Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

Save for the front sheet (which identifies the parties by name), this decision may be made public (rule 14(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 section 12(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 section 3 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 two 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 MH [2009] UKUT 4 (AAC) 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 Trust [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 section 11(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 Dŵr Cymru Cyf [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 section 11. 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 Trust v MH [2009] UKUT 4 (AAC)). At present, therefore, the decision of February 2010 is within section 11.

C.          Case management decisions

7.           The non-disclosure order was a case management decision. Appellate courts are supportive of these decisions and discourage appeals against them. They often have to be made with little time for analysis or reflection. Appeals can disrupt the proceedings, produce inefficiency and increase costs. They are capable of being used for tactical purposes. Ultimately, the judge dealing with the case is probably best placed to make a judgment on how best to proceed in the context of the proceedings. Challenges are best considered at the end of the proceedings, when it is possible to judge whether the decision adversely affected the outcome.

8.           This does not mean that case management decisions are immune from scrutiny. The decision may have been given after a hearing and with time for analysis. If it is made ahead of the final hearing, it may be possible to deal with an appeal quickly to avoid disrupting the First-tier Tribunal’s timetable. There may be no question of seeking a tactical advantage. The issue may be severable from the more routine management of the proceedings. And it may be possible to anticipate the likely effect.

9.           On the spectrum of case management decisions, the non-disclosure order is more susceptible to scrutiny than most. The judge held a hearing and took time before issuing her reasons. The issue is severable from the routine management of the case. It is important and its effects can be anticipated: the patient’s solicitors argue that they are unable to obtain his instructions on the real case for his continued detention. There is no question of tactical advantage being sought and it has been possible to deal with the appeal quickly.

D.          The power to prohibit disclosure

10.        Paragraph 11(1) of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 authorises rules that provide for the non-disclosure of information to one of the parties or generally:

‘(1) Rules may make provision for the disclosure or non-disclosure of information during the course of proceedings before the First-tier Tribunal or Upper Tribunal.

(2) Rules may make provision for imposing reporting restrictions in circumstances described in Rules.’

11.        Rule 14 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699) is made under that authority:

‘14 Use of documents and information

(1) The Tribunal may make an order prohibiting the disclosure or publication of-

(a) specified documents or information relating to the proceedings; or

(b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.

(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if-

(a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and

(b) the Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.

(3) If a party (“the first party”) considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party (“the second party”), the first party must-

(a) exclude the relevant document or information from any documents that will be provided to the second party; and

(b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).

(4) The Tribunal must conduct proceedings as appropriate in order to give effect to a direction given under paragraph (2).

(5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that-

(a) disclosure to the representative would be in the interests of the party; and

(b) the representative will act in accordance with paragraph (6).

(6) Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Tribunal’s consent.

(7) Unless the Tribunal gives a direction to the contrary, information about mental health cases and the names of any persons concerned in such cases must not be made public.’

12.        The relevant provision in this case is rule 14(2). It confers on the tribunal a discretion to prohibit disclosure provided two conditions are satisfied. The first requires a finding of fact: would disclosure be likely to cause serious harm to the patient or to some other person? The medical evidence is relevant to this condition. Mr Simblet accepted that it was satisfied on that evidence. The second condition requires a judgment: would it be proportionate, having regard to the interests of justice, to prohibit disclosure? If both those conditions are satisfied, the tribunal must exercise its discretion whether or not to direct non-disclosure.

13.        The issue was put to me as concerning the Convention right to a fair hearing. It could equally have been presented as concerning: (i) proportionality and the interests of justice under rule 14(2); (ii) the discretion under rule 14(2); or (iii) or fairness and justice under the overriding objective in rule 2. I cannot see any way in which the presentation, in this case at least, affects either the analysis or the result.

14.        Before leaving the legislation, I will deal with a point made by Mr Pezzani. He noted, correctly, that the covert medication was apparent from documents other than those ‘relating to the proceedings’. He argued that ‘relating to the proceedings’ in rule 14(1) applied to, and limited the scope of, the remainder of the rule. Mr Simblet did not address this at the hearing.

15.        I reject this argument. It is based on a misunderstanding of the different functions of rule 14(1) and (2). Rule 14(1) limits the normal approach that information given in court or in a decision becomes public knowledge. It deals with publicity of the proceedings. Hence the limitation to documents or information ‘relating to the proceedings’. The view point is from outside the proceedings and the natural focus for protection is on the identity of the parties and private information about them. Rule 14(2) is concerned with disclosure to particular persons. Usually, the person will be a party and, in a mental health case, the party will be the patient. It limits the normal approach of openness between parties. The focus here is on the impact that disclosure is likely to have on an individual. The view point is from inside the proceedings. That explains why it is not limited to documents and information ‘relating to the proceedings’. The natural limit of rule 14(2) is on documents that are relevant in the proceedings.

E.          The caselaw

Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC)

16.        The judge relied on this decision of a three-judge panel for the proposition that openness was generally required. As a general statement, that is, with respect, beyond argument and not in dispute. Otherwise, the case is not relevant. It concerned information that had been provided to the health authority in confidence. That reasoning does not apply here. The information in question has been generated within the authority. A health authority may not provide information to itself in confidence.

Roberts v Nottinghamshire Healthcare NHS Trust [2008] MHLR 294

17.        The judge relied on this decision of Cranston J for the proposition that a fair hearing did not require disclosure of every document. As a general statement, that is, with respect, beyond argument and not in dispute. The case concerned an application for disclosure of a report under section 7 of the Data Protection Act 1998 and whether a test equivalent to rule 14(2)(a) was satisfied. It is no authority on the fairness of a hearing despite non-disclosure, because the patient did not wish to rely on the report in tribunal proceedings and had his own report.

Laurence McGrady’s Application for Judicial Review [2003] NIQB 15

18.        The judge said that the patient could ‘present material to the Tribunal on the matters raised even if he is unaware of the matters’ and that his solicitor could ‘take his instructions on the themes with which the material is concerned.’ Those passages pick up the language of Kerr J in this case. The hospital had provided copies of reports on condition that certain parts should not be disclosed to the patient. The tribunal had not yet decided whether those parts should be disclosed. The judge commented:

‘21. It appears to me that the tribunal will also require to take into account that the applicant’s legal representatives have seen the material in question. While they may not disclose that material to the applicant, they may nevertheless take his instructions on the themes with which that material is concerned. There is no reason that the applicant should not be at liberty to present material to the tribunal on the matters raised in the addendum even if he remains unaware of its contents.’

Secretary of State for the Home Department v AF (No 3) [2009] 3 WLR 74

19.        Mr Simblet relied heavily on this decision of the House of Lords, which followed the decision of the European Court of Human Rights in A v United Kingdom (Application No 3455/05). Neither case was cited to the First-tier Tribunal. Both concerned the use of special advocates in control order cases. The special advocate, but not the detainee or the detainee’s own legal team, was allowed to see evidence relied on by the Secretary of State to show suspicion that the detainee had been involved in terrorism-related activity. As Mr Simblet accepted, this is different from the case before me, as the patient’s legal team have seen the whole of the evidence.

20.        The European Court decided that fairness required that the detainee must have an effective opportunity to challenge the Secretary of State’s case. This depended on what was known to the detainee and its significance to the decision. The Court gave examples of how this might apply:

‘220. The court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State’s belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and SIAC’s decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied.’

21.        In the House of Lords, Lord Phillips said:

‘63. There are, however, strong policy considerations that support a rule that a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him. The first is that there will be many cases where it is impossible for the court to be confident that disclosure will make no difference. Reasonable suspicion may be established on grounds that establish an overwhelming case of involvement in terrorism-related activity but, because the threshold is so low, reasonable suspicion may also be founded on misinterpretation of facts in respect of which the controlee is in a position to put forward an innocent explanation. A system that relies upon the judge to distinguish between the two is not satisfactory, however able and experienced the judge. Next there is the point made by Megarry J [in John v Rees [1970] Ch 345 at 402] in respect of the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result. The point goes further. Resentment will understandably be felt, not merely by the controlee but by his family and friends, if sanctions are imposed on him on grounds that lead to his being suspected of involvement in terrorism without any proper explanation of what those grounds are. Indeed, if the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.’

22.        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:

‘105. The result, the special advocates tell us, is that the scope for contesting the Secretary of State's objections to disclosure is very limited and the vast majority of those objections are upheld. It appears that the objections are often in the nature of class claims, relating to the sort of information it is, rather than specific to the particular case. This makes them very different from the other cases mentioned in my opinion, relating to children and mental patients, where non-disclosure may be permissible. These days, a mental health review tribunal would be unlikely to uphold a non-disclosure claim on the general ground that disclosure would be damaging to the doctor patient relationship. They would want to know precisely what it was in this doctor's evidence that might cause serious harm to this patient or to some other person and to weigh that damage against the interests of fairness: see the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699), rule 14(2). It will be an individualised balancing act carried out after discussion with the patient's own advocate and in the light of the opinions of the patient's own independent medical adviser.’

23.        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?

F.           The argument for the patient

24.        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.

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

‘You want to be released into the community. The tribunal will be concerned about what might happen if you have a relapse. You have been violent in the past and you have refused medication in the past. How can we satisfy the tribunal that you will not be a danger if you have a relapse?’

He answered that this would help in obtaining some instructions, but it would not overcome the difficulties of presenting the case at the hearing.

G.         Analysis

26.        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?

27.        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.

28.        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).

29.        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.

30.        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.

H.         Conclusion

31.        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.

32.        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.

33.        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.

I.            The terms of a non-disclosure order

34.        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.

35.        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.

36.        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 prohibits disclosure to the patient of:

(a) information relating to … ;

(b) any document containing or referring to that information, in particular-

(i) the reports of …;

(ii) any other report prepared in connection with these proceedings; and

(iii) this order.’

Paragraph (a) deals with the key issue of the information that must not be disclosed. It needs to be precise, clear and exhaustive. Paragraph (b) deals with the means by which disclosure might be made, directly or indirectly. It is supportive of paragraph (a) and need not be exhaustive.

37.        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.

J.           Disposal

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

 

Signed on original on 23 April 2010

Edward Jacobs Upper Tribunal Judge