In An NHS Trust v XB & Ors  EWCOP 71, Theis J has further emphasised the thin legal ice for professionals seeking to administer medication covertly. The case concerned a man, XB, detained at a high security mental health hospital. He was diagnosed with treatment resistant paranoid schizophrenia. He required antihypertensive medication, which he refused to take. He was considered to lack capacity to make this decision, and it was proposed to administer it covertly. His siblings recognised that this treatment might need to be administered if his condition was life-threatening, but were concerned about the position and wanted the matter to be considered by the Court of Protection, and the decision taken separately from those who had a therapeutic relationship with him and the family who supported him.
Although XB’s siblings had expressly raised the potential for an application, the Trust proceeded to give the medication covertly following a best interests meeting to which they were not invited (which the Trust subsequently accepted had been a mistake). XB discovered, in fact, that he was being administered the medication covertly, but this did not, Theis J find, mean that an application was no longer being required, because it remained clear that XB was likely to continue to object, and that it remained urgently necessary for him to continue to have it. Substantial delays ensured in making the application, and then in listing the application because of a failure to set a fixed date at the first directions hearing; throughout that period XB continued to be administered medication covertly.
In her consideration of the legal framework, Theis J set out the following convenient summary of the factors in play:
54. In relation to covert medical treatment Baker J (as he then was) emphasised in A Local Authority v P & ors  EWCOP 10that such treatment is a serious interference with an individual’s right to respect for private life under Article 8. He noted in that judgment that the Supreme Court decision in An NHS Trust v Y  AC 978 was awaited but he observed that in the case he was concerned with (involving the covert insertion of a contraceptive device) ‘it is in my judgment highly probable that, in most, if not all, cases, professionals faced with a decision whether to take that steps will conclude that it is appropriate to apply to the court to facilitate a comprehensive analysis of best interests, with P having the benefit of legal representation and independent expert advice’.
55. In An NHS v Y Lady Black recognised at paragraphs 125 and 126 that although an application to the court is not necessary in every case  ‘there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases’.
56. The principle that underpinned the Guidance issued by Hayden J (Vice President of the Court of Protection) on 17 January 2020 relating to applications concerning medical treatment was that where there was agreement at the end of the relevant decision making process in accordance with the MCA 2005, with any relevant professional guidance being observed and relevant guidance in the Code of Practice being followed regarding the decision making capacity and best interests of the person in question then, in principle, medical treatment may be provided without application to the court (see paragraph 6). However, the Guidance equally makes clear at paragraph 8 that if at the end of the medical decision making process there remains concerns that the way forward in any case there is a ‘lack of agreement as to a proposed course of action from those with an interest in the person’s welfare’ (paragraph 8 ( c)) then ‘it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required’ (paragraph 8). The Guidance also makes clear at paragraph 10 that in any case that ‘involves a serious interference with the person’s rights under the ECHR’ it is ‘highly probable’ that an application should be made.
Theis J was clear that, given the anxiety expressed by XB’s siblings about the administration of the medication, and the serious nature of the interference with his rights under Article 8 ECHR involved in administering covert medication, this was a case where there should have been no reticence in involving the court (paragraph 74).
On the evidence before her, Theis J had no hesitation in finding that XB lacked capacity to make decisions about his medical treatment, and that it was in his best interests to be administered the hypertension medication covertly.
It is important, perhaps, to make clear what Theis J said in this case. She was not saying that an application had been required; what she was saying (and this emerges most clearly from paragraph 76) that the Trust should have given very serious consideration as to whether an application should be made – and that any Trust in future in such a situation should equally give such consideration. She also made clear that, unsurprisingly, if an application was to be made, it should have been made and progressed quickly.
At one level, it is somewhat frustrating the courts consistently decline to set out circumstances in which applications must be made (with the exception of situations concerning life-sustaining treatment identified in NHS Trust v Y). At another level, it is understandable that the focus of the decisions – and of the Serious Medical Treatment guidance – is upon the need for Trusts (and others) to consider carefully whether they can simply proceed on the basis of s.5 MCA 2005, or whether the decision has to be taken by the court. Keeping the focus there means that the risk is avoided of giving the message that professionals are always ‘safe’ in situations not clearly identified as requiring a court application. That Trusts are increasingly getting the message is undoubtedly suggested by the sharp, and continuing, increase in medical treatment applications over the past year – the demands of COVID-19 notwithstanding.