Abstract
In the wake of the Covid-19 pandemic, the mental health of minors has become a critical concern in the review of Singapore’s public health strategy. An important barrier to access mental health services is the legal requirement for parental or guardian consent. This article seeks to examine the existing legal infrastructure supporting the delivery of mental health services to minors. It considers if the legal age of contractual capacity addresses concerns at the threshold of independent consent to mental health treatment. Second, should Gillick competency be recognised in Singapore, or should a lower statutory age of consent be preferred? Finally, dispute resolution via the courts remains an important backstop where consensus between minors, parents or guardians, and mental health service providers on appropriate interventions cannot be achieved. Do the Singapore courts have appropriate jurisdiction to hear these matters, especially if brought by third parties to the parent–minor relationship? This involves an inquiry into the historical statutory origins of the ancient parens patriae jurisdiction under the Supreme Court of Judicature Act 1969.
Introduction
In the wake of the Covid-19 pandemic, the mental health of children and adolescents has become a critical concern in the review of Singapore’s public health strategy. The Singapore Youth Epidemiology and Resilience study conducted by the Mind Science Centre at the National University of Singapore revealed some startling statistics: 1 in 3 adolescents between the ages of 10 and 18 had internalising depressive or anxious clinical symptoms, 1 in 8 had externalising symptoms such as rule-breaking or aggression, and the same proportion had a current mental health disorder. 1 In addition, suicide is the leading cause of death of those in the 10–29 age cohort, 2 while self-harm is the biggest contributor to years of life lost in the 10–19 age cohort. 3 Psychiatric disorders are well-known risk factors for suicide and self-harm. 4 In the National Population Health Survey 2022, which only included individuals aged 18 years and above, the 18–29 year age cohort reported the highest prevalence of poor mental health at 25.3%. 5 This surge in youth mental health issues has been recognised at the highest levels of government in Singapore, requiring urgency in research and understanding of the underlying causes that will drive more effective interventions. 6
These child and adolescent-related statistics motivate, in part, the latest National Mental Health and Well-Being Strategy of 2023, which seeks to focus on four main areas in order to improve the accessibility and quality of clinical care for mental health needs. 7 Sub-strategies include expanding capacity of mental health services, enhancing the capabilities of service providers for early identification and intervention, promotion of mental health and well-being through preventive care, and improving workplace mental health. Initiatives to reach out to youth with mental health issues, improve early detection, and access to mental health services include clearly demarcated first-stop touchpoints where minors at risk can receive guidance on the most appropriate support or services to meet their mental health needs. 8 This also involves expanded primary care and crisis response services in communities, 9 and the establishment of Community Resource, Engagement and Support teams for youth (CREST-Youth) and Youth Integrated Teams for targeted outreach to youth at risk for mental health issues. 10 Finally, community intervention teams (COMIT) are based at social service agencies to provide mental health assessments and psychosocial interventions in the community. 11
Apart from a lack of public awareness, service access, and health financing for adolescents with mental health issues, another important barrier to access is the legal requirement for parental or guardian consent in order to access mental health services. The default common law threshold for independent, personal consent is 21 years of age, 12 although limited exceptions exist for abortion 13 and sterilisation services. 14 Withholding of parental consent, or concerns about privacy and confidentiality, 15 will prevent or impede access to mental health services offered by healthcare providers at different levels of healthcare or even in the context of community-based initiatives. 16 Press reports have documented a gap in parental understanding and appreciation of mental health symptoms in children and adolescents. 17 Parents or guardians may be the source of mental distress, do not believe in the need for mental health treatment or may be concerned about the downstream repercussions of a mental health diagnosis for scholarships and employment prospects. Minors may also not be ready to share their mental health struggles with their parents, fearing an adverse reaction. 18 These concerns are corroborated by studies that find a correlation between delayed treatment and early onset of mental illness for individuals at 16 years of age and younger. 19 Correspondingly, there is increasing evidence supporting the importance of early access and treatment of mental illness in adolescents. 20
This article therefore seeks to examine the existing legal infrastructure supporting the delivery of mental health services to children and adolescents below the legal age of majority in Singapore (referred to collectively as ‘minors’). In particular, it will consider if the legal age of contractual capacity addresses concerns at the threshold level of adult access and responsibility for mental health support and treatment. Second, it will consider if Gillick competency is or should be recognised in Singapore, or whether a clear, lower statutory age of consent to medical treatment should be enacted instead. Finally, given the challenges involved in facilitating and financing access to mental health services, dispute resolution via the courts may remain an important backstop in cases where consensus between minors, their parents/guardians, and mental health service providers on the best course of intervention for the minor in question cannot be achieved. The question raised is whether the courts have appropriate jurisdiction to hear these matters, especially if brought by third parties to the parent–minor relationship.
The age of capacity for independent healthcare decisions in Singapore
While it is not disputed that the overarching age of majority in Singapore at common law is 21 years, the actual practice in mental healthcare varies. Press reports indicate that mental health treatment providers offering counselling or psychotherapy use the age of 18 years as a practical threshold for dispensing with parental consent, while others use the concept of Gillick competency 21 to obtain valid consent from the minor when parental consent is not feasible. 22 The academic literature documenting child and adolescent psychiatry services in Singapore suggests that individuals are offered mental health services from age 16, but do not detail whether consent to treatment is based purely on chronological age or individualised capacity assessments. 23 However, other community mental health programmes like the school-based Response, Early intervention and Assessment in Community mental Health (REACH) programme require written parental consent for referrals to the REACH team, which comprises a group of multidisciplinary mental health professionals. 24 There is no statutory provision that specifically lowers the age of capacity to consent to healthcare treatment in Singapore, unlike the United Kingdom, where section 8 of the Family Law Reform Act 1969 allows minors 16–17 years of age to provide effective consent (but not necessarily refusal) to medical or dental treatment. 25
One possible basis for the current practice accepting consent from individuals 18 years and above is section 35 of the Civil Law Act 1909, which lowered the age of contractual capacity to 18 years on 1 March 2009. In Singapore, the legal basis for healthcare relationships is principally contractual, unlike that in the United Kingdom’s National Health Service (‘NHS’). 26 The philosophy of healthcare provision and financing is based on the principle of personal responsibility for health, which translates into a fee-for-service healthcare system. In this system, competition and market forces are relied on to improve service and raise efficiency of healthcare services. 27 The state nonetheless intervenes extensively to (a) ensure affordability and access by means of mandated individual medical savings (MediSave), universal health insurance (MediShield Life), and public subvention and (b) regulate the operation of market forces by controlling capacity, operational aspects of service delivery, and the means of healthcare financing. 28 Thus, while there remains a distinction between public and private-sector healthcare services in Singapore, the former is distinguished by the ownership of the healthcare service and the availability of public subvention for healthcare services and medication. Publicly owned healthcare institutions are also autonomous, non-profit organisations, while most privately owned ones are for-profit. Apart from these distinctive features, publicly and privately owned healthcare services are regulated on an even keel under the Healthcare Services Act 2020. 29
Patients can therefore choose which type of healthcare institution (whether in primary or tertiary care) they wish to seek treatment from and, in the privately owned healthcare sector or as a non-subsidised private patient in the public sector, which doctors they wish to consult. 30 However, public healthcare subsidies require adherence to prescribed referral protocols, and a desire to choose a particular doctor or specialist deprives the patient of public healthcare subsidies to the full measure available. 31 Apart from these constraints, the relationship is in the first instance contractual in nature, 32 although a tortious duty of reasonable professional or institutional care 33 and an equitable duty of confidence will run in parallel with contractual duties of care and confidence. Given the open-ended nature of the healthcare relationship and the uncertainties of medical misadventure, contract law cannot comprehensively deal with the issues raised in the healthcare relationship. 34 Privately owned healthcare services in Singapore are undoubtedly contractual in nature. This is the important difference between healthcare relationships in Singapore and those within the United Kingdom’s NHS, where the relationship between doctor or hospital and patient is founded on a statutory duty to treat, protected by tort law, and is not considered contractual in nature. 35
Therefore, s.35 would appear to allow individuals 18–20 years of age to contract for healthcare services. Section 35(4) excludes certain contracts relating to dealings in land, save for short leases of up to 3 years, beneficial interests in a trust or the settlement of legal proceedings where the minor in question is labouring under a disability on account of her age. However, healthcare contracts are not mentioned at all. Although s.36 does not allow a minor to bring legal proceedings in tort or for breach of confidence unless it is in connection with carrying out a business, limited partnership or in her capacity as a director of a company or manager of a limited partnership, 36 she can still sue on the healthcare service contract in relation to a breach of duty arising from that contract. Any consent form signed by the minor would be incorporated into the terms of the contract. 37 Therefore, it would seem that it is safe to treat a minor who has attained 18 years of age for mental health issues with her valid consent alone without parental agreement.
The difficulty with this analysis lies with the requirements for capacity to consent. Contract law adopts chronological age as the test for capacity to contract. Minors below the stipulated age of contractual capacity cannot be bound by a contract they enter into unless they (a) ratify it within a reasonable time upon attaining majority, (b) the contract is for necessaries or for training or other analogous purposes that are beneficial for the minor, or (c) the contract falls into certain ‘voidable’ contract categories involving the acquisition of permanent interests or obligations of a continuing or recurring nature, which may be enforced unless repudiated by the minor. 38 In contrast, capacity to consent to what is otherwise a crime or tort in respect of bodily interference is functional at common law, not age or status based (at least in English, Canadian, 39 and Australian 40 law). For example, capacity to consent to receiving contraceptive advice and treatment for a minor below the age of 16 under English common law depends on whether the minor has sufficient understanding and maturity to do so, and is capable of expressing her wishes in the matter. 41 This extends to medical treatment in general. 42 Consent to sexual intercourse or deprivation of liberty was likewise based on their capacity to understand the nature of the bodily interference. 43 Another case refers to these concepts by distinguishing between ‘legal capacity’ by reason of status and ‘mental incapacity’ by reason of some impairment or disturbance of mental functioning. 44
What effect does s.35 have on the latter capacity? Section 35(3)(a) provides that the effect of sub-section (1) shall not affect or alter a minor’s ‘lack of capacity to enter into contracts arising from reasons other than because of his age’ (emphasis added). Under contract law, another ground of incapacity to contract for someone otherwise of full age is mental incapacity preventing the contracting party from understanding the nature and effect of the transaction. 45 If s.35 is not intended to affect contractual capacity in relation to mental incapacity to contract, it stands to reason that we cannot similarly infer that it is also intended to override common law capacity to consent to medical treatment based on functional capacity by deeming individuals 18 years and older as having that requisite capacity.
Such a restrictive interpretation, however, leads in incongruous results. A person 18–20 years of age can conclude an enforceable contract for healthcare services that involve some bodily intrusion, including a valid contractual term allowing or consenting to such bodily intrusion. 46 But she cannot on account of her age alone be considered to have capacity to consent for the purposes of a claim in tort for trespass to the person. An 18 year old can start a business, set up a company or limited partnership, incur debt, but must bring a parent along to sign the consent form when she requires surgery. Perhaps the better way to reconcile this tension is to read s.35 as concomitantly giving rise to a presumption of possessing mental capacity to give consent to medical treatment, as is the case for adults 21 years and older under s.3(2) of the Mental Capacity Act 2008 (‘MCA 2008’). 47 In such a situation, a person who argues that a minor lacks capacity to consent to medical treatment notwithstanding s.35 bears the burden of proving such incapacity. Ideally, this result should be rendered clearly on a statutory footing along the lines of s.8 of the UK Family Law Reform Act mentioned above, which operates in presumptive fashion. 48 Such an interpretation, or ideally, amendment to the Civil Law Act 1909 to make the point clear, however, would not go far enough to address the issues of access to mental health services under discussion. Mental health issues emerge much earlier than at 18 years of age; but it does validate the current practice accepting the independent consent of those 18–20 years unless there are reasons to suspect that they lack capacity despite their deemed age of majority.
Alternative means of increasing minors’ access to mental health services
Embracing the concept of Gillick competency
It seems likely that Singapore law will recognise the principle of Gillick competency in some form or other. While an authoritative pronouncement by the Supreme Court is still lacking, the matter has been considered by the Family Court at the State Courts level in the case of VYG v VYH.
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Divorced parents with joint custody over their 16 year old daughter disagreed over the wisdom of their daughter being vaccinated with the latest mRNA vaccines for Covid-19. Their daughter was assessed to be capable of forming her own reasoned views on the matter. The Family Court judge, after reviewing section 125(2) of the Women’s Charter 1961 relating to questions of custody or care and control of a child, the case law interpreting it and local academic commentary, held that:
. . . the Gillick principle provides good guidance for the application of s 125(2)(b) of the Women’s Charter. The assessment of when a child’s view should be considered by the court should not, to my mind, be a static examination founded on the age or mental capacity of the child. It is a dynamic assessment that depends very much on the nature of the issue at hand, and in particular, whether the child is able to (i) sufficiently comprehend the risks and benefit of a particular decision, (ii) have the maturity to make a considered choice in ascribing the correct weight to such risks and benefits, and (iii) avoid taking on board irrelevant or ill-advised considerations in coming to his or her decision.
50
After further considering provisions of the Termination of Pregnancy Act 1974, Voluntary Sterilisation Act 1974, and Penal Code 1871, the court concluded that
59 The above exposition suggests that from the age of 12 and above, there is no automatic substitution of the consent of the parent or guardian for that of the child, and the question of how much weight should be given to any consent provided by the child on an issue of medical intervention would very much depend on the application of the principle in Gillick.
The court then assessed, based on the evidence of the Child Representative’s report, that the minor in question was sufficiently mature to express an independent and informed opinion about her vaccination, and this was a key factor relevant in the overall assessment of her best interests. The choice to vaccinate being a personal one, the court should be slow to override the views of the mature minor unless the ‘decision is demonstrably made in error and/or carries a substantial risk of death or serious injury to the child’. 51 As the child’s views on vaccination properly considered the impact of restrictions for non-vaccinated individuals on her social and developmental interests, weighing these against the risks of vaccination, the court gave full weight to her choice by authorising her father (who was in favour) to provide consent and authorisation for his daughter to receive Covid-19 vaccination.
Different senses of Gillick competency were canvassed in this decision. The ratio of the case focused on the legal and moral relevancy of the minor’s views in the application which was in respect of the exercise of custody over the minor by the parents in question under s.125(2)(b) of the Women’s Charter 1961, which required the court to have regard to the wishes of the child (if of an age to express an independent opinion) in deciding matters relating to custody or care and control. 52 The actual principle at play was the welfare principle which determined whether the court should authorise the father to provide consent when there was a parental disagreement about the decision. 53 This was because government policy at the time required parental ‘consent and authorisation’ for persons under the age of 18 to receive a Covid-19 vaccination under the national programme. 54 There was no option for the minor to independently consent to the vaccination. Gillick competency criteria were used to determine if and what weight should be afforded to the minor’s views in the welfare appraisal to resolve the formal custody dispute. This was a key consideration in determining her best interests and reflects the minor’s right of participation in the judicial inquiry into her best interests. 55
Nevertheless, there are numerous dicta in the judgement that support a wider application of the reasoning to allow Gillick competent minors to make independent decisions to provide consent to medical treatments at common law. 56 In particular, the court found that the minor was sufficiently mature, and her sound reasons for choosing vaccination meant that her views effectively represented her best interests. 57 The authority to make independent healthcare decisions may stem from a recognition and respect of the minor’s developing autonomy, 58 while also recognising that facilitating access to certain types of medical treatment like contraception and abortion may promote the minor’s welfare interests where the minor cannot be persuaded to involve her parents. 59
There is another aspect of Gillick competence that was not canvassed in this case: the decisional authority of the minor to refuse medical treatment. While many consider a decision to refuse medical treatment to be the obverse of consent, subsequent English Court of Appeal decisions after Gillick have indicated that where the minor refuses medical treatment offered in her best interests, parental consent or a court order could override the Gillick competent minor’s refusal of treatment. 60 Through this particular judicial lens, there is a clear distinction drawn between consent and refusal of treatment, and a minor’s authority does not extend to the refusal of (at least) treatment that would prevent death or serious injury. 61 As the issue of respecting a minor’s refusal of treatment does not immediately engage with improving their access to mental health treatment, reference is made to other work that explores this controversial limitation on Gillick competency that appears to contradict the principles in Lord Scarman’s judgement. 62
There are other contextual reasons that support broader application of the Gillick principle in Singapore. First, it is formally recognised as a matter of medical ethics by the profession. The Singapore Medical Council’s Ethical Code and Ethical Guidelines (‘SMC ECEG’) requires medical practitioners to ‘give consideration to the opinions of minors who are able to understand and decide for themselves’. 63 The SMC’s Handbook of Medical Ethics (‘SMC HME’) more specifically stipulates that any minor ‘who has achieved the necessary level of maturity and understanding can give consent for treatment and sign the consent forms on their own behalf’. However, it recognises the common practice is that such consent is usually taken from either parent or legally appointed guardians. 64
It seems reasonably clear that the medical profession countenances independent consent from minors that have sufficient capacity in the Gillick sense. Press reports also indicate that minors between 14 and 18 years are allowed to seek primary care services on their own without a parent in attendance. 65 Interestingly, the SMC HME goes on to explain that caring for minors requires respecting their autonomy where that have requisite capacity depending on their level of maturity and understanding, although this may also render them vulnerable and in need of protection. 66 However, there is no explication in the SMC ECEG or HME on circumstances when the common practice of obtaining parental consent may be dispensed with for a Gillick competent minor to consent independently, 67 as compared to the Fraser Guidelines offered in respect of contraceptive advice and treatment. 68
Second, there are statutory provisions elsewhere that in substance recognise some form of Gillick competency. Under section 15(1) the Human Organ Transplant Act 1987 (‘HOTA’), a living donor organ transplant may not be performed without (a) the consent of the donor and (b) the authorisation of the transplant ethics committee. Section 15(2) provides that transplant ethics committee can only authorise the transplant if the donor, inter alia, ‘is not mentally disordered and, despite the person’s age, is able to understand the nature and consequence of the medical procedures the person has to undergo as a result of the person’s donation of the specified organ’ (emphasis added). This reinforces legal recognition of the Gillick principle especially given that transplantation is not done for the medical benefit of the donor, but the law nevertheless allows persons below the age of majority to do so provided a transplant ethics committee is satisfied that they have sufficient functional mental capacity to do so.
Third, the language and concept of Gillick capacity also appears in the consent provisions of the Human Biomedical Research Act 2015. Section 8 empowers minors to consent to participate in human biomedical research (‘HBR’) under two circumstances. They may consent to HBR generally if they have ‘sufficient intelligence and understanding’ of what is proposed in research participation, provided that an adult parent or guardian also provides consent. Minors with Gillick competence may also participate independently in HBR on their own consent provided a research ethics committee (described under the Act as an institutional review board) waives parental consent if it is satisfied that several safeguards or conditions such as minimal risk and research necessity are satisfied. 69 Again, this provides additional support for Gillick competency as a general principle given that research participation stretches such decisional authority by its other-regarding or altruistic nature. If consent for organ transplants or research participation without any direct tangible benefit to the Gillick competent minor are possible, why not their own medical treatment?
Finally, Singapore has ratified the United Nations Convention on the Rights of the Child 1989 (‘CRC’).
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Article 12.1 of the CRC provides that state parties
shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
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This article captures the right of a child to be heard and to have those views taken seriously, in accordance with her age and maturity, 72 which state parties are under strict obligation to undertake appropriate measures to implement. 73 In relation to healthcare, the UN Committee on the Rights of the Child recommended that states should implement legislation or regulations to ensure ‘access to confidential medical counselling and advice without parental consent, irrespective of the child’s age, where this is needed for the child’s safety or well-being’. 74 The Committee, however, drew a distinction between access to medical counselling and advice and the right to give medical consent. Such access may be needed in situations of violence or abuse, reproductive health education or services or where there are conflicts between parents and the child over access to health services and therefore should not be subject to any age limit. 75
This commentary accords substantially with the idea of Gillick competency: it recognises that a right to be heard and taken seriously does not automatically translate into an autonomous right to decide, but envisages the possibility of providing sufficient legitimating consent where the situation calls for it – for present purposes when there is conflict between parent and child over access – and the maturity of the child justifies according weight to her decisions regarding medical treatment. In doing so, the child need not have comprehensive knowledge of all aspects of the treatment, but understanding must be sufficient to be ‘capable of appropriately forming her views on the matter’. 76 Thus, like Gillick competency, the Committee eschewed age thresholds in determining the capacity of the child, which must be determined on a case-by-case basis. 77
However, there is one potentially important qualification to the influence of the CRC on Singapore law: the declarations and reservations made by Singapore upon ratifying the convention. The relevant portion of this provides that
(1) The Republic of Singapore considers that a child’s rights as defined in the Convention, in particular the rights defined in article 12 to 17, shall in accordance with articles 3 and 5 be exercised with respect for the authority of parents, schools and other persons who are entrusted with the care of the child and in the best interests of the child and in accordance with the customs, values and religions of Singapore’s multi-racial and multi-religious society regarding the place of the child within and outside the family.
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The intent of the declaration appears to subject the balancing of Article 3 of the CRC (best interests), Article 5 (respect for the responsibilities, rights and duties of parents) with a child’s Article 12 rights to the customs and values (religious or otherwise) of Singapore society. It is submitted that while the declaration seeks to preserve the local cultural and social importance of parental interests and authority in protecting the welfare interests of the child, 79 this does not completely eschew independent rights to consent to medical treatment where the overriding best interests of the child under Article 3 require it. It probably also reflects a more relational conception of a minor’s autonomy interests in medical decision making that recognises the impact such a decision will have on the parents’ interests. This may lead to greater limits on respecting a minor’s autonomy in the Singapore context and would not require a rigid, binary allocation of decision-making authority at the threshold of Gillick competency. 80 It is also reflected in the statutory provisions mentioned above.
For example, the HOTA’s independent consent stipulation in the living organ donation context probably reflects concern over parental conflicts of interest, where the typical scenario involves the donation of an organ to a sibling or close relative. Living organ donation also significantly affects the minor’s health and relational interests, without any compensating direct health benefits. Instead, independent oversight is provided by a transplant ethics committee. In comparison, although research participation typically does not offer any direct health benefits, there are regulatory controls on acceptable risk exposure levels and participation may offer educational benefits. Thus, the default dual parent and minor consent requirement reflects an accommodation of the autonomy interests of the minor with the parental interests and responsibilities engaged by the minor’s research participation.
In addition, the reasoning in VYG v VYH recognises limits to respect for the views of the sufficiently mature minor, where the decision carries a substantial risk of death or serious injury. 81 In such a situation, the Singapore courts would likely allow parental consent or judicial authorisation to override the refusal of a mature minor where the best interests of the minor require it. Nevertheless, on the whole, the existing relevant legislation, case law, and international treaty obligations offer concrete evidence for the growing acceptance of the concept of Gillick competency rooted in respect for the minor’s developing autonomy. However, the full extent of a mature minor’s decision-making rights remains to be worked out by the legislature and courts. In doing so, there is likely to be some difference of emphasis in accommodating a minor’s autonomy interests with parental interests and responsibilities in the upbringing and development of the minor as compared to English law and its increasing prioritisation of a minor’s autonomy interests, 82 given Singapore’s stance vis-à-vis the CRC.
The limits of Gillick competence in improving mental healthcare access
Gillick competency has been advocated as a flexible principle that will enable justice to be done in particular cases by embracing the realities of human development and social change. 83 However, two important short comings need to be considered in promoting Gillick competency as a tool to enhance minors’ access to mental health services: first, the lack of clarity and certainty in its application and second, the tension between individual minor access to such services and the family model of therapeutic intervention in such situations.
Conceptual and practical uncertainty
Closer attention to the criteria for Gillick competency reveals that it is not the same as the concept of adult mental capacity under the MCA 2008 nor the originating common law conception of it. Sir James Munby J opinioned that mental incapacity derives from some impairment or disturbance in mental functioning, and therefore pertains to the realm of psychiatry, while Gillick competence is tied conceptually to normal human development of a typical child or teenager and lies within the realm of child and adolescent psychology. 84 There is no presumption of Gillick competency at common law tied to any status, 85 nor the requirement of a clinical diagnostic threshold of an impairment of, or a disturbance in the functioning of, the mind or brain to render a minor Gillick incompetent. 86 Nevertheless, the criteria for Gillick competence encompass cognitive and communicative aspects denoted by the judicial use of phrases such as ‘achieves a sufficient understanding and intelligence’ and ‘capable of . . . expressing his or her own wishes’, 87 which overlap with the criteria for an ability to make a decision under section 4 of the MCA 2008. Black et al. argue that in fact, the authorities cited, and language used by Lord Scarman in Gillick, encompassing ‘appreciation’ and ‘appraisal’ indicate that a functional test of decision-making capacity is in fact being used. 88 In addition, both Gillick competence and mental capacity are assessed in relation to a particular decision, and not in the abstract. 89
However, Gillick competence also includes the more elusive concept of ‘maturity’. The UN Committee on the CRC acknowledged that maturity is difficult to define because experience, environment, social and cultural expectations, and levels of support contribute to a particular child’s maturity. In the context of the language of Article 12.1 of the CRC, maturity denoted the capacity to express views in a ‘reasonable and independent manner’.
90
In AC v Manitoba (Director of Child and Family Services),
91
Abella J observed that
. . . This reluctance to interpret the ‘mature minor’ doctrine as demanding automatic judicial deference to the young person’s medical treatment decisions where doing so will put the adolescent’s life or health in grave danger seems to stem from the difficulty of determining with any certainty whether a given adolescent is, in fact, sufficiently mature to make a particular decision. As academic legal and social scientific literature in this area reveals, there is no simple and straightforward means of definitively evaluating – or discounting – the myriad of subtle factors that may affect an adolescent’s ability to make mature, stable and independent choices in the medical treatment context.
Beyond cognitive assessments, the requirement for sufficient maturity potentially encompasses ‘psychosocial characteristics like impulsivity, sensation seeking, future orientation and susceptibility to peer pressure’. 92 These undergo continuous development well into adulthood. The open-ended and uncertain weight of these factors, which would vary depending on the nature and type of medical intervention in question, can only introduce subjective value preferences of clinical or other evaluators of Gillick competence. 93 Indeed, the other consequence of the fluidity of maturity as a criterion is confusion and uncertainty. In a survey of child and adolescent mental health practitioners in a UK NHS Trust, there were low levels of comprehension of Gillick competence in comparison with the concept of mental capacity, and responses to vignettes of typical situations giving rise to consent dilemmas with minor patients revealed a high level of discordance with legally advisable courses of action. 94 Many practitioners would persist in seeking parental consent even if the minor was found Gillick competent. 95
The upshot of this is that a flexible standard based on broad and open-ended cognitive and psychosocial factors would probably not be conducive to improving access for minor in seeking mental health services. The current guidelines for assessing a minor’s capacity to ‘understand medical information sufficiently to make their own decisions about their care’ in the SMC HME focus on cognitive capacities. 96 While maturity is mentioned, nothing concrete is offered to elaborate on how this is to be assessed or distinguished from understanding. 97 Instead, the clinician is advised to seek an opinion from a child psychiatrist, psychologist, or counsellor. It is not clear how the latter would go about determining maturity, nor if there are prevailing guidelines or standards for psychologists and counsellors since they are gazetted but still not regulated under the Allied Health Professions Act 2011. 98
Gillick competence and the family model of mental health treatment
The second concern is even if Gillick competence were practically feasible in typical preventive interventions or consultations under the latest National Mental Health and Well-Being Strategy 2023, mental health treatments or interventions are not like contraceptive consultations where an independent minor patient presents as the sole decision maker (as was the typical case considered in the Gillick decision). As Tan et al. explain,
. . . mental health treatment is usually delivered within the context of families, with parents (or other adults with parental responsibility) often playing an essential role in helping and supporting their children, who may be significantly distressed and impaired in their functioning. An individual model of decision making, where the child or young person is the sole decision maker, is therefore difficult to apply in this setting . . . If applied, it may inappropriately exclude parents, at a time when their inclusion is both pragmatically necessary and protective to the child or young person in his or her distress.
99
Thus, while the need for valid consent is an important consideration in the mental health intervention, the relevant factors determining the significance of the ability to provide Gillick consent are not driven solely by factors that are internal to the minor, but also contextual features of the psychological or clinical interventions which will require the input and support of parents and other individuals in order to maximise effective treatment outcomes. 100 What this means is that any reliance on independent minor consent in the National Mental Health and Well-Being Strategy cannot be seen in isolation. Clinical and practical guidelines for determining when to rely on Gillick competent minors’ consent are essential to ensuring that it is used optimally in seeking welfare enhancing outcomes that balance the developing tension between respecting the developing autonomy of the individual, protecting her health and future well-being, and the practical realities of the parent–minor relationship in question.
There are a number of means to address these difficulties with Gillick competence. First, on the score of conceptual and practical uncertainty in application, a narrowed conception of Gillick competence or capacity could be implemented ideally via legislation. This would eschew the need to assess maturity, with all its attendant baggage, and focus on the minor’s cognitive and communicative capacity to understand and accept medical or psychological advice. The critical caveat to such a limited Gillick capacity concept is that it should only be relied on when a minor accepts medical treatment or psychological advice that is consistent with the minor’s best interests. In this situation, the minor’s decision accords with independent professional medical judgement on the matter. It is also justified by psychological insights on different cognitive contexts, namely ‘cold’ and ‘hot’ cognition.
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The former refers to mental processes that call for deliberation in situations that control for or minimise high levels of emotional influence, whereas the latter involves deliberation in situations which are emotional charged and involve external peer pressure. Weithorn observes that
Some scientists have pointed to a ‘maturity gap’, or differential, in the points in development at which individuals are most likely to demonstrate adult-like functioning on tasks invoking cold versus hot cognition. In contrast to decisions made in the context of criminal behavior or regarding use of alcohol or drugs, which are often influenced by peers, medical decisions typically occur in circumstances ‘where the presence of adult consultants and the absence of time pressure impose sufficient external control to minimize the dangers of impulsive decision making . . .’.
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This is not meant to suggest that minors who refuse medical treatments for their mental health issues assessed to be in their best interests can be coerced into doing so. Liberalising consent rules to allow for private, independent minor access to mental health services means that when that type of authorisation is not forthcoming, other pathways to delivering care will have to be explored, or the refusal simply respected. In those instances, clinical judgement and persuasion for minors to involve their parents, or referrals to ethics committees or the courts (when the stakes are at their highest) will have to be considered. The ethical and legal justifications for overriding such refusals are beyond the scope of this article and are considered elsewhere. 103
Second, to the extent that clinicians and psychologists are concerned about liability for erroneous assessments of Gillick competence, legal standards and professional guidelines will have to be updated with the latest empirical evidence – the relevant cognitive capacities of minors needed and the best methods to assess this in order to satisfy the more focused legal standard suggested above. In addition, a suitably crafted statutory defence would go further to reassure relevant mental health practitioners that their good faith and reasonable care in assessing a minor’s capacity to independently consent to mental health treatments and interventions will be supported in law. In this respect, the MCA 2008’s general defence under section 7 would be a good starting point.
Third, where decisive action is required to prevent further deterioration in a minor’s mental health condition (short of an emergency, where the doctrine of necessity could apply), the law could consider providing for age-based presumptions of capacity tied to specific interventions which are typically indicated for that mental condition. 104 As an analogous illustration of this legal and public health strategy, South Africa has liberalised minor access to sexual and reproductive health services (‘SRH’) by separately legislating on many SRH interventions such as HIV testing, contraceptives, and terminations of pregnancy, combined with calibrated requirements for independent consent based on age alone, age combined with capacity, or dispensing with both and substituted for other public policy-based measures. 105 Some of these measures have also been implemented in Singapore’s SRH services context, like the Termination of Pregnancy Act 1974 (which does not stipulated any access threshold based on age or capacity, so long as the patient is pregnant 106 ) and anonymised HIV testing. 107 Similar age-based thresholds could be stipulated for Tier 1 to 3 services under the National Strategy’s tiered-care model which encompass interventions such as counselling, behaviour management, and psychotherapy – to the extent that these can be reasonably delivered without family support. 108
The need for judicial resolution of disagreement or uncertainty
Disagreements between minors and parents, or between minors or parents and the minor’s mental health professional advisors on the appropriate course of treatment and care are not uncommon. Judicial resolution of these disputes can be beneficial or necessary, as they provide for the means of legal representation, especially for the minor’s views and perspectives, and allows for public scrutiny of the resolution of the dispute and its reasoning. 109 VYG v VYH is a good illustration of this need, although in that case, the custody order made in the parent’s divorce proceedings provided the court with the obvious and proper jurisdiction under s.125(2) of the Women’s Charter 1961 to resolve intra-familial disagreement about vaccination. Similar disputes could arise in the context of mental health treatment: for example, an anorexic minor’s refusal of nasogastric feeding recommended by doctors to ensure adequate nutrition, or a minor with pervasive refusal syndrome which involves refusals to eat, speak, move, or interact, who may require compelled nutrition and physiotherapy which is met with considerable resistance. 110 The SMC ECEG 111 and HME 112 both recommend that in situations of professional doubt about the ethics of caring for minors, medical practitioners seek the advice of an ethics committee or a court.
Judicial intervention is often necessary if a Gillick competent minor refuses treatment recommended in the minor’s best interests. The Canadian
113
and Australian
114
courts have taken the same view. However, the reverse may be equally likely where both parent and minor are engaged in the decision-making process, where a parent objects to treatment which a minor is prepared to accept, and the medical practitioner is uncertain how to resolve disagreements which are intractable. In respect of minors, there remains some uncertainty if the Supreme Court has an independent jurisdiction to hear such disputes apart from its matrimonial or guardianship jurisdiction under the Women’s Charter 1961 or Guardianship of Infants Act 1934, respectively. These jurisdictions cannot be invoked by a third party like a medical practitioner seeking the court’s guidance in relation to the care and treatment of a Gillick competent minor. In UMF v UMG, the High Court appeared to suggest that while s.17(d) of the Supreme Court of Judicature Act 1969 (‘SCJA 1969’) represented the court’s wardship jurisdiction, invoking this could represent a hurdle as the threshold for doing so is a high one in order not to unduly interfere with parental or guardship authority and discretion.
115
The court therefore recommended that
. . . resorting to the court’s wardship jurisdiction could lead to uncertainty and involve a more cumbersome regime of protection, and hence it is preferable to provide a clearly defined statutory regime through which non-parents may apply for the necessary orders for the welfare of children . . . In this way, the court may grant powers to individuals to do only what is necessary for the purpose of safeguarding the child’s welfare, without granting orders on guardianship and custody which have more far-reaching impact on the relationship between the child and his or her parents.
116
It is submitted that there will not be a need to do so if s.17(d) of the SCJA 1969, together with s.17(e), is interpreted to represent the ancient parens patriae jurisdiction which empowered the sovereign or state, through a court vested with the jurisdiction, with the right and duty to care for and protect those individuals who are not able to protect themselves. 117 While the wardship jurisdiction may have had a different origin as a property right under the feudal system, it was subsequently subsumed within the parens patriae jurisdiction by the Court of Chancery; wardship became the means by which Chancery exercised its parens patriae jurisdiction over minors. 118 However, the parens patriae jurisdiction is not limited to making the minor a ward of the court. Its powers are theoretically limitless in pursuance of its protective rationale. 119 Furthermore, the parens patriae jurisdiction is equally exercisable whether or not the minor is made a ward of the court. The latter is status changing and prevents the minor from making any major or important decision without the court’s permission, while the former empowers the court to make or resolve a particular decision in the minor’s overall best interests as her welfare is paramount. 120
There are conflicting views about whether s.17(d) and (e) of the SCJA 1969 should be read as representing the wider parens patriae jurisdiction. A former Chief Justice, speaking extra-judicially, opined that the parens patriae was abolished in Singapore, without specifying the circumstances by which this came about. 121 Presumably, the argument would be that being part of the inherent jurisdiction of the English Courts of Chancery, these were swept away when the SCJA 1969 was enacted after separation from the Federation of Malaysia. In particular, the new SCJA 1969 removed the ‘jurisdiction and authority’ clause that was maintained in prior legislation until the Courts Ordinance 1955 of the Colony of Singapore. 122 This provided that the High Court had jurisdiction and authority of a like nature and extent as exercised by the Chancery and Queen’s Bench Divisions of the High Court of England and Wales. 123 Thus, if parens patriae jurisdiction was only conferred via this clause as being part of the inherent, rather than explicit statutory, jurisdiction of the High Court, it was accordingly abolished.
In contrast, a sub-committee of the Law Reform Committee of the Singapore Academy of Law opined that the ancient parens patriae jurisdiction survives in statutory form in sections 17(d) and (e) of the SCJA 1969. 124 This view is supported by other commentators like Chua, but they lack a specific historical basis for reading these sections broadly to encompass the overarching parens patriae jurisdiction, rather than a narrow jurisdiction to appoint guardians for infants and mentally disordered persons. 125
The origin of this couplet of sub-sections in the SCJA 1969 dates back to the Second Charter of Justice, where one of its clauses conferred on the Straits Settlements Court of Judicature (‘SSCJ’) jurisdiction over the persons and estates of infants ‘according to the Order and Course observed in that Part of Our United Kingdom called England’, and also guardians and keepers of the persons and estates of ‘natural Fools, and of such as are or shall be deprived of their Understanding or Reason by the Act of God, so as to be unable to govern themselves and their Estates . . .’. 126 The language of ‘natural fools’ and those with a lack of understanding or reason harks back to the royal prerogative rights summarised in Prerogativa Regis, which specifically addressed the sovereign’s ancient jurisdiction in respect of the lands and estates of idiots and lunatics. 127 A natural fool or idiot referred to someone with a congenital mental disorder from birth or an early age, while a lunatic or someone non compos mentis referred to a person who having had his wits subsequently developed a mental disorder and was incapable of managing himself and his affairs. 128 Theobald explained in his classic Lunacy Law and Practice that the royal prerogative predates Prerogativa Regis (which restricts the King’s powers) but is of uncertain origin. 129 More importantly, while subsequent statutory law may have restricted or expanded the royal prerogative, the underlying prerogative has never been limited by definition to do what is necessary for the benefit of the lunatic. 130
The point made at this juncture is that English lunacy legislation was not contemplated to be an exhaustive or exclusive regime for the management of the person and estate of a lunatic. It was to be read in conjunction with the originating royal prerogative, which was conferred by Sign Manual on the Lord Chancellor, then Court of Wards (abolished), and subsequently the Court of Chancery.
131
Thus, the conferral on the SSCJ of authority to appoint ‘Guardians and Keepers of Persons and Estates of natural Fools’ could not have been understood to be a reference purely to English statutory jurisdiction received under the Second Charter of Justice, but would encompass the underlying royal prerogative as parens patriae in respect of idiots and lunatics. The same view appears to have been taken by the Advocate General in India in respect of the Regulating Act of 1773
132
and the relevant jurisdictional clause in the Charter of Justice 1774
133
that established the Supreme Court of Judicature at Fort William, Calcutta. Tan notes that this Charter was used as the template for the establishment of courts in other British colonies such as the Straits Settlements.
134
Commenting on lunacy laws in colonial India, Rajpal notes the similar language used in the said Charter of Justice:
In India the general law of England was implemented. According to this law, the care, both of the person and of the property of the lunatic, was being vested in the Crown by virtue of its prerogative. By the charter of 1773 (sic), the Crown delegated the responsibilities to the Supreme Court ‘to appoint guardians and keepers of the persons and estates of persons deprived of their understanding or reason, and to enquire, hear and determine concerning the same’.
135
The court’s jurisdiction over infants, idiots, and lunatics under the Second Charter of Justice remained throughout the legislative history of the various Courts Ordinances prior to merger and after separation from the Federation of Malaysia, save for one anomaly. Following the Second Charter, they were carried in a single clause in the first local court ordinance – s.26 of An Ordinance for constituting a Supreme Court of Judicature 1868. 136 However, by 1907, the parens patriae jurisdiction was split between different sections. In respect of infants, this was referred to under the ‘jurisdiction and authority’ clause in section 9(1) the Courts Ordinance 1907. 137 Infancy jurisdiction was only taken out of the ‘jurisdiction and authority’ clause and emplaced as an independent head of the Court’s civil jurisdiction in s.17(e) of the Courts Ordinance 1955. 138 The Objects and Reasons section of the Courts Ordinance Bill 1954 139 indicated that the new s.17 merely replicated the former s.11 of the Courts Ordinance 1934 and thus involved a reorganisation of the various heads of jurisdiction. It is suggested that this separation of the wardship jurisdiction was an anomaly that the draftsman sought to correct in the Courts Ordinance 1955, given the historically integrated understanding of wardship and lunacy jurisdictions under the royal prerogative described above.
Finally, in moving the SCJA 1969 before Parliament, the Minister of Law informed the House that ‘the Bill generally does no more than to revert to the position obtaining before we joined Malaysia. The powers of jurisdiction of the Supreme Court are the same as heretofore, before we joined Malaysia and after we left Malaysia’.
140
The couplet of jurisdictional sections is therefore preserved in the SCJA 1969. The plain language of s.17(d) of the SCJA 1969 itself is also broad enough to cover not just the making of a wardship order, but include a general jurisdiction over the person and property of infants that was long recognised by the ancient royal prerogative:
141
. . . (d) jurisdiction to appoint and control guardians of infants and generally over the persons and property of infants; (emphasis added)
The parens patriae jurisdiction in respect of persons of unsound mind in England was repealed by the UK Mental Health Act 1959, 142 by revoking the Sign Manual authorising the Lord Chancellor to exercise the parens patriae jurisdiction – perhaps without full appreciation of the consequences. 143 There is no evidence of a similar legislative motive in Singapore. The very first local statutory provisions in respect of the care and custody of infants, idiots, and lunatics promulgated by the Legislative Council of the Straits Settlements was in fact the Civil Procedure Code of 1907. 144 Chapter 38 of this Code provided for the Court appointment and removal of guardians of infants in accordance with the welfare principle, 145 while Chapter 39 made stipulations for the Supreme Court of the Straits Settlements to order inquiries into whether any person alleged to be lunatic was indeed of unsound mind and incapable of managing himself or his affairs. 146 The court could, upon an affirmative outcome of the inquiry, appoint committees of the person and estate of the lunatic. 147 Various provisions in the Infancy chapter were modelled on the English Guardianship of Infants Act 1886, 148 while provisions in the Lunacy chapter was modelled on the Indian Lunacy (Supreme Courts) Act 1858, 149 which in turn was based on English Law. 150 Significantly, section 5 provided that nothing in the Civil Procedure Code 1907 would affect the existing jurisdiction or powers of Court further or otherwise than expressly enacted in that respect. There is nothing at this historical juncture to suggest any revocation or restriction of the continuance of the Supreme Court of the Straits Settlements exercising the ancient prerogative as parens patriae.
The Infancy Chapter was subsequently hived off into separate legislation, the Guardianship of Infants Ordinance 1934, as it was thought more convenient to take out and enact separately legislation relating to substantive law from the Civil Procedure Code. 151 Likewise, the Lunacy chapter was transferred with little alteration to the Mental Disorders Ordinance 1934. 152 These ordinances subsequently evolved into the present day Guardianship of Infants Act 1934 and the now repealed Mental Disorders and Treatments Act, Cap 178. 153 Nothing in this history indicates a legislative intent to revoke the original parens patriae jurisdiction introduced by the Second Charter of Justice. In fact, after the Mental Health (Care and Treatment) Act 2008 repealed the Mental Disorders and Treatments Act Cap 178, there was no consequential amendment to or repeal of s.17(e) of the SCJA 1969, which retained the archaic terms ‘idiots’ and ‘persons of unsound mind’ even as cognates of the phrase ‘unsoundness of mind’ was replaced with ‘mental disorder’ extensively in other statutes. 154 This suggests again an intent to preserve the underlying parens patriae jurisdiction. On the whole, it is submitted that when we consider the historical origins and evolution of the current civil jurisdictional provisions in the SCJA 1969, the integrated nature of the parens patriae jurisdiction as a creature of common law and statute, and its plain statutory language especially in relation to the wardship jurisdiction, the view supporting the persistence of its availability in Singapore is to be preferred. Its relevance and reflexivity for the oversight of the care and treatment of minors, and in particular mental healthcare decisions, remains. As for incapacitated adults, the parens patriae jurisdiction under s.17(e) of the SCJA is largely superseded by the Court’s jurisdiction and powers under the MCA 2008.
There is an alternative solution proposed for the jurisdictional need outlined at the beginning of this section – namely reliance on the inherent jurisdiction of the High Court to issue declarations on what may be lawfully done by way of intended mental health treatment for a minor in his best interests. 155 This was relied on by the High Court in Re LP to authorise the amputation of limbs for an incapacitated adult patient, although it should be noted that no argument was made in that case on the availability of the parens patriae jurisdiction under s.17(e) of the SCJA 1969. 156 Instead, reliance was placed on the House of Lords decision in Re F, whose hand was forced in relying on inherent jurisdiction by the revocation of the sign manual conferring parens patriae jurisdiction on the English courts. 157
A few points may be made about the desirability of this option. First, the inherent jurisdiction to grant a declaration in these cases relies on the common law doctrine of necessity. 158 This restricts the ability of the court to determine what course of action reflects the minor’s best interests. For example, the court can only issue declarations in respect of conduct that would otherwise constitute a tort or a crime, but could be justified on the basis of the doctrine of necessity, obviating any requirement for consent. 159 A declaration issued by the court cannot constitute legal consent for the purposes of justifying conduct outside the confines of necessity; it cannot decide what is best for a person who cannot legally decide that for herself. 160 Not all interventions in the context of mental health would satisfy this criteria, such as psychological counselling for a minor patient.
Second, a declaratory solution is also limited by its very nature. Munby J, speaking extra-judicially, pointed out:
Something does not become lawful because a declaration is made; all that the declaration does is to declare that something is or (as the case may be) is not lawful. That, of course, is the great difference between a declaratory and a parens patriae jurisdiction, because a judge exercising a parens patriae jurisdiction can make an order the effect of which is that something which, absent the order, would not be lawful is, because of and by virtue of the order, nonetheless to be lawful. So, because a declaration changes nothing, the declaratory jurisdiction was not apt to deal with cases where what was required was, for example, judicial sanction for some change in the patient’s living arrangements.
161
Finally, it is interesting to note that the English cases that developed the inherent declaratory jurisdiction in the wake of the decision in Re F eventually came to acknowledge that it was akin to the parens patriae jurisdiction. 162 In Munby J’s words, the ‘wheel had come full circle’. 163 Given that there is a clearer interpretive route to recognising the existence and utility of the parens patriae jurisdiction in Singapore, why not take it?
Conclusion
In summary, in the context of considering the legal issues associated with minors’ access to mental health services in Singapore, it was argued that 18 years of age is arguably the new presumptive threshold for independent medical decisions. Ideally, this should be placed on a clearer statutory footing. Second, Gillick competency is already embraced in some form or other under Singapore law. However, in order to facilitate considered minors’ access to mental health services, it needs to be simplified in order to improve clarity for health professionals. There is, nevertheless, no escaping from the need for professional judgement in assessing a minor’s best interests in receiving mental health advice and treatment. A statutory good faith and reasonable care defence would be warranted, but this needs to be supported by adequate professional guidelines on how minor’s best interests ought to be assessed and when treatment may deviate from the recommended familial model of intervention. Alternatively, clear statutory age-based consent thresholds could be prescribed for suitable mental health interventions for minors, balancing considerations of access in the face of parental objection or resistance against the efficacy of the treatment without familial support. Finally, a historical review strongly suggests that the parens patriae jurisdiction continues to exist in Singapore and could continue to serve a meaningful role in supporting public health efforts to improve access and outcomes for mental health issues facing the minor population.
Footnotes
Acknowledgements
The author would like to thank the anonymous referees for their helpful comments. The usual caveat applies.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
1.
2.
3.
4.
A. Singhal et al., ‘Risk of Self-Harm and Suicide in People with Specific Psychiatric and Physical Disorders: Comparisons between Disorders Using English National Record Linkage’, Journal of the Royal Society of Medicine 107(5) (2014), p. 194.
5.
6.
7.
8.
Op. cit., p. 17, including face-to-face services in primary care facilities, telephone hotlines and digital platforms.
9.
Op. cit., pp. 4, 14–15, which includes subsidised mental health services by multidisciplinary teams at polyclinics, working in partnership with psychiatrists at tertiary hospitals and private general practitioners specially trained to identify, diagnose and treat minors with mental health conditions in the community.
11.
Op. cit.
12.
Rai Bahadur Singh and another v Bank of India [1992] 3 SLR(R) 127.
13.
Termination of Pregnancy Act 1974, s.3.
14.
Voluntary Sterilisation Act 1974, s.3(2)(b).
15.
Issues relating to a minor’s right to confidentiality are beyond the scope of this paper. However, the medical professional guidelines already make clear that minors generally have a right to medical confidentiality subject to their overall best interests: Singapore Medical Council (SMC) Ethical Code and Ethical Guidelines (2016), paragraphs C7(5) and C8; SMC Handbook on Medical Ethics (2016), paras C7.2(a) and C8.4, 
(accessed 13 February 2025).
16.
See generally A. English, ‘Adolescent Health Care: Barriers to Access – Consent, Confidentiality and Payment’, Clearinghouse Review 20(4) (1986), p. 481.
17.
A. Teng, ‘NUS Study Finds Gap in Parents Understanding of Mental Distress as 1 in 3 Youth Reports Symptoms’, Straits Times, 28 April 2023, citing the Youth Epidemiology and Resilience Study conducted by the YBK Mind Science Centre, NUS and NUHS.
18.
Y. H. Goh, ‘Allow Youth Above 14 to Seek Help Without Parental Consent: Mental Health Treatment Providers’, Straits Times, 8 April 2023. To be clear, this is but one factor impeding access to mental healthcare services. Self and treatment-stigma on the part of minors is another major obstacle to help-seeking and acceptance of professional mental health services: S. Pang et al, ‘Stigma Among Singaporean Youth: A Cross-Sectional Study on Adolescent Attitudes Towards Serious Mental Illness and Social Tolerance in a Multiethnic Population’, BMJ Open 7 (2017), p. e016432; S. Clement et al, ‘What is the Impact of Mental Health-Related Stigma on Help-Seeking? A Systematic Review of Quantitative and Qualitative Studies’, Psychological Medicine 45(1) (2015), p. 11.
19.
R. H. S. Tan et al., ‘Treatment Delays for Mental Disorders in Singapore: Results From the Singapore Mental Health Study 2016’, Social Psychiatry and Psychiatric Epidemiology 59 (2014), pp. 375–383 at 380.
20.
M. Noroozi et al, ‘Evaluation of the Minimum Age for Consent to Mental Health Treatment With Minimum Age of Criminal Responsibility in Children and Adolescents: A Global Comparison’, Evidence-Based Mental Health 21(3) (2018), pp. 82 at 85.
21.
See infra note 41 and accompanying text.
22.
Goh, ‘Allow Youth to Seek Help’.
23.
See, for example, S. Rao et al, ‘Support for Wellness Achievement Programme (SWAP): A Service for Individuals with At-Risk Mental State in Singapore’, Annals of the Academy of Medicine of Singapore 42(10) (2013), pp. 552 at 553; The Institute of Mental Health’s Community Health Assessment Team (CHAT) invites young persons from 16–30 to walk in for personalised and confidential mental health assessments, with a view to recommending mental health resources, (accessed 13 February 2025).
24.
C. Lee, ‘Mental Health OutREACH: Processes and Services’, in D. Fund et al., eds., REACH Chronicles: A Community Mental Health Model for Children and Adolescents in Singapore (Singapore: World Scientific Press, 2013), c. 2 at 39; See also C. G. Lim et al., ‘Child and Adolescent Psychiatry Services in Singapore’, Child and Adolescent Psychiatry and Mental Health 9(7) ( 2015), pp. 3–5.
25.
See infra note 60 and accompanying text.
26.
See T. Kaan, International Encyclopaedia of Laws: Medical Law Supplement 17 – Singapore (The Hague, The Netherlands: Kluwer Law International, 1999), at pp. 84–85; K. Q. Yeo et al., Essentials of Medical Law (Singapore: Sweet & Maxwell, 2004), at paras 2.12–2.25.
27.
Ministry of Health Singapore, ‘Affordable Health Care: A White Paper’, Cmd. 16 of 1993 at 16–20.
28.
29.
Rev Ed 2022; For example, the Healthcare Services (General) Regulations 2021, Reg 40 requires all licensable health service operators to ensure that every patient is given a bill of the fees charged by the licensee for every service provided to the patient.
30.
M. Ramesh, ‘Autonomy and Control in Public Hospital Reforms in Singapore’, American Review of Public Administration 38(1) (2008), pp. 62 at 66–67; W. L. Chow et al, ‘Factors That Influence the Choice of Seeking Treatment at Polyclinics’, Singapore Medical Journal 53(2) ( 2012), p. 109. (A polyclinic is a government-subsidised outpatient primary care centre).
31.
W. L. Lai, ‘Paying for Healthcare’, in C. E. Lee and K. Satku, eds., Singapore’s Health Care System: What 50 Years Have Achieved (Singapore: World Scientific, 2016), c.4 at 76.
32.
See, for example, Soh Keng Cheang Philip v National University Hospital (S) Pte Ltd [2021] SGHC 247.
33.
See, for example, Pai Lily v Yeo Peng Hock Henry [2001] 1 SLR(R) 517 (HC) at [46].
34.
P. S. Atiyah, ‘Medical Malpractice and the Contract/Tort Boundary’, Law & Contemporary Problems 49 (1986), p. 287.
35.
See A Grubb et al, Principles of Medical Law, 3rd ed. (Oxford: Oxford University Press, 2010), c. 3 at para 3.07.
36.
Sec.36(1)(a) read with the Schedule to the Civil Law Act 1919.
37.
See, for example, Thake v Maurice [1986] QB 644 (CA) at 686 per Nourse LJ; Eyre v Measday [1986] 1 All ER 488 (CA).
38.
See A. Phang et al., The Law of Contract in Singapore, Vol. 1, 2nd ed. (Singapore: Academy Publishing, 2022), c.9, paras. 9.002–9.013.
39.
AC and Others v Manitoba (Director of Child and Family Services) 2009 SCC 30, [2009] 2 SCR 181 at [46] per Abella J.
40.
Marion’s case (1992) HCA 15, 175 C.L.R. 218 at paras. 19–20.
41.
Gillick v West Norwich & Wisbech Health Authority [1986] AC 112 at 169 (Lord Fraser), 188–189 (Lord Scarman). In respect of such treatment, Lord Fraser also offered guidelines on when doctors may accept the independent consent of a minor (without informing her parents or obtaining their consent), including a requirement to first try to persuade the minor to inform and involve her parents in the decision.
42.
Johnston v. Wellesley Hospital et al [1970] 17 DLR (3d) 139 at 144–45.
43.
See R v. Howard [1966] 1 W.L.R. 13 at 15 and R v. D [1984] A.C. 778 at 806 respectively. For the position under the UK Mental Capacity Act 2005 in respect of 16 to under 18 year olds, see A Local Authority v JB [2022] AC 1322.
44.
An NHS Trust v X [2021] 4 WLR 11 at [56].
45.
Resorts World at Sentosa Pte Ltd v. Lee Fook Kheun [2018] 5 SLR 1039; See also the definition of mental incapacity under the Mental Capacity Act 2008, which is intended to apply to the capacity of adults in relation to any matter, including contracts: s.4(1) and s.9, Phang et al, Law of Contract Vol. 1 at paras 9.025–9.029.
46.
See Note 37 above.
47.
There is also a rebuttable presumption under common law that a person of full age (adult) has capacity to consent or refuse consent to medical treatment: Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649 at 661.
48.
See Re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64 at 77; Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 at 24; An NHS Trust v X [2021] 4 WLR 11 at [55] per Munby J: ‘(1) Until the child reaches the age of 16 the relevant inquiry is as to whether the child is Gillick competent. (2) Once the child reaches the age of 16: (i) the issue of Gillick competence falls away, and (ii) the child is assumed to have capacity in accordance with section 8, unless (iii) the child is incapacitous (lacks capacity) in the sense in which one speaks of an adult as being incapacitous’. (emphasis added)
49.
[2021] SGFC 124.
50.
Op. cit. at [54] (emphasis in the original).
51.
Op. cit. at [70].
52.
Op. cit. at [47] and [54].
53.
Women’s Charter 1961, s.125(2) – ‘. . . the paramount consideration is to be the welfare of the child . . .’
54.
55.
See also UDG v UDF [2019] SGCA 24, where the Court of Appeal recognised that the 16-year-old minor was mature enough to have her views respected on the duration and conditions of access by her father in the context of divorce proceedings.
56.
For example, based on s.89 of the Penal Code 1871, the court considered that there is no automatic substitution of the consent of the parent or guardian for a minor aged 12 and above. The weight to be afforded to such a minor’s consent on an issue of medical intervention was to be determined on the application of Gillick, at [59]. This is much broader that a welfare or best interests determination under the Women’s Charter, s.125(2) or the Guardianship of Infants Act 1934, s.3.
57.
See Note 49 at [63] and [76].
58.
Gillick at 186–188, per Lord Scarman; see also R (Axon) v Secretary of State for Health [2006] QB 539 at [79]-[80], in the context of abortion.
59.
Gillick at 173–174, per Lord Fraser.
60.
See Re R (A Minor) at 24–25 and Re W (A Minor) at 83–84; More recently affirmed in An NHS Trust v X [2021] 4 WLR 11 (Fam D).
61.
See also Note 51 above.
62.
See note 58 above; see also e.g. S. Gilmore and J. Herring, ‘‘No’ is the Hardest Word: Consent and Children’s Autonomy’, Child and Family Law Quarterly 23(1) (2011), p. 3; E. Cave, ‘Goodbye Gillick? Identifying and Resolving Problems with the Concept of Child Competence’, Legal Studies 34(1) (2014), p. 103.
63.
2016 Edition, para C6(14) and (15).
64.
2016 Edition, para C6.4 – Consent from minors (persons below age 21).
65.
Goh, ‘Allow Youth Above 14’.
66.
SMC HME (2016), para C8.1 – Caring for minors (persons below age 21).
67.
The Personal Data Protection Commission Singapore in its Advisory Guidelines also takes the view that Gillick-type competence should be used to determine if minors can provide effective consent in relation to their personal data for the purposes of the Personal Data Protection Act 2012, 2020 Rev Ed: ‘Advisory Guidelines on the PDPA for Selected Topics’ (Revised 31 March 2022), para 7.6. It also adopts 13 years of age as a practical rule of thumb in determining when minors acquire such competency, taking reference from the minimum age of employability for young persons under the Employment Act 1968, s.68(3).
68.
See Note 41 above.
69.
Human Biomedical Research Act 2015, s.13(2).
70.
Treaty no. 27531. United Nations Treaty Series, Vol. 1577, pp. 3–178; Singapore ratified this treaty on 5 Oct 1995.
71.
Emphasis added.
72.
UN Committee on the Rights of the Child, ‘General Comment No.12 – The Right of the Child to be Heard’, CRC/C/GC/12 (20 July 2009) at paras 1–2.
73.
Op. cit. at para 19.
74.
Op. cit. at para 101 (emphasis added).
75.
Op. cit. at para 101.
76.
Op. cit. at para 21.
77.
Op. cit. at para 29.
78.
79.
Cf. R (Axon) v. Secretary of State at [130]-[131], where J. Silber held that once a child is competent, the parent no longer has an interest under Article 8 of the European Convention on Human Rights.
80.
See Gilmore and Herring, ‘‘No’ is the Hardest Word’, pp. 23–24.
81.
See Note 51 above.
82.
See Cave, ‘Goodbye Gillick’, pp. 110–112; Gilmore and Herring, ‘‘No’ is the Hardest Word’, p. 6.
83.
Gillick at 186, per Lord Scarman.
84.
An NHS Trust v X [2021] 4 WLR 11 at [73].
85.
Cf. Mental Capacity Act 2008, s.3(2).
86.
Cf. Mental Capacity Act 2008, s.4(1).
87.
See Note 41 above.
88.
I. Black et al, ‘Transformative Choice and Decision-making Capacity’, Law Quarterly Review 139 (2023), pp. 654 at 671–672.
89.
See Note 50 above and accompanying quotation; R (Bell) v Tavistock & Portman NHS Foundation Trust [2020] EWHC 3274 (Admin) at [126] and [145]; and Mental Capacity Act 2008, s.4(1) – ‘. . .lacks capacity in relation to a particular matter’.
90.
UN CRC, ‘General Comment No. 12’ at paras 29–30; see also VYG v VYH at [70] – ‘. . . unless the decision is demonstrably made in error . . .’
91.
[2009] 2 SCR 181 at [70] (emphasis added).
92.
L. A. Weithorn, ‘When Does a Minor’s Legal Competence to Make Health Care Decisions Matter?’, Pediatrics 146(S1) (2020), p. e20200818G at S28.
93.
Op. cit. at S30.
94.
C. Fenton, ‘Is Consent Causing Confusion for Clinicians? A Survey of Child and Adolescent Mental Health Professional’s Confidence in Using Parental Consent, Gillick Competence and the Mental Capacity Act’, Clinical Child Psychology and Psychiatry 25(4) (2020), pp. 922 at 927 and 929.
95.
Op. cit., p. 929.
96.
SMC Handbook of Medical Ethics (2016) at C6.4, pp. 89–90.
97.
Cf. Fraser Guidelines in respect of contraceptive advice and treatment for minors, note 41 above.
98.
2020 Rev Ed, s.4 and the Second Schedule. Cf. s.1 and the First Schedule.
99.
J. O. A. Tan et al., ‘Consent and Confidentiality in Clinical Work with Young People’, Clinical Child Psychology and Psychiatry 12(2) (2007), pp. 191 at 194–195.
100.
Op. cit., pp. 198–199; See also J. R. Asarnow et al., ‘Adolescent Depression: Family-Focused Treatment Strategies’, in W. M. Pinsof and J. L. Lebow, eds., Family Psychology: The Art of the Science (Oxford: Oxford University Press, 2005), c.17 at pp. 442–443 for a similar perspective from clinical psychology.
101.
Weithorn, ‘When Does A Minor’s Legal Competence. . .’, pp. S28–S29.
102.
Op. cit., p. S29, footnotes omitted.
103.
See, for example, Gilmore and Herring, ‘‘No’ is the Hardest Word’; A. Skelton et al., ‘Overriding Adolescent Refusals of Treatment’, Journal of Ethics and Social Philosophy 20(3) (2021), p. 221.
104.
See, for example, California Health and Safety Code, §124260 – which allows a mature minor to access outpatient mental health treatment or counselling services independently, but excludes convulsive treatment, psychosurgery, or psychotropic drugs (without parental or guardian consent).
105.
A. Strode and Z. Essack, ‘Facilitating Access to Adolescent Sexual and Reproductive Health Services through Legislative Reform: Lesson from the South African Experience’, South African Medical Journal 107(9) (2017), pp. 741–744.
106.
Termination of Pregnancy Act 1974, s.3(1); Ministry of Health, ‘Guidelines on Termination of Pregnancy’, 1 April 2004, para. 5 - Mandatory Counselling and Annex D: no mention of any requirement for capacity or competence assessment.
107.
108.
See Ministry of Health, ‘National Mental Health and Well-being Strategy 2023’, pp. 11–12; Cf. Goh, ‘Allow Youth to Seek Help’, where reservations were documented about independent minor access to prescription medication.
109.
C. Auckland and I. Goold, ‘Resolving Disagreement: A Multi-Jurisdictional Comparative Analysis of Disputes About Children’s Medical Care’, Medical Law Review 28 (2020), pp. 643 at 669.
110.
See M. Bowers and B. Dubicka, ‘Legal Dilemmas for Clinicians Involved in the Care and Treatment of Children and Young People with Mental Disorder’, Child: Care, Health and Development 36(4) (2009), pp. 592–596.
111.
SMC ECEG (2016) at C6(17), p. 39.
112.
SMC HME (2016) at C6.4, p. 90.
113.
AC v Department of Child and Family Services at [56]–[69].
114.
Director General, New South Wales Department of Community Services v. Y [1999] NSWSC 644 (AustLII) at paras 99–103; Minister for Health v. A.S., [2004] WASC 286, 33 Fam. L.R. 223 at para 23.
115.
[2019] 3 SLR 640 at [54]–[55].
116.
Op. cit. at [69].
117.
See G. Laurie, ‘Parens Patriae Jurisdiction in the Medico-Legal Context: The Vagaries of Judicial Activism’, Edinburgh Law Review 3 (1999), pp. 95 at 95–96.
118.
Cary v Bertie (1696) 23 ER 814 at 818; Wellesley v Wellesley (1828) 4 ER 1078 at 1081; Re Eve (1986) 2 S.C.R. 388 at [35].
119.
Re Eve at [42]–[43].
120.
Re W at 84–85 per Balcombe LJ.
121.
Chief Justice Chan Sek Keong, ‘Keynote Address at The Mental Capacity Act: Code of Practice Seminar’, 7 October 2011 at [22].
122.
That is, s.17(a) of the Courts Ordinance 1955, No. 14 of 1955.
123.
See J. Pinsler, ‘The Inherent Powers of the Court’, Singapore Journal of Legal Studies 1 (1997), pp. 2–4.
124.
125.
126.
Letters Patent, Establishing the Court of Judicature at Prince of Wales Island, Singapore and Malacca in the East Indies (Malacca: Misson Press, 1827), pp. 22–23 (emphasis in the original). This clause was retained verbatim in the Third Charter of Justice in 1855: Letters Patent for Reconstituting the Court of Judicature of Prince of Wales’ Island, Singapore and Malacca, 10 August 1855 (London: Cox (Bros) & Wyman, 1855), p. 14.
127.
1322 Chap 13, 17 Edw II, xj and xij respectively.
128.
H. S. Theobald, Lunacy Law and Practice (London: Stevens & Sons Ltd, 1924), c.1 at 2–3. The latter condition was imposed by the Lunacy Regulation Act 1853, 16 & 17 Vict., c. 70, s. 47. See also Munby, note 160 below at 66.
129.
Theobald, op. cit., p. 1.
130.
Theobald, op. cit., pp. 2, 7–8.
131.
Theobald, op. cit., pp. c.2 at 10–15; Cary v Bertie at 818.
132.
13 Geo. 3. c. 63, s.13. Also known as the East India Company Act 1773.
133.
Letters Patent Establishing a Supreme Court of Judicature at Fort-William in Bengal (25 March 1774), p. 29: The clause conferring authority on the Bengal High Court to appoint guardians and keepers of infants and natural fools is substantially the same as that which appears in the Second Charter of Justice 1826.
134.
135.
S. Rajpal, Curing Madness? A Social and Cultural History of Insanity in Colonial North India, 1800-1950s (Oxford: Oxford University Press, 2020), c.1 at 22, citing the Opinion of the Advocate General, the papers related to the Lunacy Acts No. XXXIV, XXXV and XXXVI of 1858, NAI [footnotes omitted].
136.
Straits Settlements Legislative Council, Ordinance No. V of 1868; see also s.46 of Ordinance No. 5 of 1873.
137.
No. 30 of 1907; this segmentation was subsequently maintained in s. 8(a)(i) of the Ordinance No. 101 (Courts), No. 101 of 1926 and s.11(1)(a) (i) of the Courts Ordinance 1934, No. 17 of 1934.
138.
No. 14 of 1955.
139.
No. S 42 of 1954 at p. 169.
140.
Singapore Parliamentary Reports, Vol. 29(2) Col. 75 (12 June 1969) (Minister for Law EW Barker).
141.
See Chua, ‘Healthcare Decision Making for Children’, p. 10.
142.
1959 c. 72.
143.
See In re F (mental patient: sterilisation) [1990] 2 AC 1 at 58; Laurie, ‘Parens Patriae Jurisdiction’, pp. 97–98 – as a result, ‘[n]o-one, not even the court, could consent to care or treatment on behalf of an incapax adult’.
144.
Ordinance No. XXXI of 1907.
145.
See in particular Civil Procedure Code 1907, sections 795 and 797.
146.
Civil Procedure Code 1907, section 811.
147.
Civil Procedure Code 1907, section 815.
148.
49 & 50 Vict, c.27; see R. G. Van Someren, Ordinance 102 (Civil Procedure Code) of the Straits Settlements Annotated, 3rd ed. (London: Waterlow & Sons, 1926), pp. 590–592.
149.
Van Someren, op. cit., pp. 598–600.
150.
Rajpal, Curing Madness?, pp. 22, 25.
151.
Straits Settlements Government Gazette Index for the Year 1934, Vol. 1 (12 January 1934) at 50.
152.
Straits Settlements Government Gazette Index for the Year 1934, Vol. 1 (9 February 1934) at 358.
153.
Repealed by s.34 of the Mental Health (Care and Treatment) Act 2008 wef 1 March 2010, which enacted a new framework for the admission or detention for care or treatment of mentally disordered persons in designated psychiatric hospitals. Provision for the general care and treatment of persons who lack mental capacity was governed separately by the MCA 2008, which came into force on the same date.
154.
See Mental Health (Care and Treatment) Act 2008, s.33 and the Second Schedule.
155.
See Chua, ‘Healthcare Decision-making for Children in Singapore’, p. 11.
156.
[2006] 2 SLR(R) 13 at [7]–[8].
157.
[1990] 2 A.C. 1 (HL) at 57–58, 63–65, per Lord Brandon.
158.
Op. cit. at 73–75 per Lord Goff.
159.
J. Munby, ‘Protecting the Rights of Vulnerable and Incapacitous Adults – The Role of the Courts: An Example of Judicial Law Making’, Child and Family Law Quarterly 26(1) (2014), pp. 64 at 69.
160.
Cambridgeshire County Council v R (An Adult) [1995] 1 FLR 50 at 52–53.
161.
Munby, ‘Protecting the Rights of Vulnerable and Incapacitous Adults’, p. 71.
162.
See Re F (Adult: Court’s Jurisdiction) [2001] Fam 38; Re S (Adult Patient: Sterilisation) [2001] Fam 15.
163.
Munby, ‘Protecting the Rights of Vulnerable and Incapacitous Adults’, p. 77.