Introduction

The Singapore Mental Capacity Act 2008 (MCA 2008) came into operation in March 2010, effectively replacing the previous law governing individuals who were deemed to be mentally disordered under the now repealed Mental Disorder and Treatment Act (Cap 178 of the 1985 Revised Edition). One of the key driving forces behind introducing the new legislation was to address a lacuna in the previous law, which did not allow for advance appointment of person(s) to look after P before P loses capacity, especially in light of an increasingly ageing population and the rising number of older people with dementia in Singapore. However, it is to be noted at the outset that P's participation in proceedings, which is the central focus of this chapter, was not immediately the focus of the legislators during the lawmaking process of the MCA 2008. It is submitted that this has led to a certain degree of dissonance between the principles aspired to within the law and the practical execution of the law in relation to having P participate in proceedings.

It is important, however, to first discuss the origins of the MCA 2008. After an extensive search through the various legal regimes governing mental capacity, Singapore decided on modelling the MCA 2008 after the England and Wales Mental Capacity Act (MCA 2005) and adopting the key principles of the MCA 2005. As such, the MCA 2008 is materially very similar to the MCA 2005, save for a few key differences.

One key difference is the particular emphasis on ‘the precept that the property must be preserved for the maintenance of P’ when considering what is in P's best interests under s 6(7) of the MCA 2008. The inclusion of s 6(7) is particularly interesting as it exemplifies Singapore's unique philosophy of self-reliance, especially in the context of one's healthcare and retirement plan. Notwithstanding the aforementioned difference, the cultural milieu in which the MCA 2008 and MCA 2005 operate is, importantly different, as well.

It is therefore proposed that it is a worthwhile enterprise to examine the relationship between the legal system of a country and the cultural milieu of the users of, and practitioners within, the legal system.