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Covert medication: what protections are there for the person giving it and the person receiving it?
A new case* has just been reported, dealing with covert medication. This concerns an elderly lady in a care home , who lacked mental capacity to consent to medication and frequently refused to take it. But the helpful guidance given by the judge applies in all health and care settings.
Safeguards needed to protect against over-use
The judge recognised that covert medication is a breach of the person’s human rights, and also a restraint as defined under the MCA: he said 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 [European Convention on Human Rights] and such treatment must be administered in accordance with a law that guarantees proper safeguards against arbitrariness."
Decision-making not done properly
The GP seems to have decided that covert medication (originally only of a thyroid medication, but later he added a sedative) was in this lady’s best interests. The judge was troubled that there was no sign of a best interests decision-making process, by the GP, involving the lady herself or her relatives. Consultation and involvement is an essential part of best interests decision-making under the MCA.
Essential guidance from the judge
The judge gave helpful guidance about how to make, and record, a best interests decision in such a situation. (I’ve emphasised in bold the elements that particularly apply to care home managers.)
- if a person lacks capacity and is unable to understand the risks to their health if they do not take their prescribed medication, and the person is refusing to take the medication, then it should only be administered covertly in exceptional circumstances;
- before the medication is administered covertly there must be a best interests decision which includes the relevant health professionals and the person's family members;
- 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
- all of the above documentation must be easily accessible on any viewing of the person's records within the care/ nursing home .
To protect the rights of people using your service, and to protect your staff who are administering covert medication, work through the judge’s guidance, point by point, reviewing whether any covert medication being given is prescribed and given in line with this clear, sensible guidance.
Check that the recording is clear and accessible, and that there’s a clear plan for when it should be reviewed – this should certainly happen whenever the care plan is being reviewed by professionals and relatives. Reviews should happen at least every six months, and more often if medications are being added or if the intention is to sedate the person.
*Case reference: 2016 EWCOP 37
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