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Covert medication appears to be more common among older patients in care homes than in hospitals, covert medication for adults with capacity is unethical, unlawful and falls into the definition of abuse. (Sommerville et all 2013)
While the health care worker may have honest intentions regarding her actions, she has committed a crime; contrary to the Misuse of drugs act 1971. Subsequently, it could be argued that due to the covertness of her actions the health care worker would not have had permission to carry and supply those drugs, therefore we would look at section: 5.1-

Restriction of possession of controlled drugs.

(1)Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his/her possession.

Looking at the Royal Pharmaceutical societies policy on: Professional Guidance on the Administration of Medicines in Healthcare Settings (2019) the following sections will supply guidance and understanding on the correct procedures and the lack thereof:

4.1.3 the patient assumes full responsibility for the storage and self-administration of the medicine

7 Registered healthcare professionals who administer medicines, or when appropriate delegate the administration of medicines, are accountable for their actions, non-actions and omissions, and exercise professionalism and professional judgement at all times.

10 Wherever possible, the actions of prescribing, dispensing/supply and administration are performed by separate healthcare professionals. Exceptionally, where clinical circumstances make it necessary and in the interests of the patient, the same healthcare professional can be responsible for the prescribing and supply/administration of medicines. Where this occurs, an audit trail, documents and processes are in place to limit errors.

15.3 That issues around consent have been considered

21 Medicines are administered covertly only to people who actively refuse their medication and who are considered to lack mental capacity in accordance with an agreed management plan.

Due to the abundance of supporting sections, the aforementioned list is not exhaustive; however, we evaluate the following sections:

Section 4 highlights that the patient will take self-administer their medicine. Section 7 correspondingly details that if someone cannot self-administer their medication a healthcare professional will provide assistance while being fully accountable for their actions, non-actions and omissions, and exercise professionalism and professional judgement at all times.

Therefore, the health care assistant is not in a position to covertly issue drugs to the patient. Section 21 illustrates covert administration of medicine, which would give defense to the healthcare worker, however, it would be detailed and audited contrary to section 10- thus one would need to question the care plan set in place around the care of the patient before any legal or disciplinary actions are taken.

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These are the 5 Statutory principles of the MCA

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Covert Medication Guidance, Decision Tool and Record

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Covert Medication Guidance, Decision Tool and Record

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Cardiff & Vale UHB have a document to complete when considering administration of medication without a patients consent or knowledge.  This form addresses areas of Mental Capacity and being detained under the Mental Health Act.  It also outlines the actions that must be taken and before considering covert administration as an option.

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The Medicines Management policy (2011) give the restrictions on who can administer medicine, whilst also stating those employees would be  individually accountable.
All staff must act in accordance with most current legislation, the NMC code of practice & ALL relevant Health Board policies.
The rules on how medicine must be given include, but ARE NOT limited to: being given ONLY as directed by an authorized prescriber, in writing, on an approved in-patient form or on verbal instruction of a doctor for medicinal products  previously prescribed to that person.

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Section 4 states that Health Boards & Trusts must have their own procedures  outlining who can administer medication.
It also says that anyone involved in administering medication must have Medication Management training upon induction and then AT LEAST every 3 years.

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Treatment without consent i.e. Covert medication is a breach of Article 8, Right to Respect a Private Life.
Article 8 of the Act protects humans physical, moral and psychological integrity as well as the right to say yes or no.

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NHS (2018), states that if a patient is refusing to take their medication you should never try to force them or give them without their consent. As a care assistant you should inform their doctor and they will be able to advice an acceptable way to administer the medication before crushing.
The NMC Code (2018), says you must speak up whenever there is a likelihood that a patient safety is being compromised. As a nurse you must work within your limits and exercise your professional ‘duty of candor’ and raise your concerns instantly whenever a patient’s health is at risk.

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'There is a fine line between crushing medication and putting them in food to allow a patient to swallow it easier and hiding them in food so the patient is fooled into taking them.'

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"treatment without consent (covert medication in this case) is an interference with the right to respect for private life under Article 8 of the [European Convention on Human Rights] and such treatment must be administered in accordance with a law that guarantees proper safeguards against arbitrariness." From the same source a judge stated the following -

- if a person lacks capacity and is unable to understand the risks to their health if they do not take their prescribed medication, and the person is refusing to take the medication, then it should only be administered covertly in exceptional circumstances;

-before the medication is administered covertly there must be a best interests decision which includes the relevant health professionals and the person's family members;

-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

-all of the above documentation must be easily accessible on any viewing of the person's records within the care/ nursing home .

The Human Rights act states that people who are capable of making the decision have the right to accept or refuse medical treatment even if that may lead to their death. However, the mental health act may override said decision in certain circumstances.

So to say, even if the nurse had good intentions – she did not undergo the correct routine in order to be able to give the covert medication and therefore has violated many acts causing what I think to be a major legal issue.

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According to (Commission, 2020) covert medication administration is only likely to be necessary or appropriate where:· A person actively refuses their medicine· That a person is judged not to have capacity to understand the consequences of their refusal. Such capacity is determined by the Mental Capacity Act 2005· The medicine is deemed essential to the person’s health and wellbeing.Covert administration must be the least restrictive option when all other options have been tried. You could carry out a function assessment to try to understand why the person is refusing to take their medicine.· Record the reasons for presuming mental incapacity and the proposed management plan, including considerations of Deprivation of Liberty Standards when medicines, such as sedatives are to be given covertly

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According to (Commission, 2020) covert medication administration is only likely to be necessary or appropriate where:· A person actively refuses their medicine· That a person is judged not to have capacity to understand the consequences of their refusal. Such capacity is determined by the Mental Capacity Act 2005· The medicine is deemed essential to the person’s health and wellbeing.Covert administration must be the least restrictive option when all other options have been tried. You could carry out a function assessment to try to understand why the person is refusing to take their medicine.· Record the reasons for presuming mental incapacity and the proposed management plan, including considerations of Deprivation of Liberty Standards when medicines, such as sedatives are to be given covertly

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The NICE guidelines 6 R’s and the Right to refuse medication - Please see section 1.7 (Supporting people to take their medication).

Covert medication should only be agreed if the patient has been deemed to lack capacity through a thorough legal process and it is in their best interest to do so (Ruth Ohlsen, 2018) - The art and science of mental health nursing.

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Recommendations

People have the right to be involved in discussions and make informed decisions about their care, as described in your care.

Making decisions using NICE guidelines explains how we use words to show the strength (or certainty) of our recommendations, and has information about prescribing medicines (including off-label use), professional guidelines, standards and laws (including on consent and mental capacity), and safeguarding.

The recommendations in this guideline assume that the responsibilities for providing medicines support have been agreed between the relevant NHS and local authority commissioners. The term 'medicines support' is defined as any support that enables a person to manage their medicines. This varies for different people depending on their specific needs. The guideline aims to ensure that medicines are managed safely and effectively for all adults receiving social care in the community. People living in residential or nursing care homes are covered by NICE's guideline on managing medicines in care homes.

Before any medicines support is provided by a social care provider, commissioning and contractual arrangements need to be discussed, agreed and recorded as part of the local care planning process. This is to ensure that it is clear who is responsible and accountable for the decisions being made, and which providers will deliver each aspect of medicines support.

The person or organisation responsible for implementing a recommendation is clearly stated, except when it is not possible to specify. This will be for commissioners and providers to consider and determine locally.

1.1 Governance for managing medicines safely and effectively

1.1.1 Health and social care commissioners and providers should review their local governance arrangements to ensure that it is clear who is accountable and responsible for providing medicines support.

1.1.2 When social care providers have responsibilities for medicines support, they should have a documented medicines policy based on current legislation and best available evidence. The content of this policy will depend on the responsibilities of the social care provider, but it is likely to include processes for:

1.2 Assessing and reviewing a person's medicines support needs

Many people want to actively participate in their own care. Enabling and supporting people to manage their medicines is an essential part of this, with help from family members or carers if needed. The term 'medicines support' is defined as any support that enables a person to manage their medicines. This varies for different people depending on their specific needs.

1.2.1 Assess a person's medicines support needs as part of the overall assessment of their needs and preferences for care and treatment.

1.2.2 Do not take responsibility for managing a person's medicines unless the overall assessment indicates the need to do so, and this has been agreed as part of local governance arrangements.

1.2.3 Ensure that people assessing a person's medicines support needs (for example, social workers) have the necessary knowledge, skills and experience.

1.2.4 Engage with the person (and their family members or carers if this has been agreed with the person) when assessing a person's medicines support needs. Focus on how the person can be supported to manage their own medicines, taking into account:

1.2.5 Record the discussions and decisions about the person's medicines support needs. If the person needs medicines support include the following information in the provider's care plan:

1.2.6 Review a person's medicines support to check whether it is meeting their needs and preferences. This should be carried out at the time specified in the provider's care plan or sooner if there are changes in the person's circumstances, such as:

1.3 Joint working between health and social care

Joint working enables people to receive integrated, person-centred support. Health professionals working in primary and secondary care have an important role in advising and supporting care workers and other social care practitioners.

1.3.1 Social care providers should notify a person's general practice and supplying pharmacy when starting to provide medicines support, including details of who to contact about their medicines (the person or a named contact).

1.3.2 General practices should record details of the person's medicines support and who to contact about their medicines (the person or a named contact) in their medical record, when notified that a person is receiving medicines support from a social care provider.

1.3.3 Social care practitioners should seek advice about medicines from people with specialist experience, such as the prescriber, a pharmacist or another health professional, when it is needed.

1.3.4 Health professionals should provide ongoing advice and support about a person's medicines and check if any changes or extra support may be helpful, for example, by checking if:

the person's medicines regimen can be simplified

information about time-sensitive medicines has been shared

any medicines can be stopped

the formulation of a medicine can be changed

support can be provided for problems with medicines adherence

a review of the person's medicines may be needed.

1.3.5 When specific skills are needed to give a medicine (for example, using a percutaneous endoscopic gastrostomy [PEG] tube), health professionals should only delegate the task of giving the medicine to a care worker when:

there is local agreement between health and social care that this support will be provided by a care worker

the person (or their family member or carer if they have lasting power of attorney) has given their consent

the responsibilities of each person are agreed and recorded

the care worker is trained and assessed as competent (see also the section on training and competency).

1.3.6 Health professionals should continue to monitor and evaluate the safety and effectiveness of a person's medicines when medicines support is provided by a care worker.

1.4 Sharing information about a person's medicines

It is important that information about medicines is shared with the person and their family members or carers, and between health and social care practitioners, to support high‑quality care.

For guidance on medicines‑related communication and medicines reconciliation when a person is transferred from one care setting to another, see the NICE guideline on medicines optimisation.

1.4.1 When social care providers have responsibilities for medicines support, they should have robust processes for communicating and sharing information about a person's medicines[] that take account of the person's expectations for confidentiality. This includes communication with:

1.4.2 If a person has cognitive decline or fluctuating mental capacity, ensure that the person and their family members or carers are actively involved in discussions and decision‑making. Record the person's views and preferences to help make decisions in the person's best interest if they lack capacity to make decisions in the future.

1.4.3 Follow the advice on sharing information about medicines when a person is transferred from one care setting to another in the NICE guideline on medicines optimisation.

1.4.4 Prescribers should communicate changes to a person's medicines (for example, when stopping or starting a medicine) by:

informing the person or their named contact and

providing written instructions of the change or issuing a new prescription and

informing the person's supplying pharmacy, if this is needed and agreed with the person and/or their family members or carers.

1.4.5 When changes to a person's medicines need to be made verbally to avoid delays in treatment (for example, by telephone, video link or online), prescribers should give written confirmation as soon as possible. Written confirmation should be sent by an agreed method, for example, a secure fax or secure email.

1.4.6 When social care providers have responsibilities for medicines support, they should have robust processes for handling changes to a person's medicines received verbally from a prescriber, including:

1.5 Ensuring that records are accurate and up to date

Poor record keeping can put people receiving medicines support and care workers at risk. Social care providers are required by law ( The Health and Social Care Act 2008 [Regulated Activities] Regulations 2014) to securely maintain accurate and up-to-date records about medicines for each person receiving medicines support.

1.5.1 When social care providers have responsibilities for medicines support, they should have robust processes for recording a person's current medicines. These should ensure that records are:

1.5.2 Care workers must record the medicines support given to a person for each individual medicine on every occasion, in line with Regulation 17 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This includes details of all support for prescribed and over-the-counter medicines, such as:

reminding a person to take their medicine

giving the person their medicine

recording whether the person has taken or declined their medicine (see also recommendation 1.6.4 on raising concerns).

1.5.3 Care workers should use a medicines administration record to record any medicines support that they give to a person. This should ideally be a printed record provided by the supplying pharmacist, dispensing doctor or social care provider (if they have the resources to produce them) (see also recommendation 1.9.10 on supplying medicines administration records).

1.5.4 When social care providers have responsibilities for medicines support, they should have robust processes to ensure that medicines administration records are accurate and up to date. For example, changes should only be made and checked by people who are trained and assessed as competent to do so (see also the section on training and competency).

1.5.5 Ensure that medicines administration records include:

1.5.6 When a family member or carer gives a medicine (for example, during a day out), agree with the person and/or their family member or carer how this will be recorded. Include this information in the provider's care plan.

1.6 Managing concerns about medicines

Medicines use can be complex, particularly when people have several long-term conditions and are taking multiple medicines. Enabling people to raise any concerns about their medicines and managing medicines-related problems effectively when they happen are important to minimise harm and guide future care.

1.6.1 When social care providers have responsibilities for medicines support, they must have robust processes for medicines-related safeguarding incidents, in line with Regulation 13 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. For guidance on ensuring safety and safeguarding people using home care services, see the NICE guideline on home care.

1.6.3 Social care commissioners and providers should review their medicines‑related problems over a period of time to identify and address any trends that may have led to incidents. They should share this learning with:

1.6.4 Care workers should raise any concerns about a person's medicines with the social care provider. These concerns may include:

1.6.5 Care workers and other social care practitioners should advise people and/or their family members or carers to seek advice from a health professional (for example, the prescriber or a pharmacist) if they have clinical questions about medicines.

1.6.6 Health and social care practitioners should encourage and support people and/or their family members or carers to raise any concerns about their medicines. They should explain how to seek help or make a complaint, including who to complain to and the role of advocacy services (if needed), and record this information in the provider's care plan.

1.6.7 Health and social care providers should ensure that people and/or their family members or carers, and care workers know how to report adverse effects of medicines, including using the Medicines and Healthcare products Regulatory Agency's yellow card scheme.

1.7 Supporting people to take their medicines

Supporting people to take their medicines may involve helping people to take their medicines themselves (self-administration) or giving people their medicines (administration).

For guidance on self-management of medicines, see the recommendations on self-management plans in the NICE guideline on medicines optimisation.

1.7.1 Social care providers should have robust processes for care workers who are supporting people to take their medicines, including:

the 6 rights (R's) of administration:

what to do if the person is having a meal or sleeping

what to do if the person is going to be away for a short time, for example, visiting family

how to give specific formulations of medicines, for example, patches, creams, inhalers, eye drops and liquids

using the correct equipment, for example, oral syringes for small doses of liquid medicines

giving time-sensitive or 'when required' medicines

what to do if the person has declining or fluctuating mental capacity.

1.7.3 Prescribers, supplying pharmacists and dispensing doctors should provide clear written directions on the prescription and dispensing label on how each prescribed medicine should be taken or given, including:

1.7.4 Social care providers should record any additional information to help manage time‑sensitive and 'when required' medicines in the provider's care plan.

1.7.5 Care workers should only give a medicine to a person if:

there is authorisation and clear instructions to give the medicine, for example, on the dispensing label of a prescribed medicine and

the 6 R's of administration have been met (see also recommendation 1.7.1) and

they have been trained and assessed as competent to give the medicine (see also the section on training and competency).

1.7.6 Before supporting a person to take a dose of their medicine, care workers should ask the person if they have already taken the dose and check the written records to ensure that the dose has not already been given.

1.7.7 Care workers should ask the person if they are ready to take their medicine, before removing it from its packaging, unless this has been agreed and it is recorded in the provider's care plan.

1.7.8 Care workers should give medicines directly from the container they are supplied in. They should not leave doses out for a person to take later unless this has been agreed with the person after a risk assessment and it is recorded in the provider's care plan.

1.7.9 When a person declines to take a medicine, care workers should consider waiting a short while before offering it again. They should ask about other factors that may cause the person to decline their medicine, such as being in pain or discomfort (see also recommendations 1.6.4 and 1.6.5 on raising concerns or seeking advice).

1.7.11 Social care providers should ensure that an up-to-date patient information leaflet for each prescribed medicine is kept in the person's home. This includes medicines supplied in monitored dosage systems.

1.7.12 Social care providers should ensure that care workers are able to prioritise their visits for people who need support with time-sensitive medicines.

1.8 Giving medicines to people without their knowledge (covert administration)

Covert administration of medicines is when medicines are given in a disguised form without the knowledge or consent of the person receiving them.

1.8.2 Care workers must not give, or make the decision to give, medicines by covert administration, unless there is clear authorisation and instructions to do this in the provider's care plan, in line with the Mental Capacity Act 2005.

1.8.3 Ensure that the process for covert administration clearly defines who should be involved in, and responsible for, decision-making, including:

1.9 Ordering and supplying medicines

Responsibility for ordering medicines usually stays with the person and/or their family members or carers. However, if it has been agreed that a social care provider is responsible, effective medicines management systems need to be in place.

1.9.1 Social care providers should agree with the person and/or their family members or carers who will be responsible for ordering medicines, and record this information in the provider's care plan. This should be the person, if they agree and are able to, with support from family members, carers or care workers (if needed).

1.9.2 When social care providers are responsible for ordering a person's medicines they must ensure that the correct amounts of the medicines are available when required, in line with Regulation 12 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

1.9.3 When social care providers are responsible for ordering a person's medicines they should not delegate this task to the supplying pharmacist (or another provider), unless this has been requested and agreed with the person and/or their family members or carers.

1.9.4 When social care providers are responsible for ordering a person's medicines they should ensure that care workers:

have enough time allocated for checking which medicines are needed, ordering medicines and checking that the correct medicines have been supplied

are trained and assessed as competent to do so (see also the section on training and competency).

1.9.5 When ordering a person's medicines, care workers should:

1.9.6 Social care providers should ensure that care workers know what action to take if a discrepancy is noted between the medicines ordered and those supplied.

1.9.8 Consider using a monitored dosage system only when an assessment by a health professional (for example, a pharmacist) has been carried out, in line with the Equality Act 2010, and a specific need has been identified to support medicines adherence. Take account of the person's needs and preferences, and involve the person and/or their family members or carers and the social care provider in decision‑making.

1.9.9 Supplying pharmacists and dispensing doctors should provide a description of the appearance of each individual medicine supplied in a monitored dosage system.

1.9.11 When social care providers have responsibilities for medicines support, they should have robust processes for managing over‑the‑counter medicines that are requested by a person, including:

1.10 Transporting, storing and disposing of medicines

Responsibility for transporting, storing and disposing of medicines usually stays with the person and/or their family members or carers. However, if it has been agreed that a social care provider is responsible, effective medicines management systems need to be in place.

1.10.1 Agree with the person and/or their family members or carers who will be responsible for transporting medicines to or from the person's home. If a social care provider is involved, carry out a risk assessment of transport arrangements.

1.10.2 Agree with the person how their medicines should be stored and disposed of. Encourage the person to take responsibility for this, if they agree and are able to, with support from family members, carers or care workers (if needed). Record this information in the provider's care plan.

1.10.3 When a person is assessed to be at risk because of unsecured access to their medicines, social care providers should agree with the person and/or their family members or carers whether secure home storage is needed, for example, in a lockable cupboard.

1.10.4 When social care providers are responsible for storing a person's medicines, they should have robust processes to ensure there is safe access to medicines, particularly for controlled drugs (for more information see NICE's guideline on controlled drugs). These should include:

identifying who should have authorised access to the medicines

seeking advice from a health professional about how to store medicines safely, if needed

ensuring there is a safe storage place or cupboard for storing medicines, including those supplied in monitored dosage systems

assessing the need for secure storage, for example, in a lockable cupboard

identifying the need for fridge storage

reviewing storage needs, for example, if the person has declining or fluctuating mental capacity.

1.10.5 When social care providers are responsible for disposing of any unwanted, damaged, out-of-date or part-used medicines, they must have robust processes, in line with The Controlled Waste (England and Wales) Regulations 2012. These should include:

1.11 Training and competency

Appropriate training, support and competency assessment for managing medicines is essential to ensure the safety, quality and consistency of care.

1.11.1 When social care providers are responsible for medicines support, they should have robust processes for medicines‑related training and competency assessment for care workers, to ensure that they:

1.11.2 Follow the advice on recruiting, training and supporting home care workers in the NICE guideline on home care.

Terms used in this guideline

Care worker

A person who is employed to provide care and support to people in their own home[]. This includes home care workers, personal assistants (who are directly employed by people who use services) and other support workers.

Health and social care practitioners

The wider health and social care team of health professionals and social care practitioners. Health professionals include, but are not limited to, GPs, pharmacists, hospital consultants, community nurses, specialist nurses and mental health professionals. Social care practitioners include, but are not limited to, care workers, case managers, care coordinators and social workers. When specific recommendations are made for a particular group, this is specified in the recommendation.

Medicine

All prescription and non-prescription (over-the-counter) healthcare treatments, such as oral medicines, topical medicines, inhaled products, injections, wound care products, appliances and vaccines.

Medicines-related problems

Medicines-related problem include:

Medicines support

Any support that enables a person to manage their medicines. This varies for different people depending on their specific needs.

Mental capacity

The ability of a person to make a decision about their own care, including:

The Mental Capacity Act 2005 defines a lack of mental capacity as when 'a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain'.

Health professionals should follow the Department of Health's advice on consent. If a person does not have capacity to make decisions, health and social care practitioners should follow the code of practice that accompanies the Mental Capacity Act and the supplementary code of practice on deprivation of liberty safeguards.

Provider's care plan

A written plan that sets out the care and support that providers and the person have agreed will be put in place, following a local authority assessment. It includes details of both personal care and practical support.

Time-sensitive medicine

A medicine that needs to be given or taken at a specific time, where a delay in receiving the dose or omission of the dose may lead to serious patient harm, for example, insulin injections for diabetes or specific medicines for Parkinson's disease.

For other health and social care terms see the Think Local, Act Personal Care and Support Jargon Buster.

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Managing medicines for adults receiving social care in the community

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People have the right to be involved in discussions and make informed decisions about their care, as described in your care. Making decisions using NICE guidelines explains how we use words to show the strength (or certainty) of our recommendations, and has information about prescribing medicines (including off-label use), professional guidelines, standards and laws (including on consent and mental capacity), and safeguarding.