Covert medication of persons lacking capacity: What guidance is there?

Covert medication is the troubling practice of medicating a person without their knowledge because they have refused treatment considered medically necessary. This is often done by disguising medication in food or a drink.  A few cases before the Court of Protection have placed this practice into the spotlight and raise the question of how prevalent it might be, and what guidance is available for practitioners, and indeed families.

An adult with mental capacity has the right to refuse medication even if others consider this to be ill-judged, unwise or it goes against medical advice.[1]

NICE guidelines are unequivocal “adults should not be given medicines covertly unless they have been assessed as lacking mental capacity to make decisions about their health or medicines”.   Thereafter, a person may be given covert medication, without knowledge or consent, if it has been assessed to be in their best interests.  Health and care staff need to be aware of the Mental Capacity Act 2005 (“MCA”), its Code of Practice, and the Deprivation of Liberty Safeguards. This is so as to protect the person from assault and trespass and violation of their human rights, and themselves from liability.

The CQC issued updated guidance in November 2022: “Covert administration is only likely to be necessary or appropriate where: 

• A person actively refuses their medicine and
• That person is assessed not to have the capacity to understand the consequences of their refusal. Such capacity is determined by the Mental Capacity Act 2005 and
• The medicine is deemed essential to the person’s health and wellbeing.”

Decisions should be recorded in a management plan.  Consideration should be given to how or whether the use of covert medicines, such as sedatives, may be a factor in depriving the person of their liberty.  Covert medication must be the least restrictive option after trying all other options including different medicines and methods of administration.

The Court of Protection is of course empowered under the MCA to make decisions to accept or to refuse medication on behalf of an adult lacking capacity, in their best interests, including through the use of covert medication.  There is no express power in the MCA to authorise covert medication except following a proper assessment of capacity and best interests.   The issue has emerged for determination when the court or local authority has been concerned with other matters, such as that a person’s health or social care needs are not being met, or it is being asked to consider authorising a deprivation of liberty.  It would appear that it is rarely brought to the court as a stand-alone issue for specific authorisation. 

Medicating a person without their consent constitutes the tort of battery or assault under the common law, and the courts have confirmed that it is also a serious infringement of a person’s article 8 ECHR rights[2], and must be strictly justified, in order to be lawful.  Further, it may also be a factor contributing to a deprivation of liberty under article 5 of the European Convention on Human Rights (ECHR).  All of this points to the need for strict justification and proper scrutiny.

The issue of covert medication was considered most recently by Mr Justice Poole in Re A [2022] EWCOP 44, a highly unusual case which has attracted attention because an earlier judge (HHJ Moir, in June 2020) had exceptionally (in an as yet unpublished judgment) made the decision to permit covert medication in closed proceedings excluding A’s mother. This was because she found evidence of a significant risk that A’s mother would find a way to inform her of the covert medication and that she would then refuse it.  The closed proceedings caused acute logistical problems when deciding the mother’s residence and contact application because she did not know that her daughter was being covertly medicated.  It also caused confusion for those observing the hearings who were also unaware of the closed proceedings. The issues around the closed proceedings are set out in detail in Poole J’s judgment.

A had experienced primary ovarian failure which had remained untreated while living with her mother. She had not gone through puberty and required hormone treatment which the expert evidence was firm would prove 100% effective and carried no risks.  Expert evidence was to the effect that the best health benefits to A are from lifelong maintenance hormone treatment.  Without such treatment she was at serious risk of health complications,  including increased seizures, osteoporosis, fracture risk and cardiovascular disease.  An “enmeshed” relationship with her mother meant that A was refusing treatment and her mother maintained that her daughter’s decision should be respected, because she was capable of making that decision.  

The care plan for medicating A with hormone treatment involved her being offered a tablet each day.  She had always declined it so that it was then given in accordance with a detailed covert medication plan which only a limited number of personnel at her care home were aware of. 

By the time of a hearing on 15 September 2022 A had achieved puberty and the covert medication plan was working. The judgment sets out the significant benefits of the treatment. The difficulty of sustaining a covert medication plan in the long term was acknowledged.  Neither A nor any other member of her family commented on the physical changes caused by the hormone treatment.  It was feared that A might inadvertently discover that she had been covertly medicated at any moment with the risk that she would cease taking it.

Pursuant to the principle of least restriction (section 1(6) MCA), the court is currently exploring the most effective way of transitioning A from covert to open medication, and/or ending covert medication in a way that is likely to cause the least harm to her.  

By the time of hearings on 20-22 September 2022 the health risks to A from medication ceasing were not as significant as they had been.  An injunctive order was used to prevent her mother from revealing to her the fact of covert medication.  Closed proceedings were held to be no longer justified. 

As a matter of principle there is no requirement that all decisions to medicate P covertly in their best interests must be brought to the court, nor indeed that once in court proceedings must be held behind closed doors.  The decision to hold closed proceedings was taken on the specific facts of this case pursuant to COP rules.

Must the court always be involved?

Guidance published in January 2020 by the Vice President of the Court of Protection on applications concerning medical treatment states that if a proper decision-making process under the MCA has taken place including consideration of any relevant professional guidance and the Code of Practice leading to agreement then no application is necessary.  However, if there remains a concern as to the proposed course of action after that decision making process is completed because, for example, the decision was finely balanced or there was a difference of medical opinion, or a conflict of interest, or a lack of agreement, then it is highly probable that an application to the court would be necessary and consideration must always be given to whether an application is required.   

The guidance also highlights that where a serious interference with rights under the ECHR is concerned, falling short of life-sustaining treatment, it is ‘highly probable’ that an application should be made. This is to facilitate a comprehensive analysis of capacity and best interests with the benefit of legal representation and expert medical advice and “this will be so even where there is agreement between all those with an interest in the patient’s welfare.”  The examples given do not include covert medication, except for covert contraception, but the list is not exhaustive.  An application to the court ‘may also be required’ where what is proposed involves a degree of restraint or force going beyond section 5 and 6 MCA and potentially creating a deprivation of liberty which will require the court’s authorisation.

More recently the Court of Protection has stated, in a case in which there was no opposition to the orders sought but the family wanted independent consideration of the decision to medicate covertly, that a speedy application must be made to the court, or at least serious consideration to doing so is necessary. This was in the context of anti-hypertensive medication for a patient diagnosed with paranoid schizophrenia. (See: NHS Trust and XB and others [2020] EWCOP 71, Mrs J Theis) 

Lady Black in the Supreme Court in NHS v Y [2018] UKSC 46 (which concerned life sustaining treatment) recognised that while an application to the court is not necessary in every case there will be cases in which it will be required or desirable because of the particular circumstances, and there should not be any hesitation to do so.  

AG (by her litigation friend, the OS) v BMBH and SNH [2016] EWCOP 37 was a challenge under s 21A MCA to a standard authorisation of a deprivation of liberty (DOL) under schedule A1 MCA on behalf of AG.  It was a welfare case and AG was being accommodated in a care home (SNH).  It came to light during the proceedings that she was being covertly medicated with promethazine and later diazepam.  This was not referred to in the DOL authorisation.  AG had a diagnosis of dementia, and it was agreed that if no medication was administered to her then she was at risk of deterioration in her physical and mental health and therefore the decision to administer medication covertly was in her best interests, proportionate and necessary at the time it was taken. A risk of serious harm through self-neglect, night-time wandering and aggressive behaviour, and of potentially becoming seriously unwell without thyroxin was identified.  No family member, social worker or relevant person’s representative (RPR) had been involved in the decision.  

The court identified that the use of covert medication was not subject to proper reviews and safeguards.  The medication was potentially a restriction contributing to the objective factors creating a deprivation of liberty under article 5 ECHR.  The principle of minimum intervention consistent with her best interests applied (s 1(6)MCA).  The court said that there could be no covert medication until a best interests assessment in line with NICE guidelines had taken place and only after a management plan had been agreed on consultation between healthcare professionals and family. There needs to be clear communication between the supervisory body and the managing authority where there is a deprivation of liberty.

The court provided the following guidance in the context of DOL authorisations:

(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.  

AG (by her litigation friend, the OS) v BMBH and SNH [2016] EWCOP 37 at [42]

Is there a best practice?

Clinical and legal practitioners must bear in mind that whether the issue is categorised as one of medical treatment or arises in the context of wider welfare, the administration of medication covertly amounts to a serious interference of a person’s private life rights under article 8 ECHR.   Sometimes, as in AG it may also contribute to a deprivation of liberty under article 5 ECHR for example through the use of sedative medication.  It is also a tortious act under the common law.  As such robust assessment under the MCA, strict justification and a management plan to include reviews are essential.  

The starting point to justify such treatment is always a robust assessment of the person’s capacity and best interests under the MCA.  This must involve professionals, carers, and family and take into account relevant professional guidance on covert medication such as that produced by NICE.  The decision made must be recorded in a care or treatment plan, and in any DOL authorisation, along with a management plan for periodic review, to capture for example any changes in medication.  The guidance in AG above remains useful.

The question of when to make an application to the court has no clear answer.  It requires a judgment to be formed following robust MCA assessment, and reference should be made to the Vice President’s guidance.  As always the extremes are easiest to identify.  If there is full agreement after proper assessment and consultation with appropriate people, then an application is highly unlikely to be needed.  Even then, if the proposed medication risks harming the patient, or the decision is finely balanced in any respect, the sanction of the court, with expert guidance, should be considered.  If there is no agreement between those properly consulted, then an application to the court must be made.   The shades in between will depend on the particular circumstances as recognised by Lady Black.    There can surely be no close prescription because the answer is one of approach and process on individual facts. 

The guidance suggests that an application to the court should be considered in every case, and that decision documented. This will focus minds on robust MCA assessments.  It would hasten any application which must be made speedily.

Aswini Weereratne KC of Doughty Street Chambers is an expert in human rights, particularly in relation to vulnerable adults and children and mental capacity.

[1] Section 1(4) MCA 2005. And see, for example, MacDonald J in Kings College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80, [1]–[3].

[2] A Local Authority v P [2018] EWCOP 10 per Baker J (as he then was) at [55]; AG (by her LF) v BMBC, and SNH [2016] EWCOP 37at [25]; Re A [2022] EWCOP 44 at [36] and [37] citing and endorsing the approach in P and AG.

First published on openjusticecourtofprotection.org on 6 February 2023.