Case 6: AG v BMBC and SNH [2016] EWCOP 37

28 November 2016

Link to BAILII: http://www.bailii.org/ew/cases/EWCOP/2016/37.html

Summary: Court of Protection Hub

Dates: Hearing date: 11 November 2015. Judgement date: 6 July 2016

Case synopsis: Covert medication – what protections are there for the person receiving it? 


Case summary

The facts

This case concerns an older woman in a care home, who lacked mental capacity to consent to medication and frequently refused to take it, but the guidance given by the judge applies in all health and care settings, and to commissioners of services.

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 Mental Capacity Act (MCA) 2005. 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.'

Unlawful decision-making by GP

It was accepted that this woman’s health would deteriorate without her medication, so the decision to give it covertly was proportionate and necessary. However, the judge was troubled that there was no sign of a best interests decision-making process, by the GP, involving the woman herself, or her relatives, or others:

'It is clear that the best interests decision-making process did not involve any family member, the RPR [Relevant Person's Representative] or the then social worker…The GP records referred only to the use of thyroxin covertly, which medication was continued but diazepam was subsequently introduced… again administered covertly.'

Involvement of the person, and consultation with relatives and others as appropriate (here the social worker and the pharmacist) is an essential part of best interests decision-making under the MCA.

Covert medication practice guidance from the judge

The judge gave helpful guidance about how to make, and record, a best interests decision in such a situation:

  • 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.
  • All the above documentation must be easily accessible on any viewing of the person's records within the care/nursing home. 

Implications for practice

  • Social workers should do their best to ensure that providers of health or social care follow the guidance above about making best interests decisions about covert medication.
  • If local authorities are commissioning care that is likely to include covert medication, the social worker should check 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.  
  • This judgement seems to suggest that reviews of covert medication should happen at least every six months, and more often if medications are being added or if the intention is to sedate the person.

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