Date lodged: 18 September 2017
To ask the Scottish Government whether it considers covert medication of care home residents to be compatible with the Convention on the Rights of Persons with Disabilities.
Answered by: Maureen Watt 27 September 2017
Scottish mental health and incapacity legislation is based on rights and principles. The most recent reform of mental health legislation was through the Mental Health (Scotland) Act 2015, which was passed by the Scottish Parliament last year. The 2015 Act strengthened measures in the Mental Health (Care and Treatment) (Scotland) Act 2003 that promotes support for decision making, including those for independent advocacy, advance statements and named persons.
The Scottish Government is working with partners including the Mental Welfare Commission, the Office of the Public Guardian and professional and human rights bodies to develop changes to the Adults with Incapacity Act (2000) in relation to deprivation of liberty, and to assess compliance with UN Convention on the Rights of Persons with Disabilities by 2018. The Code of Practice which accompanies the Adults with Incapacity Act explains that the use of covert medication is permissible in certain, limited circumstances e.g. to safeguard the health of an adult who is unable to consent to the treatment in question, where other alternatives have been explored and none are practicable. It follows a rights based approach and also refers practitioners to the Mental Welfare Commission Scotland's guidance documents covering Consent to Treatment and Covert Medication.
Covert medication must never be given to someone who is capable of deciding about medical treatment. In the case of adults, there is a presumption in favour of capacity and individuals must be supported to enable decision-making so far as possible. Individuals should be given as much information as possible to enable them to make a decision regarding medical treatment. It is important to assess capacity in relation to individual decisions and not to make blanket ‘all or nothing’ assumptions. Capacity may change or fluctuate over time. The practitioner with primary responsibility for the individual’s medical treatment has the ultimate responsibility to decide whether or not to authorise covert administration of medication. This decision should be taken following consultation.
Healthcare staff should not give medication except in accordance with the law, and even where the law allows its use it should not be given in a disguised form unless the adult has refused and their health is at risk because of this. Staff are obliged to record this in the patient's records. Practitioners who may be requested to administer covert medication should make themselves fully aware of the guidance of their own professional bodies.