Administration of Covert Medication for people detained under the Mental Health Act

Law and practice Mental Health Act
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I was asked a question about the administration of Covert Medication when the person is currently detained in a psychiatric hospital under the provisions of the Mental Health Act. This is not an area I am personally confident in offering advice on and I was surprised that i couldn’t find any clear guidance on this topic online.

I was hoping to have found a flowchart that explains and walks a professionals through:

  • when the administration of covert medication could be justified under the MHA (including the evidence needed to justify the decision) and
  • in which situations the administration of covert medication should be justified under the MCA (if MCA was applicable i would be far more confident in explaining to a professional what would need to be considered/evidenced and the case law in this area).

All guidance welcome and gratefully received.

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The following may be useful starting points:

Covert medication: decisions must follow the law and NICE guidance | Medico-legal issues | Guidelines in Practice

Admin of Meds prof guidance.pdf (rpharms.com)

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and this, which is a bit old perhaps but basically sound p1byeIc5Al (dpt.nhs.uk); and a very good guide by the Scottish Mental Welfare Commission that is useful even if you are not under their jurisdiction covert_medication.pdf (mwcscot.org.uk)

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I have the beginnings of a page on MHLO about this (Covert administration of medication - Mental Health Law Online) – though it’s mostly been left unchanged since its creation in 2009, and all three of the external links are now dead… I’ll use the discussion above (and hopefully below) to improve the page :slight_smile:

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Thanks Mat / Stephen / Jonathan for the already very helpful responses!!!

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So I was wondering whether we can continue this conversation based on some of the points highlighted in the reading that you suggested. I want to emphasise that my knowledge of the MHA is minimal so please excuse any obvious errors or poor use of terminology. My particular interest in this area is the recording expectations that are placed on the clinicians who will be determining the justification for the administration of the medication covertly.

To perhaps make it easier if we start from an example where the purpose of the medication is for the treatment of the mental disorder and not related to physical health. The person is also in a psychiatric hospital and detained under the Mental Health Act.

My questions/queries come from the MHA Code of Practice (Care, support and treatment in hospital, para 24.41, pg. 257):

24.41 During this time, the patient’s consent should still be sought before any medication is administered, wherever practicable. The patient’s consent, refusal to consent, or a lack of capacity to give consent should be recorded in the case notes. If a person has capacity to consent, but such consent is not forthcoming or is withdrawn during this period, the clinician in charge of the treatment must consider carefully whether to proceed in the absence of consent, to give alternative treatment or stop treatment.

Also the CQC guidance that you linked me to which states: Under human rights law, people who are capable of making the decision have the right to accept or refuse medical treatment even if that may lead to their death. The Mental Health Act (MHA) overrides that right in specific circumstances. It gives authority to provide psychiatric treatment to a patient detained under its powers without their consent (see brief guide to capacity and consent). This may include authority to give psychiatric medication covertly.

This seems to suggest that the initial justification for the potential administration of covert medication would come from either:

  • refusal to consent,
  • or a lack of capacity to give consent.

Question 1: Would I be right or wrong to assume that you could have a person who refuses to consent to the administration of the medication for the mental disorder, but at the same time could not be deemed to lack the capacity to make that decision within the meaning of the Mental Capacity Act?

Question 2: If the above assumption is correct, if you had a person who was refusing consent to the administration of the medication, but the clinician did not feel that the person lacked the capacity to make that decision, their case recording would need to include, something along the lines of:

  1. An outline of the aim of the medication and why it will reduce the risks posed by the person’s mental disorder and that it would lead to an improvement in their mental health
  2. An explanation of why the clinician believes that the administration of the medication covertly is a proportionate response to the risks that have been identified and that other less restrictive alternatives have been explored.

On the other hand if the clinician believe that the person lacked the capacity to make the decision to refuse the medication you would expect the clinician to outline their decision making in line with the provisions of the Mental Capacity Act. Would you agree?

In summary…

  • If the person is refusing to consent to the administration of the medication, but no reasonable belief that the person lacks capacity, the legal justification for the administration of the medication covertly would be through the MHA
  • If it is a lack of capacity to consent, and the person is refusing the clinicians recording should outline their decision making in line with the MCA?

Any thoughts?

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There’s a good section in the MHA Manual about covert medication in the commentary on s58 (1-768, page 368, 24th edition). It includes this:

The legal position is that the covert administration of medication can only be given to a detained patient under the powers contained in either s.63 (i.e. during the three-month period provided for in subs.(1)(b)) or under subs.(3)(b). Before treatment is administered covertly, the RC should consider: (a) why it is not “practicable” to seek the patient’s consent (Code of Practice para.24.41), and (b) whether, for the purposes of art.8(2) of the European Convention on Human Rights, the giving of covert medication is a proportionate response to the aim of improving the patient’s health or reducing the risk posted by the patient (Code of practice para.24.43).

It also mentions some practical points, including applications to court, and treatment under the MCA 2005.