Judge: Theis J
Citation:  EWCOP 71
Theis J has further emphasised the thinness of the legal ice for professionals seeking to administer medication covertly. The case concerned a man, XB, detained at a high security mental health hospital. He was diagnosed with treatment resistant paranoid schizophrenia. He required antihypertensive medication, which he refused to take. He was considered to lack capacity to make this decision, and it was proposed to administer it covertly. His siblings recognised that this treatment might need to be administered if his condition was life-threatening, but were concerned about the position and wanted the matter to be considered by the Court of Protection, and the decision taken separately from those who had a therapeutic relationship with him and the family who supported him.
Although XB’s siblings had expressly raised the potential for an application, the Trust proceeded to give the medication covertly following a best interests meeting to which they were not invited (which the Trust subsequently accepted had been a mistake). XB discovered, in fact, that he was being administered the medication covertly, but this did not, Theis J find, mean that an application was no longer being required, because it remained clear that XB was likely to continue to object, and that it remained urgently necessary for him to continue to have it. Substantial delays ensured in making the application, and then in listing the application because of a failure to set a fixed date at the first directions hearing; throughout that period XB continued to be administered medication covertly.
In her consideration of the legal framework, Theis J set out the following convenient summary of the factors in play:
Theis J was clear that, given the anxiety expressed by XB’s siblings about the administration of the medication, and the serious nature of the interference with his rights under Article 8 ECHR involved in administering covert medication, this was a case where there should have been no reticence in involving the court (paragraph 74).
On the evidence before her, Theis J had no hesitation in finding that XB lacked capacity to make decisions about his medical treatment, and that it was in his best interests to be administered the hypertension medication covertly.
It is important, perhaps, to make clear what Theis J said in this case. She was not saying that an application had been required; what she was saying (and this emerges most clearly from paragraph 76) that the Trust should have given very serious consideration as to whether an application should be made – and that any Trust in future in such a situation should equally give such consideration. She also made clear that, unsurprisingly, if an application was to be made, it should have been made and progressed quickly.
At one level, it is somewhat frustrating the courts consistently decline to set out circumstances in which applications must be made (with the exception of situations concerning life-sustaining treatment identified in NHS Trust v Y). At another level, it is understandable that the focus of the decisions – and of the Serious Medical Treatment guidance – is upon the need for Trusts (and others) to consider carefully whether they can simply proceed on the basis of s.5 MCA 2005, or whether the decision has to be taken by the court. Keeping the focus there means that the risk is avoided of giving the message that professionals are always ‘safe’ in situations not clearly identified as requiring a court application. That Trusts are increasingly getting the message is undoubtedly suggested by the sharp, and continuing, increase in medical treatment applications over the past year – the demands of COVID-19 notwithstanding.