M v ABM University Health Board
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:
such disclosure would be likely to cause that person or some other person serious harm; and
having regard to the interests of justice it is proportionate to give such a direction.
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.
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…
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)… 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.
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.
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. (emphasis added)
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.