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11th June 2018

Restraint and Deprivation of Liberty: Top five things you need to know!

Recently I gave you five ‘Top Tips’ on the framework of the Mental Capacity Act (MCA). Here, as promised, are a further five top tips: about what health and social care staff need to know – and put into practice – to be compliant with what the MCA says about restraint and deprivation of liberty.

As ever, tell me where I’ve missed something you really want to know. (I’ve had some very useful comments on the previous ‘Top Tips’, as a result of which my next article will unpick some of the myths about best interests that I didn’t have space to cover last time).

1. Learn what the MCA definition of restraint means in practice

If you want to do something to, or for, a person who lacks capacity to consent or refuse this intervention, you are restraining them if you:

  • Use, or threaten to use, force to make the person do something they are resisting, or
  • Restrict their freedom of movement, whether they resist this or not.

This second point is the one that care staff sometimes find surprising. And it does mean that every deliberate restriction of movement – bed-rails to stop someone getting out of bed at night, a locked front door intended to keep certain residents inside – is a restraint if the person lacks capacity to agree to it, and must be identified as such.

Restraint isn’t always a bad thing: sometimes we do need to restrain someone. But we must show why we think they lack capacity for this decision, and why it’s in their best interests.

2. There are extra conditions to meet for restraint to be lawful

Staff are only protected by the law if, as well as showing in their records evidence of someone’s lack of capacity, and that it’s in their best interests, they also show that the restraint is both

  • Necessary to prevent harm to this person, and
  • A proportionate response to how likely this harm is, and how serious it would be.

An extract from a care plan might be:

Mina, who is living with dementia, is sometimes sure her mum is expecting her home and has a meal ready. At these times, Mina tries to find her mother’s house, crossing the busy dual carriageway without care for traffic. Because of the delusions caused by her dementia, Mina cannot understand or weigh the risks to her from the traffic, or from getting lost, hence she lacks capacity for this decision. Discussion with Mina’s daughters led to identifying that she is most likely to look for her mum’s house when she is hungry and thirsty. Distraction is to include offering a drink and a snack; and Mina should be one of the first to be brought to the dining room and offered her meal. This is the least restrictive option that can be identified to keep her safe at these times. 

The restraint is necessary to prevent her being.

  • Injured on a very busy road
  • Lost and confused, looking for a house that no longer exists
  • Possibly subject to abuse from strangers.

These harms are highly foreseeable and likely; they are all potentially very serious. Therefore, the restraint of locking the door and not letting her out alone is both necessary and proportionate.

3. We have an ‘Acid Test’ to recognise Deprivation of Liberty

The UK Supreme Court created the ‘Acid Test’, saying that a person who ‘lacks capacity to consent to the arrangements necessary to give them essential care or treatment’ –  they can’t consent to their care plan – is deprived of their liberty if they are;

  • Under complete and effective care and control of staff; and
  • Not free to leave.

What would we see in a care plan that showed ‘continuous supervision and control’? The person may not be kept in line of sight, but staff always know where the person is and what they are doing, and will stop them from doing some things.

What does ‘not free to leave’ look like? Like ‘continuous supervision and control’, it comes back to staff making the decisions about where the person lives. They may go out with staff or relatives, and even alone, but only with staff agreement. And they would not be allowed to make their own decision to go and live somewhere else.

Jim has an acquired brain injury and lives in a care home . He is very impulsive, confused and forgetful. He is having a lot of therapy to re-learn skills of daily living but at this time must be prevented from eating inedible things like ring-pulls, or running across the road because he has seen an animal. He would not currently be allowed to live alone in a flat though he would love to. His care plan meets the acid test for deprivation of liberty.

4. The purpose of DoLS is to enable the person to challenge their care plan

It’s a serious thing to deprive a vulnerable person of their liberty. This framework empowers them to ask the local authority to review an authorisation, or, if they wish, apply directly to the Court of Protection to ask whether it’s justifiable to detain them in this way.

Don’t feel threatened if a person does this (or more likely their representative or an advocate does it on their behalf). They’re exercising a right we should be proud to encourage. It’s a great advertisement for your service that you support their right to be heard on such an important matter.

5. Report the outcome of a DoLS application to CQC

Do this when you know whether the application has been granted or not. ‘Not granted’ could be for many reasons - one of the assessments failed; or the person may have left your service to go home or into hospital; or they may have died while waiting for the assessments to take place. To learn how to notify, see here.

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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