A recent Care Quality Commission inspection report of a care home spotlights the issue of covert medication and the Mental Capacity Act. Hilltop Hall Nursing Home received an overall rating of inadequate and one of the reasons concerned the safe use of medicines.
The administration of covert medication is a step which must be taken with considerable care and forethought. The regulator’s findings serve as a reminder to care home operators of the importance of complying with the principles of the Mental Capacity Act.
In the case of Hilltop Hall, the CQC found that “Covert medicines were not being managed in line with the principles of the MCA. Appropriate MCA and best interests decisions were not always found with people’s care records with consideration of which medicines met the criteria for being administered covertly.”
The CQC issued updated guidance in November 2022 which states:
“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.”
The guidance provides that decisions should follow the Mental Capacity Act and if a person is assessed as lacking the relevant capacity the best interests process should be followed. A record of the decisions should be documented in the management plan and should be easy to follow. Covert medication must be the least restrictive option after trying all other options including different medicines and methods of administration.
It is of note that there is no express power in the MCA to authorise covert medication except following a proper assessment of capacity and best interests.
There have been a few cases before the Court of Protection on the issue of covert medication. Readers will know that the CoP has power to make decisions to accept or refuse medication on behalf of a vulnerable adult lacking capacity, in their best interests, including through use of covert medication.
The issue of covert mediation was considered very recently by Mr Justice Poole in Re A: Covert Medication: Residence – you can read our article on the decision here.
Comment
The use of medication without consent or covertly whether for physical health or for mental health must always call for close scrutiny. Care home operators need to ensure that there is a robust assessment of the person’s capacity and best interests under the MCA. This process must involve the health professionals, carers and family and take into account professional guidance, such as NICE guidelines. All decisions must be clearly recorded in care and treatment plans and subject to regular review.
We can also signpost you to Alex Ruck Keene's KC of 39 Essex Chambers video he has recorded for care providers. Alex talks about why thinking about capacity is important and you can watch the video here.
Do contact us if you would like to discuss any of the issues raised here – we can help with training and reviewing your medication policies.
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