What is Covert Medication?
Covert medication means giving someone medicine without their knowledge or consent, usually by disguising it in food or drink, or by administering it through a tube.
It is a serious and highly restrictive procedure, raising complex legal and ethical questions, including how to balance a person's autonomy with the provision of medical treatment.
The Legal Framework: The Mental Capacity Act 2005
The Mental Capacity Act 2005 ("MCA") sets out how decisions can be made for adults who cannot make specific decisions themselves. It aims to protect their rights and ensure they remain central to the decision-making process.
Mental capacity is decision-specific. For example, a person may be able to decide where to live, but not whether to take certain medication. The law starts with the presumption that a person has capacity unless there is evidence to show otherwise.
Where capacity is in doubt, an assessment is carried out. This involves first identifying whether there is an impairment or disturbance in the functioning of the mind or brain, such as dementia. The second stage looks at whether that impairment means the person cannot make the decision – for example, because they cannot understand, retain, use or weigh relevant information, or communicate their choice. Capacity can fluctuate, and a person may have capacity even if they can only retain information briefly, provided they can decide at the time it is needed.
When Can Covert Medication Be Used?
Under the MCA, medication must only be administered covertly if the person has been assessed as lacking capacity to make decisions regarding their health or medication, and a best interests decision authorising the covert administration of their medicine has been made on their behalf. Courts have emphasised it should be used only in "exceptional circumstances" and when "necessary and in accordance with" the MCA.
The Right to Refuse Treatment
A person with capacity has the absolute right to refuse treatment, even if that decision appears unwise or could lead to their death. This is supported both by the MCA and case law, which confirms that treatment cannot be given without valid consent.
If a person lacks capacity, decisions must be made in their best interests. An advance decision made while they had capacity – for example, refusing certain treatments in future – will be legally binding if valid and applicable. Where no such decision exists, and treatment is in their best interests, the court can authorise covert administration.
Consent and Compliance
A person who lacks capacity cannot give informed consent. Simply agreeing to take medicine, or passively accepting it, is not consent in law. Capacity must be assessed and, if lacking, the decision made in accordance with the MCA.
Implementing Covert Medication
The National Institute for Health and Care Excellence ('NICE') has published guidance for those who work closely with persons who may lack the capacity to make certain decisions. The NICE guidance requires care providers to have a medicines policy, including a process for covert administration. If there are concerns about a person's capacity to consent to medication, an appropriate professional, such as their GP, should carry out a capacity assessment. If the person is found to lack capacity, a best interests meeting should decide whether medication can be stopped, given in another form, or administered covertly.
Covert administration should not happen without a best interests meeting, even in urgent cases. If covert medication is authorised, the method of administration must be carefully planned, taking into account safety, restrictiveness and the person's best interests.
Reviewing the Decision
A duty is imposed upon the care provider to regularly review the need for covert medication, especially where there is a chance the person might regain capacity, or where capacity fluctuates over time.
Summary
Covert medication is a serious step, to be taken only as a last resort. It requires a lack of capacity, a clear best interests decision, and full compliance with the Mental Capacity Act 2005. Decisions must be guided by ethical standards and kept under regular review.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
