HOLDING THE THERAPEUTIC STATE AT BAY? BALANCING AUTONOMY AND PROTECTION IN SINGAPORE'S VULNERABLE ADULTS ACT.

• Date: 01 January 2019
• Author: Chan, Wing-Cheong

I INTRODUCTION

The Mental Capacity Act (1) ('MCA') was enacted in Singapore to help the country manage the challenge of a rapidly ageing population and to provide for proxy decision makers for those who unfortunately lose mental capacity. (2) In order to deter abuse or neglect of those who lack mental capacity, a new criminal offence of 'ill-treatment' was created. (3) However, the number of abuse or neglect cases have continued to increase. (4) It can be argued that the offence under the MCA is too narrow in any case because of the way mental capacity is defined: a person lacks mental capacity only if they are unable to make a decision in relation to a matter and that inability is the result of an impairment of, or a disturbance in the functioning of, their mind or brain. (5) Other persons, such as the elderly and those who are physically disabled, who are not mentally incapable of making decisions may also be vulnerable to abuse or neglect and require state protection. (6) A comparison can be made with the plethora of specific legal provisions crafted to pre-emptively protect children from abuse or neglect in addition to the general criminal and tort laws available to all persons. (7) Vulnerable adults are similar to children in that they are dependent and often abused by a loved one and are thus unable or unwilling to seek protection themselves for fear of losing their caregiver or fear of further repercussions. (8)

But herein lies the difficulty: can state intervention in the name of protection be justified in the case of an adult? Unlike children, adults cannot be presumed to lack mental capacity. (9) Would state intervention not amount to an unjustified interference with the adult's autonomy and freedom of choice? On the other hand, there is the not unusual situation where a health or social service provider is prevented--often by a caregiver or a member of the family--from having access to the suspected victim of abuse or neglect. (10) The service provider is unable to investigate whether the victim is incapacitated or wishes to receive help until after they have gained access and made inquiries.

Legislatures in a number of jurisdictions have responded to concerns about the abuse, exploitation and neglect of vulnerable adults (including older adults). The legislation is not uniform, with different jurisdictions taking different approaches to the need to balance protection with individual interests in privacy and autonomy. (11) In the case of Singapore, it has tried to balance the competing concerns of protection and individual freedom in a new law called the Vulnerable Adults Act12 ('VAA'). State intervention to protect mentally competent, but vulnerable, adults is generally possible only if they consent to it. If they do not, a court order is required which can only be obtained on proof that the vulnerable adult has experienced, or is experiencing or at risk of, abuse, neglect or self-neglect, and that the making of the order is necessary for the safety and protection of the vulnerable adult.

Under the VAA, orders allowing for both emergency and gradual intervention are possible, in accordance with the needs of the person's circumstances. (13) This allows for a range of services to be provided in accordance with the severity of the abuse or neglect. The operation of the VAA is described in the following sections.

II SINGAPORE'S VULNERABLE ADULTS ACT

While it may be accepted that the law's protection should extend beyond those who are mentally incapable or are mentally disordered, how broadly should the group of vulnerable adults be defined? (14) Should vulnerability be defined purely in terms of inherent characteristics of the person such as age, illness or disability, or by the person's situational inability to take care or to protect themselves from harm, or should it be a bit of both? A wider conception of vulnerability will allow consideration of the personal, social, economic and cultural circumstances of the individual.

What should be the threshold for protective state intervention--should it be inability to protect themselves from any harm or is something more required such as significant / life-threatening harm? Moreover, how should harm be defined? Should the focus be on the wrongful acts committed ('ill-treatment') or on the effect of the acts on the person? The effect of social isolation and denial of therapy, for example, may take a long time to be seen among the elderly and those with learning impairments but can be long-lasting.

A Definitions under the VAA

The VAA provides a four part definition of a 'vulnerable adult' and all parts must be met. (15) First, the person must be 18 years old or above. (16) Secondly, the person must be incapable of protecting themselves. Thirdly, the incapacity must be by reason of mental or physical infirmity, disability or incapacity. Fourthly, the type of harm that the person is unable to protect themselves from must be ' abuse, neglect or self-neglect' . Each of these terms are in turn defined in the VAA.

It can be noted that under the VAA, a vulnerable adult is not simply equated with either a person above a certain age, or a person without mental capacity. A person who is above a certain age need not be vulnerable, and conversely, a person who is vulnerable can be of any age.

A person who is mentally incapable will also conceivably be unable to protect themselves, but the converse may not be true. Hence, a person who is bed- or wheelchair-bound, for example, may not be mentally incapable but they may not be able to protect themselves from abuse, neglect or self-neglect and therefore fall within the definition of a 'vulnerable person' in the VAA.

Two suggestions for improvement to the definition of vulnerable person can be made. First of all, it should not be limited to incapacity which arises 'by reason of mental or physical infirmity, disability or incapacity' only. A person may also be vulnerable due to psychological reasons such as having been victims of sexual or domestic abuse who have suffered long-term abuse leaving them unable to protect themselves. Secondly, the requirement of being 'incapable' of protecting themselves is a high one. It should be sufficient if the person's ability to protect themselves is 'impaired' or 'imited in their ability' such that they are more at risk than other persons.

'Abuse' is defined in the VAA as: (17)

(a) physical abuse;

(b) emotional or psychological abuse;

(c) conduct or behaviour by an individual that in any other way controls or dominates another individual and causes the other individual to fear for his or her safety or wellbeing; or

(d) conduct or behaviour by an individual that unreasonably deprives, or threatens to unreasonably deprive, another individual of that other individual's liberty of movement or wellbeing.

'Emotional or psychological abuse' is defined in the VAA as conduct or behaviour: (18)

(a) that torments, intimidates, harasses or is offensive to the other individual; or

(b) that causes or may reasonably be expected to cause mental harm to the other individual, including thoughts of suicide or inflicting self-harm.

'Neglect' is defined in the VAA as: (19)

the lack of provision to the individual or essential care (such as but not limited to food, clothing, medical aid, lodging and other necessities of life), to the extent of causing or being reasonably likely to cause personal injury or physical pain to, or injury to the mental or physical health of, the individual. 'Physical abuse' is defined in the VAA to include conduct or behaviour: (20)

(a) that causes, or threatens to cause, personal injury or physical pain to an individual;

(b) that coerces, (21) or attempts to coerce, an individual to engage in sexual activity; or

(c) that threatens an individual with the death or injury of the individual.

'Self-neglect' is defined in the VAA as: (22)

... the failure of the individual to perform essential tasks of daily living (such as but not limited to eating, dressing and seeking medical aid) to care for himself or herself, resulting in the individual:

(a) living in grossly unsanitary or hazardous conditions;

(b) suffering from malnutrition or dehydration; or

(c) suffering from untreated physical or mental illness or injury.

'Wellbeing' is defined in the VAA to mean any of the following: (23)

(a) personal dignity;

(b) physical, mental and emotional health;

(c) control by the individual over his or her day-to-day life (including over the day-to-day care provided by another individual and the way in which it is provided);

(d) social, domestic, family and personal relationships.

As can be seen in the above definitions, a very wide approach is taken under the VAA. A vulnerable person is to be protected from physical, sexual as well as psychological harm which need not be intentionally inflicted. Psychological abuse extends to instances social isolation and where the person may be deprived of their sense of self-worth and dignity. Positive acts as well as omissions which have an impact on the vulnerable adult are covered. Finally, even instances of ' self-neglect', which do not involve an external perpetrator, is a situation considered for State intervention.

B Principles under the VAA

The VAA contains principles which guide persons acting under the statute. (24) These principles are of crucial importance in resolving the tension between autonomy and protection of the vulnerable adult. These principles state: (25)

(a) the duty is being performed or the power is being exercised [under the VAA] for the purpose of protecting the vulnerable adult from abuse, neglect and self-neglect;

(b) a vulnerable adult, where not lacking in mental capacity, is generally best placed to decide how he or she wishes to live and whether or not to accept any assistance;

(c) if a vulnerable adult lacks mental capacity, the vulnerable adult's views (whether past or present), wishes, feelings, values and...