Mental Health Act 2001 - Life after being Declared as Mentally Disordered
by Voon Su Huei ~ 27 March 2019
A continuation to an earlier article titled “Mental Health Act 2001 – Safeguarding the Welfare of the Mentally Disordered”.
Under section 52 of the Mental Health Act 2001 (“Mental Health Act”), the court has the power to order an inquiry to determine if because of a mental disorder, a person is incapable of managing himself and his affairs. If the court does find that such a person cannot manage himself and his affairs, the Court can appoint a committee to take over and manage the affairs of that person.
There are two types of committees that may be ordered by the court pursuant to section 58 of the Mental Health Act. These are a committee of estate which deals with financial and business affairs and a committee of person which handles custody and care matters.
But first, who sits on a court-appointed committee?
Based on the Malaysian case of Liew Ju Min v Choo Wee Poh & Ors and Another Case, it appears that a committee does not need to be made up of a relative or even a next of kin. The court has judicious discretion in determining the suitability of a person(s) to join a committee. In practice though, such person(s) would more likely than not be a family member or at least a close acquaintance.
This makes sense when one considers a guiding principle utilized by the court in appointing a committee: would the best interests of the mentally disordered person be served? Naturally, people familiar with the background and idiosyncrasies of the mentally disordered person would be better-equipped to cater to the latter’s needs and have a higher chance of being appointed to the committee. Such people tend to be family members of the mentally disordered person.
That being said, even family members intending to sit on the committee should ensure that they have a clear, objective and realistic perspective of the most appropriate environment tailored to the circumstances of the mentally disordered person. On that note, feuding siblings may find themselves excluded for a position within the committee. In the Singapore decision of Wong Sau Kuen and Others v Wong Kai Wah and Another, the court was keen to ensure that there is harmonious decision-making among members of the committee to reduce the potential for conflict. In particular, where allegations are levelled against siblings regarding the management of assets and accounts of the mentally disordered person, the court is not hesitant to order the disclosure of documents pursuant to a discovery application.
Ultimately, the overarching aim of the court is to obtain all the information it requires on a mentally disordered person’s estate to decide on who should sit on the committee, including the possibility of an outsider if this is warranted. See the decision of Goh Yong Peow v Goh Sok Choo & Ors.
Feuding siblings may find themselves excluded for a position within the committee.
Types of committees
Committee of Person
A committee of person is constituted if the court deems that a mentally disordered person is dangerous to himself or others. If this is not the case, only a committee of estate would be ordered. The primary goal of a committee of person is to ensure that the mentally disordered person is properly taken care of and would not be of harm to himself or others. As such, actions taken by a committee of person relate chiefly to custody and care issues of the mentally disordered person. In the Singapore decision of Re LP (Adult Patient: Medical Treatment) for example, a committee of person was appointed for the purpose of acting in place of the patient and to give or withhold medical consent.
The importance of ensuring the safety of the mentally disordered person is further captured in section 73(2) of the Mental Health Act where it was provided that even if the court does not appoint a committee of person, it can still subsequently make an order handing the mentally disordered person over to the care of a friend or a relative. This is on the basis that said friend or relative satisfies the court that he undertakes to take proper care of the mentally disordered person and prevent him from injuring himself or another.
Committee of Estate
On the other hand, a committee of estate appointed by court handles the management of principally the business and financial affairs of the mentally disordered person. There are multiple provisions within the Mental Health Act for the management of the mentally disordered persons’ estate.
Among other things, a committee of estate is able to do the following:
- Manage property, movable or immovable, as the court deems necessary and proper.
- Where a person had contracted to sell or dispose of his estate but then becomes mentally disordered, the committee of the estate of the mentally disordered person may be directed to execute such conveyances by the court which the court deems ought to be performed.
- Upon dissolution of a partnership, to join with other partners in disposing of the mentally disordered person’s partnership property and do all acts to bring into effect the dissolution of the partnership, as the court deems proper.
- If the mentally disordered person was engaged in prior business commitments, the committee of the estate of the mentally disordered person may be directed to sell and dispose of the business premises if the court is of the view that this appears to be for the benefit of his estate that the business premises should be disposed of. The proceeds of the sale would then be applied in such manner as the court directs.
From the above provisions alone, it is not difficult to notice the interventionist hand the court plays in controlling the management of the mentally disordered person’s estate. It should come as no surprise then that there are certain limitations to what a committee of estate can do. Of note, the power of the committee of estate does not extend to the sale or charge of the estate or any part of the estate or to the letting of any immovable property for a term exceeding three years. This is subject to the court’s power to order the sale, charge or otherwise disposal of the property for the purposes of i) payment of the mentally disordered person’s debts, ii) the discharge of any encumbrance on his estate, iii) the payment of or provision for the expenses of his future maintenance and the maintenance of his family, as well as iv) payment of any court-related costs.
A committee of a mentally disordered person, once appointed, is well-advised to remain vigilant to the scope of powers which it has been clothed with by the court. This is not least to avoid a situation like that in the Singapore decision of Peter Edward Nathan v De Silva Petiyaga Arther Bernard and another. In that case, a transaction for sale was deemed invalid as the committee executing the sale on behalf of the mentally disordered individual had no power to do so under the terms of the court order.
However, once a court order clearly provides for the right to do something, such as managing and operating all bank accounts belonging to a mentally disordered entity, there is no need to get court approval for each and every bank transaction intended to be undertaken. Otherwise, that may defeat the purpose of having a committee in the first place.
Given that the court goes to considerable lengths to protect the best interests of a mentally disordered person, a person seeking to be on a committee should have the best interests of said person at heart. Once appointed, the committee should then adhere to the terms of the court order prudently and logically so that it acts within the ambit of powers so granted.