RM v St Andrew's Healthcare

Lord Hope put the point succinctly in paragraph 80: ‘the procedural protections can never outweigh the controlled person's right to be provided with sufficient information about the allegations against him to give effective instructions to the special advocate.’ Baroness Hale was just as clear at paragraph 101: ‘The ability to make an effective challenge to the case put against the controlled person is the key.’ She later referred specifically to mental health cases:

That decision identifies the test that I must apply to the First-tier Tribunal’s decision: does it allow the patient to make an effective challenge to the decision to continue to detain him?

Mr Simblet argued that the patient could not have a fair hearing without disclosure. The patient’s understanding of his present condition is central to the case he wants to present. As far as he is aware, he is largely free of symptoms without medication. The reality is the opposite: he is as free as he is from symptoms only by reason of his medication. This is not a case in which evidence on a subsidiary point is being withheld from the patient. His legal team cannot obtain instructions on a case that is contrary to his understanding and belief. Any case presented at an oral hearing would be a pretence. His counsel would have to go through the motions of arguing for a case that had no foundation in reality or the evidence. There is only so much that lawyers can do consistently with their duty to their client. The witnesses could not be expected to co-operate by giving false or misleading evidence, and counsel could not ask questions that might reveal the true position. The real case would have to be presented separately. To some extent that could be done in written submissions, but witnesses could not be questioned effectively on paper and the patient would have to be excluded. The Law Society has issued some guidance to solicitors on representing patients before tribunals. It is quoted in part, and commented on, in AA v Cheshire and Wirral Partnership NHS Foundation Trust [2009] UKUT 195 (AAC) . It does not assist with the present problem. 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.

I put to Mr Simblet that the patient could be asked something like this:

I have to decide whether the patient can effectively challenge his detention without knowing that he is being covertly medicated. His legal team is aware of that information and can present a case as best they can. Is that good enough? What will happen if the tribunal’s order stands?

The tribunal may hold a hearing with the patient present. If it does, his legal team will not be able to present the real case. They cannot disclose the covert medication. Nor can the medical witnesses or the tribunal. Everyone in the room will know what the patient does not. They will be reduced to performing a mere mummery. Justice will not be done at the hearing; it will only seem to be done. The real proceedings will have to be conducted out of the patient’s sight and knowledge.

The tribunal may deal with the real case by way of undisclosed written submissions. If it does, the patient’s legal team will be able to present their arguments to the tribunal, but they will not be able to question the witnesses properly. That cannot be done effectively on paper. Or the tribunal may hold all or part of the hearing in the patient’s absence. That will make him suspicious, unless the tribunal decides that he should not be told of the hearing. That will require a further order under rule 14(2). Whether the real case is considered on undisclosed written submissions or orally in the claimant’s absence, the legal team will have difficulty obtaining instructions. They cannot present his direct response, because they cannot ask for it. They will have to approach the issue obliquely. That will require care in case they give the game away. They will, no doubt, err on the side of caution, which will further hamper them in obtaining instructions on the themes of the evidence. The legal team believe that they cannot do that sufficiently. Their view is not decisive, but it is important. They are charged with representing the patient’s interests and they have experience of advising him. Their view is particularly significant when the tribunal undertakes the ‘ individualised balancing act’ that Baroness Hale envisaged in AF (No 3) .

If the tribunal decides that the patient’s detention should continue, it can tell him its decision but not its reasons. They will have to the subject of yet another non-disclosure order. He will never know why he was being detained.

Without knowledge of his covert medication, the patient will continue to believe that his symptoms do not justify his continued detention. He will not mentally be able to accept the need to engage with treatment. At the best, his chances of taking steps towards his ultimate release will be hampered by lack of knowledge of the real reasons for his detention.

The Convention right under Article 6 guarantees a fair hearing. AF (No 3) shows how highly a fair hearing is rated in the balance with non-disclosure. The judge’s reasoning does not reflect that; not surprisingly, as she was not referred to that decision. The overriding objective in rule 2 requires that the rules of procedure be applied so that cases are dealt with fairly and justly. This includes ensuring full participation, so far as practicable. Rule 14(2) requires the tribunal to have regard to the interests of justice. Justice and fairness generally require openness. Sometimes, they are not compatible and a compromise is possible. It may, for example, be possible and necessary to conduct proceedings while concealing that the true prognosis is worse than the patient realises. In this case, I have set out the full implications of the tribunal’s order. They involve more than a compromise between justice and openness. They involve the sacrifice of the patient’s right to challenge his detention effectively.

The judgment of proportionality under rule 14(2) must, expressly, involve regard to the interests of justice. The effect of the order in this case would be a series of further non-disclosure orders. In total, they would exclude the claimant completely from knowing of the real process that was being followed and allow him to participate only in a pretence of a process. They would severely hamper his legal team in participating effectively in that process. AF (No 3) shows the importance of process, even over the ‘correctness’ of the ultimate outcome.

My conclusion is that the judge was not entitled in the circumstances of the case, judged by the standards of fairness set by AF(No 3) , to direct non-disclosure. Disclosure will, on the evidence, have some immediate adverse consequences for the claimant’s condition. However, they have been overcome in the past. It seems that the patient is not able to link his past experiences with his present freedom from symptoms. Those short-term consequences, while involving risk, do not justify the legal consequences that would follow from non-disclosure.

Finally, I need to say something about the terms of the tribunal’s order, which may be helpful in future. It prohibited disclosure to the patient of two specific documents or parts thereof. That form of drafting is defective. The core defect is that it is drafted in terms of documents rather than information. Some of the points I am going to make may seem pedantic. They have not caused a problem in this case, because the patient’s solicitor has complied with the spirit of the order rather than its letter. Not everyone involved in mental health litigation will have her integrity.

By identifying only specific documents, the tribunal left open the possibility that someone might disclose: (i) other documents containing the information; or (ii) the information orally. The prohibition did not cover the order itself or the application that led to the order. Nor did it include any document that might come into existence, such as reports commissioned on the patient’s behalf. It left the patient’s legal team free to tell him about his medication.

The tribunal can avoid these difficulties by drafting non-disclosure orders in terms of information rather than documents. I do not intend to prescribe any particular form of words for a non-disclosure order. Apart from the fact that I have no power to do so, that will depend on the individual case. However, something like this may provide a useful starting point:

The tribunal also needs to consider the patient’s access to medical records. The order did not prohibit disclosure of the patient’s medical records that, no doubt, contain details of his medication. A patient is entitled to access to medical records under section 7 of the Data Protection Act 1998. This is subject to the Data Protection (Subject Access Modification) (Health) Order 2000 (SI No 413). Article 5(1) contains an exemption from section 7 ‘to the extent to which the application of that section would be likely to cause serious harm to the physical or mental health or condition of the data subject or any other person.’ That condition is effectively the same as rule 14(2)(a). The decision whether the exemption applies is made by the data controller.

I allow the appeal, set aside the non-disclosure order and permit disclosure.