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THE PLAN to criminalise ill-treatment and neglect of people who have sunk into cognitive oblivion highlights determination on the Government's part to extend to them the same degree of protection already offered to another immensely vulnerable group - children.
Under the proposed Mental Capacity Bill, caregivers and guardians of the mentally ill can face a jail term of up to a year or a maximum fine of $7,000 if they ill-treat or wilfully neglect their charge.
The first draft was released for public consultation last week.
The legislation will empower people here to appoint a guardian - known as a donee - who can look after their personal, medical and financial needs should they lose their mind to illnesses or accidents.
Parents of intellectually disabled children can also appoint a guardian - known as a deputy in this case - to look after their child once they become incapable of doing so. This appointment, however, needs court approval.
Once it gets the force of law, the Mental Capacity Act is expected to be a boon to the growing ranks of dementia patients here, many of whom lose their faculties bit by bit, in a long, lingering path to nothingness.
What's important in this piece of legislation - at least in the current form - is that it criminalises not only physical abuse, but possibly, psychological abuse.
Also, it extends criminal liability not only to the designated guardians - as a check on the powers vested in them - but also to any caregiver.
Children have already been afforded similar protection, with the statute directly spelling out criminal liabilities. The Children and Young Persons Act (CYPA) makes it a crime for people to subject those below 16 not only to physical or sexual abuse, but also something as nebulous as 'emotional injury'.
Family law expert and Member of Parliament Ellen Lee believes that the mentally ill deserve equal - if not more - protection than even children.
'In some sense, dementia patients are even more vulnerable than older children or young people,' said MsLee, who has spoken about more rights for dementia patients in Parliament before.
'Having lost their faculties, they will not even be in a position to complain.'
While the move to extend criminal liability has been applauded as 'radical', 'timely' and 'extremely useful', experts are divided over whether the proposed law should define the words 'ill-treatment' and 'wilful neglect'.
The current draft does not.
National University of Singapore law professor Locknie Hsu would favour some basic definitions, or even 'guidance' on what the terms could mean.
'How much amounts to ill-treating a person?' said Associate Professor Hsu, who counts elder law among her fields of expertise.
'Would a stressed caregiver scolding a dementia patient amount to ill-treatment? Where do you draw the line?'
Mrs Helen Ko, a director of counselling at the Centre for Seniors, agreed, saying caregivers in particular would be keen to know what constitutes neglect so that they 'don't cross the line'.
'While dementia patients do require strong protection, we should take care to not add to the burden of stress already faced by caregivers.'
WHAT IS NEGLECT, EXACTLY?
INTERESTINGLY, the CYPA defines both ill-treatment and wilful neglect.
The former includes physical and sexual abuse, unnecessary physical suffering or injury - including any injury to the child's health, development or emotions - or any act which endangers or could endanger the safety of the child.
Wilful neglect could include some of the above as well, such as if the parent or guardian deliberately or 'unreasonably' neglects to provide the child adequate food, clothing, shelter, medical aid and care.
But lawyer B.Ganesh, who has been practising family law for more than three decades, is against defining ill-treatment and neglect in such a manner in the Mental Capacity Bill.
Stipulating specific examples of ill-treatment, he said, could limit the scope of the legislation.
Ms Ellen Lee agreed, saying that defining a specific scope could lead to some forms of ill-treatment or neglect remaining unpunished.
Definitions were more rigorous in the children's Act, she said, as rebellious children may make up stories to get their caregivers into trouble, especially those in foster care.
'The Mental Capacity Bill is intended for a target group of adults or people who cannot defend themselves or make up stories about caregivers, given their mental state,' she said.
It was helpful that no definition of neglect was spelt out so that 'each situation could be assessed on its own'.
At only one year, the maximum jail term proposed in the draft Bill is less harsh than that meted out by the CYPA.
This, say lawyers, is as it should be.
Abuse of a child is likely to emotionally scar him for life, and so penalties should also be heavier.
Also, many of the caregivers of elderly dementia-ridden folk may have a long history of caring for them. In view of this - and the fact that, in theory at least, a single mistake could land them in jail - penalties are being kept relatively low.
LIFE SAVINGS AT RISK
SOCIAL-SERVICE professionals are hoping that the proposed law will help clamp down on financial abuse, possibly the most common form of 'ill-treatment' of elderly dementia patients grappling to understand complex money management concepts.
In her capacity as counsellor to the elderly, MrsKo from the Centre for Seniors has seen some dementia patients whose bank accounts are being slowly drained by trusted family members - usually a favourite child.
'Very often, these old folk put their life's savings in joint accounts with a son or daughter,' said MrsKo.
'It would thus be very easy for the child to clean out the account.'
Criminalising such offences will send a 'strong signal' to family members who may want to abuse positions of trust, said MrsKo.
Significantly, the section in the draft Bill that talks of criminal liability stops short of defining exactly who a caregiver is.
This too, say lawyers, is the way it should be.
As families shrink and the number of singles soars, caregivers may not be largely restricted to immediate family, as in the past.
Aside from professional care staff, an incapacitated person could be looked after by anybody, including a friend or neighbour.
However, for those that require some guidelines on who a caregiver could be, the Mental Capacity Act of England and Wales, which the Singapore draft is adapted from, may provide a clue.
A Code of Practice issued with the UK Act says the law applies to 'everyone' who looks after or cares for someone who lacks capacity.
However, at the same time, it lists down some of the professional caregivers the Act would hold sway over.
These include health-care staff (doctors, dentists, nurses), social-care staff (social workers, care managers) and even those 'who may occasionally be involved in the care of persons who lack capacity', such as ambulance crew or even police officers.
The Singapore law is also likely to have a similar code to guide people through legal minefields.
The UK Act came into force quite recently, but activists there have already drummed up a boisterous campaign to extend similar protection to not just the mentally incapacitated, but the elderly in general.
In June, a survey partly funded by that country's Department of Health claimed that 342,000 elderly people faced abuse at home.
In Singapore, too, lawyers such as Mr T.U.Naidu hope that the Mental Capacity Act will prove the first in a series of statutes to protect not only the elderly, but also the intellectually challenged.
Just last week, Mr Naidu appeared in court in a case where a 20-year-old intellectually challenged woman was sentenced to a week in jail for pilfering $5 from the store she worked in.
She could have escaped the sentence if her well-to-do parents had paid a $1,000 fine on her behalf, said Mr Naidu.
'The parents refused to take responsibility for her, although she has the mental capacity of a child', said Mr Naidu.
'I am waiting for the day such people can also be brought before the courts for wilful neglect.'
To find out more about the draft Bill and give your feedback, log on to www.reach.gov.sg
radhab@sph.com.sg
More vulnerable
'In some sense, dementia patients are even more vulnerable than older children or young people...Having lost their faculties, they will not even be in a position to complain.'
FAMILY LAW EXPERT AND MP ELLEN LEE, who believes that the mentally ill deserve equal if not more protection compared to children
Heavy burden
'While dementia patients do require strong protection, we should take care to not add to the burden of stress already faced by caregivers.'
MRS HELEN KO, a director of counselling at the Centre for Seniors, saying caregivers in particular would be keen to know what constitutes neglect so that they 'don't cross the line'
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