Covert medication, the ‘causative nexus’ and (yet again) issues with the Transparency Order

By Daniel Clark, 14 July 2023

A man in his 60s, living with an acquired brain injury is refusing medication for the management of his diabetes. 

The applicant local authority has applied to the court for the approval of a covert medication plan.

In the previous hearing (which I blogged about here), Theis J had requested further evidence as to P’s capacity to consent to or refuse medication. 

Unless the presumption of capacity is rebutted, it is not lawful to medicate someone who is refusing the medication. 

 It turned out there was an issue with rebutting that presumption because the “causative nexus” was not proved.  I’ll explain that below.

This case (COP 14023716) was heard before Mr Justice Peel via MS Teams on Friday 2^nd June 2023, at 10:30am.  Representing the parties were Avril Rushe (counsel for the applicant  Local Authority) and Varsha Jagadesham (counsel for P via his litigation friend, the Official Solicitor), both of No5 Chambers.  

Opening the hearing

Unfortunately, there was no opening summary as advised by the former Vice President. 

This stands in stark contrast to the last hearing of this case on Friday 26^th May 2023 by the current Vice President, who suspended the in-progress hearing when I joined the video-platform (late, through no fault of my own), to ensure that I received a summary introduction of the case. 

In this hearing, counsel for the Local Authority simply reported that “we had extensive pre-hearing discussions and happily we can report that we have an agreed order subject to confirmation by the Official Solicitor. It’s hoped that it won’t be controversial”. 

Following review of the witness statement of P’s GP, both Counsel had converted it into a format that “was more accessible” for the staff supporting P. This plan includes both details of the covert medication plan itself, and a plan should P enter into a medical emergency – for example, what staff should do if his blood sugars become dangerously high. Worked into the plans was what to do should P refuse “his breakfast with the crushed medication. His GP says retreat and approach him again with a snack later on”. The plan is that, if P discovers he is being covertly medicated, the staff will be honest with him, and that the GP and social worker will explain that they were trying to act in his best interests. Furthermore, he will have a blood test in a certain amount of time, to ensure the medication is working. 

At the previous hearing, the Official Solicitor was not satisfied that P lacked capacity to make his own decisions about medication. Now, counsel for the Local Authority explained that both parties are satisfied P lacks capacity to make this decision – the position statements both detail the expert witnesses’ evidence, where it is quite clear that P does not believe he has diabetes, that he perceives the symptoms of his diabetes to be side-effects of medication, and that he does not want to take medication because it can be addictive. 

The position statement of the Official Solicitor acknowledges that it seems P’s wishes and feelings are that he does not want to have medication, and has expressed hostility to medication generally. P’s social worker notes that, although this has consistently been the case, P has never expressed a preference for dying over receiving medical treatment. In the social worker’s view, P has a quality of, and interest in, life, which justifies covert medication as being in his best interests. 

However, the Official Solicitor’s position statement identifies that there is no exit strategy from the covert medication, and there was no mention of such a strategy being formulated. This is, of course, concerning. 

As I wrote in my blog about the previous hearing, the administration of covert medication can affect the relationship between the carer and the cared-for person because a level of deception is introduced into it. In my opinion, not drawing up an exit plan, however sketchy, implicitly suggests that P has entered a realm wherein he will have to be deceived for the rest of his life. 

The ‘causative nexus’

Despite this agreement between the parties, the Official Solicitor was asking the neuropsychologist for clarification on the causative nexus. The causative nexus is established in s2(1) of the Mental Capacity Act, states ‘a person lacks capacity in relation to a matter if at the material time he [sic] is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’ (my emphasis). This means that, for somebody to lack capacity to make a certain decision, there must be a link between somebody’s ‘impairment or disturbance’ and their inability make a specific decision. 

Interestingly, the actual term ‘causative nexus’ is not found anywhere in the Mental Capacity Act 2005 but was established in the case of PC & NC v City of York Council [2013]. In this case, the judge in the Court of Protection thought that there was a link between ‘PC’s impairment and the inability’, and therefore ruled PC lacked capacity with regards to choosing to live with her husband. However, the judges in the Court of Appeal were not satisfied of this link, and found that she did have capacity to make this decision. The causative nexus is a very important factor in deciding whether somebody lacks capacity to make a certain decision or is, rather, making an unwise decision. 

If, in the case I observed, the causative nexus was not established, the Court could not make a declaration that P lacked capacity, and therefore could not make a declaration that covert medication was in his best interests because P’s decision-making would not be within the jurisdiction of the Court. In other words, P would be making an unwise but capacitous decision not to take his medication. 

However, counsel for the Local Authority explained that both parties “agree that the causative nexus is there”, with the judge commenting that “I’d be surprised if the report doesn’t confirm that but I can see why one would need to be cautious”. This therefore meant that the judge could still make an order to begin covert medication but that this order would first need to be made under section 48 of the Mental Capacity Act, which makes provision that the Court may give an Order where there is ‘reason to believe that P lacks capacity in relation to the matter’ and the Order is in P’s best interests. Then, when the clarification from the neuropsychologist comes back, it can then become a section 15 order. This is the section of the Mental Capacity Act that means ‘the court may make declarations whether a person has or lacks capacity’ and ‘the lawfulness or otherwise of any act done, or yet to be done, in relation to that person’. 

After a break, while he finished reading the documents, the judge said he was quite satisfied that P lacks capacity to make the decision about the management of his diabetes and that it is also in P’s best interests to have a covert medication plan in place. This plan was to be put in place from the day after the hearing. 

The Transparency Order

It was just prior to this break when something happened that surprised me. The judge directed that he wanted counsel to consider the Transparency Order, expressing “a concern that P may discover the fact of covert medication being administered. I wonder how that fits into the transparency order….Observers may want to report or publish matters after this hearing but I think we need a balance. There is a right for the public to know how covert medication is done but, on the other hand, there is a need to ensure that if such matters are published in any way, that does not generate a risk of it coming to the attention of P. I don’t know whether he reads the newspapers or goes on the internet….I want you to think about that“.

When the hearing resumed 15 minutes later, counsel for the Local Authority explained that “the chances are somewhat low that he may have sight of a report on this but there are certain features of this case that are specific.” 

After some discussion between counsel and the judge, the Transparency Order was amended to include that I cannot publish anything that will identify, or is likely to identify P and that this includes: P’s actual initials, the identity of the local authority, P’s GP, and the expert witness instructed in this case, (counsel for the Official Solicitor explained this was because P had recently met the expert). There is also another salient fact about P that I cannot publish. 

It was during the course of the discussion between counsel and the judge that it became clear that there are other Court of Protection proceedings taking place that P (apparently) knows about. This complicated things even further, and the judge proposed that “any publication be delayed for a period of time…This is an abundance of caution that if P learns there was a hearing about covert medication and finds out that hearing was today, he may identify himself…maybe waiting a couple of weeks might sever the immediacy”. 

The judge then asked for opinions of observers. This was, again, quite nerve-wracking: not only on account of the fact that I was addressing the judge but that I was essentially needing to immediately respond to a round of quick-fire information.

I explained that I was quite happy with the terms of the Transparency Order but, with relation to the two-week delay, informed that judge that I had already written a blog about this case – as it happens, although I was aware of some of the information now restricted in the new Transparency Order, but not in the old one, I’d not reported it in that blog post (on this previous blog, the judge said “that’s out there, that’s done). I said that I could follow the reasoning of the court, and therefore had no objections, and the judge confirmed that “I’m minded to order that nothing be published for 2 weeks, after which time you’re free to publish as you like Mr Clark”. (It is now well past the 2-week mark.)

Having subsequently had a discussion with Celia Kitzinger, I do now have an objection to not being able to identify the Local Authority. After all, how likely is that it that ‘diabetes + brain injury + Local Authority’ would result in P identifying himself, especially given all of the other information that has been covered by the Transparency Order? It was not until after the hearing that I was alive to this line of reasoning, and would (in future) challenge a Transparency Order that restricts identification of a public body.

It’s my view that it is in the public interest to know that a public body has made an application to medicate someone against their will. Some people will be glad that their Local Authority is ensuring people receive the medication they need; others will be disappointed that their Local Authority is medicating people against their wishes. However, without knowing the identity of the Local Authority, this cannot be discussed at a local level. In this recent blog, Celia Kitzinger discusses the issues that arise when the Transparency Order restricts publication of the public body, and details how she successfully asked for the Order to be varied.

As Celia Kitzinger has pointed out, there is also a potential problem with the logic of the restriction. It’s within the realms of possibility that any male with diabetes and a brain injury who is currently refusing medication and resides in England and Wales, may now read this blog and suspect their local authority of covertly medicating them. Every single of those men could become suspicious of the carers or, indeed, stop eating. 

Despite the fact that the Transparency Order had been updated quite considerably during the hearing, it took over a week for me to receive it, after I had asked for it. There was a further delay when, out of an abundance of caution, I asked permission to share the Transparency Order with Celia Kitzinger (given that she is also bound by the Injunction). And, to top it all off, I never actually received anything in writing that told me I could not publish anything for at least two weeks.

All of this I found rather strange: nowhere have I seen it in print that there had to be a delay in publication. For all I know, there’s an Injunction floating somewhere that I haven’t been sent, perhaps because the person who was going to do so is off work due to illness, or perhaps because everybody thought somebody else had done it. Alternatively, the judge may have assumed that an oral direction would suffice.

Furthermore, I know there were at least two other observers in this hearing. Neither, to the best of my knowledge, received a copy of the Transparency Order – I had to ask for it. In the end, both counsel for the Local Authority and counsel for the Official Solicitor sent me the Transparency Order, for which I am grateful. 

However, the situation is not helped by judges saying things like ‘the Transparency Order should be sent’ (as in this case) or ‘ask for the Transparency Order if you want it’ (as happened in another case, a blog which I’m working on at the moment). This creates confusion about who has what responsibilities for the Transparency Order and, in the past, I’ve not received any replies to my request for a copy of the Transparency Order (or position statements) from the parties.

Finally… 

The order approved by the judge at the end of this hearing was unsurprising: during the previous hearing I got the impression that both parties were, so to speak, on a one-way train in the sense that both agreed that covert medication should be used as detailed in the order they wanted the judge to approve. However, the amendments to the Transparency Order did take me by surprise, and I think the way it was executed demonstrates that there’s still work to be done on ensuring reporting restrictions are accessible, timely, and cover all of the relevant information.

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 tweets @DanielClark132.