RM v St Andrew's Healthcare [Upper Tribunal (AAC)]
| Jurisdiction | UK Non-devolved |
| Judgment Date | 23 April 2010 |
| Date | 23 April 2010 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Upper Tribunal (AAC), HM/0837/2010
UTJ Rowland
S Simblet (instructed by CMHT Solicitors) for RM.
Whether an order for non-disclosure to a patient was lawful; whether appeals from such decisions should be heard.
RM was detained under s3 Mental Health Act 1983. An application for discharge had been declined by a Tribunal in 2009; during those proceedings, he discovered that he had been covertly medicated through his food. He then refused to cooperate with treatment, and as a result his mental state deteriorated and control of his epilepsy worsened; this led to a need for restraint and seclusion, and an increased risk of unexpected death. Covert medication was reintroduced, which improved his epileptic control and reduced his psychotic symptoms. A further Tribunal was due to be heard in May 2010.
Under r14(2) Tribunal Procedure Rules 2008 disclosure of evidence may be prohibited if it would be likely to cause serious harm to the patient or someone else, and it was proportionate so to order. Such an order was made in relation to the disclosure to RM of 2 reports that dealt with the covert medication on the basis that his likely reaction would be to reduce his food and drink intake, leading to a deterioration in his symptoms; the judge concluded that the solicitor could take instructions on the themes outlined in the reports.
On an appeal against the ruling as to disclosure, it was accepted that the "likelihood of serious harm" test was met, but it was argued that it was not proportionate to withhold the reports as the right to a fair hearing would be breached in the absence of disclosure. This was because RM would not be aware of the real basis for his detention and so would not be able to provide instructions on the issue in front of the Tribunal. It was also suggested that the provisions of r14(1), which allows a Tribunal to prohibit the disclosure of documents or information "relating to the proceedings" applied to the rest of the rule so as to limit the scope of r14(2).
Decision: Save for the front sheet (which identifies the parties by name), this decision may be made public (r14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)).
I shorten all time limits, and waive any procedural requirements that have not been complied with, to allow these proceedings to be concluded by 23 April 2010.
Permission is GIVEN to appeal against the decision of the First-tier Tribunal (held at St Andrew's Hospital on 12 February 2010 under reference MP/2009/22848).
As that decision involved the making of an error in point of law, it is SET ASIDE under s12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: the patient is entitled to disclosure of information relating to his covert medication.
Reasons for Decision:
1. What if a patient's best interests medically clash with his best interests legally? Can they be reconciled? If not, which prevails? That is what I have to decide. There is no entirely satisfactory answer. Any answer creates problems.
2. This case came before me on 14 April 2010 as an urgent application for permission to appeal lodged by email. I directed that an oral hearing be held as soon as counsel could be instructed and was available. That hearing took place on 22 April 2010. The grounds of appeal had been drafted by Mr Roger Pezzani of counsel, instructed by CMHT Solicitors. He was not available for the oral hearing; Mr Stephen Simblet of counsel appeared instead. I am grateful to both counsel for their detailed arguments prepared at short notice. The health authority indicated that it would take no part in the proceedings.
A. How the issue arises
3. The patient was detained under s3 of the Mental Health Act 1983 in July 2008. He has organic delusional disorder, organic personality disorder and epilepsy. The hospital referred his case to the First-tier Tribunal in 2009, but he was not discharged. In the course of those proceedings, he was told that he had been covertly medicated. He then refused medication and became suspicious of food and drink. His epileptic control worsened, his psychotic illness was exacerbated, his mental state deteriorated, he refused to engage in rehabilitation and he became physically aggressive and unco-operative. The epileptic seizures can lead to a worsening of his psychosis and could lead to a worsening of his cognitive function. He sustained injuries and required restraint and seclusion. He was at increased risk of sudden, unexpected death. From July 2009, he was again medicated covertly through his food and drink. This improved his epileptic control and reduced his psychotic symptoms. Despite this, his behaviour is still aroused.
4. In November 2009, the patient applied to the First-tier Tribunal for his discharge. The hearing is listed for 4 May 2010, the week after next. In February 2010, the tribunal prohibited disclosure of 2 addendum reports, one by the patient's responsible clinician and the other by a nurse. These reports revealed that the patient was being covertly medicated. The hospital had applied for an order prohibiting disclosure to the patient. The judge who made the order gave detailed written reasons. She first set out the patient's history, as outlined above. She directed herself in accordance with Dorset Healthcare NHS Foundation Trust v MHMHLR[2009] MHLR 102 that full disclosure should generally be made. She then noted the experience of the previous disclosure and decided:
'If the Patient is told he is being covertly medicated it is very likely that he will again refuse medication and become suspicious about his food and drink and may reduce his food and drink intake. It is very likely that his epileptic control would deteriorate immediately and his psychotic symptoms would worsen. There is a serious risk to himself and others.'
The judge then dealt with the patient's right to a fair hearing and quoted from the judgment of Cranston J in Roberts v Nottinghamshire Healthcare NHS TrustMHLR[2008] MHLR 294:
'25. … that does not mean that he or she has an absolute or unqualified right to see every document.'
The judge concluded that it was proportionate to prohibit disclosure as the patient's solicitor 'can take his instructions on the themes with which the material is concerned'.
B. Decisions and appeals
5. The decision before me is the decision prohibiting disclosure of the addendum reports made in February 2010. I emphasis that, because Mr Pezzani criticised the reasoning of the judge who refused to review and then refused permission to appeal to the Upper Tribunal. Those reasons do not concern me. The review decision is an excluded decision under s11(5)(d)(i) of the Tribunals, Courts and Enforcement Act 2007 and, as such, cannot be the subject of an appeal. Nor can it be used to criticise the decision that is under appeal. In Albion Water Ltd v Dwr Cymru CyfUNK[2009] 2 All ER 279, the Court of Appeal said:
'67. The tribunal's lengthy judgment refusing permission to appeal is not to be used as a source of additional reasoning on the issues in dispute before it …'
That applies equally to reasons given on review.
6. We await an authoritative cross-chamber ruling on the scope of 'decision' in s11. As the authorities stand at present, the Administrative Appeals Chamber has accepted jurisdiction over a decision on the disclosure of confidential of evidence (Dorset Healthcare NHS Foundation...
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