Mental Health Act 2001 – Safeguarding the Welfare of the Mentally Disordered
by Voon Su Huei & Clinton Tan ~ 4 February 2019
Clinton Tan Kian Seng (Partner)
Tel: 603-6201 5678 / Fax: 603-6203 5678
Voon Su Huei (Associate)
Tel: 603-6201 5678 / Fax: 603-6203 5678
Not frequently brought up in conversation, the issue of mental health in Malaysia entails pervasive stigma. What do you do if your loved one is not mentally well and is unable to care for him or herself? This article seeks to provide an understanding of the legal landscape of mental health laws in Malaysia, with a particular focus on the steps that can be taken to safeguard the welfare of loved ones suffering from mental disorders.
The relevant legislation are the Mental Health Act 2001 (“Mental Health Act”) and the Mental Health Regulations 2010 (“Mental Health Regulations”). Although the Mental Health Act was passed by Parliament in 2001, it only came into operation much later in 2010 when the Mental Health Regulations also came into force. Broadly, the Mental Health Act provides two ways in which an individual can be admitted into a psychiatric hospital:
- By way of a court order under sections 52 and 55 of the Mental Health Act; and
- By way of an involuntary admission under section 10 of the Mental Health Act.
THE SECTION 52 ROUTE
Under Section 52 of the Mental Health Act, one can apply to obtain a court order to have an inquiry into determining whether a person is incapable of managing himself and his affairs due to mental disorder. At the inquiry, the court makes its determination on this issue.
Under section 52 of the Mental Health Act, a relative of the person alleged to be mentally disordered has to first apply to Court for an inquiry to be made on the mental capacity of such a person. Once an application is made, the Court has to determine whether it can be said on a prima facie (Latin phrase meaning “at the face of it”) level that the individual in question is incapable of managing his or her affairs. This is the first step. This prima facie determination is done largely by the court’s own observations of, and interactions with, the person said to be mentally disordered, and can be made with or without the benefit of medical opinions.
It is useful to mention that the Mental Health Act defines a mental disorder broadly as “any mental illness, arrested or incomplete development of the mind, psychiatric disorder or any other disorder or disability of the mind however acquired”. What is important for the first step is that the application filed into Court has to show that the person in question is suffering from a mental disorder. This can be done through evidence such as statements from relatives that the person in question needs assistance to bathe, change clothes, eat and perform other basic daily actions.
If the Court determines that there is insufficient evidence to form a prima facie finding, the Court will dismiss the application and not order any inquiry into the mental capacity of the person. This is illustrated in the case of Wong Kim v Loh Kim Foh which involved a 90-year-old man who was diagnosed with Alzheimer’s disease. His medical condition was supported by multiple medical reports tendered. The judge engaged in a preliminary interview with the man for 55 minutes asking him questions about his personal life, family, relationships etc. The judge found him to be conscious of events, able to converse fluently, and was completely of sound mind. The judge expressed his surprise at the man’s remarkable capacity for comprehension at his advanced age. The Court thus concluded that there was insufficient prima facie evidence to order an inquiry given that that it was satisfied that the man was of sound mind.
Another case which further emphasizes the role played by the Court in its own assessment before ordering an inquiry is Gary Lim Ting Howe v Lim Pang Cheong & Ors. Here, five medical reports concluded that the person was suffering from dementia and these medical findings were unchallenged. However, based on surveillance reports the individual in question was observed to have gone shopping for groceries, paying for fuel, making payment for breakfast and even playing golf on more than one occasion. The Court considered that all those activities showed that his executive functioning was intact and he could not in any way be said to be incapable of managing his day to day affairs.
If, on the other hand, the court makes a prima facie finding that the mentally disordered person in question is unable to manage his or her affairs, the court can order a formal inquiry into the state of the individual’s mind. This is the second step. For the purposes of the inquiry, the court or a psychiatrist may, at any time after the application for an inquiry is made, personally examine the person. Any psychiatry report prepared is admissible as evidence for the inquiry.
The primary concern of the Court is not just whether the individual has a mental disorder, but whether the mental disorder... prevents the individual from managing his or her own affairs.
Further, the Court can, at any time after an application for an inquiry is made, order that a person alleged to be mentally disordered be admitted into a government psychiatric hospital or a gazetted private psychiatric hospital for an observation period not exceeding one month. This observation period can be extended for a further period of one month if the court allows a subsequent application by the Medical Director, i.e. the person in charge in the psychiatric hospital. Before the end of the period stipulated in the court order, the Medical Director is required to certify in writing his or her opinion as to the state of mind of the person. Again, such evidence is admissible as evidence during the court inquiry.
As mentioned earlier, the primary concern of the Court is not just whether the individual has a mental disorder, but whether the mental disorder is to such an extent that it prevents the individual from managing his or her own affairs. In Tan Guek Tian & Anor v Tam Kim Kiat (No. 1), the defendant’s dementia was medically proven to be irreversible and incurable. Importantly, this had the effect of impairing his memory, intelligence, judgment and ability to care for himself. In this particular instance, the Court was prepared to accept the finding of the Singapore courts that the defendant was indeed mentally disordered.
In the event it is ultimately determined after the formal inquiry that the person is unable to manage his day-to-day affairs, the Court may appoint a committee to take over and manage the affairs of that person. Categories of people for whom a section 52 application might be applicable include an elderly person suffering from dementia or Alzheimer’s disease and who is no longer able to care for him or herself.
THE SECTION 10 ROUTE
Over and above the high threshold involved in obtaining an inquiry under section 52, such a route is further unsuitable in urgent situations as the court process will take at the very least a couple of months. In the event of urgency, a person can be admitted voluntarily or involuntarily to the psychiatric hospital under sections 9 or 10 of the Mental Health Act. This article focuses on involuntary admission under section 10 of the Mental Health Act.
Section 10 of the Mental Health Act allows for a person suspected to be mentally disordered to be admitted and detained in a psychiatric hospital. Essentially, section 10 entails a relatively swift process of getting urgent help for a patient suspected to be mentally disordered. This is done by way of an application by a relative to the Medical Director of a psychiatric hospital and subsequent recommendation by a medical officer.
A section 10 procedure is different from a section 52 application in these following ways:
- Unlike a section 52 application, a section 10 procedure does not involve any court procedures at all, but rather involves an application to a hospital for psychiatric treatment.
- In contrast to a section 52 application, the success of a section 10 procedure does not hinge on whether a person can manage his/her affairs. Instead, what matters is whether the person suffering from mental disorder needs hospital admission for assessment or treatment or whether such detention is needed to protect the health and safety of the person or to protect other people.
- The emphasis of section 10 is to admit a person suspected to be mentally disordered into a psychiatric hospital as soon as possible. It is a mechanism designed specifically to ensure a mentally disordered person gets the treatment that he/she needs. For Section 52, though, the primary focus is on finding out whether a mentally disordered person is able or unable to manage his or her affairs. Under that section, the admission of a person suspected to be mentally disordered into a psychiatric hospital is only one of the many orders that a court can choose to make.
Based on provisions in the Mental Health Act and consultation with psychiatric hospitals, the practical steps to carry out a section 10 procedure to admit and detain a patient are as follows. It is worth noting that the following steps may vary according to the chosen psychiatric hospital and it would be prudent to contact the hospital regarding its procedures prior to a visit:
- The relative and patient pay a visit to a psychiatric hospital. If a violent struggle is anticipated from the patient, police assistance may be sought to escort the patient to the hospital.
- At the Emergency Room, the Medical Officer takes a history of both the relative and the patient. At this stage, 3 documents would be produced by the Medical Officer:
- A referral letter for the patient;
- Form 3 under the Mental Health Regulations 2010: this is a form that the relative fills in stating grounds to suspect mental disorder on the part of the patient; and
- Form 4 under the Mental Health Regulations 2010: this is a form that the Medical Officer fills in after doing a personal examination of the patient to provide recommendation for admission of the patient as an involuntary patient.
- Within 5 days after Form 4 has been filled in, the patient is admitted to a psychiatric hospital.
- Within 24 hours of admission, the patient is examined at the psychiatric clinic department by a different Medical Officer to determine if continued detention of the patient is justified.
- If further detention is deemed unwarranted, the patient is discharged. If detention is deemed justified, the patient is hospitalised by an order of the Medical Director a period not exceeding one month. The referral letter, Form 3 and Form 4 would then be handed over to the Head of Psychiatry.
- Should the patient not be discharged within the said detention period, the patient is examined by two medical officers, one of whom must be a psychiatric specialist.
- If, at this juncture, the medical officers deem that further detention is not justified, the patient is discharged. If further detention is deemed justified, an order for detention for a period not exceeding three months can be made by the medical officers.
An involuntary psychiatric patient can be discharged at any time by the Medical Director of the psychiatric hospital
As mentioned previously, the recommendation by the Medical Officer for admission of an involuntary patient under Form 4 would depend on whether the person is suffering from mental disorder of a nature or degree which warrants his admission into a psychiatric hospital for assessment or treatment or that the person ought to be detained in the interest of his own health or safety or with a view to the protection of other persons. An involuntary psychiatric patient can be discharged at any time by the Medical Director of the psychiatric hospital if he is satisfied that it is in the best interest of the patient to discharge him and the patient is not in need of further care or treatment in the psychiatric hospital.
To conclude, section 10 focuses on the treatment and best interests of a patient with mental disorder. In theory, this should have the benefit of including patients with serious mental health issues, but who are still capable of functioning in a daily capacity. Whether or not the patient is admitted, however, appears to depend on the discretion of the psychiatric hospital. Theoretically, the multiple examination procedures embedded within section 10 should ensure that a patient is not held in the psychiatric hospital against his/her will. Any attempts to deal with an involuntary patient though, ought to be met with an abundance of caution. If circumstances permit, perhaps “softer” approaches like counselling and/or therapy would be wiser options to pursue with the patient beforehand.