Universal Definition of Mental Disorder and Mental Disability Across All Legislation

4 Dr Shahira Abdullah asked the Minister for Law whether the Government will consider (i) adopting a common and universal definition of mental disorder and mental disability across all legislation and (ii) conducting a thorough review on all relevant criminal legislation to incorporate appropriate safeguards, protection and support for persons with mental disorders or mental disabilities who have to interact with the criminal justice system.

The Second Minister for Law (Mr Edwin Tong Chun Fai) (for the Minister for Law): Mr Speaker, the Member's question has two parts. The first part of the question is whether there can be a common definition of mental disorder and mental disability across different legislation.

The issue of one's mental condition arises in many different contexts in the different legislation. Let me just give a few examples.

There are provisions that are aimed at protecting persons with mental conditions from abuse. For example, section 376F of the Penal Code deals with the procurement of sexual activity with persons with mental disabilities by means of inducement, threat or deception and defines mental disability as, and I quote, "an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain which impairs the ability to make a proper judgement in the giving of consent to sexual touching".

There are also provisions which deal with the detention of persons with mental conditions. For instance, the Mental Health (Care and Treatment) Act allows the detention of a person who suffers from a mental disorder, where a designated medical practitioner at a psychiatric institution is of the opinion that the person requires in-patient treatment at the psychiatric institution and such detention is necessary in the interests of the person's health or safety, or for the protection of other persons. Sir, you can see that the first is quite a different situation from the second.

There are also provisions to protect the interests of persons who lack mental capacity. For example, the Mental Capacity Act addresses the need to make decisions for persons who are 21 years of age or older when they lack mental capacity to make those decisions for themselves. Under the Act, a person lacks mental capacity in relation to a matter, and I quote, "if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of the mind or brain".

Mental disorders and mental disabilities take many different forms, with different levels of severity and impairment. The different provisions are drafted to deal with the different specific contexts. There is some variation in the way that mental conditions are treated. However, the Government is open to suggestions for a common, universal definition of mental disorder and mental disability if such a definition can meet the policy intent across all the different pieces of legislation.

The second part of the Member's question is about whether we will review all relevant criminal legislation to incorporate appropriate safeguards and support for persons with mental conditions who interact with the criminal justice system.

Safeguards are built in for persons with mental health conditions in the criminal justice system.

MHA's response to Question Nos 8, 9, 10 and 11 on the Order Paper for this Sitting will address the safeguards during investigations. In addition to those, there are procedural protections at the trial stage for witnesses, including those with mental conditions. For example, the State Courts administer a Witness Support Programme for vulnerable witnesses in criminal cases, such as adults with mental capacity below the age of 18. A trained volunteer will be assigned to the vulnerable witness to accompany and provide the emotional support to the witness before, during and also after the hearing.

Due regard is also given to the mental conditions of accused persons when they are prosecuted. For example, the criminal case will not proceed if the accused is found to be of unsound mind and, consequently, incapable of making his defence.

If the accused is capable of making his defence but was of unsound mind at the time he committed the act that he was charged with, the Court must acquit him and report the case to the Minister. He may then be confined in a psychiatric institution, with periodic reviews of his state of mind.

The Court may also take into account the offender's mental condition in deciding the appropriate sentence. In appropriate cases, the Court can impose a Mandatory Treatment Order for the offender to undergo psychiatric treatment, instead of sentencing him to imprisonment.

In prison, inmates with mental health needs have access to the necessary treatment for their condition.

Sir, the current framework has been built up over a period of time. Of course, as and when we realise or we observe that it can be improved, we will do so. If the Member has any suggestions for improvement, we invite her to share them with us and we will consider.

Mr Speaker: Dr Shahira Abdullah.

Dr Shahira Abdullah (Nominated Member): I thank the Minister for the clarifications on this. I think we have moved far along in the mental health and well-being discourse. I do note that the Minister said there is always continual review for this. I was wondering whether there are any reviews upcoming and whether the Interagency Taskforce for Mental Health and Well-being can look into this to figure out a common meaning and understanding for future legislation.

Mr Edwin Tong Chun Fai: I thank Dr Shahira. We do review from time to time but do not let the fact that there is or is not a review constrain any suggestions that you might have to give to us. So, we welcome that at any time.

Certainly, as I have said earlier with my illustrations, there are some nuances to be looked at and to be appreciated in the contexts of the different standards and the different contextual circumstances in which mental disability or treatment, or even mental capacity, might arise, and how they are defined in the context of certain pieces of legislation. Some seek to diminish responsibility, others seek to deal with the questions of whether you can appropriately consent and yet others deal with the question of whether we should appropriately protect the person with disability.

So, if we can find a common standard across the spectrum that deals with all these various policy intents and purposes, then, of course, we welcome the Member to propose a definition to us and we will consider it.