Non-disclosure of documents and information (MHT)

The general rule as to disclosure is contained in rule 32: ‘when the Tribunal receives a document from any party it must send a copy of that document to each other party’. This is subject to the provisions in rule 14.

Under rule 14(2):

The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if— (a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and (b) the Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.

The author of such a (separate) document should mark it ‘Not to be disclosed to the patient without the express permission of the tribunal’.

This rule was discussed by the Upper Tribunal in RM v St Andrew’s Healthcare [2010] UKUT 119 (AAC)M:

  • It was decided that, when considering the ‘interests of justice’ limb of rule 14(2), the key test to be applied is whether or not non-disclosure of the document or information would allow the patient to make an effective challenge to his detention.
  • On the facts of that case, without knowing that he was being covertly medicated the patient would be unable effectively to challenge his detention; the non-disclosure decision was set aside and re-made.
  • The Upper Tribunal added that non-disclosure orders should not only be drafted in terms of documents, but also should deal, in a precise, clear and exhaustive way, with the information which should not be disclosed.

Non-disclosure of information relating to covert medication was considered more recently in M v Abertawe Bro Morgannwg University Health Board [2018] UKUT 120 (AAC)M.

Further guidance, particularly on procedure, was given in Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC)M The Dorset case concerned non-disclosure of medical records on Data Protection 1998 ‘third-party information’ grounds:

  • The responsible authority may seek the third party’s consent; however, this may cause delay.
  • Usually the information should be given to the solicitor, upon an undertaking not to disclose it to his client; the solicitor can serve a skeleton argument arguing for disclosure.
  • In exceptional circumstances where the solicitor is not considered trustworthy, the responsible should identify the documents and serve a skeleton argument arguing for non-disclosure.
  • If necessary, following exchange of skeleton arguments, an application may be made to the Tribunal. This could be dealt with by a single judge (by written or oral submissions) before the hearing date, or by the panel prior to the hearing.

The tribunal can be asked to consider disclosure on the papers prior to the hearing date, but usually it is the panel who will decide the matter as a preliminary issue on the day.


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