Newsflash: Covert medication and DOLS – new court guidance

Summary

In its recent judgment in AG (By her litigation friend the Official Solicitor) v (1) BMBC and (2) SNH [2016] EWCOP 37, the Court of Protection provided guidance as to the procedural steps to be followed when providing covert medication to patients subject to DOLS authorisations in order to protect unlawful interference with Article 5 and 8 rights.

Background

A 92 year old patient with dementia was resident in a care home. She was subject to a year long DOLS standard authorisation with no conditions and no provision for review. Her care plan included the administration of medication covertly. Her best interests assessor and relevant person’s representative (“RPR”) were not aware of this information at the time when the authorisation was granted.

During the standard authorisation, she was changed onto a new covert medication regime. This decision was not discussed with the local authority, the RPR or any relevant family member. It was undisputed that it was in the patient’s best interests to receive all of the relevant medication covertly.

Judgment

District Judge Bellamy held that covert medication is an interference with an individual’s right to a private life (Article 8). It is also likely to contribute to someone being deprived of their liberty under Article 5. The decision to covertly medicate should therefore always be subject to close scrutiny, particularly if that medication will affect P’s behaviour, mental health or act as a sedative.
It is essential that any covert medication is done in the least restrictive way possible and that safeguards are in place, for example, regular reviews of the decision to covertly medicate and whether it remains the least restrictive option in that particular patient’s case.

The steps that should be followed are:

  1. If P lacks capacity, is refusing to take the medication and is unable to understand the risks to their health if she fails to take the medication, then, in exceptional circumstances, covert medication can be considered;
  2. Prior to medication being administered covertly, a best interests meeting should be held with the relevant healthcare professionals, RPR (if appointed) and P’s family members;
  3. If there is no agreement, there should be an immediate application to Court;
  4. If it is agreed by everyone that covert administration of medication is in P’s best interests, then this must be recorded and placed in P’s medical and/or care home records;
  5. The existence of the covert medication must be clearly identified within the best interests assessment and DOLS authorisation;
  6. An agreed management plan must be adopted allowing for the decision to covertly medicate and the corresponding care and support plan to be reviewed;
  7. The management plan should specify the timeframes (possibly monthly, where the standard authorisation is longer than six months) and circumstances (such as change of medication or treatment regime) which would trigger a review;
  8. These reviews should involve the relevant healthcare professionals, RPR (if appointed) and P’s family members;
  9. All of this information must be easily accessible when reviewing any of P’s records.
    Each case is fact specific. However, District Judge Bellamy noted that, where covert medication was anticipated prior to the best interests assessment, it would be inappropriate for standard authorisation to be for the maximum period of authorisation.

Analysis

This case reinforces the NICE guidelines on covert medication. It emphasises that, while covert medication may, on the face of it, appear not to be a particularly restrictive option, it may still be a breach of P’s rights if the appropriate safeguards are not adopted. It is therefore essential that where covert medication is used in P’s treatment, it is always the least restrictive option for P and there are checks in place to ensure that this decision is regularly reviewed.