World Patient Safety Day 2022 "Medication Safety" - How can we improve the safety of covert medication?

Consider all the options

As mentioned above, administering medication covertly is a significant interference with a person’s Article 8 ECHR rights and as such, it must be necessary and proportionate. Likewise, one of the principles of both the MCA and the MHA is that there must be consideration as to the least restrictive alternative.

• Is the medication necessary? Does the underlying condition require medication? Can the condition be treated by non-pharmacological interventions?
• Can you explore with the person why they are refusing the medication to see whether there is any way of resolving this without the need to administer it covertly?
• What are the benefits of administering the medication covertly? What are the benefits of not administering it (either at all or covertly)?
• What are the risks (both in nature and likelihood) of administering the medication covertly? What are the risks of not administering it (either at all or covertly)? What steps could be taken to mitigate those risks either way?

Authorisation from the prescriber

Covert medication can involve adding medication to food or drink. Some medication can become ineffective when mixed with certain foods or drink or indeed may change the person’s response to the medication. Crushing a tablet or opening a capsule may make its use “off-licence”. It is important that you obtain authorisation from the prescriber to ensure that the medication can be administered covertly.

The prescription itself should be clear that it is being prescribed to be administered covertly. The prescriber should be involved in the decision-making.

What legal framework is it proposed that covert medication will be administered under?

Mental Health Act 1983:

If the person is liable to be detained under the MHA, consider whether the medication is treatment for their mental disorder(s). If yes, it may be possible for the medication to be administered covertly under the MHA.

Mental Capacity Act 2005:

Ensure that a capacity assessment is undertaken in line with the principles set out in the MCA.

The starting point is that an adult who has capacity to make decisions about whether to receive a medication has a right to refuse them.

If the person lacks capacity to make such a decision, a best interest decision will be required under the MCA (see further below). If the person has a health and welfare deputy appointed under a lasting power of attorney/deputyship from the court, consideration will need to be given as to whether it is a decision that is within the scope of their authority.

Specific Care Plan

There should be a specific care plan setting out how covert medication will be managed, including:

• Details of how and why it is necessary and proportionate for the medication to be administered covertly;
• What medication is going to be administered, by whom, how and when?
• Do those who are administering the medication covertly require any training?
• How will it remain covert from the person?
• What checks and balances are built into the processes to reduce the prospect of medication errors and mitigate the potential medication harms?
• What records are going to be kept of covert medication? Who is going to review those records by way of audit to ensure that the correct processes are being followed? How frequently?
• How will the person’s response to the covert medication be monitored? How will their potential to agree to the medication (therefore removing the need for it to be administered covertly) be monitored?
• How will the efficacy of the medication being administered covertly be monitored? How will the type of medication and dosage be reviewed? By whom? How often?
• How is the underlying condition (requiring medication) going to be monitored to ensure that the medication remains necessary/required? Who will be monitoring and reviewing at regular intervals the continued necessity for administering covert medication?
• What is the contingency plan if the person becomes aware of covert administration?
• Clearly defining the roles and responsibilities of all involved in creating, implementing, monitoring and reviewing the care plan;
• How often will the care plan be reviewed?

The care plan should be kept under regular review with involvement from family members and health and social care professionals (as appropriate).

Best interests analysis

Is the medication, and its administration covertly, in the person’s wider “best interests”? For those where the MCA is the legal framework, a best interests decision is required. Whilst not a specific requirement of treatment administered under the MHA, clinicians consider “best interests” in a wider sense when determining the appropriateness of the treatment. The specific care plan should be considered as part of the analysis.

This should include consultation with others as is appropriate. Under the MCA, this could include:

• Anyone with an interest in the person’s welfare – such as a family member, an IMCA/Advocate;
• Whoever is prescribing the medication;
• Whoever is administering the medication;
• Whoever is reviewing the medication;
• Anyone who the person has named to be consulted on matters of that kind; and
• Any donee of a lasting power of attorney for health and welfare granted by the individual or a health and welfare deputyship appointed by the Court (noting that it may be a decision within the scope of their powers).

Under the MHA, those who are consulted may be impacted by the person’s wishes in relation to information sharing.

Under the MCA, there is a “checklist” of factors to take into account in best interest decision-making:

• Whether it is likely that the individual will regain capacity to make this decision, and if so, when that it is likely to happen?
• The individual’s past and present wishes and feelings.
• The beliefs and values that would be likely to influence the individual’s decision if they had capacity.
• Any other factors that they would be likely to consider if they were able to do so.
• All the wider circumstances.

Are all requirements of the legal regime being discharged?

For treatment being provided under the MHA:

• Are all of the requirements of Part IV MHA (for example, SOAD approval, if required) met?
• Does the person remain eligible to be detained under the MHA? If their detention is considered by the Tribunal, is an application to withhold information about the cover medication appropriate?
• If there is a disagreement as to whether the covert medication is in the person’s best interests, the Approved Clinician should assure themselves that the treatment remains appropriate.

For treatment being provided under the MCA:

• Are all of the requirements met to achieve the protection of section 5?
• Has a capacity assessment been conducted, by an appropriate professional, as to whether the person has capacity to make decisions about the specific medication?
• Has all reasonable best interest consultation?
• Have all of the factors in the section 4 checklist been considered?
• Is an IMCA required?
• Is there a significant dispute as to either the person’s capacity to make the decision themselves or their best interests? Can it be resolved – e.g. a second opinion or mediation? If not, is an application to the Court of Protection required?
• Is the person subject to a deprivation of their liberty? Does the authorisation for their deprivation of liberty need to be updated with reference to the covert medication?

Record keeping and communication

Ensure that the appraisal of the potential options, the best interests analysis/decision and specific care plan and risk assessment are recorded in the person’s care records and medication records. Does the person’s GP need to be informed? Are there any other stakeholders involved in the person’s care that could/should be notified?