By Daniel Clark, 31 May 2023
This case (COP 14023716) was heard before Theis J, via MS Teams, on Friday 26th May 2023 at 10am.
It was not plain sailing for me to access this hearing but given its subject matter (covert medication) I was glad that, with a lot of help from Celia Kitzinger, I persevered.
Issues with access
I sent an email requesting the link for this hearing at 20:38 on Thursday evening (which was almost as soon as I became aware of it). Having not heard anything by 09:30, and with the hearing due to start at 10am, I sent another email. Then, when I still hadn’t heard anything by 09:50, I rang the Court. However, the phone just rang and rang, with no answer.
Becoming quite concerned, I sent a message to Celia Kitzinger who asked me to forward her my emails, which she then sent on to the judge’s clerk. This was then sent to the court usher, and I finally received the link at 10:20.
All of this meant that I was very late. I knew from the email with the link that the people present in the hearing, in addition to the judge Mrs Justice Theis, were Toby Kippax (for the Applicant, the Local Authority), Varsha Jagadesham (Counsel for P via his litigation friend, the Official Solicitor), P’s solicitor via his litigation friend, and P’s social worker.
I joined as counsel for the Local Authority was speaking, and as soon as he had finished what he was saying, the Judge acknowledged that a public observer had joined the hearing and (after confirming with the usher that I had received the link late), essentially ‘paused’ the hearing to address me.
This felt a little uncomfortable, and became nerve-wracking when the judge entered into a brief exchange with me. In truth, I wasn’t sure how to address the judge so I decided to avoid using any title on the assumption that it would be ruder to get it wrong!
The judge explained what the hearing was about (more on that below), and explained the Transparency Order. The judge also apologised for the fact that I could not join the hearing from the start (and the court usher also sent me an email apologising for the link being late, explaining that she was ‘not made aware of anybody wanting to observe until just now’).
As uncomfortable and nerve-wracking as this was, I think this whole situation demonstrates that observers are not deliberately excluded from hearings. Instead, this most likely results from an over-burdened and busy court system that wants to be accommodating but does not always manage to be. This may well be failures of open justice but they are not conscious, conspiratorial, failures.
Background to this hearing
This hearing has a complex background, which is set out in the position statement of the Local Authority.
P is a man in his 60s who has been diagnosed with an acquired brain injury, and refuses medication for diabetes. After a period of a few years of being homeless, P was discharged from a hospital to a placement. A few months later, P’s social worker and GP jointly assessed him as lacking capacity to make decisions about the treatment of his diabetes.
At the start of May, P’s blood glucose level was very high, and he voluntarily began to take medication. However, he withdrew his consent for taking the medication when he began to experience some side-effects (diarrhoea), and he refused to take any medication that would alleviate these side-effects.
Given concerns associated with the risk of untreated diabetes, the local authority made an application to the court asking for interim orders and directions (Section 48 of the Mental Capacity Act (2005). Section 48 of the Mental Capacity Act makes provision that, where there is ‘reason to believe that P lacks capacity in relation to the matter’, the Court may make an order or give directions ‘where it is in P’s best interests’ to do so, even though the presumption of capacity has not been finally rebutted. That application was heard by District Judge Webb on 17th and 19th May 2023.
At that hearing, the judge had made a declaration (contrary to the position taken by the Official Solicitor, who wanted to wait for evidence from a neuropsychologist, due to report in June) that for the purposes of Section 48, there were grounds to believe that P lacked capacity to make decisions about his diabetes. The judge referred the case to a Tier 3 judge (the most senior in the Court of Protection) to decide whether it was in P’s best interests to be covertly medicated.
A directions hearing
The hearing I observed was a directions hearing before a Tier 3 judge , and its express aim was to establish just how urgently a decision was needed. For the local authority this is an urgent issue because administration of covert medication should begin immediately. But the Official Solicitor did not think that the evidence on mental capacity was sufficient to justify this.
Counsel for the Official Solicitor explained that “it’s unclear how urgent this is…It is unclear from her [GP] evidence what is the likelihood or imminence of these complications arising….and whether or how amenable they would be to treatment”. So “there is a lack of clarity as to the urgency of this hearing”.
The judge felt that there were some obstacles to her making a decision. She explained that “we don’t know how long the reserves of insulin are going to last” and she also needs to balance some logistical issues: the wait for evidence on capacity from a neuropsychologist, and P’s (long-standing) social worker being unavailable for a few weeks in June. She felt it was “far from ideal” for somebody to “step into [the social worker’s] shoes’ if it could be avoided. There was therefore a break of about two hours, and the Judge asked the court staff to make me aware when the hearing recommenced.
At the end of this break, some progress had been made. Counsel for the Official Solicitor explained that the Official Solicitor wants some information regarding a “a risk assessment of the likelihood of [P] discovering he’s being covertly medicated, and what can be done to mitigate that risk”. This could be due to tasting the medication in his food or drink, or it could be to do with the fact that “by association he may decide something is not as it should be” (in the event the side-effects recur). The Official Solicitor also wants “the GP to set out, effectively a care plan, to identify symptoms that may indicate he’s [P] experiencing a medical emergency”.
Given the time constraints posed by the social worker being unavailable for a couple of weeks in June, and the need for further evidence from the GP as well as the evidence on mental capacity from a neuropsychologist, the judge proposed that the case returns to Court just 7 days later on Friday 2nd June 2023 at midday “with a time estimate of an hour”. This was with a view that either there could be a consensus with just a few things that need to be resolved or there may still be a lack of consensus, and “the court will be in a better position to consider the risks and make an informed decision”.
Reflections on the use of covert medication
The issue of covert medication has, of course, been addressed by the Court of Protection before. Most recently, to my knowledge, was a case concerning the covert administration of hormone medication. A covert medication plan had been approved in a ‘closed’ hearing and had been kept secret from A’s mother. The judge’s conduct of the hearing meant that, at a later (public) hearing, observers were also allowed to believe that A had not received medication, resulting in an ‘inaccurate and misleading’ blog post being published. Subsequently, concerns have been raised about observers being admitted to the hearing, and Aswini Weereratne has written a blog about guidance for covert medication.
In 2020, Claire Martin and Alan Howarth wrote a blog about another case concerning covert medication. They were concerned that P’s previous wishes were not discussed, and that one of P’s medications (an antipsychotic) was viewed as ‘the least restrictive intervention’ when in reality ‘the use of antipsychotic medication is one of the most restrictive interventions’.
The administration of covert medication is an ethical minefield for people who work in health and social care. Having worked as a carer, I have seen covert medication ‘up close’, and have mixed feelings about it. On the face of it, I have no overriding moral objection to covert medication when the medication itself is in a person’s best interests, and it is the person’s cognitive impairment that means they are not consenting to medication. I am morally opposed to the use covert medication where a person has refused medications, or certain medications, for all of, or a significant proportion of, their life.
However, I have felt uncomfortable with the level of deception that it necessarily brings into the caring relationship. I recall one gentleman who called me his “mate”, and said that he trusted me. What he did not know was that he was being covertly administered a medication that he thought he did not need, and would refuse when offered it overtly.
Whilst I was not administering his medication, I knew all about the covert plan and would sometimes encourage him to finish the breakfast that the medication was in. As such, in a sense I was complicit in the administration of a medication that a person who trusted me didn’t want to take. Would he have called me his mate if he knew that? I somehow doubt it.
It’s for this reason that I think the caution of the Official Solicitor is wise. Not much was said about what P thinks of his placement (in fact, not much was said about P’s opinion at all) but I imagine there will be some staff members he gets on with (or at least gets on with better than others). Whilst the risks of consistently not taking this medication may be high, so too are the risks of rushing into a covert medication plan.
This case is set to return to court on Friday 2nd June, around midday.
Daniel Clark is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research takes seriously Iris Marion Young’s claim that older people are an oppressed social group, and is funded by WRoCAH. He also works as a carer. He tweets @DanielClark132
Promoting Open Justice in the Court of Protection 
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