Judge: Singapore Court of Appeal
Citation:  SGCA 26
This case, brought to our attention by Terence Seah of Virtus Law and David Lock QC of Landmark Chambers, sheds very interesting light upon the vexed question of the interaction between impairment and undue influence.
The case was decided by the Court of Appeal of Singapore, which ordinarily would mean that it would merit only a very passing mention. However, the Singaporean Mental Capacity Act (‘SMCA’) is identical – in material regards – to the MCA 2005; further, the Court of Appeal embarked upon a detailed examination of English case-law in order to resolve the questions that arose before it under the SMCA.
The judgment is very lengthy, but much of it is concerned with a detailed examination of the evidence. In short summary, the question before the court was whether BKR, an extremely wealthy elderly lady, had capacity for purposes of the SMCA to make decisions regarding her property and affairs, and whether deputies should be appointed to make all decisions relating to her property and affairs on her behalf.
The application for a declaration that BKR lacked capacity (and for consequential appointment of deputies) was brought by two of BKR’s sisters, supported by a number of their siblings and two of BKR’s three children. It was opposed by BKR herself, BKR’s youngest daughter, and that daughter’s husband. All were in agreement that the functioning of her mind was impaired in some way, but there was no agreement as to the nature or degree or extent of that impairment. Those contending that she lacked capacity (who were for reasons that need not detain us the appellants before the Court of Appeal) considered that she had dementia; BKR and the other respondents contended that she had Mild Cognitive Impairment, affecting her memory but not depriving her of the material decision-making capacity. There were also significant allegations and counter-allegations of undue influence and ulterior motives.
For our purposes, the key passages of the Court of Appeal’s judgment are to be found at paragraphs 88ff, where the Court of Appeal analysed the question of whether the court ought “in SMCA 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.” As the Court noted, “[i]n 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,” and the Court then looked to those cases for guidance.
The Court of Appeal identified two decisions in which the Court of Protection had held that it should have regard to P’s actual circumstances when examining the issue of P’s mental capacity:
The Court of Appeal considered that:
“98. It is apparent that in examining P’s mental capacity, the courts in Re A and Redbridge have had regard to their actual circumstances, in particular whether other persons were exerting pressure on P such as would make it more difficult for P to make the decisions in question. It was not even considered as a possibility that the court should divorce P from her actual circumstances and apply a theoretical analysis assuming P’s emancipation from all external pressure and influence.”
The Court of Appeal noted, however, that there are three, possibly inter-related, strands of argument for the proposition that the court should apply a theoretical analysis that assumes that P is getting the best appropriate assistance, even if this is not in fact the case.”
The Court of Appeal analysed each strand in turn.
Section 3(3) SMCA/s.1(3) MCA 2005
The Court of Appeal discussed the (very brief) comments upon support in Redbridge and the Wandsworth case but found that in both cases the court had, in fact, focused on P’s actual circumstances. They further noted that:
“105. Moreover, there is the plain language of s 3(3) of the MCA: it speaks of “practicable” steps to help P. It directs us to look not at fanciful possibilities but at sensible ones. Hence, if P needs extremes of assistance which he could not realistically expect to receive in order to be able to make decisions, it would not be right to say that he possesses the ability to make decisions. By the same token, if in P’s actual circumstances there exists some positive impediment to his receiving assistance, it cannot be said that P has capacity just because he might theoretically be able to make decisions in some other imaginary set of circumstances in which that assistance might be forthcoming.
Legislative history of the MCA 2005
The argument advanced by the respondents – based upon the legislative history of the MCA and the decision in Re L – was that the court [in England, the Court of Protection] has no power to enter upon a dispute where what is being alleged is that P is unable to make decisions by reason of undue influence or unacceptable pressure, as opposed to an impairment of the mind. As the Court of Appeal noted, a related argument (though not one put forward in these terms by the respondents) was that, since the MCA was not designed to deal with cases concerning undue influence or pressure, when the court assesses mental capacity, it ought to disregard such allegations and, in effect, apply a theoretical analysis assuming that P is free from such influence or pressure.
The Court of Appeal found this line of argument to be wholly misconceived:
The Court of Appeal noted that:
115 The court in York CC emphasised the words “because of” in the MCA. In our view, those words most naturally suggest nothing more stringent than a “but for” connection. More crucially, those words do not suggest that there can be no other cause of P’s inability to make decisions besides mental impairment; we do not think that those words indicate that the MCA was intended to exclude situations in which the inability to decide was caused by both mental impairment and P’s actual circumstances.
116 In our judgment, York CC is consistent with the notion that P’s inability to make decisions may be the product of a number of effective causes and that the MCA will apply so long as one of those causes is P’s mental impairment.”
The importance of the actual circumstances
Returning to the York decision, the Court of Appeal considered that the decision underscored the importance of an analytical approach that does have regard to P’s actual circumstances. The Court of Appeal noted the observation in York that removing the specific factual context from some decisions “leaves nothing for the evaluation of capacity to bite upon,” and that:
“118 The importance of that observation in York CC is that when P makes decisions in relation to other people, such as a decision to give away property to person X, it surely cannot be argued that P has capacity so long as she can understand the nature and consequences of giving away property to some theoretical or hypothetical person. On the contrary, part of the package of information relevant to the decision, which P must be able to retain, understand and use, is information about X and in particular whether X is the person to whom P wishes to make the gift. Should P be unable to retain, understand or use information relevant to that decision because of a mental impairment, P will be found to lack capacity under the MCA.”
The Court of Appeal noted, finally, the discussion in R v Cooper  1 WLR 1786 as to the Law Commission report informing the MCA 2005, and the observation of Baroness Hale (at paragraph 13) that the report envisaged that the MCA 2005 would cover those who could understand the nature and effects of a decision to be made but who were prevented by mental disability from using that information in the decision-making process. As the Court of Appeal noted “[o]ne of the examples given by the Law Commission was a person whose mental disability ‘meant that he or she was ‘unable to exert their will against some stronger person who wishes to influence their decisions…’. Thus it was recognised that mental impairment may in some instances affect decision-making ability only in conjunction with P’s actual circumstances.”
The Court of Appeal therefore held that “the court must take into account P’s circumstances in assessing his mental capacity. That is what the English cases do, and in this regard, we consider that theirs is a path that we also must take” (paragraph 120, emphasis in original).
The Court of Appeal further held in cases where there is interaction between mental incapacity and undue influence that it is only where there is no material question of any mental impairment causing the alleged mental incapacity that a court ought properly to find it has no jurisdiction under the SMCA.
The Court of Appeal also found that the lower court had been wrong to set aside findings of undue influence made by the Senior District Judge who had first considered the case. As the Court of Appeal noted, the proven or potential presence of undue influence is relevant to the issue of mental capacity in at least three ways:
In this last regard, the Court of Appeal noted that there were times when the appellants and their associates expressed the view under cross-examination that BKR would be able to make decisions for herself so long as she was taken out of the influence of the first and second respondents. In submissions, this was seized upon by counsel for the third respondent who argued that it is illogical to say that P lacks capacity when P is in the company of X but does not lack capacity when P is with Y. However, as the Court of Appeal noted at paragraph 127: “[a]ttractive as this contention might sound at first blush, we do not regard it as well-founded. This is because it fails to give due regard to the idea that capacity under the MCA is a highly context-dependent enquiry. It is “decision-specific” (York CC at ) and, as we have said, it must take into account P’s actual circumstances. If P is unable to retain, understand or use information relevant to a decision because of a combination of mental impairment and the circumstances he finds himself in, the statutory test for incapacity will be met, and it is no answer then to say that P’s mental impairment would not necessarily rob him of decision-making ability in a different set of circumstances.”
On the facts of the case, the Court of Appeal found that BKR lacked the material decision-making capacity because of a combination of mental impairment and the circumstances in which she lives. Therefore the statutory test for lack of capacity under the MCA was met in her case.
Alex, in particular, is something of an evangelist for the merits of comparative studies in the field of mental capacity law and it is perhaps unsurprising that he fell upon this judgment with delight as evidence as to its benefits. The judgment of the Court of Appeal grapples with one of the areas that causes most difficulty in practice (and one that is – as the Court noted – far from uncommon), and does so in with an extraordinary rigour of approach. We strongly suspect that it will not be long before it is referred to by judges before the Court of Protection (or indeed by sheriffs in Scotland). We also suspect that the discussion therein as to the approach to adopt will be likely to be of no little influence.
We would perhaps want to put three glosses upon the judgment: