Written Reply to Parliamentary Question on Difference Between the Terms ‘Apprehend’ as Deployed in the Mental Health (Care and Treatment) Act 2008 and ‘Arrest’ as Used in Other Provisions

Question:

Ms He Ting Ru: To ask the Minister for Home Affairs (a) whether an elaboration can be provided on the Attorney-General’s submissions made in a recent case which stated that there was no practical difference between the terms ‘apprehend’ as deployed in the Mental Health (Care and Treatment) Act 2008 (MHCTA) and ‘arrest’ as utilised in other provisions involving the use of police powers; and (b) what specific steps have been or will be taken to safeguard the constitutional right of persons apprehended under the MHCTA.

Answer:

Mr K Shanmugam, Minister for Home Affairs and Minister for Law:

1. In the High Court case of Mah Kiat Seng vs AG, the Attorney[1]General's Chambers took the position that there was no practical difference between the terms “apprehend”, as used in the MHCTA, and “arrest”, as used in other legislation such as the Criminal Procedure Code (CPC). This was a legal argument raised before the court, in the context of explaining the Police’s legal powers and duties in relation to apprehensions and arrests, as the CPC only explicitly specifies the powers of arrest and not apprehension.

2. As explained by the Second Minister for Home Affairs during the Second Reading of the Law Enforcement and Other Matters Bill, the High Court judgment in 2023 determined that apprehensions under the MHCTA are distinct from arrests under the CPC. This meant that the Police would not have certain powers associated with arrest, when making apprehensions.

3. For example, the Police would not be able to ensure that a person apprehended under the MHCTA was not hiding dangerous weapons or items before the individual is handed over to the staff of a medical facility. This is not tenable, as it endangers the safety of the apprehended individual, Police officers, and the medical staff.

4. We have thus amended the law to make clear that essential powers associated with arrests, such as those of search and seizure, are also available to the Police when making apprehensions under the MHCTA. Nevertheless, Police officers will carry out search and seizure of persons apprehended under the MHCTA with due care and respect. Those who are apprehended solely under the MHCTA would be brought to a medical practitioner and not to a Police lock-up. They would also not be prosecuted.

5. These amendments do not affect the constitutional rights of a person apprehended under the MHCTA.