How crucial is the Mental Capacity Act? Lawmakers explain how it will protect, empower and guide society

KUALA LUMPUR, June 2 – Up until May this year the idea of enacting and implementing a Mental Capacity Act (MCA) in Malaysia have only been mentioned in discussions or forums.

Things are about to change as the government has given its commitment to actually make the legislation a reality in the country.

The Act may not be the most popular topic of interest among Malaysians for now, however according to deputy minister in the Prime Minister’s Department M. Kulasegaran it is a law that is much needed to support Malaysia’s ageing society.

To understand what the Act is about, three lawmakers share their thoughts on why the MCA is important and why Malaysians need it.

Subang Jaya state assemblywoman Michelle Ng Mei Sze said the need and urgency for an MCA in Malaysia stem from the necessity to protect the rights and well-being of individuals who may lack the mental capacity to make decisions for themselves due to various conditions such as intellectual disabilities, mental health disorders, or age-related cognitive decline.

"The Act would provide a clear legal framework to ensure that decisions made on behalf of these individuals are in their best interests, made by appropriate persons, and with necessary safeguards against abuse and neglect,” Ng said when contacted by Malay Mail.

What are some of the areas that the Act could protect should it be implemented in Malaysia?

Ng said among others, the Act will be able to protect vulnerable Individuals.

Why, because without a specific legal framework, individuals with impaired mental capacity are at risk of having their rights and autonomy compromised and they may be subjected to decisions that do not reflect their best interests or preferences.

"Existing laws may not adequately address the complexities involved in determining mental capacity and making substitute decisions, leading to potential inconsistencies and injustices,” she said.

With the MCA in place, it will serve as a guide for families and caregivers who often face uncertainty and legal challenges when making decisions for their loved ones who lack mental capacity.

"An MCA would provide clear guidelines and legal support, reducing stress and potential conflicts,” Ng said.

In addition, the MCA will be able to preventing abuse and exploitation whereby it can establish mechanisms for oversight and accountability to prevent exploitation, abuse, and neglect of individuals with impaired mental capacity.

"This is crucial in ensuring their safety and well-being,” she said adding that the Act is able to emphasise the importance of supporting individuals to make their own decisions as far as possible, preserving their dignity and autonomy.

It ensures that any assistance provided respects the person's values and preferences.

Some time during the late period of the Covid-19 pandemic in 2022, Kampung Tunku state assemblywoman Lim Yi Wei said it was then she noticed that Malaysians needed the MCA.

"(In personal encounters) mostly when dealing with constituencies who have family members who are terminally ill, not conscious or unable to make medical decisions because they don’t know what the patient has wanted or there’s a disagreement between closest kin on the choice of care.

"A Mental Capacity Act would be very helpful to the patient and their kin,” Lim said when contacted.

How it can be helpful in this context is that the MCA makes it safer for medical professionals to decide and execute the type of care needed.

"It is also easier for lawyers to execute the wills/wishes of the patient during the period of incapacitation,” she added.

Agreeing with Ng and Lim, Bukit Bendera MP Syerleena Abdul Rashid said the Act is much needed as it will be able to provide protection and support for the society.

"This Act empowers caregivers and legal guardians to make decisions that truly reflect the best interests and values of those they care for, fostering an environment where individuals with limited capacity can still participate in their own decision-making process.

"This legislation also brings much-needed clarity and guidance for families, reducing the stress and confusion that often accompany caring for a loved one with mental incapacity.

"By preventing abuse and exploitation, setting care standards, and providing legal recourse for disputes, the Act not only enhances the quality of care but also strengthens community awareness and inclusivity,” Syerleena said when contacted.

File photo of Lim Yi Wei in Petaling Jaya July 9, 2018. - Picture by Zuraneeza Zulkifli

Is Malaysia ready for MCA

Although the government gave a timeline for when the MCA Bill would likely be brought to Parliament - this year - there are several elements to acknowledge, one inducing more discussions involving youths, patient advocacy groups and people with lived experience (PWLE), Lim said.

"It would be good to hear how such an Act could help mental heath patients and youth.

"The MCA needs to protect agencies and autonomy of persons with disabilities, especially those with psychosocial disabilities (mental, learning).

"It also needs to acknowledge and address the lack of recognition of disability, the definition of the term ‘unsound mind’ within the Federal Constitution, and tackle the discriminations faced by both groups,” Lim said.

Commenting on whether there is sufficient framework to enact the law, Lim suggested that the government could gather input from patients (including those with mental health disorders) from a wider range of ages, and this should include youths.

"Depending on how severe the mental health condition is, mental health patients can go through cycles of lucidity versus unable to function (also a spectrum of ‘neglecting or unable to perform daily routines’ versus ‘hallucinations/delusions/loss of perception of reality’.

"So there needs to be some thought on how the framework respects the mental health patient's autonomy in determining their level of care at different points in their mood cycle.

"For example, when does medicine and the law define ‘unsound mind’, and can someone who is deemed unsound but recovers say in a month, be allowed to make changes to their earlier decision? That's where I think needs more feedback and consultation with patient groups and those with lived experience,” she said.

Weighing in, Ng said as with all laws, there will be ground work that is needed before a law can be enacted.

"With enough political will, it can be done in the near future,” she said.

On May21, Kulasegaran had said that the government is looking at tabling a Mental Capacity Bill in Parliament before the year ends.

He said since the proposed law has been in consultation for several years it is time that something is done about it.

He added that the legislation will complement the Mental Health Act 2001 which currently can only be used when the person is already mentally incapacitated.

In contrast to the Mental Health Act, the MCA will look at matters before a person becomes mentally incapacitated.