AG (by her litigation friend the Official Solicitor) v BMBC & SNH 
Keywords: DoLS, restrictions, medication, covert administration
FACTS: AG was 92 and had Alzheimer’s dementia. In October 2014, the council’s (BMBC) memory team had become concerned about her. She was described as living in squalor, with no food or means to prepare it and her personal appearance was unkempt. There were also concerns that she may not have been taking her prescribed medication. Following a fall in the community, AG had presented at A&E and been admitted to hospital for neurological observation. She refused respite care, but was assessed as lacking capacity to decide on her care and a best interest decision was made to place her in a care home (SNH) and a standard DoLS authorisation granted for 12 months. No family member was involved in the best interests decision making process and nor were the RPR or AG’s social worker.
In July 2015 an application was made to challenge the standard authorisation to consider visits to the community or a possible return home with support. All parties accepted (on the basis of a psychiatric report) that AG lacked capacity to make decisions regarding her care, accommodation and treatment and to conduct proceedings and a declaration to this effect was made in November 2015. During the proceedings it became apparent that part of AG’s care plan at the home involved the covert administration of medication. Occasionally AG would co-operate in taking her medication, but when she did not (which was most of the time) it was administered covertly. The issue had not been considered during the DoLS authorisation process and had not been specified on that authorisation.
All parties accepted that, at the time it was taken, the decision to administer medication covertly in AG’s best interests was proportionate and necessary. AG’s history included self-neglect and risky behaviour (night time wandering and aggressive behaviour) which indicated a serious risk of harm to herself. At the time of the original decision (in November 2014), one medication involved was thyroxin, and the risks of that not being taken included severe ill-health. Therefore it was concluded that she was a risk of deterioration in her physical and mental health if prescribed medication was not taken. AG was also prescribed promethazine (a medication with sedative effects) during this period, but there was no separate consideration of the issues in relation to covert administration of this medication.
The issue of covert administration of medication had been discussed with both the social worker and the BIA by the manager of the home in November 2014. However the BIA did not consider it relevant to the qualifying requirements for DoLS authorisation, did not recommend any conditions and proposed the maximum 12 month period of authorisation without any provision for review. It was unclear to what extent the RPR knew or could have gained access to information about the covert administration of medication.
In February 2015, diazepam was prescribed and this was, again, administered covertly. There appeared to be no substantial communication about or recording of this change in prescription and, as a result, no clear best interests decision making nor review of the DoLS authorisation. Consequently there was no consideration of whether, in relation to a different medication, the balance was different between risks to AG from not taking the medication and the infringements of her rights resulting from covert administration.
In relation to the specific case
The court made no findings of fact in relation to AG’s case but it was noted that:
a) There did not appear to have been proper consideration given to the initial covert use of promethazine (a medication with sedative properties) between November 2014 and February 2015.
b) In this case the use of covert medication was not subject to proper safeguards nor to review.
c) The decision to administer diazepam covertly in February 2015 appears not to have been communicated to the supervisory body (BMBC) or to the RPR. As a result a potential opportunity to request a review of the standard authorisation was lost.
d) The fundamental decision to administer medication covertly does not appear to have been reviewed, nor does there appear to have been any provision made for it to be reviewed. The covert medication policy disclosed to the court made it clear that covert administration is only to be considered in exceptional circumstances. However there needed to be provision to review whether exceptional circumstances continued to exist when circumstances changed.
e) No family member or RPR on behalf of AG nor AG’s social worker appeared to have been involved in the best interest decision making process.
Fortunately, in this particular case, there appeared to have been no harm caused to AG as a result of the covert use of either promethazine or diazepam.
Therefore the judgement focussed on providing guidance regarding best practice around the covert administration of medication.
On good practice around covert administration of medication
Treatment without consent interferes with Article 8 right to respect for private life and has the potential to contribute to restrictions which cumulatively deprive an individual of their liberty (and thus interfere with Article 5 rights). In order for such interference to be lawful, proper safeguards against arbitrariness are required. “Medication without consent and covert medication are aspects of continuous supervision and control that are relevant to the existence of a DOL.” [para. 25]. Therefore, such a decision must be:
(1) Length of authorisation and provision for review
With regard to the period of the DoLS authorisation (the maximum 12 months in this case), the judgement draws attention to the fact that the period for which an authorisation should be in place is a matter which should be actively considered by a BIA during the DoLS process. The decision making process must consider the likelihood of any relevant change of circumstances during the proposed period of authorisation, including the expected progression of the illness or disability. The fundamental principle is that deprivation of liberty should be for the minimum period necessary. Therefore, a maximum twelve month authorisation should only be sought in cases where the assessor is confident that a change in circumstances relevant to the authorisation is unlikely throughout that period.
The use of covert medication and its consequences should be noted in any best interests assessment for the purposes of a DoLS authorisation and include notification of the need for safeguarding and internal reviews, independent of DoLS process. Subject to the facts of a given case, the judgement suggests that it is generally inappropriate for a standard authorisation to be for the maximum 12 months where the care plan includes the use of covert medication. The judgement suggests that in cases with similar facts to AG’s a six month period might be more appropriate.
The DoLS process provides for a best interests assessment to include recommendations about conditions to which the standard authorisation is or is not to be subject and the supervisory body is required to have regard to any such recommendations when granting an authorisation. The judgement provides the guidance that, in situations where the use of medication is relevant to the DOL, conditions around reviewing the use of medication and its impact on the person and the DOL with a view to reducing any restrictions are appropriate.
The length of authorisation is related to the provision made for internal reviews by the care home of the continued necessity and proportionality of the covert administration of medication. Where regular reviews are being undertaken, there may be greater justification for a longer period. So, at minimum, there should be conditions attached to the DOLS authorisation for review, but, preferably, the authorisation should be for a shorter period.
(2) What constitutes a relevant change of circumstances that should trigger a review of a DoLS authorisation?
The judgement is clear that this depends heavily on the facts of each case. However, it must sensibly apply to each of the steps in the best interests assessment (albeit on a case-by-case basis). A straightforward substitution of medication will not necessarily trigger a review. However, if the change in prescription alters the strength/dosage in a way which impacts on the effects on P, “especially if as in this case it potentially impacts upon a person’s behaviour or mental health or is a sedative in effect” [Para. 31]. So, in this case, the shift from promethazine to diazepam (a stronger sedative medication) in February 2015 should have triggered a review.
“A clear omission of information relating to additional restrictions or interference with autonomy is a relevant change in the circumstances known to the best interest assessor that should trigger an immediate review under part 8. This would also apply to new circumstances arising after the DOL is granted and that were not known about or did not exist at the time.” [para. 39]
(3) The duty on the managing authority to update the supervisory body.
The judgement notes that the supervisory body has a general discretion to review a standard authorisation at any time and must carry out a review if requested to do so. However, it was acknowledged that, generally, the supervisory body is dependent on the managing authority to provide information about relevant changes in circumstances. Responsibility for monitoring on an ongoing basis to consider whether any change in circumstances may mean that P no longer needs to be deprived of their liberty lies with the managing authority, regardless of the length of the authorisation. The care plan must set out clearly the circumstances under which a review is necessary and, where P’s condition changes frequently, their situation should be reviewed more frequently in accordance with the supplementary code of practice.
The care home as managing authority has a duty to keep a patient’s case under review and if any of the qualifying requirements appear to be reviewable then it must request a review. So it is essential that the original best interest decision is clear and that there is a proper and fully recorded care plan and review process which in the event of change of circumstance can be triggered. Information must be easily and readily accessible not only to the healthcare professionals but also to those who may be representing P. Any change to the care plan should be notified promptly by the managing authority to the supervisory body.
The judgement set out the following as good practice guidance:
ANALYSIS: Scrutiny is the key word here. “Covert medication is a serious interference with a person’s autonomy and right to self-determination under Article 8. It is likely to be a contributory factor giving rise to the existing DOL. Safeguards by way of review are essential.” [para. 38] and “The use of medication without consent or covertly whether for physical health or for mental health must always call for close scrutiny.” [para 40]. The judgement provides important guidance about how the covert administration can be properly scrutinised and authorised in appropriate cases. This does not mean that it can never be done. But it does mean that “rubber stamp” best interests decision making and DoLS paperwork is not just not enough to prevent the care home and the council being castigated in court, nor (more importantly) to adequately protect the rights of vulnerable individuals. The steps outlined in the good practice guidance issued by the court may seem like yet another addition to the paperwork burden, but their purpose is clear – the vital importance of ensuring that adults who lack the capacity to decide about their own care are not drugged against their wishes and without their knowledge without the situation being carefully subjected to independent scrutiny.
It is clear from the judgment that the nature of the medication is a relevant issue to whether and to what extent the use of non-consensual medication constitutes a restriction on an individual’s liberty and may, therefore, contribute to a DOL. It is clear that, although the administration of any medication non-consensually should be considered through a proper best interests decision making process, the greatest potential to constitute restrictions on an individual’s liberty comes from the use of sedating medications and those which impact on mental health or behaviour (and this must logically include medications where such effects are side effects rather than necessarily the intended primary purpose of the medication). Even where medications are not covertly administered and are being complied with by P, their use may constitute a restriction on P’s liberty. However covert administration is an additional factor contributing to the extent to which such medication infringes on P’s rights.
The key factor in determining when a review is required is the impact of the change on the extent of the restrictions on P and the balance between infringements of P’s rights and the necessity and proportionality of those infringements and the availability or otherwise of a less restrictive alternative. The level (internal to the managing authority or by the supervisory authority) and frequency of review required will depend on the extent of the overall restrictions on P’s liberty and the impact of the change on whether P needs to continue to be deprived of their liberty. It is also important for providers to note that changes which impact significantly on any of those aspects (even if an internal review concludes that they are proportionate and in P’s best interests) must be reported to the supervisory authority.
Even where there is not any change in circumstances, there must be reviews at regular and fairly frequent intervals. This is because giving someone medication which may alter their mental state or behaviour without their consent and without their knowledge is a very serious infringement of their rights. It is a form of chemical rather than physical restraint. This does not mean that it is not perfectly appropriate, proportionate and in the best interests of some individuals. But it should clarify minds as to why the fundamental decision about whether it is justified at all should be subjected to scrutiny and even fully reconsidered at regular intervals – even where nothing has changed.