Legal Update – deprivation of liberty: Covert Medication

AG v BMBC and SNH [2016] EWCOP 37 – the Court of Protection provides guidance on the use of covert medication in persons who lack capacity.

The Facts

AG was a 92 year old patient with dementia who resided in a care home. She was subject to a 12 month DoLS authorisation. AG lacked capacity to make decisions about her medical treatment, care and accommodation. Her care plan included the covert administration of thyroxin intended to prevent a serious deterioration in her physical health. Subsequently the covert administration of diazepam was added to the care plan – this was not discussed with AG’s family, her RPR, social worker or the supervisory body although there was no dispute that this was in her best interests.

Following a s. 21A challenge to the DoLS authorisation,  the case came before the Court of Protection for consideration of whether AG could be safely managed in the community.

The Judgment

District Judge Bellamy held that the use covert medication without consent amounted to an interference with AG’s Article 8 right to respect for private life and also contributed to the factors which gave rise to an Article 5 deprivation of liberty. As such it should have been agreed at a best interests meeting, properly documented in AG’s records and subject to proper reviews and safeguards. The administration of covert medication should always be subject to close scrutiny.

The following guidance was given on the use of covert medication in persons who lack capacity:-

• If a person lacks capacity to understand the risks to their health from not taking their prescribed medication or is refusing to take their medication, it should only be administered covertly in exceptional circumstances.
• Save in urgent circumstances, a best interests meeting involving relevant healthcare professionals, family members and the RPR should be held to discuss the use of covert medication.
• If there is no agreement that administration of covert medication is in the person’s best interests agreement, a Court of Protection application should be made immediately.
• If there is agreement, then this should be recorded in the patients medical and care home records.
• There must be an agreed management plan put in place for the use of covert medication which should specify time frames for review (possibly monthly where the DoLS authorisation is longer than 12 months) and the circumstances which will trigger a review (such as a change in medication).
• All documentation should be easily accessible in the patient’s records.
• The use of covert medication must be clearly identified within the DoLS assessment and authorisation.
• Where there is a plan for covert medication, then a standard DoLS authorisation for the maximum period of 12 months will only be justified where there is provision for regular review. A shorter authorisation period would normally be more appropriate.

Comment

This judgment highlights the widespread use of covert sedation in care home settings where often there is little or no regard to the implications for the persons Article 5 and 8 rights. The decision reinforces the existing NICE guidelines and provides a timely reminder of the need for proper scrutiny and safeguards where medication is to be covertly administered.

Although this case arose in a care home setting, there is no reason why it is not of equal application to patients in a hospital setting. NHS Trusts are therefore advised to review their existing policies on covert medication to ensure they are compliant.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.