The appellant was a patient (‘Mr M’) detained for treatment pursuant to section 3 of the Mental Health Act 1983 since 26 March 2015. The respondent was ABM University Health Board, the responsible authority.
The precise chronology is difficult to specify, but it is clear that over various periods of time, Mr M was covertly administered various medications to meet his complex mental and physical health needs. It is also clear that although he posed various “management challenges” to staff caring for him, he was also at times compliant with medication.
A decision was taken to provide Mr M with covert medication on the basis of what was said to be a best interest meeting and an assessment of Mr M’s capacity to consent to treatment, although it appears that the documents evidencing the decision and assessment were not provided to the Tribunal. However, the covert medication regime was not consistently in place and at the time of the Tribunal, Mr M had not been receiving covert medication for some three months, a fact which was not put before the Tribunal.
The appeal was on a point of law regarding a non-disclosure case management order made by the Mental Health Review Tribunal for Wales (‘the Tribunal’) prohibiting disclosure of any document or information relating to the administration of covert medication to Mr M (RM v St Andrew’s Healthcare  UKUT 119 (AAC) distinguished).
The appeal related to the second limb of rule 17(1) and whether, having regard to the interests of justice, it was proportionate for the Tribunal to give the non-disclosure direction.
The President of the Tribunal granted leave to appeal for (inter alia) guidance about covert medication disclosure disputes involving patients without the capacity to appoint a representative.
The legal framework
The case management order was made pursuant to rule 17 of The Mental Health Review Tribunal for Wales Rules 2008 which provides as follows:
Withholding documents or information likely to cause harm
17(1) The Tribunal must give a direction prohibiting the disclosure of a document or information to a person if it is satisfied that—
(a) such disclosure would be likely to cause that person or some other person serious harm; and
(b) having regard to the interests of justice that it is proportionate to give such a direction.
Rule 17(1) provides a positive requirement on the Tribunal to give such a direction and therefore differs from its counterpart provision in rule 14(2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) 2008, which confers only the power to direct non-disclosure if the two conditions are met, rather than a duty.
UTJ Mitchell confirmed that ‘while there may well be some overlap in the considerations relevant to these two matters, it should be noted that they are independent tests that are not to be merged. It follows that satisfaction of the ‘likely to cause serious harm’ test does not necessarily compel the conclusion that the proportionality test is met’ (para 35).
The appeal was allowed. In a comprehensive judgment, UTJ Mitchell concluded that the Tribunal erred on a point of law by failing to consider the extent to which Mr M, despite his lack of mental capacity, was nevertheless capable of participating in the proceedings.
The following paragraphs are of particular relevance:
- I add that I do not agree that Judge Jacobs’ decision places too great an emphasis on the interests of justice. It is true that rule 17(4) merely requires the Tribunal to “have regard” to the interests of justice but that formulation is explained by the fact that failing to disclose relevant evidence to a patient could never be said to be in the interests of justice. In a case involving a patient who has capacity to appoint a legal representative, I can well understand why the failure to disclose information about covert medication may be considered so great a rupture in the fairness of proceedings that it could not be proportionate to withhold the information. As I pointed out above, assuming a patient does in fact have a mental disorder, the statutory detention criteria all require some qualitative analysis of a patient’s medical treatment. Medical treatment will nearly always be a central issue in proceedings before a mental health tribunal
- 95. The fact that a patient lacks the mental capacity to appoint a legal representative does not mean the patient has no relevant wishes and feelings about his detention nor that any wishes and feelings fall out of account. Further, the Upper Tribunal’s decision in YA v Central and North West London NHS Trust  UKUT 37 (AAC) acknowledges that a patient, despite lacking mental capacity to appoint a representative, might nevertheless have capacity to give instructions on some relevant issues. YA also recognises that, in theory, a patient who lacks capacity to appoint a representative my nevertheless have capacity to conduct proceedings although I note that, in YA, Charles J considered that, in practice, it was difficult to envisage cases in which a patient who lacked capacity to appoint a representative nevertheless had the capacity to conduct proceedings.
- Throughout, the Tribunal in Mr M’s case remained under an obligation to ensure, so far as practicable, that Mr M was able to participate fully in the proceedings (rule 3(2) of the Rules). That obligation was concordant with the Law Society’s expectations of Mr M’s solicitor as set out in its 2015 guidance and to which Mr Payne referred in his arguments to the Tribunal. The Tribunal’s participative duty did not disappear upon the appointment of a legal representative for Mr M on the ground that he lacked capacity to appoint a representative. For this reason, the Tribunal was required to turn its mind to the extent to which Mr M was capable of participating in the proceedings. Only then could it properly answer the key question, that is whether the obstacles placed in the way of Mr M’s participation in the proceedings by non-disclosure of information about covert medication, including the difficulties this would cause for his solicitor, were such that, having regard to the interests of justice, it would nevertheless be proportionate to withhold the information from Mr M.
- 97. In conclusion, I decide that the Tribunal’s decision involved an error on a point of law. In deciding whether it would be proportionate to withhold covert medication information from Mr M the Tribunal failed to take into account its ongoing obligation to ensure, so far as practicable, that Mr M was able to participate in the proceedings.
- 98. It is, of course, important not to introduce unnecessary complexity into mental health tribunal proceedings. I do not suggest that a patient’s lack of capacity needs to be calibrated. In fact, the precise issue is the extent to which a patient’s mental condition allows him or her to participate in the proceedings rather than some determination of ‘residual’ capacity. However, it is necessary, in a case like Mr M’s, to seek submissions from the parties as to the patient’s ability to participate in the proceedings. A Tribunal may also decide it is necessary for this purpose to require the detaining authority to supply it with any formal mental capacity assessments that have been carried out.
The matter has been remitted to the Tribunal for it to determine whether to set aside or vary its rule 17(1) direction.
Guidance for practitioners: covert medication disclosure disputes involving patients without the capacity to appoint a representative
The following points of guidance can usefully be extracted from the judgment of UTJ Mitchell in M v ABM University Health Board  UKUT 120 (AAC) (paragraphs 12(a)-(h), 87-90, 96 and 100(b)):
- The nature of the serious harm which is likely to befall the patient is relevant to the decision whether, having regard to the interests of justice, non-disclosure would be “proportionate” within rule 17(1)(b).
- If the parties agree that the serious harm limb of the test is satisfied (rule 17(1)(a) (Wales), rule 14(2)(a) (England)), the Tribunal should therefore be informed of the basis of that agreement, and the nature of the serious harm which the parties agree would be caused by disclosure. UTJ Mitchell observed that “some types of ‘serious harm’ are more severe than others. To take a dramatic example, a likelihood of certain death is a more significant form of serious harm than a likelihood of a drastic but temporary deterioration in a patient’s mental health.”
- If the parties disagree what the “serious harm” is likely to be, this is a question of fact to be determined by the Tribunal, a task for which it is well-equipped by the inclusion of medical members on the panel. UTJ Mitchell specifically declined to give any further definition as to the meaning of the words.
- The Tribunal must address the extent to which the incapacitated patient is capable of participating in the proceedings.
- Only once the Tribunal is equipped with an understanding of both the serious harm likely to befall the patient and the patient’s capacity to participate in the proceedings can it properly address “the key question” of whether the obstacles placed in the way of the patient’s participation as a result of non-disclosure, including the difficulties this would cause the patient’s solicitor, are such that, having regard to the interests of justice, it would nevertheless be proportionate to withhold the information.
- The patient’s representative is not required to set out what specific prejudice flows from withholding information, although as a matter of good practice it may be sensible to do so. The “obvious” prejudice in Mr M’s case, and no doubt in many similar cases, is that non-disclosure significantly reduces the representative’s “practical ability to engage in any meaningful discussion with [the patient] about matters such as whether his mental disorder was severe enough (of a ‘nature or degree’) to justify keeping him in hospital for medical treatment or whether appropriate medical treatment was available for him.”
Documents and information to be placed before the Tribunal
- A chronology of the administration of any medication to date which makes clear what has and has not been provided covertly. (UTJ Mitchell was particularly critical of the failure to inform the Tribunal of the fact that Mr M had not been covertly medicated for some three months by the time of the Tribunal.)
- The patient’s care and treatment plan (which should reflect the commencement of covert medication).
- The SOAD certificate, which will determine the scope of the authority to covertly medicate the patient. As a separate point of good practice, the certificate should also contain relevant information about the patient’s mental capacity and the consequences of not administering medication covertly.
- An explanation of the ‘best interests’ decision that led to the decision to commence covert medication with all supporting evidence.
- An explanation for the patient’s intermittent compliance with medication (if relevant).
- If the patient has been but is no longer being covertly medicated, whether any supposed adverse consequence of ceasing covert medication has in fact happened.
- A formal assessment of the patient’s capacity to appoint a legal representative.
- The hospital’s covert medication policy or policies.
- Any other relevant hospital records regarding the issue of covert medication.
Emma Sutton represented the appellant and was instructed by Richard Payne of Confreys Solicitors.