A, Re (Covert Medication: Residence)

Factual and Procedural Background

The appeals arise from a best interests decision under the Mental Capacity Act 2005 concerning a 25-year-old woman ("A") who lacks capacity to make decisions regarding her residence, care, contact, and medical treatment. The First Appellant is the local authority ("the LA") and the Second Appellant is the Official Solicitor ("the OS"). They challenge the judge’s declarations that it is in A's best interests to cease covert medication ("CM"), to be informed about the covert medication, and to return from her current care home ("Placement A") to live with her mother ("B"), the First Respondent.

A was removed from her mother's care in 2019 due to concerns about B's refusal to cooperate with medical and social professionals and A's refusal to take hormone replacement therapy ("HRT"). A has multiple lifelong conditions including mild learning disability, autism spectrum disorder, epilepsy, primary ovarian insufficiency, and vitamin D deficiency, rendering her extremely vulnerable. Covert medication with HRT began in 2020 following court authorization after A persistently refused treatment voluntarily.

The proceedings have spanned six years, including closed hearings to authorize covert medication without B's knowledge. Over time, contact between A and B has been restricted and supervised. Despite covert medication leading to A achieving puberty, A continued to refuse treatment voluntarily and wished to return home. The LA and medical professionals advocated for continued placement in care with medication, while B sought A's return home, proposing a trial period with covert medication or cessation thereof.

The judge made a comprehensive best interests decision in March 2024, ordering A's return home, cessation of covert medication, informing A about the covert medication, and enabling B to persuade A to take HRT voluntarily. This decision was challenged on procedural fairness and substantive grounds by the LA and OS, supported by the medical Trust responsible for A’s care, and opposed by B.

Legal Issues Presented

1. Whether the court erred in making a final determination on A's residence and care without the parties seeking such a final determination or being given an opportunity for oral submissions on the final outcome.
2. Whether the judge’s decision that state-provided protective measures would mitigate risks to A on return to B’s care was unsupported by evidence and unworkable.
3. Whether the decisions to cease covert medication and to inform A of its use were correct and in her best interests.
4. Whether the judge misapplied professional guidance regarding the use of covert medication.
5. Whether the judge failed to consider the deprivation of liberty implications of A living at home under supervision.
6. Whether the judge improperly prioritized A’s wishes and feelings over her rights under Articles 2 and 3 of the European Convention on Human Rights.

Arguments of the Parties

Appellants' Arguments (LA and OS)

• The judge made a final best interests decision prematurely without exhausting all other options or canvassing parties on the final outcome, rendering the process unfair.
• The proposed protective measures by the LA to mitigate harm to A on return to B’s care were not evidenced, unworkable, and left the LA without clear guidance on their duties or powers.
• The court failed to take into account the unanimous view of A’s multidisciplinary team (MDT) that it was not in A’s best interests to be told about covert medication or to stop HRT.
• The decision to inform A of covert medication was wrong; the risk of inadvertent discovery was overstated, and involving B in disclosure was inappropriate given her harmful influence.
• The judge misapplied outdated guidance suggesting covert medication should only be used for severely incapacitated persons, undermining the original authorization.
• The judge failed to consider that A would likely be deprived of liberty at home due to necessary supervision.
• The court wrongly prioritized A’s expressed wishes over her fundamental rights under Articles 2 and 3 ECHR, risking her health and welfare.

Respondent's Arguments (B)

• B argued she was best placed to persuade A to take HRT voluntarily at home and proposed a trial period with or without covert medication.
• B maintained that informing A about covert medication would reduce risks associated with inadvertent discovery.
• B contended that the lengthy delays and restrictions were detrimental, and that the court should make definitive directions.
• B acknowledged the possibility of deprivation of liberty at home but emphasized qualitative differences compared to institutional care.

Respondent's Arguments (The Trust)

• The Trust supported continuation of covert medication and residence at Placement A or supported independent living, opposing return to B’s care.
• The Trust criticized the judge’s failure to alert parties to the final decision and to consider deprivation of liberty at home.
• The Trust emphasized the risks of A’s return home without effective protective measures and the need for clear planning and evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the exceptional complexity and difficulty of the case, noting the long duration of proceedings and the entrenched positions of all parties. The judge had to balance A’s best interests involving her health, autonomy, and family life, with the risks posed by her relationship with B and her refusal to take necessary medication voluntarily.

The judge found that continued covert medication was medically beneficial but fraught with risks including the likelihood of eventual discovery by A, which could cause significant harm. The cessation of covert medication was deemed necessary but had to be carefully managed, including informing A about the medication and involving B in encouraging voluntary compliance.

Regarding residence, the judge concluded that returning A home would end her deprivation of liberty and respect her wishes but would expose her to risks from her enmeshed relationship with B. Protective measures by the LA and Trust were anticipated to mitigate these risks, though the availability and effectiveness of such measures were contested.

The judge rejected the professional parties’ unanimous opposition to return home, emphasizing the need to put himself in A’s shoes and consider her individual characteristics and wishes. He found that the continuation of covert medication and separation from B had not achieved significant improvements in A’s autonomy or social engagement.

Procedurally, the court recognized that the judge made a final decision without oral submissions on the final outcome, which was not ideal. However, given the extensive evidence and submissions over years, and the need to resolve a long-standing impasse, the court held that the process was not unfair.

The judge’s use of professional guidance on covert medication was not deemed to have led to error, and the court found that the deprivation of liberty issue at home did not undermine the best interests decision. The judge’s prioritization of A’s wishes alongside her rights under Articles 2, 3, 5, and 8 ECHR was found to be a proper evaluative judgment.

Holding and Implications

The court DISMISSED THE APPEALS, thereby upholding the judge’s decision that:

• A should return home to live with her mother.
• Covert medication should cease upon return home.
• A should be informed about the prior use of covert medication and its benefits.
• B should be involved in encouraging A to take medication voluntarily.
• Protective measures and support should be provided in the community during A’s transition home.

While the decision departs from the professional parties’ positions, the court emphasized the importance of respecting A’s wishes and the need to resolve a prolonged and difficult situation. The ruling requires careful planning and implementation to manage risks and ensure A’s welfare. No new general legal precedent was established; rather, the court applied established principles to a uniquely complex factual matrix. The matter was remitted to the judge for an implementation hearing to oversee the transition.