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5. Providing Care or Treatment to People who lack Capacity: Issues for Staff

1. How the Mental Capacity Act 2005 Protects Health and Social Care Staff

The Mental Capacity Act (MCA) provides legal protection from liability for carrying out certain actions in connection with the care and treatment of people who lack capacity provided that:

  • the principles of the MCA have been observed;
  • an assessment of capacity has been carried out and the decision maker reasonably believes that the person lacks capacity in relation to the matter in question;
  • the decision maker reasonably believes the action he or she has taken is in the best interests of the person.

Some decisions can result in major life changes, or have significant consequences for the person concerned – for example, a change of residence, perhaps into a care home or nursing home or major decisions about healthcare and medical treatment. These decisions need particularly careful consideration.

2. Information Related to Social Care

Providing the MCA has been complied with in relation to assessing a person’s capacity and social care staff have acted in a person’s best interests, many aspects of a person’s personal care can be carried out without their consent and attract protection from liability in doing so.

Actions concerning a person’s care that may attract protection from liability may include:

  • helping with washing, dressing or attending to personal hygiene;
  • help with eating and drinking;
  • helping people to walk and assistance with transport;
  • help with arranging household services such as power supplies, housework, repairs or maintenance;
  • acts performed in relation to personal home-based care or other services;
  • acts performed in relation to other community care services (such as day care, residential accommodation or nursing care);
  • acts associated with a change of residence;
  • acts associated with the person’s safety;
  • acts associated with adult protection procedures.

Records must show the steps taken where significant acts or decisions are being considered especially where acts may be disputed in emergencies. Careful and detailed case recording is therefore essential even in an emergency.

3. Information Related to Health Care

Providing that the MCA has been complied with in any actions taken in a person’s best interests, patients can be treated and diagnosed without their consent. For example:

  • diagnostic examinations and tests;
  • assessments;
  • medical and dental treatment;
  • surgical procedures;
  • admission to hospital for assessment or treatment (except for people who are liable to be detained under the Mental Health Act 1983/2007);
  • nursing care;
  • emergency procedures (such as cardiopulmonary resuscitation).

It is important to keep full records of everything that has happened. Protection from liability will only be available if it can be demonstrated that an assessment of capacity has been carried out, it is reasonably believed that capacity is lacking and actions have been taken in the belief that they are in a person’s best interests.

In emergencies, it will often be in a person’s best interests for urgent treatment to be provided without delay, but the recording must still demonstrate that the MCA was complied with throughout.

As is the situation now, there are some decisions about medical treatment that are so serious that each case should be considered by the Court of Protection, for example:

  • decisions about the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS);
  • cases involving organ or bone marrow donation by a person who lacks capacity to consent
  • cases involving the proposed non-therapeutic sterilisation of a person who lacks capacity to consent to this (e.g. for contraceptive purposes);
  • all other cases where there is a doubt or dispute about whether a particular treatment will be in a person’s best interests.

The MCA Code of Practice should be referred to for more detailed information.

4. Use of Restraint

Issues relating to restraint may be of particular concern to staff, depending on work settings. Restraint covers a wide range of actions, including the use, or threat, of force to do something that the person concerned resists – for example, using cot sides, confining people’s movements or restricting his or her liberty of movement (falling short of a restriction that would deprive them of their liberty). The MCA identifies two conditions which must be satisfied in order for protection from liability for restraint to be available:

  • it must be reasonably believed that it is necessary to undertake an action which involves restraint in order to prevent harm to the person lacking capacity;
  • any restraint must be a proportionate response in terms of both the likelihood and seriousness of that harm. Using excessive restraint could lead to liability for a range of civil and criminal penalties. For instance, it may be necessary to accompany someone when going out because they cannot cross roads safely, but it may be unreasonable to stop them from going outdoors all together.

5. Protecting People who Lack Capacity from Ill-Treatment or Neglect

The MCA introduced criminal offence of ill treatment or wilful neglect of a person who lacks capacity. This is intended to deter people from abusing, ill-treating or neglecting people who lack capacity. If convicted, people can be imprisoned or fined.

The offence could potentially cover restraining someone unreasonably against their will, failure to provide adequate care, and also other types of abuse such as financial, sexual, physical and psychological abuse.

This offence applies to someone (professional or otherwise) who:

  • has the care of a person who lacks capacity;
  • is an attorney appointed under a LPA or EPA;
  • is a deputy appointed for the person by the court.

Staff need to have full knowledge of this when carrying out their duties, and in keeping with good practice in health and social care, records should be kept showing that the Code of Practice has been followed.

Whilst the majority of people who are involved in the care of vulnerable people are entirely trustworthy, everyone should be alert to signs of abuse and take swift action to prevent or stop it.

If you think someone is being abused or ill-treated you should follow the West Midlands Adult Safeguarding Policies and Procedures.

5. Guidance on the Use of Covert Medication for People who Lack Capacity

Useful Links

Medicines management in care homes (NICE)

5.1 Introduction

This guidance has been prepared for practitioners regarding the covert administration of medicines with reference to the Mental Capacity Act 2005.

It is a complex issue. It involves the fundamental principles of patient and client autonomy and consent to treatment, which are set out in common law and statute and underpinned by the Human Rights Act 1998. Practitioners should ensure that covert administration only takes place in the context of existing legal and good practice frameworks to protect both the adult who is receiving the medicine/s and the staff involved in administering the medicines.

Disguising medication in the absence of informed consent may be regarded as deception. However, a clear distinction should always be made between those patients /clients who have the capacity to refuse medication and whose refusal should be respected, and those who lack this capacity. Among those who lack this capacity, a further distinction should be made between those for whom no disguising is necessary because they are unaware that they are receiving medication and others who would be aware if they were not deceived into thinking otherwise.

Please note: covert administration should not be confused with the administration of medicines against someone’s will, which in itself may not be deceptive, but may be unlawful. Even if a client lacks the capacity to understand they are receiving medication, the decision to administer that medication still needs to follow the principles of the MCA and records must show that a best interests decision was taken and how it was taken.

As a general principle, by disguising medication in food or drink, the patient / client is being led to believe that they are not receiving medication, when in fact they are. Each practitioner needs to be sure that what they are doing is in the best interests of the patient / client, and be accountable for this decision. They should also ascertain whether or not they have the support of the rest of the multi-professional team, and make their own views clear. It is unacceptable for practitioners to make a decision to dispense medication in this way in isolation.

The process for covert administration of medicines to adults includes:

  • assessing mental capacity;
  • holding a best interests meeting involving staff, the health professional prescribing the medication, pharmacist and family member or advocate to agree whether administering medicines without the person knowing is in their best interests;
  • recording the reasons for presuming mental incapacity and the proposed management plan;
  • planning how medicines will be administered without the adult knowing;
  • regularly reviewing whether covert administration is still needed.

Even with completed risk assessments and guidelines, and following the involvement of all relevant parties, comprehensive recording in case records is imperative. This should support duty of care arguments.

5.2 General framework of professional conduct

Every practitioner involved in this practice should reflect on the treatment aims of disguising medication. Such treatment must be necessary in order to save life or to prevent deterioration or ensure an improvement in the patient’s / client’s physical or mental health; it must be in the best interests of the patient / client.

Practitioners involved in the practice of administering medicines covertly should be fully aware of the aims, intent and implications of such treatment. Disguising medication in order to save life, prevent a deterioration, or ensure an improvement in the person’s physical or mental health, cannot be taken in isolation from the recognition of the rights of the person to give consent.

Some forms of forced or disguised medication are recognised by law, for example if a person is lawfully detained under a section of the relevant mental health legislation.

5.3 Consent

Every adult must be presumed to have the mental capacity to consent or refuse treatment, including medication, unless he or she is unable to do all of the following:

  • to understand information given to them;
  • retain that information long enough to be able to make the decision;
  • weigh up the information available to make the decision;
  • communicate their decision – this could be by talking, using sign language, using pictures and symbols or Makaton, even simple muscle movements such as blinking an eye or squeezing a hand.

Where adult patients / clients are capable of giving or withholding consent to treatment, no medication should be given without their agreement. For that agreement to be effective, the patient / client must have been given adequate information about the nature, purpose, associated risks and alternatives to the proposed medication. An adult with mental capacity has the legal right to refuse treatment, even if a refusal will adversely affect his or her health or shorten his or her life. Therefore, practitioners must respect a competent adult’s refusal as much as they would his or her consent.

5.4 Procedure

When a patient / client is considered incapable of providing consent, or where the wishes of the mentally incapacitated patient or client appear to be contrary to the best interests of that person, the practitioner should:

  • undertake and record an assessment of the person’s needs and proposed care or treatment to include identification of the risks involved in the client not taking their medication as prescribed;
  • in conjunction with the medicine prescriber, undertake and record a capacity assessment;
  • convene a Best Interests Decision meeting in order to consult relevant people close to the patient / client, such as relatives, carers and other members of the multi-disciplinary team (including the General Practitioner in community settings);
  • in the absence of anyone to support the client, then covert administration of medicines should be considered serious medical treatment, and an Independent Mental Capacity Advocate (IMCA) instructed;
  • consult a pharmacist in order to explore options available for administration;
  • record the decision taken by the team in the form of a Best Interests Decision Plan and keep a copy of that plan with the Medicine Administration Record for the patient / client;
  • ensure the Best Interests Decision Plan has been signed by all members of the decision making team, including family members;
  • ensure that the correct equipment for crushing or dividing medicines are available, again the advice of the pharmacist is crucial;
  • respect any previous instructions that the patient / client gave.

In some cases the patient / client may have indicated consent or refusal at an earlier stage, while still competent, in the form of an Advance Decision to Refuse Treatment (ADRT). Where the patient’s / client’s wishes are known, practitioners must respect them, provided that the decision in the ADRT is clearly applicable to the present circumstances and there is no reason to believe that the patient or client has changed their mind.

Nobody, not even a spouse, can consent for someone else, although the views of family and close friends must be sought when clarifying a patient’s / client’s wishes and establishing his or her best interests.

A patient / client may be mentally incapacitated for various reasons. These may be temporary reasons, such as the effect of sedatory medicines, or longer term reasons such as mental illness, coma or unconsciousness. It is important to remember that capacity may fluctuate, sometimes over short periods of time, and should therefore be regularly reassessed.

If such a patient / client recovers awareness, their consent should be sought at the earliest opportunity.

5.4.1 Summary

The covert administration of medicines is only likely to be necessary or appropriate in the case of patients or clients who actively refuse medication but who are judged not to have the capacity to understand the consequences of their refusal.

In such circumstances and in the absence of informed consent, the following considerations must apply:

  • the best interests of the patient / client must be considered at all times;
  • the medication must be considered essential for the patient’s / client’s health and wellbeing, or for the safety of others;
  • the decision to administer a medication covertly should not be considered routine, and should be a contingency measure. Any decision to do so must be reached after assessing the care needs of the patient/client individually. It should be patient / client-specific, in order to avoid the ritualised administration of medication in this way;
  • there should be broad and open discussion among the multi-professional team and the supporters of the patient / client, and agreement that this approach is required in the circumstances. Those involved should include carers, relatives, advocates, and the multidisciplinary team (especially the pharmacist). Family involvement in the care process should be positively encouraged. The method of administration of the medicines should be agreed with the pharmacist;
  • the decision and the action taken, including the names and signatures of all parties concerned, should be documented in the form of a Best Interests Decision Plan and reviewed at appropriate intervals.

Regular attempts should be made to encourage the patient / client to take their medication. This might best be achieved by giving regular information, explanation and encouragement, preferably by the team member who has the best rapport with the individual.

5.4.2 Supervision

It is recommended that a practice dilemma such as the covert administration of medicines be discussed in regular supervision.

5.4.3 Crushing medication and mixing with food and drink

It is generally not acceptable to crush medication since this may alter the properties of the tablet or capsule. By doing this, the person may absorb the medication quicker than intended and suffer side effects. But some medicines would not be affected after being crushed and some capsules can be opened and the contents mixed with food.

Practitioners must seek the professional guidance of a pharmacist who is in the best position to advise on this and then document that advice in the case record and Best Interests Decision plan.

Some foods or drinks may affect the active ingredient of the tablet or capsule or how it is absorbed, if they are taken together. Again, the professional advice of a pharmacist must be sought.

Crushing medicines and mixing medicines with food or drink to make it more palatable or easier to swallow when the person has consented to this, does not constitute covert administration. However it is still important that other forms of medication are considered first such as liquids, dispersible or soluble tablets.

It is important to clearly distinguish between those people who have the capacity to refuse medication (and that this is respected) and those people who lack capacity. It must be remembered that capacity changes and so regular reviews are needed.

5.5 What will inspectors look for during inspections?

  • Instructions are written on Medicine Administration Record charts;
  • Evidence of medicines being crushed such as tablet crushers, metal spoons, mortar and pestle;
  • Food e.g. pots of jam, kept with medication;
  • What people say about how they are given their medicines;
  • What policies and procedures are in place;
  • Does the care and support plan carry an assessment of the person’s capacity and identifies who carried out the assessment and when;
  • That the care and support plan reflects the person’s assessed needs and any agreements to administer medicines in food or drink are clearly documented;
  • There are agreed review dates and those reviews take place.

5.6 Covert medication and Deprivation of Liberty Safeguards

In AG v BMBC & Anor [2016] EWCOP 37, District Judge Bellamy gave guidance in cases where covert medication is used when someone is subject to a Deprivation of Liberty Safeguards Authorisation. This included where the relevant person is unable to consent to taking prescribed medication, the managing authority must ensure that the Relevant Person’s Representative (RPR) along with the medical practitioner and pharmacist are consulted to make a best interests decision on the behalf the relevant person.All information pertaining to the covert administration of medication to the relevant person including, mental capacity assessments and best interests decisions must be documented in their care plan and in care records.

It is imperative for the managing authority to regularly and formally review the covert medication regime in consultation with the RPR, in order to take into consideration any changes in their health and wellbeing.

Failure to consult with the medical practitioner and pharmacist before commencing the administration of covert medication regimens is likely to result in a referral to the Care Quality Commission and an adult safeguarding investigation, as well as an infringement of the relevant person’s civil liberties as enshrined in the Human Rights Act, 1998.

5.7 Further Information

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