Care Homes and Covert Medication

Law and practice Mental Capacity Act
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Dear MHLO Hive Mind

Looking for some thoughts / guidance from the MHLO hive mind in relation to the administration of medication covertly in care home settings (not hospitals).

Some of you will have seen the recent Seabrooke Manor Ltd, R (On the Application Of) v Care Quality Commission [2024] EWHC 2203 (Admin) (27 August 2024) (bailii.org) case, which also references the Evidence | Managing medicines in care homes | Guidance | NICE and the Covert administration of medicines - Care Quality Commission (cqc.org.uk) guidance… In this judgment, and from reading older CoP covert medication cases there is something that is not answered, in my opinion. Which is, who is ultimately responsible for determining P’s capacity, where P actively refuses their medication and where P’s medication may be administered covertly in their best interests? Neither the judgment, CQC guidance or NICE guidance answers this clearly in my opinion. For example, the NICE guidance states ‘1.15.3 Health and social care practitioners should ensure that the process for covert administration of medicines to adult residents in care homes includes: • assessing mental capacity’ , and then jumps straight to the question of best interests)?

The above judgment explains, in line with the NICE guidance, that the care home should "[…] have a care home medicines policy which should include written processes for care home staff giving medicines to residents without their knowledge (paragraph1.1.2)” (para 50) and “ensures that the process for covert administration clearly defines who should be involved in, and responsible for, decision making, including providing authorisation and clear instructions for care workers in the provider’s care plan” (para 61), and I agree with both these statements.

Now, it has always been my understanding that it is the prescriber of the medication who is ultimately responsible for considering P’s capacity (should there be a reason to doubt their capacity), when P ‘actively refuses their medication’, even though the initial concern might have been flagged by the care home. Should the prescriber conclude that P lacks the capacity to make this treatment decision, it is for the prescriber to work with the care home / pharmacist / interested parties when considering whether or not administering the medication (medication specific) covertly is in the persons best interests (which includes the care home recording the approach that will be taken in P’s best interests in the medication care plan).

However, this recent judgment has made me doubt my understanding. In particular, Para 59 of the judgment could be read as it is the care home who are ultimately responsible for assessing and determining the person’s capacity in relation to this matter. Now the care home I suppose you could say carry out the act of giving the medication covertly, but to me the initial ‘act’ is the prescriber deciding that P cannot make this decision about their treatment (P ‘actively refusing their medication’), and that the giving of the treatment/medication in the best interests of P is through the administration of medication covertly.

My perhaps simplistic and normal view has been, although as I said none of the guidance gives a firm answer on the capacity / decision maker question, is:

  1. P is refusing medication, and care/nursing home staff reasonably believe P lacks the capacity to understand the reasonably foreseeable consequences of refusing said medication/treatment, and that they reasonably believe that administration of medication covertly might be in P’s best interests, as they have already tried all other less restrictive alternatives of supporting P to accept their medication (NB: I would expect the care/nursing home to record their concerns and share their concerns with the prescriber and have this all evidenced in their medication care plan – and be ready to share this with the prescriber)… As the NICE guidance states ‘Care home staff worried about deterioration in a resident’s condition should always seek the advice of a health professional’.

  2. Care home refer their concerns to relevant medication prescriber.

  3. Prescriber then determines whether P has the capacity to decide on medication/treatment.

Key Question

Do you agree? I notice NICE state the following here Giving medicines covertly | Quick guides to social care topics | Social care | NICE Communities | About | NICE “If there are concerns about the person’s ability to give informed consent to take their medicines, an appropriate person (e.g. the prescriber) should carry out a mental capacity assessment.”
I have no problem, with a prescriber relying on the evidence provided by the care home in the initial referral, if they reasonably believe the evidence provided is robust enough to establish a reasonable belief as to P’s capacity in relation to this matter.

  1. If the prescriber determines that P lacks the capacity to refuse the medication/treatment, the prescriber / pharmacist / care home / interested parties then determine collectively whether administering the specific medication[s] is in P’s best interests (I have no problem, where appropriate, with the care home co-ordinating this part of the process – this might in fact be beneficial for their medication care plan and also be a more effective way of doing this in practice).

  2. Care home / prescriber and pharmacist keep clear records of decisions made with agreed dates and process for review, including sharing these conclusion with other interested parties where appropriate.

What are the hive minds views on the above, please do highlight anything that appears to be wrong with the points I have highlighted?

NB: I am aware of the DoL considerations in relation to administration of medication covertly but wasn’t necessarily looking to explore this within this forum discussion.

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We use the Covert Plan form,involving GP,family,Care home manager/Senior nurse/carer 7 community Pharmacist.Either by F2F,telephone/email etc.Documentation is important,finally need IMCA.

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Thanks for the helpful response :slight_smile: … Based on your MHLO ‘handle’ I am presuming that you are a Dr and therefore saying that you would see yourself, as the prescriber, as being ultimately responsible for assessing and determining P’s capacity for decisions that may lead to the administration of medication covertly in P’s best interests?

Can I also just check, that when you mention the involvement of an IMCA that this would only be in situation where you are ‘satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P’s best interests’ ( Mental Capacity Act 2005 (legislation.gov.uk), s37(1)(b))?

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Hi James,

A very interesting judgment!

There are essentially 2 decisions in respect of covert medication.

The first decision relates to the actual medication itself. The decision-maker would be the prescribing clinician.

The second decision relates to administration of medication. The decision-maker would be the person proposing the support, i.e. care home. This best interests decision would take into account information considered by the prescribing clinician and others. This would then inform the covert medication care plan.

I hope this helps.

Sara

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Don’t disagree with anything you say as a matter of practice, but I think there are two separate elements to this - legal responsibility under the MCA and professional duties.

Under the MCA, the responsibility clearly lies with whoever physically administers the medicine - because that’s the act which would be illegal but for S5 MCA. There is no “ultimate responsibility” in MCA terms further up the chain, and I don’t think that legally it would necessarily require the prescriber’s authorisation.

Separately, there are non-MCA duties on others in the chain to ensure that the person is getting safe and appropriate healthcare. Typically you’d think that would mean the prescriber taking professional responsibility for decisions about covert medicine, but I doubt that is an absolute rule. It’s conceivable there could be circumstances where it would be reasonable, even better, for some other suitably qualified person to take decisions about capacity and best interests.

That said, in practice, no care home should be allowing its staff to administer medicines covertly without having gone through the kind of steps you set out.

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Thanks Dr Sarada / Sara / Richard for your very helpful responses :slight_smile: as they have provided me some clarity on the matter. I find it slightly frustrating that the NICE guidance isn’t perhaps more explicit in their guidance when it comes to these capacity/decision maker questions. I do think the rest of the NICE guidance is really helpful, clear and really easy to follow though, as well as the guidance from CQC (I do like how you both outlined your thoughts on this).

I do know that Bulletin 269: Care homes - Covert administration (prescqipp.info) always provided really clear guidance on this, but unfortunately you now need an NHS login to access these resources which I don’t have working for LA.

Thanks again for the responses :+1:

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Yes.But IMCA,if family involved,care home staff to be confident,depending upon Pharmacist advice etc,every one has to agree.

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Hi James,

I agree.I found it difficult to find any form,I used the form on our Rio medication/covert form,initial pathway,then review form etc.I can see the difficulty in the community,like supported accommadations,Residential/NHs.Unless the staff have a very robust training,supervision,GP/CMHT support it is not easy.But at the end of the day the RC is responsible to make sure everything is legally done.

Thank you,

Sara.

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