The Upper Tribunal has recently given further helpful guidance on disclosure in cases where the patient is being covertly medicated.[1]

The patient in this case was affected by treatment resistant schizophrenia with a longstanding history dating back to the 1970s. He was also affected by a potentially life threatening immunoglobulin deficiency. His condition was of a relapsing and remitting nature characterised by regular and repeated non-compliance with either physical or mental health care raising the risk of both violence and potential death.

The Upper Tribunal was asked to consider an appeal against the decision of the First-Tier Tribunal (FTT) in which the FTT ordered that the fact the patient had been receiving medication covertly should not be disclosed to him.

The Upper Tribunal upheld the appeal finding that the FTT had failed to properly consider the degree to which the patient’s capacity permitted his participation within the proceedings. The matter was therefore remitted back to the FTT for consideration.

Analysis and implications

The Tribunal has the power[2] to prohibit disclosure of information relevant to the proceedings to a person where they are satisfied that such disclosure will be likely to cause that person, or some other, serious harm and, with regard to the interests of justice, the Tribunal considers that it is proportionate to give such a direction.

This was a case in which the FTT had appointed a legal representative to act on behalf of the patient finding as a preliminary matter on the basis that the patient lacked capacity to instruct a solicitor and that it was in the interests of justice that he should have one.

The Upper Tribunal observed that whilst the FTT had found that the patient lacked capacity to appoint a representative, the only information available to the FTT on the subject of the patient’s ability to engage with the issues was a box on a questionnaire ticked by the patient’s RC confirming the view that the patient lacked capacity to instruct a solicitor with no further rationale or explanation. The Upper Tribunal found that this was insufficient consideration, undermining the non-disclosure direction and upheld the appeal.

The degree to which a patient is able to participate in proceedings and rationalise the issues at stake, including the need for covert medication, will now become a key focus in cases such as this. As such treating teams should carefully consider and assess the patient’s capacity to participate within the proceedings, and include this information within the relevant non-disclosure application to the Tribunal. Where the patient is likely to lack the capacity to weigh and use the information concerning covert medication for the purpose of the Tribunal proceedings, it is likely to weigh more heavily in favour of non-disclosure, where the serious harm test is met.

Where covert administration of medication is being considered, clinicians should follow their own internal and professional guidance on the subject, ensuring that the rationale as to capacity, consultation (including pharmacy), administration and review is properly documented as it is already an issue for the CQC and could also become the subject of Tribunal scrutiny.

The Upper Tribunal in this case also expressed concern at not having seen a copy of the Second Opinion Approved Doctor’s (SOAD) certificate. The Tribunal supposed that the SOAD was likely to have given consideration to whether or not covert medication was appropriate.

In our experience such certificates and underlying reports tend not to comment upon matters such as the mode of administration but instead concentrate upon the suitability of the class of medication prescribed. It is our understanding that SOAD’s can vary in their approach to this issue. As such it would be good practice in any given case to clarify and document the CQC/SOAD view upon whether or not covert medication is a relevant consideration in the exercise of their function.