Mental Health - July 2010
To know at all costs?
The law has struck a blow for patients’ rights, but
maybe at the expense of their best interests
The Upper Tribunal (UT) is the new court of
appeal from mental health tribunal decisions. The tribunal that
makes those decisions is the First-tier Tribunal of the Health,
Education and Social Care Chamber (FtT), the successor to the MHRT.
In a recent case, the UT had to consider the way the FtT had dealt
with a man who is being medicated covertly (RM v St
Andrew’s Healthcare, 23 April 2010).
The FtT ordered that information including the
fact of covert medication be withheld from the man, but the UT set
that order aside. While disclosure might cause the man serious
harm, the UT said that prohibiting it would not be proportionate..
This would be the case, even though the UT was told that when the
information had been disclosed to the man previously, he had
defaulted from his treatment, his condition had deteriorated, and
he had had to be both restrained and secluded. Furthermore, his
condition had improved of late, largely because covert medication
had been re-introduced.
The UT summarised the relevant case law:
- It is “beyond argument and not in dispute”
that openness is generally required, and that a hearing can be
fair, even though every document is not disclosed.
- While a party’s solicitors might not be able
to disclose information to their client, they can still take his
instructions on its themes.
- In ‘control order’ cases, it would be
unlawful to deny disclosure of evidence to detainees and their
lawyers, even though it would be granted to the ‘special advocates’
appointed for them by the state.
Here, the UT found for the patient’s right to
know. Without disclosure of the fact that he was being covertly
medicated, any FtT hearing would be "a mere mummery". Either the
patient would have to be excluded or the lawyers and clinicians,
and even the tribunal members, would be prevented from discussing
everything they knew. Refusing disclosure would have involved not
just “a compromise between justice and openness”, but “the
sacrifice of the patient’s right to challenge his detention
effectively”.
There is a certain logic to this decision,
founded, clearly, in the ECHR and the Human Rights Act. But
there is also reason for concern. The UT summarised one line of
argument for the patient as follows: “If detainees under control
orders are entitled to disclosure of the case to be answered even
at the risk of a terrorist attack, so the more must the patient be
entitled to disclosure even at the risk of a deterioration in
his own condition or potentially his death” [emphasis
added]. These were not the UT judge’s own words, admittedly, but he
acknowledged that they represented the logical conclusion of the
process his decision sanctioned. If, in the cause of a ‘fair
trial’, a patient must be able to put his case, even if the result
might be his own death, we have surely travelled a long way not
just from the dusty paternalism of the past, but also from any,
perhaps more contemporary, notion of ‘best interests’.
David Hewitt,
Partner
Weightmans LLP
The decision discussed in this article may be
found here.