M v ABM University Health Board
| Jurisdiction | UK Non-devolved |
| Judge | UTJ E Mitchell |
| Judgment Date | 27 March 2018 |
| Neutral Citation | [2018] UKUT 120 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 27 March 2018 |
| Docket Number | HMW/2359/2016 |
[2018] UKUT 120 (AAC)
Court and Reference: Upper Tribunal (AAC)
Judge: UTJ E Mitchell
HMW/2359/2016
Appearances: Ms Sutton (instructed by Confreys) for M; Mr Walker (instructed by Blake Morgan) for the Board.
Facts: M was detained under s3 Mental Health Act 1983 in 2015; he had a long history of engagement with mental health services and was diagnosed to have schizophrenia. A particular medication, clozapine, had been stopped because of its impact on his blood count, leading to a relapse and admission; due to management difficulties presented, a decision was made to give some medication covertly. When his case was referred to a Tribunal, the Responsible Clinician certified that M did not have the capacity to instruct a legal representative; the Tribunal appointed a representative. The Tribunal held a hearing to determine whether the fact that M was being covertly medicated should be withheld from him pursuant to r17 Mental Health Tribunal for Wales Rules 2008, which permits non-disclosure of material that would be likely to cause “serious harm” if that is proportionate in light of the interests of justice. The Tribunal decided that serious harm test might arise from the risk of M refusing all treatment if he was aware of the covert treatment, as agreed by the legal representative appointed for M. The Tribunal also found that this would be proportionate, relying in particular on his lack of capacity. The President of the Tribunal permitted an appeal against the ruling. The covert medication stopped in February 2016, some 3 months before the Tribunal hearing; the Upper Tribunal hearing was delayed considerably, including by difficulties in securing legal aid.
This appeal succeeds. The decision of the Mental Health Review Tribunal for Wales, taken on 16 May 2016, to make a direction under r14(1) of the Mental Health Review Tribunal for Wales Rules 2008, involved an error on a point of law. However, the Tribunal's direction is not set aside. Instead, under s12(2) of the Tribunals, Courts and Enforcement Act 2007, as applied by s78A of the Mental Health Act 1983, the matter is remitted to the Tribunal for it to determine whether to set aside or vary its r14(1) direction, in accordance with the directions give at the end of the reasons for this decision.
Save for the cover sheet, this decision may be made public (r14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient's name, which must not be made public.
1. This case concerns disclosure to a patient in mental health tribunal proceedings of information that he had been covertly medicated. This is an issue that has previously been considered by the Upper Tribunal but this case differs from the existing case law in that it involves a patient who lacked the mental capacity to appoint a representative. I decide that the Mental Health Review Tribunal for Wales' direction prohibiting disclosure of covert medication information involved an error on a point of law. Briefly, this was because the Tribunal did not consider the extent to which the patient, despite his impaired mental capacity, was nevertheless capable of participating in the proceedings. That issue should have been addressed before the Tribunal decided whether, having regard to the interests of justice, it was proportionate to withhold covert medication information from the patient.
2. In these reasons:
— “1983 Act” means the Mental Health Act 1983;
— “the Rules” means the Mental Health Review Tribunal for Wales Rules 2008;
— “the Tribunal” means the Mental Health Review Tribunal for Wales
3. The patient and Appellant in these proceedings, Mr M, was detained in hospital for treatment under s3 of the 1983 Act, pursuant to an application made on 26 March 2015. The hospital managers to whom the application was addressed, the Respondent in these proceedings, referred Mr M's case to the Tribunal under s68(2) of the 1983 Act. The hospital managers' case before the Tribunal was the statutory criteria for continued liability to detention for treatment were satisfied.
4. By letter of 30 December 2015, the Tribunal asked Mr M's responsible clinician whether he had mental capacity to appoint a legal representative. The clinician ticked a ‘NO’ box on the letter but, when this was returned to the Tribunal, was not accompanied by a mental capacity assessment. In due course, the Tribunal appointed a solicitor of Confreys Solicitors, as Mr M's legal representative. Mr Payne, solicitor of that firm, represented Mr M before the Tribunal.
5. According to Mr M's care and treatment plan, dated 4 January 2016, his local authority intended to apply to the Court of Protection for appointment as his deputy “as regards his finances”. For this purpose, Mr M's responsible clinician “is to formalise his assessment of [Mr M's] mental capacity”. According to a social circumstances report of 19 January 2016, the responsible clinician assessed Mr M as lacking the mental capacity to deal with his financial affairs.
6. A psychiatric report, dated 15 February 2016, written by Mr M's then responsible clinician stated that his capacity to consent to treatment was reviewed (on an unspecified date) and “during the assessment [Mr M] was grossly thought disordered. His conversation was peppered with delusional ideas and beliefs…Following assessment I concluded that he did not have capacity to consent or refuse treatment”.
7. I observe that, while a number of clinicians have addressed Mr M's mental capacity in various decision-making contexts, the Tribunal appeal papers do not contain any document embodying a formal mental capacity assessment.
8. Below:
— “care and treatment plan” refers to a plan dated 4 January 2016;
— “nursing report” refers to a report dated 11 February 2016. While this describes itself as an addendum report, it is the only nursing report within the Tribunal papers;
— “psychiatric report 1” refers to a report dated 6 January 2016, written by the responsible clinician at the Psychiatric Intensive Care Unit to which Mr M was admitted between 16 December 2015 and 25 January 2016;
— “psychiatric report 2” refers to a report dated 15 February 2016, written by the responsible clinician at the low secure unit to which Mr M was transferred on 25 January 2016
— “psychiatric report 3” refers to a document dated 2 March 2016, unsigned but said by the hospital managers to be written by the responsible clinician at the low secure unit;
— “social report” refers to a social circumstances report dated 19 January 2016.
9. From the Tribunal's papers, Mr M's mental health history may be summarised as follows:
— Having first been admitted to hospital in 1972, Mr M was subsequently discharged and re-admitted to hospital on a number of occasions;
— Psychiatric report 1 gave Mr M's diagnosis as “Treatment Resistant Schizophrenia” in one part of the report and “Paranoid Schizophrenia” in another. The social report described Mr M's diagnosis as “chronic paranoid schizophrenia within the setting of a personality disorder, with prominent aggressive and paranoid traits”;
— According to the social report, Mr M's psychosis “never totally resolves” even when he is compliant with medication, and his aggressive behaviour “may sometimes occur as a result of his psychosis, and is sometimes the result of his personality”;
— The care and treatment plan stated: Mr M could be verbally aggressive towards staff and patients; “when very irate he can also be physically aggressive and use furniture etc as weapons”; when Mr M thought he had special powers, or was responding to auditory hallucinations, he could assault without provocation; and alcohol made Mr M's behaviour more challenging;
— From January 2010 until March 2015, Mr M lived in a community placement. The papers suggest that, at this placement, Mr M was not subject to any of the compulsory provisions of the 1983 Act;
— According to the social report, Mr M's community placement broke down because of his “entrenched pattern of behaviour”. Generally pleasant in the morning, after consuming alcohol bought from a local shop or pub in the afternoon, Mr M would be verbally aggressive and intimidate staff and other patients;
— On 6 March 2015, while at the community placement, Mr M requested admission to hospital. He became aggressive when not immediately admitted to hospital. Police attended and Mr M was taken to and admitted to a hospital, which I think was a general hospital. Due to an adverse blood test result, Clozaril (oral anti-psychotic medication, also referred to as Clozapine) was stopped and, as a result, he “became gradually more unwell and challenging in his behaviour” (social report);
— On 26 March 2015, an application was made for Mr M's compulsory admission to hospital for treatment under s3 of the 1983 Act. He had assaulted a nurse and was only sporadically compliant with medication (social report);
— Following the hospital managers' acceptance of the s3 application, Mr M was transferred to a locked rehabilitation unit. The intention had been to transfer him to a Psychiatric Intensive Care Unit (PICU) but initially no bed could be found (social report);
— The social report describes management challenges posed by Mr M at the unit but non-compliance with medication is not specifically described. Ultimately, unit staff decided they could no longer manage Mr M's care safely and he was transferred to a PICU on 16 December 2015;
— The PICU was “viewed as a ‘holding...
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M v ABM University Health Board
... ABM University Health Board [2018] UKUT 120 (AAC) IN THE UPPER TRIBUNAL Upper Tribunal case No. HMW/2359/2016 ADMINISTRATIVE APPEALS CHAMBER Before:Mr E Mitchell, Judge of the Upper Tribunal Venue: Cardiff Civil Justice Centre, 24 January 2018 Attendances: Ms Sutton, of counse......