In a recent case (AG -v- BMBC & Anor [2016] EWCOP 37) the Court of Protection considered covert administration of medication. Although the patient concerned was not in a custodial setting, the case serves as a useful reminder of some of the important principles to bear in mind when considering such a step.

AG was a 92-year-old lady with a diagnosis of Alzheimer’s disease. She was living in a nursing home and subject to the deprivation of liberty (DOL) safeguards. In the course of Court proceedings, it became apparent that part of the care plan for AG was the administration of medication covertly. It was agreed that if no medication was administered to AG she was at risk of deterioration in her physical and mental health and therefore the decision to administer medication covertly in AG's best interests was proportionate and necessary at the time it was taken. However, the decision-making process around that decision was criticised. In particular, no family member had been involved in the best interests decision.

Covert administration of medication may be an appropriate treatment option for individuals in a custodial setting, as well as those who are subject to a DOL. In a custodial setting, the following considerations should be borne in mind:

  • Covert administration of medication should only be used in exceptional circumstances
  • The option of covert administration of medication is only available where the individual lacks capacity to make a decision about whether to accept or refuse that medication
  • An assessment of best interests in accordance with the Mental Capacity Act should be carried out, usually by way of a best interests meeting
  • Consideration of best interests must involve consultation with appropriate individuals close to the patient for example a partner or parent (unless this is impracticable or inappropriate). The patient being in a custodial setting does not rule out consultation with family members about best interests decisions
  • Covert administration of medication should be proportionate to the risks involved and consideration must be given to whether there is a less restrictive option
  • A detailed management plan for covert administration of medication should be agreed and recorded after a best interests meeting
  • Covert administration of medication should be kept under regular review

As ever, it is important that all decisions, and the rationale for those decisions, are carefully documented.

Case study

Neil is a 37-year-old prisoner who is agitated and psychotic. Test results reveal he is thyrotoxic. He is refusing all of his medication including Carbimazole – treatment for hyperthyroidism. He is cared for on the prison’s medical wing. Psychiatry specialists are asked to assess him, but are unable to do so until his hyperthyroidism is treated.

He is deemed not to have capacity to refuse his medication because his psychosis is affecting his ability to weigh up the relevant information in order to come to a decision. A best interests meeting is held in the prison and Neil’s mother is consulted with on the telephone. A decision is made that it is in Neil’s best interests to administer the Carbimazole covertly by concealing it in food and drink. This is necessary and proportionate because of the risk to Neil if his hyperthyroidism is not treated. Neil’s mother is in agreement with the plan. A care plan is drawn up for the administration of the medication and it is kept under regular review so that it can be stopped as soon as Neil no longer requires the medication, regains capacity or becomes compliant. All discussions, including those between the clinical staff and those involving Neil’s mother are carefully documented in Neil’s medical records.