The case highlights the need for care providers to ensure that any decisions about administering covert medication are:

• made with proper involvement of family/RPR
• notified to the supervisory body, including when there is a change to the medication regime
• kept regularly under review, possibly enforced by conditions attached to the DoLS authorisation

Care providers need to ensure that their processes around use of covert medication comply with the principles set out in this case. 

The case is also important for best interests assessors and supervisory bodies in terms of the impact that use of covert medication may have on the length of DoLS authorisation granted and conditions which may need to be attached to it.

Facts

The case related to a 92 year old lady with dementia who had been moved to a care home in her best interests and was subject to a 12 month standard DoLS authorisation.

It was agreed that AG lacked capacity to make decisions about her care, accommodation and treatment and that she was deprived of her liberty in the care home because she was under continuous supervision and control and was not free to leave. She was at risk of self-harm due to risky behaviours (e.g. wandering at night and aggressive behaviour) and self-neglect. 

The case came before the Court of Protection because the DoLS authorisation was challenged by way of a Section 21A application to consider whether AG could safely be managed in the community.

It emerged in the course of those proceedings that, at the time of the DoLS assessments, AG's treatment regime in the care home included the covert administration of medication. The medications being administered covertly at that stage were thyroxin (which was necessary to prevent AG becoming seriously unwell) and promethazine (which has a sedative effect). Although this use of covert medication was made known to the best interests assessor at the time, the DoLS authorisation was granted for the maximum period of 12 months with no conditions attached.

Subsequent to the DoLS authorisation being granted, AG was prescribed diazepam (a stronger type of sedative medication than previously) and this was again administered covertly by the care home. This change in medication was not however, notified to the supervisory body or to her RPR.

What did the Court decide?

The Court decided that the use of covert medication in this case was not subject to proper reviews or safeguards.

The DoLS authorisation should have reflected a requirement to keep the use of covert medication regularly under review.

The care home was under a duty to inform the supervisory body of the change in circumstances relating to the use of covert medication. The care home should also have informed the RPR of this in order to give them an opportunity to request a review of the DoLS authorisation.

The Judge emphasised that use of covert medication must always call for close scrutiny, especially in cases where the medication impacts on the person's behaviour/mental health or has a sedative effect. Treatment without consent (covert medication in this case) is a serious interference with the right to respect for private life under human rights legislation and there must accordingly be proper safeguards against arbitrariness. The Judge also highlighted that use of covert medication is an aspect of continuous supervision and control and must be subject to the principle of least restrictive alternative.

Guidance for future cases

The Judge outlined the following points by way of guidance for cases involving use of covert medication:

• Medication may be administered covertly in exceptional circumstances if the person lacks capacity, is unable to understand the risks to their health if they do not take the medication and is refusing to take it.
• Before any medication is administered covertly there must – in line with NICE guidelines – be a best interests meeting involving relevant health professionals and family members to ensure full consultation.
• If it is agreed that the administration of covert medication is in the person's best interests, this must be included within their medical/care home records with a clear management plan, including details of how the covert medication plan will be reviewed. This documentation must be easily accessible on viewing the person's records.
• If there is no agreement, there should be an application made to the Court of Protection.
• The use of covert medication within a care plan must be clearly identified within the DoLS assessment and authorisation.
• If a standard authorisation is granted for a period longer than 6 months, there should be a clear provision for regular - possibly monthly - reviews of the care plan involving family and health professionals. The Judge emphasised that he was not suggesting an absolute policy that standard authorisations should be limited to 6 months in all covert medication cases, but the more regular the reviews, the more likely justification there would be for a longer period of authorisation.
• One way of achieving this would be for the DoLS authorisation to be made subject to conditions about the need to keep the medication regime under regular review.
• The managing authority (in this case, the care home) must notify the supervisory body of changes to the covert medication regime, including changes to the nature, strength or dosage of medications being administered covertly. Such changes should always trigger a review of the authorisation.
• If there is an RPR, they should also be fully involved in these discussions/reviews so they can apply to the supervisory body for a review of the DoLS authorisation if appropriate.
  
  

How we can help 

Our national team of mental capacity and deprivation of liberty specialists have extensive experience in advising health and social care providers and commissioners - both in the NHS and the independent sector - in relation to all aspects of the law in this area, including advising on:

• Disputes about mental capacity and/or best interests
• Applying the Deprivation of Liberty Safeguards
• Applications under 'Re X' streamlined procedure for uncontested community cases
• Court of Protection applications relating to care and treatment and/or accommodation issues
• Serious Medical Treatment cases
• S21A challenges to DoLS authorisations
  
  

We also provide:

• Regular training for BIAs, Mental Health Assessors, signatories and managing authorities, providing updates and the opportunity to discuss the practical implications of case law developments.
• Facilitation of regular forums to provide practitioners working in this rapidly evolving area the opportunity to meet to discuss topical issues and solutions.