An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Vets do this all the time. Faced with the stark prognosis of a beloved family friend with Cushing’s who will die unless he gets his daily bromocriptine, the vet recommends without qualms that the horse’s owner conceals the foul-tasting tablet by burial deep within a carrot. Otherwise, presented with the undisguised drug, the horse would invariably reject it, dying a metabolic death. The benefits of covert treatment are uncontroversial and plainly outweigh the disadvantages in these circumstances. Following the same doctrine, parents who must get antibiotics into a toddler blithely conceal the medication in spoonfuls of jam.

Yet such deceit, practised by a doctor upon an adult with capacity would be construed as an affront to the adult’s right to choose which medicines to take, if any at all. For any medicine with noxious side effects, the foreseeable consequences of covert administration to an adult with capacity include the grave criminal charge of poisoning. Covert treatment in the shadow of these threats to reputation, employment and liberty seems immediately an unattractive prospect, even when executed with good intentions.

Covert treatment of an adult with capacity is unlawful (at the very least) because there is no consent. Covert treatment of incapacitated adults is probably regularly and frequently practiced; and justified as in the patients interests. But reported cases are very rare and consequently, little instruction on the subject is available.

20 years ago, the British Medical Journal reported a case where to calm a disturbed ‘physically strong’ 91 year old man, threatening his doctor with a walking frame, haloperidol concealed in a cup of tea was used to resolve the confrontation. The commentary asserted that this patient was ‘cognitively intact’ (but was written in an era when the formal diagnosis of incapacity was still developing, so whether he had capacity is unknowable). The patient’s recurrent episodes of bombastic ‘hypomania’ were eventually diagnosed as temporal lobe epilepsy, and anticonvulsant therapy coincided with cessation of these attacks. Whilst the relevant regulators accepted that from the clinicians’ perspective this covert treatment was lawful, those governing the hospital sought a formal undertaking from the doctor that the practice of covert medication would not be repeated. Perhaps the Board considered that a compulsory injection into a physically restrained patient was preferable.

In the recent case of AG v BMBC & SNH [2016] it transpired that a 92 year old lady, whose dementia had destroyed her capacity to make decisions for herself, was being given thyroxine and diazepam covertly; without which, the court heard, she would become severely unwell, both mentally and physically. The court took the unusual step of setting out guidance for covert treatment of incapacitated adults.

This includes full consultation with clinicians and family, explicit authorisation under the Mental Capacity Act 2005 (and its associated deprivation of liberty safeguards), together with a regular review of the decision to administer medications covertly.

This judgement is welcomed. It permits clinicians who follow the guidance to provide humane covert treatment to incapacitated adults; whilst ensuring that they are not tainted with the hint of complicity in an unauthorised deception of vulnerable patients, whose care has been entrusted to them.

Robert Wheeler
Department of clinical law, September 2016