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Covert medication and deprivation of liberty

View profile for Megan Taylor
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Covert medications are medications that are administered to a person without his/her knowledge or consent, often in a disguised form, such as food or drink.

Following the NICE guidelines, if there are concerns about the person’s ability to give informed consent to take their medication, an appropriate person (the prescriber, e.g., a nurse or GP) should carry out a mental capacity assessment. Unless the person has been assessed as lacking the mental capacity to make decisions about their medication, they should not be given their medication covertly.

If the person has been assessed to lack mental capacity to make decisions about their medication, a best interests meeting should be arranged. The prescriber should decide whether it is in the person’s best interests to be given the medication covertly, without their knowledge, or whether the medication can be given in a different form, or stopped altogether. The prescriber should engage in discussions with somebody who is able to communicate the person's wishes and interests (such as a family member, a friend or an advocate) and care staff before making the decision.

If it is decided to be in the person’s best interests to receive the medication covertly, the care provider should seek advice from a medical professional (such as a pharmacist) as to how each medicine can be safely administered and update the persons care plan, so the care staff are fully aware.

District Judge Bellamy in the Court of Protection case of Re AG [2016] provided procedural guidance on the use of covert medication for people who lack mental capacity, and emphasised that the use of medication being administered covertly must always call for close scrutiny.

The case concerned an elderly lady, AG. She resided in a care home and a standard authorisation was granted for a period of 12 months. An application was made to the Court of Protection to challenge the standard authorisation to consider whether AG’s needs could be met within the community. Concerns were raised that AG was not taking her prescribed medication as required and, if she did not receive her medication, she was at risk of both mental and physical deterioration.

District Judge Bellamy provided the following useful procedural guidance:

  1. Where there is a covert medication policy in place or indeed anything similar there must be full consultation with healthcare professionals and family;
  2. The existence of such treatment must be clearly identified within the assessment and authorisation;
  3. 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;
  4. There should at regular intervals be reviews involving family and healthcare professionals, all the more so if the standard authorisation is to be for the maximum twelve month period;
  5. Each case must be determined on its facts but, 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;
  6. 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;
  7. Any change of medication or treatment regime should also trigger a review where such medication is covertly administered; and
  8. Such matters can be achieved by placing appropriate conditions to which the standard authorisation is subject and would accord with chapter 8 of the DoLS Code of Practice.

This case is significant for both supervisory bodies and care providers; supervisory bodies must ensure that the relevant conditions are attached to the DoLS authorisation (such as the need for regular reviews) and that it has been granted for an appropriate length of time, and care providers must ensure that their procedure complies with the guidance set out above.

If you are concerned around the use of covert medication to one of your loved ones, or you think that the relevant guidance is not being followed, please do not hesitate to contact us for advice on 01616 966 229.