Mental health law briefing 196 – Using restraint

The spotlight has turned once again on the difficult issue of restraint in mental health settings.

Winterbourne View provided fuel for the debate about restraint and physical intervention as an approach to managing challenging behaviour. The recent reports about the use of “face down restraint” have continued the debate about the frequency of physical restraint and the records, which are kept. The Mental Health Act 1983 Code of Practice provides at section 15 that the purposes of interventions where de-escalation has failed are to:

  • Take immediate control of a dangerous situation;
  • End or reduce significantly the danger to the patient or others around them; and
  • Contain or limit the patient’s freedom for no longer than is necessary.

Restraint can take many forms:

  • Physical restraint involves staff moving or holding an individual or preventing their movement or access.
  • Psychological restraint can involve repeatedly instructing an individual not to do something they want to do.
  • Use of equipment for monitoring or controlling freedom of movement such as key pad operated doors can be considered restraint and other devices such as tagging, or door alarms and keypad-operated doors will often lead to restraint.
  • Medication can be used to restrain.

Where an action appears to amount to restraint it will not be automatically unacceptable or wrong however. Professional legal, ethical and practical considerations must be applied to assess whether the individual’s independence can be safely maintained.

Legislation, which deals with restraint, includes criminal and civil law:

  • Offences against the Person Act 1861
  • Mental Health Act 1983
  • Mental Capacity Act 2005
  • Human Rights Act 1998

Restraining of an individual without their consent may be a criminal activity. Any prosecution under criminal law would consider whether the restraint amounted to an offence that could include assault, unlawful detention, ill treatment or wilful neglect.

Restraint may also result in a civil claim for negligence and compensation for any harm suffered as a result of restraint. Where an individual can show that he or she has suffered harm, whether that be physical or psychological which was directly caused by the restraint is foreseeable, the courts will have to assess any professional standards that existed at the time to see whether the restraint was reasonable. If the actions fell below those standards, a claim of negligence may succeed.

The Human Rights Act enshrines the principle of freedom of the individual. In order to override rights, which the Act confers it, will be necessary to show a need to prevent harm.

In the case of an individual detained in hospital under the Mental Health Act 1983, staff are entitled to exercise a degree of control over them and force may be used to achieve this if necessary, but it must be reasonable and proportionate. For example, staff are allowed to prevent someone detained under the Act from leaving hospital.

In March 2013 the Care Quality Commission’s report on its monitoring of the Deprivation of Liberty Safeguards showed that:

“There is confusion among care staff about the basic MCA requirements especially relating to the use of restraint. The use of restraint is not always recognised or recorded properly. Because of this it is not easy to monitor.”

For further details of the specific requirements under the Mental Capacity Act in relation to restraint, please see our Mental Health Law Briefing No. 153 [1].

It has recently been reported that the Government is considering a ban on the use of “face down” restraint at English mental health hospitals and this follows statistical evidence that the technique is used hundreds of times a year in some Trusts. MIND has reported that other mental health Trusts no longer use face down restraint at all because it is considered too dangerous and traumatic.

The technique has been described as humiliating, dangerous and even life threatening and MIND has reported 13 restraint related deaths of people detained under the Mental Health Act since the death of David “Rocky” Bennett in 1998. An independent inquiry found that Mr Bennett died as a direct result of prolonged face down physical restraint and the amount of force used by staff at a medium secure mental health unit in Norwich.

Many believe that a different approach to managing behaviour that challenges is required and that the use of physical intervention and restraint does not lead to well developed and trusting relationships. In the short term it may be an approach that minimises the risk of injury to the person displaying the behaviour and at best stops behaviour from causing harm, but restraint often presents inherent physiological and psychological risks and the risk that techniques are used as a form of control, power and punishment.

Whilst this is an area, which has been considered by the Government before, many feel that more must now be done to tackle the issue of the use of restraint in environments where vulnerable people are cared for. It is likely therefore that there will be increased interest and monitoring of restraint and it will be important to show proper understanding and governance so that restraint is not viewed as becoming routine and that staff are trained to gauge whether restraint is proportionate and in someone’s best interests.[2]

Julia Appleton
e: julia.appleton@rlb-law.com
t: 020 7227 6758
July 2013
© RadcliffesLeBrasseur


Footnotes

[1] Mental Health Law Briefing 153 – Powers of restraint and or detention (April 2010)
[2] See RadcliffesLeBrasseur MCA Best Interests checklist


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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