The administration of covert medication is a clear infringement upon the right to a private life under Article 8, albeit one which can be a necessary part of treatment from time to time. The Court of Protection has confirmed that the use of medication without consent or covertly whether for physical or mental health must always call for close scrutiny.
Where a person is subject to a deprivation of liberty, that scrutiny must come through the care provider, the supervisory body and commissioners of community support packages.
- AG was a 92 year old lady who was moved from her own home into a residential placement by the local authority.
- AG lacked capacity in the relevant domains and was clearly deprived of her liberty (applying the Cheshire West 'acid test').
- It was accepted by all parties that AG required medication; without it she was at risk of both physical / mental health deterioration. Certain medications were to be administered covertly and were made with a (limited) best interests decision.
- A standard authorisation was granted for 12 months.
District Judge Bellamy identified concerns with the following areas –
- The lack of proper consideration to the initial decision to administer covert medication;
- The lack of involvement of family members or others in a position to advocate on behalf of AG;
- No substantial communication or recordings in relation to changes in prescription;
- A decision by the care home to administer diazepam covertly was not communicated to the supervisory body;
- The use of covert medication was not subject to proper reviews or safeguards (for example there were no conditions attached to the standard authorisation to this effect);
- Medication without consent and covert medication are aspects of continuous supervision and control that are relevant to the existence of a DOL; and
- There must be consideration of least restrictive principles (section 1(6) MCA 2005).
"All parties agreed that covert medicines should only be used in exceptional circumstances and when such a means of administration is judged to be necessary and in accordance with the Act. The guidelines published by NICE (National Institution for Healthcare and Excellence) provide that medication should not be administered covertly until after a best interest meeting has been held, unless in urgent circumstances. Care homes are to ensure that if a decision is taken to covertly administer medicine to an adult care home resident, then a management plan should also be agreed and recorded after a best interest meeting. The meeting should be between healthcare professionals and family members… The care home as managing authority has a duty to keep a patient's case under review and if any of the qualifying requirements appear to be reviewable then it must request a review. The supervisory body in this case … may be almost entirely dependent upon the managing authority (the care home) to notify it of any change or proposed change to care/treatment."
This applies to
- all care providers: hospitals, care homes and community providers;
- supervisory bodies; and
- public bodies involved with community care packages.
The Judge subsequently provided the following guidance for those involved in decision making around the use of covert medication:
- There must be full consultation with healthcare professionals and family.
- The treatment must be clearly identified within the assessment and authorisation.
- If the standard authorisation is to be for a period of longer than six months there should be a clear provision for regular, possibly monthly, reviews of the care and support plan.
- There should at regular intervals be reviews involving family and healthcare professionals.
- Each case must be determined on its own facts when determining the maximum period for authorisation.
- Where appointed, an RPR should be fully involved in those discussions and review so that if appropriate an application for part 8 review can be made.
- Any change of medication or treatment regime should also trigger an authorisation review where such medication is covertly administered.
- Such matters can be achieved by placing appropriate conditions to which the standard authorisation is subject and in accordance with DOLS guidance.
Responding to the judgment
- a) Care Providers / Managing Authorities – you should have a robust covert medication policy and this should be updated to take into account the above guidance. Additionally, consider your reporting requirements to the supervisory body / commissioner when changes are proposed. Planning is key.
- b) Supervisory Bodies – best interest assessors should be alive to the guidance when undertaking reviews with particular consideration to the length of a standard authorisation on the facts of that case.
- c) Commissioners – Local Authorities and CCGs should identify those supported living placements where covert medication may be administered and build in sufficient safeguards equivalent to those proposed above.
Link to the judgment