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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:
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.
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:
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.
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:
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:
The MCA Code of Practice should be referred to for more detailed information.
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:
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:
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.
Medicines management in care homes (NICE)
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:
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.
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.
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:
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.
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:
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.
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:
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.
It is recommended that a practice dilemma such as the covert administration of medicines be discussed in regular supervision.
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.
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.
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