Thursday, 26 August 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 disclosure would not be not 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 that 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’.