The Use of Covert Medication

Kent MCA The Use of Covert Medication

Introduction

This practice note is to provide guidance on good practice when decisions are made to administer prescribed medication covertly for a person who lacks capacity to consent to this decision and is refusing and/or objecting. The covert administration of medicines should only be used in exceptional circumstances when such a means of administration is judged necessary by the prescribing clinician, and should be undertaken in accordance with the Mental Capacity Act and Deprivation of Liberty Safeguards .

The decision to administer medication covertly should follow NICE guidelines: https://www.nice.org.uk/guidance/QS85/chapter/Quality-statement-6-Covert-medicines- administration

Legal Context

In a recent judgment in AG v BMBC & Anor [2014] EWCOP 37, the Court of Protection provided guidance as to the procedural steps to be followed when providing covert medication to patients subject to Deprivation of Liberty Safeguards authorisations in order to protect unlawful interference with Article 5 and 8 rights of the European Court of Human Rights. The decision to covertly medicate should therefore always be subject to close scrutiny; particularly if that medication will affect the person’s behaviour, mental health or act as a sedative. It is essential that any use covert medication is undertaken in the least restrictive way possible and that appropriate safeguards are in place, for example:  regular reviews of the decision to covertly medicate and  whether it remains the least restrictive option in that particular person’s case. The full judgement can be found at :

whttp://www.bailii.org/ew/cases/EWCOP/2016/37.html

Practical Steps

The starting point is always to follow the 5 statutory principles of the Mental Capacity Act :

 A person must be assumed to have capacity unless it is established that they lack capacity

 A person is not treated as unable to make a decision unless all pracrical steps to help him to do so have been taken without success.

 A person is not treated as unable to make a decision merely because he makes an unwise decision

 An act done, or decision made, under this Act for on behalf of a person who lacks capacity must be done, or made, in his best interests.

 Before the act is done, or the decision is made , regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. Kent MCA Actions required to implement the use of covert medication:

1. If P lacks capacity, is refusing to take the medication and is unable to understand the risks to their health if he/she fails to take the medication, then, in exceptional circumstances, covert medication can be considered;

2. Prior to medication being administered covertly, a best interests meeting should be held with the relevant healthcare professional, their Relevant Person’s Representative (RPR) and P’s family members

3. If there is no agreement, there should be an immediate application to the Court of Protection;

4. If it is agreed by everyone that covert administration of medication is in P’s best interests, then this must be recorded and placed in P’s medical and/or care home records;

5. The existence of the covert medication must be clearly identified within the best interests assessment and DOLS authorisation;

6 . An agreed management plan must be adopted allowing for the decision to covertly medicate and the corresponding care and support plan to be reviewed;

7. The management plan should specify the timeframes (possibly monthly) and consideration for the circumstances, such as a change of medication or treatment regime, which would trigger a review;

8. Reviews should involve the relevant healthcare professionals, RPR (if appointed) and P’s family members;

9. All of this information must be easily accessible when reviewing any of P’s records.

10. If covert medication has been administered prior to a best interests meeting and decision, and/or there is no management review, careful consideration must be given to the period of a DOLS authorisation.

11. Conditions of a DOLS Standard Authorisation should be attached to resolve any discrepancies in decision making, management plans and reviews.