The Singapore Law Gazette

To What Extent Should the Court Consider a Patient’s Wishes and Feelings When Determining the Patient’s Best Interests?

The Mental Capacity Act (Cap 177A) makes it clear that a decision maker making a decision on behalf of a mentally incapacitated person (P) must consider P’s wishes and feelings. This article aims to illustrate the position in Singapore and in the United Kingdom and to what extent the Court will take P’s wishes and feelings into account when making a decision on behalf of P. Such a decision would have to be in P’s best interests and the Court will usually look at all factors in totality; as such, the weight to be place on P’s wishes and feelings differs on a case by case basis.

Introduction

The Mental Capacity Act (Cap 177A) (MCA) places an obligation on the decision maker to act in the Patient’s (P’s) best interests. Section 6(7) of the MCA states the decision maker must, as far as is reasonable ascertainable, consider:

1. P’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity);
2. P’s beliefs and values that would be likely to influence his decision if he had capacity; and
3. Other factors that P would be likely to consider if he were able to do so.¹Section 6(7) MCA

The Code of Practice Mental Capacity Act (Office of the Public Guardian, Third Edition, October 2016) provides some guidance in this regard. The Code of Practice states that P’s past and present wishes and feelings, especially if they were written down when the person had capacity:

1. Is a factor which must be considered in working out the person’s best interests. It cannot be ignored. There are many ways people may reveal their wishes and feelings, for example, by speaking, drawing, or using sign language.
2. It is important that other individuals, such as relatives and friends, do not try to influence or apply pressure on the person to express views which are not the person’s own.
3. The decision maker must consider the person’s past and present wishes and feelings so far as they are reasonably ascertainable.
4. Decision makers should consider written statements carefully. If their decision does not follow something a person has put in writing, they must record the reasons why. They should be able to justify their reasons if someone challenges their decision.
5. A doctor is not obliged to follow the person’s wish if it is against the person’s best interests. Doctors should exercise their professional clinical judgement of what is in the best interests of the person as a patient to determine what treatment to provide.²Code of Practice Mental Capacity Act (Office of the Public Guardian, Third Edition October 2016)

The pertinent question is how much weight should a decision maker, such as the Court, place on P’s wishes and feelings when making decisions on behalf of P, assuming that P has limited or no capacity to express his/her wishes? At the heart of the matter would be potentially conflicting issues such as P’s autonomy and whether the exercise of P’s autonomy would be in P’s best interests.

Re BKR

The Singapore Courts have recognised that P’s past and present wishes and feelings must be taken into consideration. In Re BKR,³(2013) SGHC 201; (2013) 4 SLR 1257 the High Court observed that:

[156] As can be seen, both the individual’s past and present wishes and feelings must be taken into consideration. As Blackstone’s Guide⁴Blackstone’s Guide to The Mental Capacity Act 2005 (PeterBartlett) (Oxford University Press, 2nd Ed, 2008) clarifies (at para 3.35):

The enumerated substantive criteria combine three different broad sets of factors into the best interests determination, which may be summarised as follows:

• • • protecting P’s position, in the event that P is likely to regain capacity;
    • considering the wishes, feelings, values and beliefs P had when competent, or would have now if P were competent;
    • considering P’s current, incompetent, wishes and feelings, and notwithstanding the incapacity, involving P in the decision-making.

These approaches may be in conflict, and the section establishes no priority between them. Best interests will in this sense be a balancing act based on the facts of the individual situation.

[157] Later at para 3.38, Blackstone’s Guide further elaborates on the possible tension between the individual’s past and present wishes, and explains why it is perhaps as important to consider the individual’s present wishes despite the lack of capacity:

The provision makes it clear that account is to be taken not merely of past competent views, but also of P’s current wishes and feelings. On one level, this just reflects common humanity. People without capacity experience fear and joy as much as the rest of us do, and it would be inhuman to ignore those factors in determining best interests. It is also one of the ways the statute takes into account the fact that while in law responsibility for decision must be clearly defined with capacity as a dividing line, in practice abilities vary in an infinite number of ways.

…

[183] […] The best interests of an individual, which include protecting the autonomy of the individual, must be at the forefront of the mind of parties in making any application under the MCA. The court has a duty to protect an individual’s liberty and freedom to choose and act as he wishes as far as possible, and parties are reminded that they too likewise share this duty.

While the appeal in Re BKR from the High Court to the Court of Appeal was eventually allowed,⁵See (2015) 4 SLR 81; (2015) SGCA 26 the High Court’s comments still remain instructive and was untouched by the Court of Appeal. It therefore remains necessary to determine P’s wishes and feelings when deciding what is in P’s best interests; however, the extent is often unclear due to a lack of case law in Singapore.

The Position in the United Kingdom (UK)

P’s Wishes and Feelings as Part of the Best Interests Test

The wording of section 6(7) of Singapore’s MCA is the same as Section 4(6) of UK’s Mental Capacity Act 2005. As such, it is also mandatory in the UK for the Court to consider P’s wishes and feelings when deciding what is in P’s best interests. Case law has illustrated the importance of this:

1. In Aintree University NHS Hospitals Trust v James,⁶(2013) UKSC 67 the Court emphasised that “insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being”;
2. This was echoed in Wye Valley NHS Trust v B,⁷(2015) EWCOP 60 wherein the Court of Protection observed “[to] state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view”.

The Weight to be Placed on P’s Wishes and Feelings

In cases where P expresses a wish or view which is not irrational, is not impracticable as far as its physical implementation is concerned, and is not irresponsible having regard to the extent of P’s resources then the courts would and should be inclined to give effect to such an arrangement, unless there is some potential sufficiently detrimental effect for P of doing so which outweighs this.⁸Re: S and S (Protected Persons); C v V (2008) EWHC B16 (Fam), although the Court in Re P (2009) EWHC 163 (Ch) commented that this may be overstated. At times, the degree of P’s incapacity is also relevant and the nearer P is to the borderline, the more weight should be attached to P’s wishes and feelings.⁹Local Authority X v MM (by the Official Solicitor) and KM (2007) EWHC 2003 (Fam)

In cases where P’s view is unclear or when P is rather incapacitated, then the Court of Protection has observed in ITW v Z & Ors¹⁰(2009) EWHC 2525 (Fam) that:

1. First, P’s wishes and feelings will always be a significant factor to which the court must pay close regard;
2. Second, the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight;
3. Third, in considering the weight and importance to be attached to P’s wishes and feelings the court must have regard to all the relevant circumstances.

The precise weight to be placed on P’s wishes and feelings is still somewhat up for debate but it seems that it is rather settled law that taking into account P’s wishes and feelings is not a “substituted judgment test”. The test is not a “what P would have done test”; rather, it is a best interests test and so a test that requires the decision maker to perform a weighing or balancing exercise between a range of divergent and competing factors¹¹Briggs v Briggs & Ors (2016) EWCOP 53 with P’s wishes and preferences being one of the many factors to be considered for or against any particular decision. When considering the various factors, there may be factor or factors with “magnetic importance”¹²See ITW v Z & Ors (2009) EWHC 2525 (Fam) which may influence or even determine the outcome – this factor may be P’s wishes and feelings, or any other relevant factor the Court may deem fit.

The Court would also take into account wider policy considerations when deciding the weight to place on P’s wishes and feelings. In A Local Authority v JB¹³(2020) EWCA Civ 735, a 36-year-old man (JB) who had a complex diagnosis of autism combined with impaired cognition was subjected to a comprehensive care plan which imposed significant limitations on his ability to interact with women. JB expressed that he wished to experience sexual relations with women. At first instance, the lower court¹⁴See (2019) EWCOP 39 found that the capacity test for sexual relations did not include a person’s ability to understand whether their sexual partner consented to the activity and declared that JB had capacity to consent to sexual relations. The appeal was then allowed and the declaration was set aside. The Court of Appeal held that “giving consent to sexual relations is only part of the decision-making process. The fundamental decision is whether to engage in sexual relations”; P would have to understand, inter alia, that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity. The Court further observed that in such situations, the Court will have to balance three fundamental principles of public interest – (1) autonomy, (2) that vulnerable people in society must be protected, and (3) how the Mental Capacity Act and Court of Protection are part of a wider system of the administration of justice and must adhere to general principles of law.

Cases Where Outcome was Largely Influenced by P’s Wishes and Feelings

How if P is able to clearly communicate his/her wishes, notwithstanding his or her mental incapacity? It seems from UK case law that it is possible for P’s wishes and feelings to be given greater weight in cases where P is able to effectively communicate his wishes and feelings, especially where medical decisions are concerned.

In Wye Valley NHS Trust v B,¹⁵(2015) EWCOP 60 a 73-year-old mentally incapacitated male (B) had a severely infected leg and the issue was whether his foot should be amputated to save his life. B was suffering from delusions and described hearing angelic voices telling him whether or not to take his medication. Without the amputation, B would die in a matter of days. An order was sought for the operation to be conducted to save B’s life. The Court took into account B’s wishes and feelings after an interview with B and dismissed the application, observing that that it would not be in B’s best interests to take away any remaining independence he may have left. While the starting point is a strong presumption that it is in a person’s best interests to say alive, this is not an absolute.

Again, in B v D,¹⁶(2017) EWCOP 15 a 27-year-old man (D) lacked capacity as a result of a traumatic brain injury. An application was made for an order that it be in D’s best interests to receive stem cell treatment for his brain injury in Serbia. The treatment was opposed by an expert and the Court was aware of the risks D would face if he received the treatment. D, however, wanted the treatment and indicated that he was willing to take the risk. The Court held that D’s wishes were one of the “key factors” and that “[w]ishes and feelings of an incapacitated adult are an important factor in any best interests analysis. … the fact that D, although lacking capacity, is in cognitive terms relatively high-functioning does not by itself mean that his wishes and feelings carry greater weight. But it may make it easier to discern and understand what those wishes and feelings are”. Accordingly, the Court allowed the treatment.

In Re AB (Termination of Pregnancy),¹⁷(2019) EWCA Civ 1215 a 24-year-old woman (AB) with moderate learning disabilities became pregnant. AB did not have mental capacity to consent to the termination of the pregnancy. Psychiatric and social assessments were carried out which concluded that it would be in AB’s best interests to terminate her pregnancy, although AB’s social worker was of the view that it would be in AB’s best interests to have the child. AB expressed that she wanted the child. The Court of Protection initially ordered for the termination of pregnancy but this was overturned on appeal on the basis that the Judge at the lower Court failed to take into account AB’s wishes and feelings which were important and should have been factored into the balancing exercise alongside consideration of her wishes. AB’s wishes were therefore followed.

In all these cases, the order the Court made gave effect to P’s wishes and feelings after taking into account the various factors. It is clear from the judgments that the Court will look at all factors in totality and even though P’s wishes and feelings may not be in his best interests on the surface of the matter when viewed objectively, it can be one of the key factors to be taken into account on the basis of autonomy. Afterall, a person is not to be treated as unable to make a decision merely because he makes an unwise decision.¹⁸UK Mental Capacity Act 2005, Section 1(4). The equivalent provision in Singapore is Section 3(4) MCA.

The Balance Sheet Test – Looking at All Factors in Totality

The UK Courts have suggested drawing up a balance sheet of the various factors in determining where the best interests lie.¹⁹See Re A (Male Sterilisation) (2000) 1 FLR 549 Such balance sheets are of assistance to the Judge hearing the mater but the use of such balance sheets “should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself”.²⁰Re F (A Child) (International Relocation Cases) (2015) EWCA Civ 882

P’s wishes and preferences should therefore be featured in the balance sheet among the various other factors and it would thereafter be a matter of judicial discretion as to what truly is in P’s best interests, having regard to all the factors. The Court in Wye Valley NHS Trust v B²¹(2015) EWCOP 60 had observed that “once incapacity is established so that a best interests decision must be made, there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due”. It is an art and not a science as to how much weight is to be placed on P’s wishes and preferences but the Mental Capacity Act 2005 in the UK (and Singapore MCA) does recognise that due consideration has to be given to P’s wishes and feelings.

The Way Forward/Conclusion

The UK jurisprudence is clear that it is a balancing act when considering all the various factors when making decisions on behalf of P. P’s wishes and feelings must be featured in this balancing act and greater weight may be placed on different factors on a case-by-case basis. In Singapore, there is little case law on the weight to be placed on P’s wishes and feelings but the UK cases will be persuasive given our similarities in our MCA.

This writer takes the view that in contested MCA matters, the substance of P’s wishes and preferences has to be identified for the Court’s consideration to determine what would be in P’s best interests. This is especially so if P is able to communicate verbally or by other means such as sign language etc. Processes and protocols should be put into place to hear P’s voice.

In so doing, safeguards should be put in place to help P share his wishes and feelings in an environment where P feels safe to do so, without the undue influence of third parties. P has to be able to freely participate in the proceedings without going through the anxiety of cross examination in an adversarial system. As such, this writer’s suggestion is for more professionals – such a psychologists or social workers – to be involved in the Court process to assist P in communicating his wishes and preferences. At times, judicial interviews with P may be helpful. As noted in Wye Valley NHS Trust v B²²(2015) EWCOP 60 by the Judge who interviewed P directly in the presence of his clerk and a nurse:

“there is no substitute for a face-to-face meeting where the patient would like it to happen. The advantages can be considerable, and proved so in this case. In the first place, I obtained a deeper understanding of Mr B’s personality and view of the world, supplementing and illuminating the earlier reports. Secondly, Mr B seemed glad to have the opportunity to get his point of view across. To whatever small degree, the meeting may have helped him to understand something of the process and to make sense of whatever decision was then made.”

This would promote patient autonomy and for decision makers, such as the Court, to respect P’s dignity and remaining independence amidst P’s incapacity.