Re AG [2016] EWCOP 37

​This application before District Judge Bellamy concerned the legality of providing covert medication to patients subject to DOLS authorisations and the attributability of the State.

​Background
The council raised concerns in October 2014 that AG, now aged 92, had been living in squalor without a fridge, cooker or food. She appeared unkempt and there were concerns she was not taking prescribed medication as required. After suffering a fall in November 2014, AG was placed in a home. A standard authorisation was granted under Schedule A1 of the Mental Capacity Act 2005 to authorise AG's deprivation of liberty from 18th December 2014 to 17th December 2015.

On 7th July 2015 an application was made challenging this standard authorisation to consider whether AG can be safely managed within the community. Dr Swamiraji diagnosed AG with Alzheimer's and concluded AG lacked capacity to make decisions regarding her care, accommodation and treatment. Her care plan involved the administration of medication covertly, which had not been assessed in December 2014 as required by Schedule A1. 

It was accepted by all parties that if AG did not receive any medication she was at risk of both physical and mental deterioration. District Judge Bellamy therefore needed to decide whether there was any infringement on AG's Article 5 and 8 rights.

Decision
District Judge Bellamy found that covertly administering medication infringed the right to a private life under Article 8 ECHR. Additionally, it was held that when she was admitted to the home AG was deprived of her liberty within the meaning of Article 5 of the ECHR. The objective test in P v Cheshire West was met as AG is under constant supervision and control of her carers and not free to leave. The subjective test is also met as AG lacks capacity. Therefore, arrangements for AG's accommodation are attributable to the State.

All parties agreed that covert medicines should only be used in exceptional circumstances and the Judge commented:

"The use of medication without consent or covertly whether for physical health or for mental health must always call for close scrutiny. It seems to me that there is good reason to pay close regard to the justification for medication especially if as in this case it potentially impacts upon a person’s behaviour or mental health or is a sedative in effect."

Discussion
Clearly the use of medication without consent or covertly must always call for close scrutiny.  

​District Judge Bellamy provided a procedural guide which may be of assistance in future cases:

1. Where there is a covert medication policy in place there must be full consultation with healthcare professionals and family;
2. The existence of such treatment must be clearly identified within the assessment and authorisation;
3. If the standard authorisation is to be for a period of longer than six months there should be a clear provision for regular reviews of the care and support plan;
4. There should be a review involving family and healthcare professionals;
5. Each case must be determined on its facts and generally in circumstances similar to this, standard authorisations should be limited to six months;
6. Where appointed, a RPR should be fully involved in those discussions and review so that if appropriate an application for a part 8 review can be made;
7. Any change of medication or treatment regime should also trigger a review where such medication is covertly administered;
8. Such matters can be achieved by placing appropriate conditions to which the standard authorisation is subject and according with DOLS guidance.

Read the full text of the judgment here