The above case demonstrates the struggle healthcare teams face when trying to protect patients from harmful decisions on one hand while balancing this against the need to respect relational autonomy on the other. How should the ethics consultants respond to the appeal of last resort in the face of such conflicting opinions between Dr P1 and Dr P2?

Dr P2’s assessment, besides having more regard to the influence of Mr S that Mdm C was subjected to, was the more contemporaneous with unfolding events. Yet some might argue that Dr P1’s opinion should hold sway because it was only a few days preceding the expected deterioration. It could also be said that Mdm C’s opinions during Dr P1’s consultation represented an advance planning while she was assessed as having mental capacity, which should not have been disregarded. This may have been so, but the Code of Practice, Mental Capacity Act specifically addresses this issue, stating that while past wishes must be accorded heavy weight by caregivers when determining best interests, there is no absolute obligation to follow them (Office of the Public Guardian 2016, s6.5.2e).

There was sufficient agreement between Dr P2 and the team that Mr S, even if not hindering, was also not helping Mdm C to come to her own decision. It was reasonable to form the impression that Mdm C did not have the ability to develop her own views about COVID-19. In this respect, the ethics consultants felt that Mr S did not actively help Mdm C to come to her own decision (Office of the Public Guardian 2016, s3.4.1). It was disingenuous of Mr S to put his views across as Mdm C’s decision—this above all else was the fatal flaw that made his influence undue and uacceptable.

COVID-19 is known to have effects on the brain, but to the extent that mental capacity for medical decision-making for treatment is affected is still uncertain territory (unlike, e.g., dementia) especially for one who was alert. Mental capacity will also deteriorate as untreated serious illnesses progress. Dr P2 was unable to separate the two strands, preferring the view that it was likely a combination of both. Dr P2’s conclusion, on the basis of his findings was valid and sound.

Thus, where a patient is making an unwise or foolish decision, the treatment team could theoretically choose to wait until the patient declines to a point where their cognitive function is lost and she loses capacity, but is still be able to respond to treatment, before intervening in her best interests. These forms of intervention based on loss of mental capacity are dubious and susceptible to abuse. Concerns about undue influence cease to be pertinent when it is clear that mental capacity is irrevocably lost due to the disease progression and when the patient is no longer susceptible to being “influenced.” The ethics consultants were satisfied that Mdm C was not at this stage at the time of the psychiatric assessments.

In Mdm C’s case, we hold that there was an ethical justification to call for a second opinion because there was reasonable doubt, seeded by undue influence, about her mental state, her choice, and intentions. The fact that Dr P1 did not pay much attention to this was a cause of concern for the primary care team.

In Re BKR, weighing of a decision was ascertained by reference to reasons given as evidence by the individual in the court. Such forensic exactness cannot be replicated in the hospital ward. The non-desire to live and the refusal for treatment do not necessarily imply a failure to make sense and to weigh. Patients in a state of denial, vacillation, avoidance, or stoic acceptance of their fate may feel this way. Even irrational decisions barring those that are outrageously so (Re MB (Medical Treatment) [1997] EWCA) need to be respected. The important point in Mdm C’s case was her inability to shed even the faintest light on the apparent inconsistency between her implied wish to live and her refusal to accept a simple and minimally invasive treatment. On balance, this could be explained by her lack of mental capacity.

Overall, the ethics consultants were persuaded that there were sound and ethically defensible reasons for accepting Dr P2’s assessments. There were sufficient grounds to accept as a fact that Mdm C’s mental state, being compromised by COVID-19, had been affected to the extent that she was incapable of making a proper decision when undue influence was present. This then paved the way for the primary team to administer the treatment lawfully and ethically.

The ethics consultants also took the opportunity to address the medical team’s concerns about the doctrine of medical necessity to save lives and the threat of legal consequences. The doctrine of necessity, borne of common law might have had relevance prior to the MCA both in the UK and Singapore. Saving lives or not, based on best interests, is now codified into the Act, with strict parameters for its application limited mainly to patients without mental capacity in emergencies, requiring objective evidence to support the absence of mental incapacity. This doctrine of necessity is now, therefore, neither applicable without such evidence, nor needed if such evidence is demonstrated.

Treating or even touching a patient without consent can give rise to a civil claim of battery or criminal liability of assault. These concerns underline the importance of establishing the mental capacity status of the patient, lack of which then justified the treatment to proceed lawfully. Her cooperation with treatment should be carefully monitored, considering her weakened state of health. The healthcare team should always be mindful of the law and proceed in a manner that can be justified in the future if necessary.

Lastly, the ethics consultants also considered how the approach should be in the alternative of Mdm C being ascertained as having mental capacity. She should be put on notice about the potential undue influence followed by encouragement and support for an independent decision. This could be conducted by hospital staff not directly involved in the clinical care, e.g., medical social workers or the hospital psychologist and in the absence of the source of such undue influence. The position in Re BKR (at [126]-[127]) is that capacity may be regained (if not present previously) once undue influence is removed). However, we must be mindful that while physical presence is easily prevented, psychological presence may yet linger.

If Mdm C did not have a mental impairment, it should not be for the doctors to override her decision on the basis of undue influence alone. Re BKR has not established a basis for permitting this. While the treatment team would prefer Mdm C accepting treatment, any intervention must be made with the ultimate goal of facilitating her autonomous decision-making, rather than changing her mind. For now, absent case law on inherent jurisdiction, the MCA SG would be the first and possibly only port of call if a decision was to be made by the doctors on behalf of the patients. An existence of an impairment of the mind, in addition to and interacting with undue influence must be present. Conjoined together, it may result in a lack of mental capacity.

The Singapore Medical Council (2016, 89) Handbook on Medical Ethics also made reference to the effects of pressure and duress exerted by other parties. It states that: “If time does not permit (for example, in an emergency), or the patient remains impaired by these or other factors (meaning subject to pressure and duress), you may proceed in patients’ best interests. If possible and there is time, you should obtain a second opinion from an appropriate colleague or send the patient for a formal assessment of mental competency.” Re BKR affirmed that overriding of a patient’s wishes still requires them to lack mental capacity, and so the safer choice would be to assess their capacity before proceeding with treatment.