Court provides guidance on covert medication and patients subject to deprivation of liberty

The recent case of AG v BMBC & Anor [2016] has considered the use of covert medication within a DOLs authorisation scenario.

AG challenged her DOL through a section 21A challenge. Upon review of her care it was clear that she was being covertly medicated in her home but this was not documented within her care plan. The District Judge considered the basis on which the medication was being provided and found the following:

• There had not been proper consideration of the use of covert medication;
• Provision of medication, covertly, had not been subject to reviews or safeguards as expected with a DOL;
• When diazepam was administered covertly in February 2015, neither the Relevant Person's Representative (RPR) or statutory body had been informed so a standard authorisation could not be put in place;
• The use of covert medication had not followed any policy, or appeared to have been given proper consideration, before a decision was made; and
• When making a best interests decision, neither the family, RPR or social worker appear to have been involved.

District Judge Bellamy considered the case highlighted that “medication without consent and covert medication are aspects of continuous supervision and control that are relevant to the existence of a DOL.” When considering such action, the decision must be proportionate and in the individual’s best interests.

DJ Bellamy made clear that “the use of medication without consent or covertly, whether for physical health or for mental health, must always call for close scrutiny.” To assist going forward, DJ Bellamy provided the following guidance at paragraph 43:

• Where there is a policy in place, there must be full consultation with the professionals and family involved in P’s care;
• The treatment must be identified within the assessment and authorisation;
• If a standard authorisation is to be longer than six months, the team must ensure there are regular reviews of the care and support plan;
• An RPR, if appointed, should be fully involved in discussions and reviews around the use of covert medication, in order to consider the necessity of an application;
• Where medication is covertly provided, any change in medication should trigger a review; and
• This can be managed through the use of conditions within the standard authorisation.

While the use of covert medication is not new within the mental health and mental capacity settings, this case has set out helpful guidelines for those being cared for in the community, rather than within a hospital or residential setting.

If you would like any advice around the use of covert medication or DOLs in general, please do get in touch.