The Court of Appeal in Singapore in Re BKR  SGCA 26 has handed down a decision that exemplifies the importance and utility of a comparative approach to mental capacity law. This case, brought to my 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 might be thought to 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:
- Re A (Capacity: Refusal of Contraception)  Fam 61, in which Bodey J had held that that Mrs A’s decision not to continue taking contraception was “not the product of her own free will”. He went on to say that Mrs A “was unable to weigh up the pros and cons of contraception because of the coercive pressure under which she has been placed both intentionally and unconsciously by Mr A”. Such coercive pressure was the product of a number of factors, including the learning disabilities of both Mr and Mrs A, Mrs A’s dependence on Mr A and fear of rejection, Mrs A’s suggestibility and wish to please her husband, and Mr A’s own wish to start a family. “For these reasons”, which the Court of Appeal considered included reasons that related to Mrs A’s actual situation in life, Bodey J was in no doubt that Mrs A “lack[ed] capacity to take a decision for herself about contraception.” The Court of Appeal noted that there had been subsequent discussion in the case-law as to whether Re A was, in fact, an inherent jurisdiction case, but considered that, properly analysed, none of the subsequent cases had re-categorised it thus;
- The London Borough of Redbridge v G and others  EWHC 485 (COP), which we have discussed in detail here. The Court of Appeal highlighted those parts of the judgment of Russell J in which the judge took account both of the impairment in the functioning of G’s mind and of the influence C and F had over her in coming to the conclusion that G lacked capacity to take the material decisions for purposes of the MCA 2005.
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 first strand relied upon s.3(3) SMCA, which is identical to s.1(3) MCA 2005, and provides 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”. The Court of Appeal noted that it was argued that this provision postulates an assessment of capacity based on an ideal or theoretical set of circumstances in which all such practicable steps are being taken, and it was said that such an approach is supported by the first instance decision of the Court of Protection in Wandsworth Clinical Commissioning Group v IA and another  EWHC 990 (COP)
- The second strand identified by the Court of Appeal depends on the legislative history of the UK MCA, as described by the English Court of Appeal in Re L. What this discloses, the Court of Appeal noted, is that a conscious decision was taken not to extend the MCA 2005 to adults who are “vulnerable” to undue pressure, which means that the MCA was not meant to address cases of undue influence. It follows, it might be argued, that allegations of undue influence – and, more generally, P’s actual circumstances – are not relevant to an assessment of mental capacity.
- The third strand identified had to to do with the causative nexus required to be shown between P’s mental impairment and his inability to make decisions. This causal requirement is embedded in s 4(1) of the MCA, in the operative words “because of”: P will be declared to lack capacity under the MCA only where he is unable to make decisions because of a mental impairment. The Court of Appeal noted that, in this regard it might be contended that the English Court of Appeal case of York City Council v C and another  2 WLR 1 establishes the need for a very strong nexus so that, if P’s inability to make a decision is the result not only of his mental impairment but also his actual circumstances in which he comes under undue influence and pressure, that situation would fall outside the MCA.
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.
106 We are led to conclude that s 3(3) of the MCA does not suggest that a theoretical analysis is to be applied which assumes that P is able to obtain and is in fact obtaining assistance in making decisions, however removed such an assumption may be from P’s actual circumstances. We accept that in some situations, s 3(3) may oblige the court to look beyond P’s actual circumstances. But on no basis can it said that, when P’s actual circumstances are such that there is little realistic prospect of him getting the assistance he needs, the court is at liberty or is obliged to disregard those actual circumstances by reason of s 3(3).”
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:
1. At most, the legislative history and Re L showed that the MCA was not designed to deal with cases in which P is “vulnerable” but not at all as a result of mental impairment. An example of such a case would be a wife of ordinary mind who is vulnerable to her husband’s influence by reason of her emotional and economic dependence on him. Such a case, the Court held, would not come within the scope of the MCA because it requires a functional inability arising because of a mental impairment;
Furthermore, the Court noted at paragraph 110, “there may be situations in which the whole reason that P is susceptible to undue influence is that he is labouring under an impairment of the mind – for instance, when P’s poor memory permits another person to plant falsehoods in his mind, or when the effect of the impairment is that P is unable even to conceive of the possibility that another person may be manipulating him. In these situations, it is inconceivable in our judgment that the court is to disregard P’s actual circumstances.”
Causative nexus between mental impairment and inability to make decisions
The Court of Appeal noted that it was argued that on the strength of the York case that the mental impairment must be the effective cause of the inability to make decisions. It followed, the argument then ran, that the causal requirement was not met if the inability to make decisions was also caused by factors other than mental impairment, such as undue influence. The consequence of the argument is that the court must find that P’s inability to make decisions is inherent to the mental impairment and wholly divorced from P’s actual circumstances. If that is accepted, it would seem to follow that York suggested the application of a theoretical analysis that divorces P from those actual circumstances.
The Court of Appeal did not think that this was how York should be read. The Court of Appeal found that the court’s stress on the strength of the causative nexus was laid in a context where Hedley J had found PC to lack capacity in relation to co-habitation when it was agreed that she had capacity in relation to all other matters, including marriage. It therefore did not consider that the English Court of Appeal had meant to prescribe any particular approach in a situation where the evidence indicates that P’s inability to make a decision is a result of multiple causes of which P’s mental impairment is one.
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:
- The first is that it then becomes material whether P is able to retain, understand or use the information that relates to whether there might be undue influence being applied, for instance whether P can understand that a third person may have interests opposed to his; and if not, whether that inability is caused by mental impairment.
- The second is that it must be considered whether P’s susceptibility to undue influence is caused by mental impairment; if so, and if the result of such undue influence is that P’s will is so overborne that he is unable to use and weigh information relevant to the decision in question, P would be unable to make decisions “because of” mental impairment.
- The third way in which undue influence is relevant is that it might mean that P cannot realistically hope to obtain assistance in making decisions. In such a situation, P may be found to lack capacity because of a mental impairment operating together with that lack of assistance.
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.
I am something of an evangelist for the merits of comparative studies in the field of mental capacity law and it is perhaps unsurprising that I 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. I 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). I also suspect that the discussion therein as to the approach to adopt will be likely to be of no little influence.
I would perhaps want to put three glosses upon the judgment:
1. Given the thoroughness of the tour d’horizon embarked upon by the court, it is perhaps a little surprising that it did not refer to NCC v PB and TB  EWCOP 14 [update – I understand that it was referred to in argument]. In that case, Parker J considered, first, the meaning of ‘because of’ in (for English purposes) s.2(1) MCA 2005. She concluded that the “true question is whether the impairment/disturbance of mind is an effective, material or operative cause. Does it cause the incapacity, even if other factors come into play? This is a purposive construction.” Parker J also had cause to consider the interaction between impairment and overbearing of the will, dismissing the argument that the impairment must be the sole cause of the inability to make the decision for the individual to fall within s.2(1) MCA 2005. The analysis in NCC is entirely consistent with that in Re BKR, although rather more shortly taken.
2. Whilst I entirely agree that it is necessary to place the primary focus on P’s actual situation when deciding whether they have the capacity to make a specific decision or decisions, I would nonetheless emphasise that consideration must still be given as to whether there exist practicable steps that can be taken to support P to take the decision. Those steps are not just steps that can be taken by the others in P’s life, but also include steps for which the court may have responsibility. A good example of this can be seen in An NHS Trust v DE and Others  EWHC 2562 (Fam), in which the court adjourned determination of whether an individual had capacity to consent to sexual relations for work to be done with him by a clinical psychologist – with the result that he was assisted to acquire that capacity. The importance of ensuring that there is a proper examination of whether practicable steps can be taken is only highlighted by the continuing debate as to the impact of the CRPD on practice here and elsewhere.
In the case where P is truly suspended between capacity and incapacity depending on whether they are within the orbit of a third party, I remain of the view that there may be proper grounds to adopt the approach taken by Bennett J in Re G  EWHC 2222 Fam. In that case, readers with a long memory will recall, the judge found that he had jurisdiction to make decisions as to residence and contact arrangements for a young woman who had regained capacity to make those decisions as a result of the protective arrangements put in place for her by the court, in circumstances where it was clear that it they were lifted, then the combination of her organic impairments and the baleful influence of her father would lead to a worsening of her condition and a consequential lack of capacity. Because this case was decided before the enactment of the MCA, it was determined under the High Court’s inherent jurisdiction (and was noted – and approved – as the exercise of such in Re L), but it would appear clear that Bennett J considered he had jurisdiction based upon G’s lack of capacity to take the material decisions, rather than upon her vulnerability. Re G has never – to my knowledge – been properly considered in a reported case since the MCA 2005 came into force. However, in such a Schrodinger’s cat case, it may still be that the Court of Protection (rather than the High Court) can properly have jurisdiction to implement a long term regime for the protection of the autonomy of the individual on the basis of a holistic (or should that be social) interpretation of their capacity.