Care homes in Scotland have been provided with fresh guidance on giving residents medication covertly when they lack the capacity to consent but are refusing treatment.
The Mental Welfare Commission for Scotland’s revised guidance is designed to address rising use of covert medication in care homes and a lack of clarity about the legal basis for giving it. In 2012, 1.6% of Scotland’s 37,411 care home residents were given covert medication, up from 1.1% in 2010.
Covert medication involves administering medicines in disguised form, for example in food and drink, where a person is refusing treatment necessary for their physical or mental health.
The guidance makes clear that it should only ever be considered when the individual has been found to lack capacity to consent to the treatment because of a mental disorder, Under the Adults with Incapacity Act (Scotland) 2000, treatment by force can only be used in an emergency. In its guidance, the commission said that it did not see covert medication as involving treatment by force, meaning that it can be used under the general provisions of the legislation.
Individuals are presumed to have capacity and should be supported to take decisions as far as possible, through information and explanations and means such as communication aids, speech and language therapy or psychological support.
“Covert medication is no substitute for explanation and education,” it says. “It should only be considered if impaired intellectual function makes this impossible.”
A medical or other health professional must have assessed the person as lacking capacity to consent to the treatment in question and issued a certificate of incapacity, under section 47 of the Act, specifying the treatment that should be given. The certificate can last for up to a year. Where the certificate is accompanied by a treatment plan, this should cover the use of covert medication, where this is deemed necessary.
The professional with primary responsibility for the individual’s medical treatment is responsible for deciding whether covert medication should be used. Before doing so, they must consider several factors.
Benefit and risk
Firstly, they must consider if the treatment is necessary for the individual, and the benefit must be sufficient to outweigh the risks of giving medication covertly. These include the risk that the individual will taste the medication in their food and drink, damaging their relationship with staff and potentially leading them to refuse food or drink.
Covert medication can also increase risks to safety and a risk-benefit analysis must be carried out before it is issued. For example, if medicine is crushed, this will generally mean it will be given outside the terms of its licence. In particular, slow-releasing or enteric-coated must never be crushed as this could be dangerous for the individual. Before administering the medication covertly, documented advice must be obtained from a pharmacist on doing this safely. Care staff must know how to administer the medication and there must be appropriate supervision available for them to do so.
Minimum restriction of freedom
Under the Adults with Incapacity Act 2000, interventions must be the least restrictive of the individual’s freedom, to achieve the desired benefit. Practitioners must question whether covert medication is really the least restrictive option. The guidance also warns that, in some cases, covert medication could be seen as degrading treatment, in breach of Article 3 of the European Convention on Human Rights.
Past and present wishes
Under the Adults with Incapacity Act, interventions must take account of the individual’s past and present wishes. Practitioners must inquire into why the person is refusing medication. It could be that they no longer wish to receive treatment or have never been in favour of taking medication.
Consult those closest to the person
Relatives or friends must be consulted about the person’s past statements or wishes on the subject. But those who know the person best will also be best placed to suggest how the person may be encouraged to take the medication without disguise. If covert medication is deemed necessary, they will be able to advise on the best way to disguise it.
Where there are no friends or relatives to consult, the guidance advises providing the individual with an independent advocate before covert medication is issued. The relevant local authority should be informed in these cases, as they may consider that a welfare guardian should be appointed by the courts to take decisions on the person’s behalf.
Record and review
The guidance also states that any use of covert medication must be recorded, and kept under regular review, with timescales based on the individual’s circumstances. If any additional medication is required, this should not just be administered covertly but should be considered as a fresh case and justified in the same way.