Covert medication: To disclose or not to disclose - that is the question!

The case of M v ABM University Health Board  was recently considered by the Upper Tribunal (UT). Whilst this case relates to the Mental Health Review Tribunal for Wales Rules 2008 (MHRT Wales), the principles can be applied to England’s Tribunal Procedure Rules 2008 (TPR) as well.

Facts and issues

This case considered disclosure under Rule 17 MHRT Wales. Rule 17 requires the MHRT to provide a direction prohibiting disclosure of information to a person if they are satisfied that it would be:

  • Likely to cause that person or some other person serious harm; and
  • It is proportionate to do so, having regard to the interests of justice.

Within the TPR, the issue of non-disclosure is dealt with under Rule 14.

The case concerned a patient subject to section 3 Mental Health Act 1983 (MHA), who had long-standing clinical management issues, including sporadic and inconsistent acceptance of medication. At the time of the Tribunal his Responsible Clinician (RC) advised the Tribunal that P did not have the mental capacity to instruct his own solicitor and the Tribunal appointed a representative on his behalf. The RC also later stated that P lacked capacity to manage his finances and to consent to/refuse treatment. However, the UT noted that they had not seen any completed capacity assessments.

The Tribunal received a request from the hospital under Rule 17 that information regarding P’s administration of medication not be disclosed. While the covert medication had since ceased, the Tribunal granted the Rule 17 request. P subsequently appealed and the matter went to the UT.

The UT upheld P’s appeal and found that the Tribunal had erred on a point of law.

Readers will be aware of the case of RM v St Andrew’s Healthcare that had previously considered the issue of Rule 14 and non-disclosure of information. The UT distinguished P’s case from this, as P had been found to lack capacity to instruct a legal representative. In RM the UT concluded that, having regard to the interests of justice, it was not proportionate to withhold from the patient information about his covert medication. It was accepted by the UT in RM that disclosure would, on the evidence, have some immediate adverse consequences for the claimant’s condition but that they had been overcome on the facts of that case in the past and, the short term consequences (while involving risk) did not justify the legal consequences that would follow from non-disclosure.

The UT here in M noted that in the case of RM the judge made findings that may be apposite in other covert medication cases. They did not think that the UT in RM put too great an emphasis on the interests of justice.

They emphasised that where P lacked capacity to appoint their legal representative, their wishes and feelings must still be considered and the Tribunal should have considered their duty under Rule 3 – to ensure, so far as practicable, that the parties are able to participate fully in the proceedings.

The UT found that the Tribunal:

  • had failed to consider Rule 3 and this constituted an error on a point of law.
  • should have sought submissions from the parties on P’s ability to participate in proceedings.
  • should also have been informed that covert medication had since stopped, as this may have had an impact upon their decision.

Of general interest are also criticisms about the documentary evidence in the Tribunal bundle. It did not contain the covert medication policy, the best interests decision that preceded the decision to commence covert medication was not explained, the care and treatment plan did not mention covert medication and there was no documentary evidence about Second Opinion Appointed Doctor involvement.

Comment

While this case relates to the Welsh Rules, the principles can and should be readily applied within England. When making any request for non-disclosure, the RC should be clear about the reasons for this. As set out above, the Responsible Authority (RA) must demonstrate that the provision of information is likely to cause the person or some other person serious harm, and it is proportionate to do so, having regard to the interests of justice.   

Where possible, patients should be encouraged and provided with the opportunity to engage and participate in proceedings as much as possible. Where the RC states that P lacks capacity to take certain decisions, this should be evidenced. Both the First-tier Tribunal and the RA must consider what information is required for such applications and the impact upon P’s ability to engage and participate as fully as possible within proceedings.

You can read our earlier blog post on the top tips for administering covert medication here.

If you would like any advice regarding Tribunals or wider mental health issues please do not hesitate to contact the team here at Mills & Reeve.

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