AG, Re [2016] EWCOP 37

This judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of AG and the members of AG’s family must be strictly preserved.

Case No 12710957

[2016] EWCOP 37

IN THE COURT OF PROTECTION

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

AND IN THE MATTER OF AG

Before

District Judge Bellamy

B E T W E E N :

Between

ag (by her litigation friend the official solicitor)Applicant

bmbc (first respondent)Respondent

snh (second respondent)Respondent

Miss A Weereratne QC for Applicant

for First Respondent: Miss F Gardner

for Second Respondent: Mr M Wenban-Smith

JUDGMENT

Background

Date 2016-07-06

[1]These proceedings concern AG born on 30th September 1923 and now aged 92. Since November 2014 AG has been accommodated at SNH (the home).

[2]Concerns were raised by the memory team of BMBC (the council) in October 2014 that AG was living in squalor with no fridge, cooker or food. AG was described as wearing ill-fitting clothes and appeared unkempt. There were also concerns that AG may not be taking her prescribed medication.

[3]In November 2014, following a fall in the community, AG having presented at Accident & Emergency was admitted to the Clinical Decisions Unit for neurological observations. AG having refused respite care a best interest decision to place AG was made in the absence of involvement of AG’s adult children.

[4]Since 18th December 2014 AG’s deprivation of liberty has been authorised under a standard authorisation granted under Schedule A1 of the Mental Capacity Act 2005 [the Act]. The authorisation was to last until 17th December 2015.

[5]By application dated 7th July 2015 an application was made challenging the standard authorisation initially to consider whether or not AG can safely be managed in the community either for visits or for a permanent return home with support.

Capacity

[6]AG was assessed by Dr Swamiraji a locum consultant psychiatrist, who confirmed a diagnosis of dementia in Alzheimer's disease and concluded that AG lacked capacity to conduct proceedings and to make decisions regarding her care, accommodation and treatment. The conclusions of Dr Swamiraji were accepted by all parties and final declarations were made in relation to AG’s capacity at a hearing on 11th November 2015.

Best Interests

[7]During the proceedings it became apparent that part of AG’s care plan at the home involved the administration of medication covertly. No conditions had been placed on the standard authorisation. The best interests assessor KL (mental health social worker) and the RPR (SH) it was said had no knowledge of this and the information was not considered as part of the qualifying requirement assessments that were completed in December 2014 in accordance with part 3 of Schedule A1 of the Act .

[8]At the hearing in November I directed evidence to clarify:(a) the medications prescribed for covert medication purposes;

(b) the reason for the covert medication plan;

(d) whether the covert medication plan continued to be required.

[9]I also directed that the parties provide written submissions as to:(a) best practice regarding the review of deprivation of liberty whereby a standard authorisation has been granted for the maximum period of twelve months;

(b) what constitutes a change in the relevant person’s circumstances that may give rise to a variation in the condition applied to a standard authorisation; and

[10]The purpose of the hearing leading to this judgment was to hear oral submissions, in addition to the written submissions provided, the court being invited to and agreeing to give a judgment in relation to those issues.

The Evidence

[11]Directions were made on 21st January 2016 and:(a) the council filed a statement from KL the best interests assessor on 18th February 2016;

(b) the council filed its statement from PF on 22nd February 2016;

(d) the home has disclosed copies of the Applicant’s medication charts and notes.

[12]One of the reasons for the filing of this evidence was to clarify the factual issue concerning the use of covert medication and the knowledge of the council either through the social worker or the best interests assessor of its use.

[13]Notwithstanding the confusion over the dates or rather the recording of the dates of consultation with the GP it is accepted by all concerned that if no medication was administered to AG she was at risk of deterioration in her physical and mental health and therefore the decision to administer medication covertly in AG’s best interest was proportionate and necessary at the time it was taken. AG’s recorded history demonstrates a serious risk of harm to herself through self-neglect and risky behaviour including night time wandering and aggressive behaviour. The GP refers to the potential for AG to become quite severely unwell if she does not take her thyroxin.

[14]For the purpose of this hearing the council accepts that the administration of covert medication was discussed with both the social worker and the best interests assessor by the manager of the home in November 2014. It is stated on behalf of the council that KL did not consider that this was relevant to the qualifying requirements in Schedule A1 so that no conditions were recommended by him and a maximum twelve month period of authorisation was proposed.

[15]Given that clarification and substantial agreement in relation to factual issues live evidence was not called. In those circumstances the court was not invited to nor does it intend to make express findings of fact but to proceed to judgment on the basis of the agreed factual issues. In any event the court has been requested to provide guidance in relation to best practice as opposed to any final determination of the best interests in relation to AG.

Discussion

[16]It is clear that the best interest decision making process did not involve any family member, the RPR on behalf of AG or the then social worker. Although documents subsequently (and lately) disclosed indicate the use of covert medication (for example J424 – 426 of the bundle) the extent to which this was known or available for example to the RPR could not be determined.

[17]Similarly the GP records for 19th November 2014 referred only to the use of thyroxin covertly, which medication was continued but diazepam was subsequently introduced in February 2015, again administered covertly.

[18]We thus have a position where AG, upon her admission to the home was clearly deprived of her liberty within the meaning of

Article 5 of the ECHR

. Following Cheshire West [P v Cheshire West and Cheshire Council 2014 UKSC19] the objective test is met, AG being under the constant supervision and control of her carers and is not free to leave. The subjective test is met, given the agreed position on capacity, that AG is unable to make decisions about her accommodation for the purposes of receiving care or treatment. Such arrangements for her accommodation are attributable to the state.

[19]At the time and in accordance with the GP records (19th November 2014) the medication prescribed by the GP (thyroxin) was to be covertly administered.

[20]This information was known by the best interests assessor, KL and the social worker, PF. It was recorded in the daily record of care from SCH that on some occasions she would take her medication and on others it was given covertly. Similar entries appear in the evaluation care records (J424 onwards) that while AG occasionally takes her medication it also has to be given covertly.

[21]Save for the GP notes there appears to be no substantial communication or recordings in relation to the change of prescription.

[22]There was no provision for review in the standard authorisation, notwithstanding the ongoing provision of medication to be taken covertly, for twelve months.

[23]Although it is not necessary for the court to make findings of fact the following conclusions can be drawn:(a) Proper consideration does not appear to have been given to the initial covert use of promethazine between November 2014 and February 2015.

(b) The use of covert medication in this case was not subject to proper reviews or safeguards.

(c) The decision to administer diazepam covertly in February 2015 (as prescribed by the GP) appears not to have been communicated to the supervisory body (BMBC) or to the RPR (SH) so that an opportunity to request a review of the standard authorisation at that time was lost [Schedule A!,Part8,of the Act].

(d) There does not appear to have been a review [or provision for review] of the fundamental decision to administer medication covertly notwithstanding the covert medication policy disclosed makes it clear that this is only to be considered in exceptional circumstances.

(e) The best interest decision making process appears not to have involved any family member or RPR on behalf of AG nor the social worker PF.

[24]In this particular case, there appears to have been no harm caused to AG as a result of the covert use of either promethazine or diazepam.

[25]Although it is not an issue for me to determine I accept that treatment without consent (covert medication in this case) is an interference with the right to respect for private life under

Article 8 of the ECHR

and such treatment must be administered in accordance with a law that guarantees proper safeguards against arbitrariness. Treatment without consent is also potentially a restriction contributing to the objective factors creating a DOL within the meaning of

Article 5 of the Convention

. Medication without consent and covert medication are aspects of continuous supervision and control that are relevant to the existence of a DOL. It must therefore attract the application of Section 1(6) of the Act and a consideration of the principle of less restriction and how that is to be achieved. “1(6) Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”. Such intervention must be proportionate to the circumstances of the case and accord with the principle of minimum intervention consistent with best interests.

[26]By Section 4A(5) MCA P may be deprived of his liberty if it is authorised by Schedule A1. The purpose of Schedule A1 DOL authorisations:

“Their essence is to secure professional assessment, by people independent of the hospital or care home in question, of: (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for the purpose of care or treatment (paragraph 15 of Schedule A1); and (b) whether it is in his best interest to be detained: paragraph 16. The procedures are administrative but the authorisation can be challenged in the Court of Protection under Section 21A.”

[27]Paragraph 42 of Schedule A1 provides for the period of a standard authorisation to be a maximum of twelve months. The supplementary code of practice provides at paragraph 4.71 that the assessor must set out reasons for the period selected and that this will be based on the information obtained during the consultation process but should also reflect information from the person’s care plan about how long any treatment or care will be required in circumstances that amount to a deprivation of liberty. It should also take into account any available indication of how likely it is that the relevant person’s circumstances will change including the expected progression of the illness or disability. The underlying principle is that deprivation of liberty should be for the minimum period necessary so for the maximum twelve month period to apply the assessor will need to be confident that there is unlikely to be a change in a person’s circumstances that would affect the authorisation within that timescale. The best interests assessment may include recommendations about conditions to which the standard authorisation is or is not to be subject in accordance with paragraph 53. The supervisory body must have regard to any such recommendation when granting an authorisation. The BIA may not specify conditions that do not directly relate to the issue of the DOL. Insofar as the use of medication is relevant to the DOL then 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.

[28]The supervisory body has a general discretion to review a standard authorisation at any time. However it must carry out a review if requested to do so by P, his representative and IMCA or the managing authority of the care home. The managing authority is required to keep the person’s case under review and must request a review if one or more of the qualifying requirements appear to them to be reviewable. The introduction to chapter eight of the supplementary code of practice states:

“When a person is deprived of their liberty, the managing authority has a duty to monitor the case on an ongoing basis to see if the person’s circumstances change – which may mean they no longer need to be deprived of their liberty. The managing authority must set out in the care plan clear roles and responsibilities for monitoring and confirm under what circumstances a review is necessary. For example if a person’s condition is changing frequently, then their situation should be reviewed more frequently.”

Conclusions

[29]All parties agreed that covert medicines should only be used in exceptional circumstances and when such a means of administration is judged to be necessary and in accordance with the Act. The guidelines published by NICE (National Institution for Healthcare and Excellence) provide that medication should not be administered covertly until after a best interest meeting has been held, unless in urgent circumstances. Care homes are to ensure that if a decision is taken to covertly administer medicine to an adult care home resident, then a management plan should also be agreed and recorded after a best interest meeting. The meeting should be between healthcare professionals and family members. The decision to covertly administer diazepam as compared to promethazine, was not communicated to the supervisory body. 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. The supervisory body in this case BMBC may be almost entirely dependent upon the managing authority (the care home) to notify it of any change or proposed change to care/treatment.

[30]It is noteworthy, within its position statement that BMBC has acknowledged that future practice in this area should be addressed to ensure that:(a) all administration of covert medication is subject to the appropriate safeguards; and

(b) there is clear communication and an understanding of what is expected between the supervisory body and the managing authorities in circumstances where a person is deprived of their liberty and their care plan includes the administration of covert medication.

[31]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.

[32]In relation to the three issues then I would say as follows:- (1) The length of a standard authorisation.

[33]The use of covert medication and its consequences should be noted in any best interests assessment for the purposes of a Schedule A1 authorisation. This should include notification of the need for safeguarding and internal reviews, independent of the Schedule A1 process. While each case will be fact specific I would suggest that where the use of covert medication is known at the time of the best interests assessment it would be inappropriate for the standard authorisation to be for the maximum period without either conditions being attached for review or preferably for there to be a shorter period of authorisation. On the facts of this particular case a six month period would have been more appropriate. The duration of the authorisation is of course linked to the internal reviews that the managing authority should carry out. The more regular these reviews the more likely the justification for a longer period of authorisation.

[34](2) In relation to change of circumstance: That to a large degree is fact specific. Alternate medication, similar in prescription, may not do so; a change in prescription in strength/dosage nature and effect will almost certainly do so. In this particular case the change in medication in February 2015 (diazepam being a stronger form of medication) should have triggered a review, it being a change to the care plan and revision to the covert medication known at the time the authorisation was given.

[35](3) The duty upon the managing authority. What of course flows from this is that the original best interest decision must be clear and there must be a proper and fully recorded care plan and review process which in the event of change of circumstance can be triggered. In turn that information must be easily and readily accessible not only to the healthcare professionals but also to those who may be representing P. Clearly any change to the care plan should be notified promptly by the managing authority to the supervisory body.

[36]In respect of the position of BMBC, the supervisory body in this case, I endorse the guidance now produced on their behalf which include reference to the following:(i) if a person lacks capacity and is unable to understand the risks to their health if they do not take their prescribed mediation and the person is refusing to take the medication then it should only be administered covertly in exceptional circumstances;

(ii) before the medication is administered covertly there must be a best interest decision which includes the relevant health professionals and the person’s family members;

(iii) if it is agreed that the administration of covert medication is in their best interests then this must be recorded and placed in the person’s medical records/care home records and there must be an agreed management plan including details of how it is to be reviewed; and

(iv) all of the above documentation must be easily accessible on any viewing of the person’s records within the care/nursing home.

(v) If there is no agreement then there should be an immediate application to Court Summary

[37]It is clear the managing authority has a duty to monitor for any change in a person’s circumstances on an ongoing basis. This obligation exists no matter how long or short the stipulated duration of the authorisation granted. The code is clear, there must be a care plan setting out clear roles and responsibilities for monitoring and addressing the issue of when a review is necessary.

[38]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.

[39]The reference to a change in the relevant person’s case is broad and must sensibly apply to each of the steps in the best interests assessment on a case-by-case basis. 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.

[40]The use of medication without consent or covertly whether for physical health or for mental health must always call for close scrutiny.

[41]It is significant that the most recent standard authorisation dated 27th April 2016 addresses many of the issues of concern. It was of course carried out against the background of the requested part 8 review and Section 21A challenge. It is a more comprehensive assessment by the BIA of the issues surrounding AG, has clearly involved consultation with family and healthcare professionals and has flagged up not only the significant issues that arise from covert medication policy but also the need to review the care plan given the consensus that AG requires a high level of care for a variety of reasons.

[42]A comparison with the two preceding standard authorisations produces a stark contrast of information and consultation.

[43]The following may assist by way of future guidance:-(a) Where there is a covert medication policy in place or indeed anything similar there must be full consultation with healthcare professionals and family.

(b) The existence of such treatment must be clearly identified within the assessment and authorisation.

(c) If the standard authorisation is to be for a period of longer than six months there should be a clear provision for regular, possibly monthly, reviews of the care and support plan.

(d) There should at regular intervals be review involving family and healthcare professionals, all the more so if the standard authorisation is to be for the maximum twelve month period.

(e) Each case must be determined on its facts but I cannot see that it would be sensible for there to be an absolute policy that, in circumstances similar to this, standard authorisation should be limited to six months. It may be perfectly practical and proportionate provided there is a provision for reviews(or conditions attached) for the standard authorisation to be for the maximum period.

(f) Where appointed an RPR should be fully involved in those discussions and review so that if appropriate an application for part 8 review can be made.

(g) Any change of medication or treatment regime should also trigger a review where such medication is covertly administered.

(h) Such matters can be achieved by placing appropriate conditions to which the standard authorisation is subject and would of course accord with chapter 8 of the deprivation of liberty safeguard’s code of practice.

(i) I endorse and gratefully adopt the proposed written guidance from BMBC as detailed earlier in this judgment and, whilst recognising it may not be proportionate or indeed desirable in every case, the revised format of the most recent standard authorisation. Dated this 6 day of July 2016 District Judge Bellamy

AG, Re [2016] EWCOP 37

Capacity

Best Interests

The Evidence

Discussion

Cited in 3 later judgments