis for this view was that, in the third respondent’s clinical interviews with her experts, she had been able to “carry on a normal conversation” and there had been “no coarsening of emotions” in that she had “displayed a range of emotions and views over various issues” – even if she “may hold certain paranoid views”: at [103]–[105].
[73] As to the functional component of the test for incapacity, the Judge found that this was not met, ie, that it had not been shown that the third respondent was unable to make decisions: at [108] of the Judgment. In the Judge’s opinion, the SDJ’s fundamental error lay in failing to consider the principle enshrined in s 3(3) of the MCA that a person is not to be treated as unable to make a decision “unless all practicable steps to help him to do so have been taken without success”: at [122]. The Judge thought that it followed from this that the third respondent’s performance under cross-examination was not the best indicator of whether she had or lacked capacity: the MCA provides, in effect, that any assessment of whether a person has or lacks capacity must be made when that person is at her best, but she cannot be at her best in cross-examination since that is characterised by its adversarial nature, “lack of assistance” and “interrogative form of dialogue”: at [131]–[134].
[74] Contrariwise, the Judge took the view that there was greater probative value in considering how the third respondent fared in the gentler, more facilitative environment of the clinical interviews with her medical experts. In response to an argument that the clinical interviews swung to the other extreme of being entirely lacking in rigour, the Judge found that the experts had done their part in “probing and examining the internal consistency and logic of [the third respondent’s] answers”: at [125] of the Judgment. Although the experts had at times guided or prompted her, this was not so excessive that “it would render the diagnostic value of the interviews nugatory”: at [127]. The Judge held that the clinical interviews strongly suggested that the third respondent did not lack mental capacity: at [128]. The Judge also found that the third respondent did not lack the ability to reason logically, in that she was clear in wanting to donate her wealth to charity, and that she “retained a sufficient ability of logic to link her motivations with her eventual decision”: at [144]. Finally, the Judge noted that the third respondent had been receiving and could continue to receive assistance to aid her in making her decisions, and that she herself recognised that she required assistance in certain areas: at [145]. The Judge concluded that the third respondent would be able to make decisions if practicable assistance were given: at [148].
[75] Given the Judge’s decision thus far, it was not necessary for her to go into the questions of whether the SDJ had made too wide a declaration of incapacity or whether she had erred in appointing the appellants as deputies. Nonetheless she expressed some views on these matters, holding that a declaration of incapacity should be as narrow and issue-specific as possible, and that the SDJ “could have been more specific in her declaration of incapacity with regard to different transactions of different complexities”: at [184] of the Judgment. Finally, the Judge opined that the SDJ might perhaps have given more weight to the third respondent’s wishes in deciding whether to appoint her sisters as deputies, seeing that she would have been strongly opposed to that course of action: at [193]–[195].
Issues arising
[76] The single core issue in the present appeal is of course whether the third respondent has or lacks mental capacity in relation to her property and affairs. That encompasses a number of sub-issues. In order to resolve that core issue we must consider the voluminous evidence adduced at the trial in the Family Court.
[77] But we should first deal with a more general and fundamental issue: what is the approach that the court should take in MCA proceedings where there is, as here, an interaction between (i) mental impairment on the part of P and (ii) the possibility that P is under the undue influence of other persons? The First Instance GD and the Judgment evince quite different responses. The SDJ considered that the allegations of undue influence did not constitute a bar to her determining the question of whether the third respondent was unable to make decisions because of mental impairment; the Judge, on the other hand, thought that the undue influence element was so dominant that the MCA did not even confer upon her the jurisdiction to hear the matter. The SDJ addressed the issue of the third respondent’s mental capacity by taking in the round all the evidence without drawing a sharp division between evidence relevant to mental impairment and evidence relevant to undue influence; but the Judge was of the view that any findings pertaining to undue influence were of no relevance and ought to be set aside.
[78] There is thus a need to select between divergent approaches. In our judgment, this choice boils down to the following dichotomy: in assessing P’s mental capacity, does the court have regard to the actual circumstances that P is in, or does it adopt a more theoretical analysis that overlooks those circumstances? The answer to this enquiry will supply, in turn, the answers to the two questions directly raised by the Judgment – first, whether the Judge was correct to hold that she had no jurisdiction to hear the matter; and second, whether she was correct to set aside the SDJ’s findings on undue influence.
[79] Before we turn to these substantive issues, there is a preliminary issue that we must consider on account of it having been raised by the appellants. This concerns the propriety of the Judge’s appointment of a litigation representative for the third respondent in the appeal before her.
Our decision
Preliminary issue: litigation representative
[80] The appellants put forward a threshold objection that the appeal before the Judge was not properly constituted because her appointment of a litigation representative for the third respondent was improper. They begin from the premise that a proper litigation representative must be one who has no interests adverse to those of the third respondent, and who independently considers whether it is in her best interests to pursue the litigation. The representative who was appointed was Mr Z, the close friend of the third respondent’s late husband we have mentioned at [21] above, and the appellants argue that he did not fulfil these criteria.
[81] The obligation to appoint a litigation representative in proceedings under the MCA is found in O 99 r 8 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). Under r 8(1), so long as P is made a party to proceedings under the MCA, he shall have a litigation representative for those proceedings. Where a deputy has been appointed for P, the deputy will ordinarily act as P’s litigation representative (r 8(3)), but that is not permitted if the deputy is himself a party to the proceedings in his own capacity (r 8(4)). If this preclusion applies to the deputy, it then falls on the court to appoint as litigation representative a person whom the court is satisfied is competent and willing to conduct proceedings on P’s behalf, and who has no interests adverse to those of P: r 8(5)(a).
[82] But this requirement of appointing a litigation representative for P admits of an exception stipulated in r 8(2). This exception applies where the court is of the opinion that P does not lack capacity to conduct the proceedings himself. For convenience, we reproduce here the relevant provisions from the Rules of Court:
[83] The appellants applied to strike out the third respondent’s appeal against the SDJ’s decision on the basis that she lacked the capacity to litigate. In response, the third respondent applied before the Judge for either one of two alternative orders: either she be permitted to proceed with her intended appeal against the SDJ’s decision without a litigation representative, or Mr Z be appointed as her litigation representative for purposes of the appeal. The Judge decided to make the latter order and so the appeal proceeded with Mr Z as the third respondent’s representative.
[84] The appellants now say that it was wrong for the Judge to have appointed Mr Z as the third respondent’s litigation representative. Two reasons are advanced. The first is that Mr Z allegedly has financial interests that are adverse to those of the third respondent because he played an advisory role of sorts in setting up the Trust; and also because the Trust’s corporate trustee is a wholly-owned subsidiary of a company of which he is the chairman. The second reason is that there was a failure to consider whether it was in the third respondent’s best interests to pursue the appeal before the Judge, in that the Judge simply ordered that Mr Z “adopt [the appeal] in its entirety”.
[85] There is no doubt that the appellants are correct to say that the appointment of a litigation representative is a matter to be taken seriously and that it is not merely a matter of fulfilling some formal or technical requirement. We also do not think it controversial that the interests of a litigation representative must not conflict with those of P. We consider that these are matters that ought generally to receive explicit attention at the commencement of any proceedings under the MCA, whether at first instance or on appeal. If the court concludes that no litigation representative is required by reason of O 99 r 8(2), it should say so expressly; and if it considers that one is required, then it should indicate that it is satisfied that the representative has no interests adverse to those of P, and that the representative has seriously considered whether litigation would be in P’s best interests.
[86] But it is also true that any objection to the propriety of a litigation representative’s appointment will often be an issue that is largely of academic interest. This follows from the fact that the only party that would take such an objection is the party that holds that P lacks capacity. If P is found in fact to have capacity, he would not have needed a litigation representative in the first place and it would be illogical to say that a finding of capacity should be set aside on the basis that a litigation representative was not properly appointed. On the other hand, if P is found not to have capacity, there would be no need to deal with the objection.
[87] The instant case presents an illustration of this. If we find that the third respondent lacks capacity, there is no need to rule on the appellants’ threshold objection. On the other hand, if we find that she does not lack capacity, it would follow that she never needed a litigation representative at any time, and it would be against all reason and common sense to decline to hold that she has capacity on the ground only that a litigation representative was improperly appointed at some earlier time. For this reason, we dismiss the appellants’ threshold objection. There might well be exceptional circumstances where it is suggested that the conduct of the proceedings is in fact being affected to P’s detriment because of the unsuitability of the litigation representative in question. But this is not such a case. We therefore do not need to and hence do not in fact consider the substantive merits of the objection, ie, whether Mr Z was in fact in a position of conflict of interest and whether there was indeed no serious attention given to the third respondent’s best interests.
Whether an assessment of P’s mental capacity takes into account P’s actual circumstances
[88] With that, we turn to the question of whether the court ought, in MCA proceedings where there is interaction between mental impairment and undue influence, to take into account P’s actual circumstances or to adopt a more theoretical analysis that disregards those circumstances. In truth, this confluence of mental impairment and undue influence is not all that unusual; there are a number of English cases in which such a confluence features. Since our MCA was based substantially on the UK Mental Capacity Act 2005 (c 9) (“the UK MCA”), we look to these English cases for guidance.
English cases that have taken into account P’s actual circumstances
[89] Two first instance decisions from the Court of Protection, the English court that deals with matters of mental capacity, suggest that the court should have regard to P’s actual circumstances in examining the issue of P’s mental capacity. The cases in question are In re A (Capacity: Refusal of Contraception) [2011] Fam 61 (“Re A”) and The London Borough of Redbridge v G and others [2014] EWHC 485 (COP) (“Redbridge”).

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Re BKR

Laws this judgment relies on

Grounds of decision

Facts and background

The third respondent’s family

The third respondent’s declining memory from 2005 to 2010

The creation of a trust dated 26 October 2010

Events from November 2010 to 18 February 2011

The litigation

Pre-trial interlocutory applications and clinical examinations

Examination of the third respondent in and out of court

Joint conference of the medical experts in court

Examination of the other witnesses

The law on mental capacity under the MCA

Decisions below

Decision of the SDJ in the First Instance GD

Decision of the Judge in the Judgment

Issues arising

Our decision

Preliminary issue: litigation representative

Whether an assessment of P’s mental capacity takes into account P’s actual circumstances

English cases that have taken into account P’s actual circumstances