Prescription of medication in
Mental Health Act detention
186. Concern has been expressed that medication is
being administered inappropriately and at excessive levels, and
sometimes without adequate medical authorisation, to those detained
under the Mental Health Act, contrary to guidelines set by the
British National Formulary (BNF). The BNF sets limits on the levels
of drugs that may be prescribed, though these are not legally
binding on medical personnel. MIND's written evidence states that
these recommended levels are routinely exceeded in the treatment
of detained patients, for purposes of restraint or correction,
and in some cases to compensate for staff shortages. It expresses
particular concern about the simultaneous prescription of several
different drugs (polypharmacy) at high doses and about the higher
doses of medication administered to Afro-Caribbean men. MIND warns
that excessive medication is being used in such a way as to "increase
the risk of adverse effects which may be disabling or life threatening".
187. MIND raises particular concern that there is
a "clear pattern of African-Caribbean male patients in secure
psychiatric settings who have died having been given emergency
sedative medication which exceed British National Formulary levels
or due to polypharmacy".
It suggests that such discrepancies may result from racial stereotyping
and unjustified perceptions of dangerousness and aggression in
black male patients.
188. Expert evidence to the inquiry into the death
of David Bennett raised similar concerns about the over-medication
of black patients, and stressed the need for further research
on the nature and extent of the problem.
The Mental Health Act Commission also expressed particular concern
that emergency medication was being administered in some cases
without the authorisation of a doctor as required by the Mental
Health Act, and supported strict adherence to recommended dosage
limits in emergency situations.
189. In response to concerns about prescription of
medication, Mr Ladyman doubted that such practices were widespread.
Our impression, however, is that, in practice, although BNF limits
are only rarely exceeded in respect of the dosage of a single
drug, limits are routinely exceeded as a result of the administration
of several drugs simultaneously. At Broadmoor, for example, at
the time of our visit,
only four patients were being prescribed a single dosage in excess
of BNF limits, but staff estimated that in the region of 80 patients
were receiving drugs in excess of BNF limits as a result of combinations
of drugs. We were
assured that patients on such high levels of medication were very
closely monitored, and the combination of drugs and changes in
prescription were carefully recorded, and incorporated in the
patient's care plan.
190. Mr Ladyman pointed out that the new Commission
for Health Audit and Inspection would have a role in ensuring
that guidance was complied with.
In regard to current practice, however, the Mental Health Act
Commission (MHAC) pointed to limitations in its mandate and resources
which prevented it from exercising a very careful scrutiny of
the administration of medication. It was not in a position to
monitor the levels of medication in individual cases, since it
did not have a continuous presence in hospitals. Asked whether
he considered that the MHAC should have the remit and specialist
staff to review prescription of medication, the Chief Executive
of the MHAC, Chris Heginbotham, was cautious about the MHAC challenging
clinical judgment, stating that further consideration would need
to be given to this.
However, he recognised that the absence of scrutiny of medication
levels limited the MHAC's effectiveness in protecting Convention
191. MIND argued that "there should be absolutely
no reason why somebody should go over a BNF maximum [in prescribing
medication to detained patients]. Going over that should make
an individual accountable".
It recommended legislative provision to make it unlawful to administer
doses above the maximum recommended within the British National
Formulary Guidelines, pointing out that these maxima were often
already well above the recommended dose.
192. Against this it may be argued that considerations
of flexibility, and the need to tailor prescriptions to the particular
needs of a patient, may require that BNF limits be exceeded in
some cases. The draft NICE guidelines on the Short Term Management
of Disturbed Behaviour in Psychiatric Inpatient Settings accept
that BNF limits may legitimately be exceeded in some cases, for
example, where rapid tranquillisation is used to restrain a patient.
The Guidelines state that the rationale for exceeding the recommended
limits should be recorded in the care plan, and the patient should
be frequently and intensively monitored where BNF limits are exceeded.
193. Excessive or unregulated administration of medication,
in particular where it is administered without consent for purposes
of restraint or correction, raises issues under Article 8 (the
right to physical integrity); Article 3 (freedom from inhuman
or degrading treatment);
and potentially the right to life under Article 2. Any clearly
established difference in the level of drugs prescribed to patients
of one ethnic group, would be discriminatory in breach of Article
8 and Article 14 ECHR, unless the difference could be objectively
justified in regard to the needs of each patient.
194. Proportionate interference with Article 8 rights
requires that standard medical practice should not be departed
from in actions such as the administration of medication without
consent which impinge on the physical integrity of the patient.
Where carefully defined departures from BNF limits are permitted
by guidance such as that issued by NICE, this should not lead
to a breach of Article 8. Any such departures from BNF limits
would however need to be closely justified as necessary and proportionate
in the particular circumstances of the case, in order to comply
with Article 8. There is a particular need for such close justification,
in light of the perception (which remains statistically unproven)
that drugs may be disproportionately administered to patients
from some ethnic minorities.
195. Whether prescription in excess of BNF limits
will breach Convention rights will depend on the circumstances
of the individual case. Where such medication can be shown to
be a therapeutic necessity in the circumstances of the case, then
it is unlikely to breach Article 3 or Article 8. However, in our
view, the departure from accepted guidelines set by the BNF would
require very close justification, in particular in any case where
such medication is implicated in the death of a detained patient.
There will be a risk of Article 2 violation where medication is
prescribed in excess of BNF limits, either through a combination
of drugs or a single dosage, as a matter of routine or without
clear justification on the basis of exceptional circumstances.
We recommend that levels of
prescription should be closely monitored by health authorities
in light of these human rights considerations, and that the Commission
for Health Audit and Inspection should have a role on review of
levels of medication. We recommend that there should be a statutory
obligation to record and report on dosage over BNF limits. Under
the Race Relations (Amendment) Act 2000 there is a positive obligation
on NHS authorities to ensure race equality, including in the administration
of medication. We recommend that health authorities should monitor
prescription of medication to detained patients having regard
to ethnicity, and should take steps to address any discrepancies