Judge: Upper Tribunal (Administrative Appeals Chamber (UTJ Mitchell)
Citation:  UKUT 120 (AAC)
With the Legal Aid Agency having taken more than a year to determine the patient’s funding application, this appeal finally reached the Upper Tribunal to consider the disclosure of covert medication to patients lacking the mental capacity to appoint a legal representative. It had to be determined against a somewhat concerning evidential backdrop. For it seemed highly likely that the tribunal had not been informed that the covert medication had ceased three months before the hearing (para 88). The second opinion certificate that would have authorised the covert medication, addressed the patient’s capacity, and contained the consequences of not administering it covertly, had not been supplied to the tribunal and should have been requested (para 89). Moreover, the mental incapacity evidence was absent (para 90).
Rule 17(1) of the Welsh Tribunal rules positively requires the tribunal to give a direction prohibiting the disclosure of a document or information to a person if satisfied of two matters:
It was stressed that these are independent tests; not to be merged (para 35). The English equivalent (rule 14(2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 2008) confers a power rather than a duty to direct non-disclosure. With regard to the first limb of ‘serious harm’, UTJ Mitchell held that some types of ‘serious harm’ are more severe than others and its nature must be set out: “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” (para 87).
Previous guidance had been given by the Upper Tribunal in RM v St Andrew’s Healthcare  UKUT 119 (AAC) which concerned a patient who, during earlier tribunal proceedings, had been informed that he had been covertly medicated and appeared to have capacity to appoint a legal representative. In the present appeal, the patient had not been informed and was found to lack such capacity: “To some extent, therefore, Mr M’s mental condition impaired his ability himself effectively to challenge his detention” (para 93). UTJ Mitchell went on to hold:
94… 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.
Accordingly, the case was remitted to the tribunal to determine whether it should set aside or vary its non-disclosure direction in light of this guidance.
Requiring tribunals to first consider the patient’s ability to participate in the proceedings before determining whether it was proportionate to withhold covert medication information is a welcome development. Not only does it stress the importance of the participative duty on tribunals (Welsh rule 3(2)(b), English rule 2(2)(c)); it also reflects the broader point that those unable to make decisions must still have their wishes heard, feelings felt, beliefs considered, and values respected.
The judgment also illustrates the careful line that is being drawn between requiring necessary evidence of mental incapacity (and best interests), without unduly complicating the inherently informal nature of tribunal proceedings.