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M v ABM University Health Board [2018] UKUT 120 (AAC)

This is a case about disclosure to a patient in mental health tribunal proceedings that he has been covertly medicated.

M was detained in hospital under section 3 of the Mental Health Act 1983 ("MHA"). Psychiatric and social reports indicated a diagnosis of "Treatment Resistant Schizophrenia" or "chronic paranoid schizophrenia within the setting of a personality disorder, with prominent aggressive and paranoid traits". He was prone to outbursts of aggression and violence and could assault without provocation. Additionally M had a serious physical health condition for which he needed immunoglobin therapy.

The case report deals with the complicated history of the management of M's physical and mental health over 5 pages! M intermittently refused prescribed medication and his physical and mental health deteriorated. This led to the RC requesting a SOAD authorisation for covert medication to prevent violence and allow regular rapid tranquilisation.

The hospital managers referred M's case to the Mental Health Review Tribunal for Wales under section 68(2) of the MHA. During the course of proceedings solicitors were appointed by the tribunal as it was indicated that M lacked the capacity to conduct proceedings. The hospital managers requested a direction from the tribunal that information relating to the administration of covert medication be withheld from M.

Rule 10(2) of the Mental Health Review Tribunal for Wales Rules 2008 ("the Welsh Tribunal Rules") gives the tribunal a power to make an order prohibiting the disclosure of "specified documents or information relating to the proceedings". Rule 10(3) permits this power to be exercised in order to "take action under rule 17". Rule 17 requires the tribunal to give a direction prohibiting the disclosure of a document or information to a person if satisfied of two matters: -

a) Such disclosure "would be likely to cause that person or some other person serious harm"


b) Having regard to the interests of justice it is proportionate to give such a direction.

These powers in rule 17 the Welsh Tribunal Rules differ from those in their English counterpart, rule 14 of the Tribunal Procedure ((First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, only in that the English Rules confer a power rather than an obligation to direct non-disclosure if the two above conditions are met.

The tribunal directed that information relating to covert administration of medication should not be disclosed to M.

The Upper Tribunal ("UT") allowed M's appeal.

The UT notes that, assuming the patient does in fact have a mental disorder, the statutory detention criteria all require some qualitative analysis of the patient's medical treatment. As can be seen from the case of RM v St Andrew's Healthcare [2010] UKUT 119 (AAC), a failure to disclose to a patient that they have been covertly medicated is likely to hamper a patient's ability adequately to deal with the central issue of medical treatment. However, there was a distinction in M's case in that his lack of capacity already impaired his ability effectively to challenge his detention.

The UT held that in deciding whether information about a patient's covert medication should be disclosed to a patient where s/he lacks capacity to appoint a representative, and disclosure would be likely to cause serious harm, a mental health tribunal is under an obligation to ensure, as far as practicable, that the patient is able to participate fully in proceedings. The tribunals "participative duty" did not disappear when solicitors are appointed. It must consider the extent to which the patient, despite his or her impaired mental capacity, is capable of participating in the proceedings. Only by doing this can a tribunal address the key question about whether the non-disclosure of information about covert medication, including the difficulties this creates for the patient's solicitor, was such that it would be proportionate to withhold the information.

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