27 Feb 2017
There have been two recent cases in the Court of Protection concerning the covert administration of medication. They are AG v BMBC  EWCOP 37 and BHCC v KD  EWCOP B2. Each case highlights the need for proper best interests decisions to be made in respect of medication, usually following meetings with relevant professionals. Such meetings and decisions are critical in respect of medication which can be mind-changing or that can have serious side-effects. Best interests decisions have to be made under s.4 MCA, and this requirement is a collaborative exercise with other specific persons : see s.4(7). The more serious the medication or treatment, the more serious the implications in terms of the availability of the immunity from liability under s.5 MCA. It is important for local authorities to bear in mind where they have given a standard authorisation (as supervisory authority) but are not providing the care (the managing authority may be a care home dealing with the day to day decision-making). The local authority needs to bear in mind it's overall responsibility in the granting of the DOL.
AG was a case which concerned a s.21A challenge to a standard authorisation. During the course of the proceedings it was discovered that strong sedative medication was being administered without any controls being in place. District Judge Bellamy made the following findings and observations :
“(a) Proper consideration does not appear to have been given to the initial covert use of promethazine between November 2014 and February 2015;
(b) The use of covert medication was not subject to proper reviews or safeguards.
(c) The decision to administer diazepam covertly in February 2015 (as prescribed by the GP) appears not to have been communicated to the supervisory body or to the RPR so that an opportunity to request a review of the standard authorisation at that time was lost;
(d) There does not appear to have been a review or provision for review of the fundamental decision to administer medication covertly notwithstanding the covert medication policy disclosed [it would appear to be that of NICE] makes it clear that this is only to be considered in exceptional circumstances.
(e) The best interest decision making process appears not to have involved any family member or RPR on behalf of AG nor her allocated social worker.
25. Although it is not an issue for me to determine I accept that treatment without consent (covert medication in this case) is an interference with the right to respect for private life under Article 8 of the ECHR and such treatment must be administered in accordance with a law that guarantees proper safeguards against arbitrariness. Treatment without consent is also potentially a restriction contributing to the objective factors creating a DOL within the meaning of Article 5 of the Convention. Medication without consent and covert medication are aspects of continuous supervision and control that are relevant to the existence of a DOL. It must therefore attract the application of Section 1(6) of the Act and a consideration of the principle of less restriction and how that is to be achieved.
‘1(6) Before the act is done, or the decision 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.’
Such intervention must be proportionate to the circumstances of the case and accord with the principle of minimum intervention consistent with best interests.
The District Judge concluded with the following guidelines :
43. The following may assist by way of future guidance at paragraph 43 :-
"(a) Where there is a covert medication policy in place or indeed anything similar there must be full consultation with healthcare professionals and family.
(b) The existence of such treatment must be clearly identified within the assessment and authorisation.
(c) 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.
(d) There should at regular intervals be review involving family and healthcare professionals, all the more so if the standard authorisation is to be for the maximum twelve month period.
(e) Each case must be determined on its facts but I cannot see that it would be sensible for there to be an absolute policy that, in circumstances similar to this, standard authorisation should be limited to six months. It may be perfectly practical and proportionate provided there is a provision for reviews (or conditions attached) for the standard authorisation to be for the maximum period.
(f) 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.
(g) Any change of medication or treatment regime should also trigger a review where such medication is covertly administered.
(h) Such matters can be achieved by placing appropriate conditions to which the standard authorisation is subject and would of course accord with chapter 8 of the deprivation of liberty safeguard’s code of practice."
The local authority in this case also made a statement to the court with these concessions :
"(i) if a person lacks capacity and is unable to understand the risks to their health if they do not take their prescribed mediation and the person is refusing to take the medication then it should only be administered covertly in exceptional circumstances;
(ii) before the medication is administered covertly there must be a best interest decision which includes the relevant health professionals and the person’s family members;
(iii) if it is agreed that the administration of covert medication is in their best interests then this must be recorded and placed in the person’s medical records/care home records and there must be an agreed management plan including details of how it is to be reviewed; and
(iv) all of the above documentation must be easily accessible on any viewing of the person’s records within the care/nursing home.
(v) If there is no agreement then there should be an immediate application to Court."
The guidance in AG was adopted in KD. In KD the patient received antipsychotic medication. There could be oppositional behaviour from her which led to one of the treating doctors recommending the covert administration of the medication. However, the relevant medication also had side-effects in relation to bone marrow suppression and use of the drug required frequent blood-testing for possible side-effects. The case was one of those where the MHA possibly applied (ultimately the court disagreed) and KD was eligible for a DOL. The significant difference was that (in relation to the particular medication) greater safeguards existed under the MHA than MCA. Once it was decided KD was eligible it became all the more important for the AG guidance to be applied.