The Court of Protection ruled (in 2016 although the judgment was only reported in March 2018) that, in certain circumstances, it would approve covert treatment for a patient on the basis of best interests.
In the case of Re AB Mr Justice Mostyn comments that it is unusual for the CoP to be asked to decide that it is in a patient’s best interests to deceive them about their treatment – the facts of this case are very unusual and one that Mr Justice Mostyn has not come across before. However he commented that he is “not so sure that the situation is in fact likely to be that uncommon”.
The case
The CoP were asked to approve a treatment regime for AB, which involved the administration of medication to her on the basis of active deception.
AB required treatment for HIV in the form of anti-retroviral drugs. She contracted the disease in 2000 and willingly and consensually engaged with treatment until 2008 when there was a major deterioration in her mental health condition. AB suffered from a serious psychoaffective disorder.
She was assessed as being unlikely to recover from her psychiatric condition in the foreseeable future. AB suffers from powerful delusions, which prevent her from addressing many aspects of normal life rationally. For example, she does not believe that, now, she is HIV positive amongst other delusional beliefs.
Importantly, were AB to learn that she was being “secretly and clandestinely administered with anti-retroviral treatment” the evidence was that she would be “exceedingly aggrieved” and she would choose not to take the treatment.
It was assessed that, if this happened, within a relatively short period of time her immune system would be seriously compromised and she would be exposed to the risk of death.
The decision
AB was deemed to lack capacity in relation to engaging in anti-retroviral treatment.
The judge outlined his duty to consider not only AB’s actual wishes and feelings but her hypothetical wishes and feelings which would be likely to influence her decision, if she had capacity. He indicated he was satisfied, having regard to her consent to treatment up to 2008, that if she had capacity she would unquestionably consent to anti-retroviral treatment.
The judge further emphasised that, like so many aspects of litigation, the test all depends upon the particular facts that the court is presented with and, in this case, he had no hesitation in concluding that virtually no weight should be given to AB’s present wishes and feelings. In this case, he placed considerable weight on her past wishes, as demonstrated by the evidence, and on her hypothetical wishes, in which he was in no doubt would be in favour of the treatment.
The judge acknowledged that “it might seem, a strong step for the court to take: to authorise a course of medication that involves deception”. However, on the facts of this case, he was clear this course of action would ensure AB’s best interests and that the treatment will likely save her.
The final order was to provide, however, that if the truth emerged to AB and she moved to a position of active resistance to her treatment then the matter would have to be reviewed by the court, as it would not be a one-off administration of treatment, but would be a daily administration of treatment.
In what circumstances would a court approve a deception?
The judgment does not indicate when a court application would be required. However, readers familiar with this area will be aware of obligations under the Mental Capacity and Mental Health Act Codes of Practice.
Interestingly, there was no discussion within the judgment about AB’s treatment being considered under section 63 or a deprivation of liberty authorisation and, this we anticipate is likely to reflect whatever statutory regime she was detained under; but in the usual way, treating teams will need to consider all obligations relating to covert medication and/or restraint in order to establish whether such treatment can be given and if so, under which regime.
Do get in touch with Helen Burnell or Jill Weston if you require support on a best interests matter.