Private Client analysis: Alex Ruck Keene, barrister, of 39 Essex Chambers, examines the decision of the Court of Protection in Re AB  EWCOP 66 to approve deceiving a person lacking mental capacity in order to administer her medication.
What are the practical implications of the judgment?
Because it is so fact-specific, it is difficult to take immediate practical implications from this judgment, which was recently published despite the court having reached its decision in December 2016.
The use of covert medication was considered in another judgment from the same year in the context of deprivation of liberty in AG (by her litigation friend the Official Solicitor) v BMBC and another
 EWCOP 37,  All ER (D) 62 (Jul), and that judgment provides detailed guidance which is likely to be of more immediate practical use.
The judgment does, however, serve both as an important example of the way in which the courts can address complex best interests decisions, and also to highlight the need for particular scrutiny in relation to the administration of covert medication, especially where the steps go beyond merely concealing the medication in food or drink into active deception as to what is being administered.
The Law Commission has proposed additional safeguards in relation to covert medication by way of reforms to s 5 of the Mental Capacity Act 2005 (MCA 2005), and the government has indicated that it proposes to take these forward in legislation in due course as part of its wider reforms to the Deprivation of Liberty Safeguards.
One might question where this decision to administer medication by deception stands in
relation to Art 12(4) of the Convention on the Rights of Persons with Disabilities, which requires signatory states to provide safeguards to ensure that measures relating to the exercise of legal capacity respect the ‘rights, will and preferences’ of the person concerned, and in relation to Art 25(d), which requires health professionals to provide care on the basis of ‘free and informed consent’.
What was the background?In 2000, AB was diagnosed as HIV-positive and agreed to undergo treatment. However, in 2008, she started to suffer from a serious psychoaffective disorder and became delusional. One delusion was that she was no longer HIV-positive and was merely appearing in a film about the virus. Accordingly, she was now opposed to further HIV treatment.
The position which had been agreed – including by the Official Solicitor on AB’s behalf – was that she lacked capacity to decide whether to engage in anti-retroviral treatment, but if the choice were hers alone, she would not take the treatment.
What did the court decide?The court had to make a decision on AB’s part as to what was in her best interests and, under MCA 2005, s 4(6), consider her past and present wishes and feelings, as well as the beliefs and values that would be likely to influence her decision if she had capacity.
The court found that her past wishes, up to 2008, were to receive HIV treatment, but her present wishes were strongly opposed to it. It also found that, in view of her past willing and consensual participation in treatment, if she had capacity, she would undergo anti-retroviral treatment.
The court decided that virtually no weight should be given to her present wishes and feelings, but considerable weight should be given to her past and hypothetical wishes.
It concluded that it was necessary to authorise a course of action which ensured that AB, in her best interests, received the treatment that would likely save her life, even though the course of medication would involve deception.
Interviewed by Robert Matthews.