Practitioners sometimes raise the issue of whether it is acceptable for medication to be provided to a patient without his or her knowledge.

The answer to this depends, in part, on the capacity of the patient to consent to the treatment in question.

Contents

Patients with capacity to consent

Patients who lack capacity to consent

Patients with fluctuating medical capacity

Advance decisions by patients

 

Patients with capacity to consent

Covert medication (that is, medication which is administered without the consent of the patient) which is provided to a patient with the capacity to consent to treatment is unacceptable. Such conduct involves deliberate deception and covert medication therefore breaches the principle of informed consent. The administration of such medication is potentially a criminal offence, as well as a breach of the provisions of the National Health Act and the HPCSA guidelines.[1]

This issue of covert medication often arises in the context of the residential care of elderly people, or in regard to people with learning disabilities or challenging behaviour. In certain instances, no formal assessment of the patient’s capacity is undertaken, but it is merely assumed by the treating healthcare practitioners that by virtue of the patients’ age, diagnosis or medical condition they cannot, or need not give consent.

Despite impairments such as age, mental illness or infirmity, many of these patients have sufficient capacity to understand provide informed consent and, if that is so, then they must be asked to consent to the medication in question.

Where a properly informed adult with capacity to consent refuses treatment, this is legally and ethically binding , and the treatment may therefore not be administered.

It is unacceptable to administer medication covertly in order to make the management of the patient easier, rather than being necessary in the patient’s interests.

Subject to the exception mentioned above relating to the administration of medication in the context of mental health legislation consent, from patients with capacity must always be obtained from patients with capacity to consent. Where there is doubt about the patient’s capacity to consent, a formal assessment of capacity should be carried out. Patients should therefore not be misled about the nature of their medication, or its purpose; nor should patients’ questions not be answered on the grounds of a lack of time or difficulty in communicating.

Patients who lack capacity to consent

It is possible that in certain cases administering covert medication where a patient lacks the capacity to decide may be in the best interests of the patient. However this should not be a routine practice, and the decision to administer medication for these reasons should not be lightly taken. Where such a decision is made, a full and careful explanation of the reasons for the decision should be recorded and regularly reviewed. In addition, the involvement of proxy decision-makers is important. All reasonable efforts to obtain the consent of proxy decision-makers must be made, and details of efforts and communications in this regard should be included in the patient’s record.

It is recommended that the following factors, in addition to any other relevant considerations, should be addressed:

  1. Whether the patient genuinely lacks capacity to consent to all of his treatment.
  2. Why covert medication is proposed and whether it is in the patient’s best interests; and
  3. Whether there are any practical alternatives that would be more respectful of the individual patient’s choice.

Patients with fluctuating medical capacity

Questions of providing covert medication become increasingly challenging when a patient has fluctuating mental capacity. This is particularly so where patients, due to mental illness, lose insight about their illness and believe themselves to be well, with the result that they refuse to take medication that would prevent a crisis. This then leads to the situation where practitioners are faced with a dilemma: they must either allow a mental health crisis to occur by stopping treatment until the point when the patient reaches compulsory treatment criteria, or risk breaching the law. In this regard, the legal provisions are clear that where a patient does not fall within the regulation of mental health legislation, and retains capacity to make a valid decision, patients should not ordinarily be treated against their will.

Advance decisions by patients

A mechanism which is potentially available to practitioners to deal with these circumstances is to attempt to obtain an advance decision from the patient during a lucid interval. In these circumstances, the patient would be requested to agree in advance to a treatment plan that would be triggered at the start of the decline in mental capacity. This then would avoid having to wait for the patient to reach crisis point before compulsory treatment could begin. Although this is an attractive solution to the problem, it is made more complex by the low threshold which the patient needs in order have sufficient capacity to refuse treatment. This decision would then override any previous decision until the patient loses capacity. Ultimately, however, this is an option which should be seriously considered in appropriate circumstances.

References

[1] Booklet 5 of the HPCSA guidelines; sections 7, 8 and 9 of the National Health Act.