Legal Commentary

The principle of autonomy must be balanced against the need to protect the person from harm. The question is how to strike that balance and what tips it over to either side. In this case, the right for Mdm. W to make her own decision whether to undergo electroconvulsive therapy (ECT) must be balanced against the concern of the doctors and her relatives regarding the possible consequences of not receiving the treatment. However, this question does not even arise if Mdm. W has capacity to make that decision. Mdm. W is the decision-maker for ECT treatment if she has capacity to make that decision.¹

The statutory regime that underpins decision-making for persons who may lack capacity is the Singapore Mental Capacity Act (SMCA).² It is grounded in five Statutory Principles.³ The first three are the presumption the person has capacity, has the right to make an unwise decision, and the requirement that all practicable steps be taken to help the person make a decision. The fourth principle requires decisions made on behalf of the person lacking capacity to be taken in his or her best interests, and the final one states that the less restrictive option must be selected when making decisions for persons lacking capacity.

The best practice is for the doctor to conduct a formal mental capacity assessment to determine whether Mdm. W can refuse consent for ECT. A formal assessment is appropriate in these circumstances because the decision is an important one concerning serious medical treatment.⁴ A trained specialist should conduct this assessment. The two-stage test for mental capacity is laid out in the SMCA.⁵ The first stage appears to be met because it requires the person to be suffering from an impairment or disturbance that affects the function of the mind or brain, and Mdm. W has bipolar disorder. The second stage requires the bipolar disorder to render Mdm. W unable to make a decision at the time the decision needs to be made. The SMCA states that a person is unable to make a decision if he or she cannot understand the information, weigh up the information, remember the information or communicate the decision.⁶

If the formal assessment concludes that Mdm. W lacks capacity to refuse ECT treatment, then the decision should be taken in her best interests.⁷ Mdm. W ’s relatives have no legal right to make decisions on her behalf unless she has appointed one or more of her relatives to be her healthcare proxy under a valid Lasting Power of Attorney (LPA).⁸ If she made such an LPA, then the appointed proxy is the final decision-maker unless the treatment is life-sustaining or the doctor reasonably believes the treatment is necessary to prevent a serious deterioration in Mdm. W’s health.⁹ It is arguable that a clear and present danger of suicide may be reasonably classified by the doctor as a serious deterioration in Mdm. W’s health, although this issue has not been tested in the Singapore courts, which would mean that the appointed proxy would have to yield to the doctor as the final decision-maker. If Mdm. W did not make such an LPA, then the decision must be taken in her best interests, and is likely to be taken jointly between the healthcare team and the relatives.

The best interests test involves a holistic appraisal of factors,¹⁰ balancing the benefits and burdens of the proposed ECT. The relevant factors that should be considered here include whether, when or if Mdm. W is likely to regain capacity, her beliefs and values, her past and present wishes, and the views of her relatives.¹¹ We do not have any information about the first two factors but we do know Mdm. W rejected ECT and her relatives think she should have ECT. Another relevant factor is that Mdm. W is unlikely to cooperate with the pre-treatment fasting requirements or agree to undergo general anaesthesia. Therefore, Mdm. W will need to be restrained for eight hours before each treatment. There will be a total of six...