PETALING JAYA: Proper safeguards should be put in place when the government comes up with the proposed Mental Capacity Act, say experts and senior lawyers.
Association of Women Lawyers (AWL) committee member Meera Samanther said the proposed legislation will allow individuals the autonomy to decide on appointing a person or persons who will make their health, wealth and welfare decisions for them in the future in the event they become mentally incapacitated, temporarily or permanently, by a Lasting Power of Attorney (LPA).
“It is indeed difficult to think about such vulnerable situations, but the initial stage of getting over such fear is understandable.
“But once we realise the law does not provide for such a situation, meaning that we have little control over the next of kin, or who will be called to decide on how to manage our finance, health and welfare, it may not be what we would have wished for,” she said when contacted yesterday.
Meera, who is also the co-chair of the ad hoc committee on Persons with Disability, said the proposed law will address such a situation and allow for advance proper planning tailored for each person.
“Should the one appointed not carry out their duties and responsibilities according to your best interest, the Public Guardian will be able to step in and investigate, intervene and report the person.
“Safeguards should be put in place to prevent the vulnerable from (being the subject of) neglect and abuse,” she added.
Criminal lawyer and former Bar Council chairman Salim Bashir said the relevant stakeholders need to be consulted and thorough studies done before any amendment or even the creation of new legislation is proposed.
“At present, Section 52 of the Mental Health Act allows the court to determine whether one is unable to manage the affairs and estates of a person due to an incapacitated mind. However, the court is not clothed with power to decide whether a person is mentally ill or otherwise, which is best left to medical professionals.
“The current Mental Health Act sufficiently covers a wide range of issues including recent amendments of having crisis intervention officers take steps to identify and handle situations involving mental health patients.
“Individuals with mental health issues do have their distinct rights and any proposed law should not deprive these special groups of their will and rights,” he said.
Assoc Prof Dr Anasuya Jegathevi Jegathesan, the dean of the Faculty of Psychology and Social Sciences at University of Cyberjaya, said the proposed legislation is important as it will protect the interest of individuals in the long run.
She proposed that each person should be allowed to name the person in charge in “black and white” before they lose their mental capacity or are in such a state of mind.
“Each person should be allowed to put up in black and white who they want in charge and how they want the person to be in charge.
“They should be able to write and plan it out and once such an issue arises, it will avoid any abuse or misuse,” she said.
On May 22, Deputy Minister in the Prime Minister’s Department (Law and Institutional Reforms) M. Kulasegaran announced that the government was mulling enacting legislation to allow individuals to prepare for the management of their affairs using the power of attorney should they become mentally incapacitated.
He said the Legal Affairs Division is looking into enacting the Mental Capacity Act.
“These decisions can be made by the person in advance, to prepare for a situation should they become mentally incapacitated. It also includes situations where a person may be undergoing surgery or is suffering from temporary mental incapacity.
“This new legislation will be a transformational legal instrument in Malaysia to assist in the care and management of those who become mentally incapacitated,” said Kulasegaran.
According to him, the Mental Health Act 2001 only allows the court to establish a committee to look after the affairs and estate of a person with a mental disorder after the person is already mentally incapacitated.
“The proposed Mental Capacity Act will overcome this by allowing advance planning before the occurrence of mental incapacity,” he said.
