M v ABM University Health Board
| Jurisdiction | UK Non-devolved |
| Judge | Judge Mitchell |
| Neutral Citation | [2018] UKUT 120 (AAC),[2018] UKUT 120 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Mental health,Mitchell,E |
| Date | 27 March 2018 |
| Published date | 19 April 2018 |
M v ABM University Health Board [2018] UKUT 120 (AAC)
HMW/2359/2016 1
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 counsel, for the Appellant Mr M, instructed by Confreys
Solicitors.
Mr Walker, of counsel, for the Respondent ABM University Health Board,
instructed by Blake Morgan LLP.
DECISION
This appeal succeeds. The decision of the Mental Health Review Tribunal for Wales, taken
on 16 May 2016, to make a direction under rule 14(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 section 12(2) of the Tribunals, Courts and Enforcement Act
2007, as applied by section 78A of the Mental Health Act 1983, the matter is remitted to the
Tribunal for it to determine whether to set aside or vary its rule 14(1) direction, in accordance
with the directions give at the end of the reasons for this decision.
PUBLICATION
Save for the cover sheet, this decision may be made public (rule 14(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.
REASONS FOR DECISION
Introduction
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
M v ABM University Health Board [2018] UKUT 120 (AAC)
HMW/2359/2016 2
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
Background
Referral to the Mental Health Review Tribunal for Wales
3. The patient and Appellant in these proceedings, Mr M, was detained in hospital for
treatment under section 3 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 section 68(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.
Questions of capacity
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”.
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