How does the Mental Capacity Act define restraint?
The MCA says that someone is using restraint if they:
- Use force – or threaten to use force – to make someone do something they are resisting, or
- Restrict a person’s freedom of movement, whether they are resisting or not.
This means that, for example, the locked front door is a restraint that applies to an individual if that person does not have access to the door code or a key. It covers medication prescribed to alter someone’s mood or reduce aggression. Very often this is entirely in the person’s best interests, but it is a restraint and must be treated as such. All restraint must be recognised and examined, to make sure it fits the conditions below.
What extra conditions must be met for restraint to acquire protection from liability?
Any action intended to restrain a person who lacks capacity will not be protected from liability unless it meets the best interests conditions, above, and also:
- The person taking action must reasonably believe that restraint is necessary to prevent harm to the person, and
- The amount or type of restraint used, and the length of time it lasts, must be a proportionate response to the likelihood of that harm to the person, and how serious it would be for them.
Records must show, simply and clearly, how these were decided upon.
When might restraint be necessary?
Anybody considering restraining someone lacking capacity must, of course, have recorded reasons for thinking that the person does lack capacity to decide to do as they wish in a specific situation.
In an emergency, if a person is acting erratically or in a way that makes you suspect perhaps for the first time they lack capacity for a certain decision, it is both lawful and right to restrain them, as briefly and as little as possible, to stabilise the situation enough that their capacity can be assessed. In this situation, act first and record your decision-making as soon as possible. It would never be right to stand back while an elderly person in their dressing gown is determined to leave at midnight, despite what anyone says, because they have a fixed belief that they are late for school. In this example, it is reasonable to believe the person lacks capacity for the decision since they are not able to understand, or use, the information that they are 82 and that it is midnight. Always test your actions against ‘necessary and proportionate’, above, and record them in these terms.
Is it lawful to restrain someone to prevent harm to someone else?
There is little specific guidance on this but see ‘how should care plans that include covert medication be recorded and reviewed?’, below. The MCA is focused entirely on harm to the person, but there is a defence in common law if you need to restrain a person to prevent harm to others. Just like the MCA, the intensity of the restraint and how long it is used for must be proportionate to the potential likelihood and seriousness of that harm to others.
Sometimes, staff need to restrain someone lacking capacity frequently, to prevent harm to others, and you cannot find and remedy the triggers that lead to the need for restraint. If this happens, senior staff must discuss urgently with the commissioners or GP whether the person should be considered for detention under the Mental Health Act 1983, to find ways to lessen the distress leading to such dangerous behaviour.
How should care plans including covert medication be recorded and reviewed?
This issue was specifically considered in a 2016 court case and the judge gave useful guidance for providers. It is essential to recognise that covert medication, even when necessary and in the person’s best interests, is a serious breach of someone’s rights under the Human Rights Act Article 8.
The main advice is that if a care plan:
- Is so restrictive that it amounts to deprivation of liberty (see below for more on deprivation of liberty) and
- includes covert medication intended to alter the person’s mood
then it should be reviewed regularly, even monthly.
Further guidance on managing covert medication in a way that recognises its importance includes:
- Where there is a covert medication policy in place, or indeed anything similar, there must be full consultation with healthcare professionals and family before covert medication is actually used.
- Regular reviews of the care plan must specifically address whether this use of covert medication remains both necessary and proportionate, and consider the views of relatives or friends as well as the prescribing doctors.
What is the relationship between restriction and deprivation of liberty?
A good way to think of this is there is no deprivation of liberty without restrictions and restraints. However, as we see above, restrictions and restraints are lawful, provided they can be shown to be in the person’s best interests and also that they can be shown to be necessary and proportionate – AND that they do not amount to a deprivation of liberty.
Restrictions and restraints are often very mild and may not even be noticed by the person lacking capacity who is being protected from harm. But when they reach a level of intensity, and/or go on for a long time, they begin to impact the person’s rights. At this point, there is a risk of deprivation of liberty, and providers would be well advised to discuss with their legal advisors or the local authority deprivation of liberty safeguards (DoLS) team, to see if the entire care plan might amount to a deprivation of liberty.