In AG v BMBC & Anor  EWCOP 37, District Judge Bellamy has given some rare, and useful, clarification as to the seriousness of the consideration that must be given to the use of covert medication, especially in the context of DOLS authorisation.
During the course of a s.21A application challenging a DOLS authorisation in place in respect of a 92 year old woman, AG, it became clear that part of AG’s care plan at the home involved the covert administration of strong sedative medication in the form of promethazine and then diazepam. There were no conditions relating to this medication contained in the care plan.
Following directions made as to the provision of information as to how this medication had come to be administered, the District Judge was able to draw the following conclusions (although not making formal findings of fact):
“(a) Proper consideration does not appear to have been given to the initial covert use of promethazine between November 2014 and February 2015;
(b) The use of covert medication was not subject to proper reviews or safeguards.
(c) The decision to administer diazepam covertly in February 2015 (as prescribed by the GP) appears not to have been communicated to the supervisory body or to the RPR so that an opportunity to request a review of the standard authorisation at that time was lost;
(d) There does not appear to have been a review or provision for review of the fundamental decision to administer medication covertly notwithstanding the covert medication policy disclosed [it would appear to be that of NICE] makes it clear that this is only to be considered in exceptional circumstances.
(e) The best interest decision making process appears not to have involved any family member or RPR on behalf of AG nor her allocated social worker.”
Fortunately (one might think) no harm appeared to have been caused to AG by the covert use of either promethazine or diazepam.
District Judge Bellamy noted that:
25. Although it is not an issue for me to determine I accept 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 ECHR and such treatment must be administered in accordance with a law that guarantees proper safeguards against arbitrariness. Treatment without consent is also potentially a restriction contributing to the objective factors creating a DOL within the meaning of Article 5 of the Convention. Medication without consent and covert medication are aspects of continuous supervision and control that are relevant to the existence of a DOL. It must therefore attract the application of Section 1(6) of the Act and a consideration of the principle of less restriction and how that is to be achieved.
‘1(6) Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.’
Such intervention must be proportionate to the circumstances of the case and accord with the principle of minimum intervention consistent with best interests.”
By way of general observation, District Judge Bellamy noted that:
“29. All parties agreed that covert medicines should only be used in exceptional circumstances and when such a means of administration is judged to be necessary and in accordance with the Act. The guidelines published by NICE (National Institution for Healthcare and Excellence) [available here] provide that medication should not be administered covertly until after a best interest meeting has been held, unless in urgent circumstances. Care homes are to ensure that if a decision is taken to covertly administer medicine to an adult care home resident, then a management plan should also be agreed and recorded after a best interest meeting. The meeting should be between healthcare professionals and family members. The decision to covertly administer diazepam as compared to promethazine, was not communicated to the supervisory body. The care home as managing authority has a duty to keep a patient’s case under review and if any of the qualifying requirements appear to be reviewable then it must request a review. The supervisory body in this case BMBC may be almost entirely dependent upon the managing authority (the care home) to notify it of any change or proposed change to care/treatment.”
District Judge Bellamy further held that:
“37. It is clear that the managing authority has a duty to monitor for any change in a person’s circumstances on an ongoing basis. This obligation exists no matter how long or short the stipulated duration of the authorisation granted. The code is clear, there must be a care plan setting out clear roles and responsibilities for monitoring and addressing the issue of when a review is necessary.
38. Covert medication is a serious interference with a person’s autonomy and right to self-determination under Article 8. It is likely to be a contributory factor giving rise to the existing DOL. Safeguards by way of review are essential.
39. The reference to a change in the relevant person’s case is broad and must sensibly apply to each of the steps in the best interests assessment on a case-by-case basis. A clear omission of information relating to additional restrictions or interference with autonomy is a relevant change in the circumstances known to the best interest assessor that should trigger an immediate review under part 8. This would also apply to new circumstances arising after the DOL is granted and that were not known about or did not exist at the time.
40. The use of medication without consent or covertly whether for physical health or for mental health must always call for close scrutiny.
43. The following may assist by way of future guidance:-
(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. […].”
District Judge Bellamy also endorsed the written guidance proposed by the supervisory body, which included the following:
(i) if a person lacks capacity and is unable to understand the risks to their health if they do not take their prescribed mediation and the person is refusing to take the medication then it should only be administered covertly in exceptional circumstances;
(ii) before the medication is administered covertly there must be a best interest decision which includes the relevant health professionals and the person’s family members;
(iii) 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; and
(iv) all of the above documentation must be easily accessible on any viewing of the person’s records within the care/nursing home.
(v) If there is no agreement then there should be an immediate application to Court.“
Although not a decision with binding precedent value, being a decision of a District Judge, this decision is extremely useful for highlighting (1) the very widespread use of covert sedative medication in circumstances such as those of AG (which are not uncommon); and (2) the seriousness with which such administration should be accompanied, but is all too often not. It is undoubtedly a serious interference with Article 8 ECHR. As the European Court of Human Rights has repeatedly made clear (for instance in Shtukaturov v Russia  ECHR 223 at paragraph 89) “whilst Article 8 of the Convention contains no explicit procedural requirements, ‘the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8.‘” The greater the interference, the more rigorous the decision-making process (see also in this regard, by analogy, X v Finland  ECHR 1371 at 220-221).
Given that the use of covert sedation is also, as District Judge Bellamy noted, often associated with the exercise of supervision and control giving rise to a deprivation of liberty, it is clearly important that, where the results do give rise to such a deprivation, they are monitored and controlled by reference to the provisions of DOLS.
I would, however, emphasise that the administration of any covert medication is a step which must be taken with considerable care and forethought. Indeed, a failure to comply with the principles of MCA 2005 and the steps required by s.4 would, I suggest, both mean that it would not be possible to justify the resulting interference with the Article 8 ECHR rights and (by analogy with Winspear) mean that those involved in the administration of the medication would have no defence under s.5 MCA 2005 to a claim brought on the basis of those rights.