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26th August 2016

Restraint: What Is It, When Is It Justified, How Should We Record It?

Restraining people in a setting where they’re receiving the care and treatment they need, can feel all wrong.  Yet we know that people who are confused or have memory problems may need to be stopped from doing things that would be clearly dangerous.

Jon’s Story

Jon is a former airline pilot living with dementia in a care home : he sometimes wakes early in the morning, very distressed that he’s going to be late for school and the school-teacher will punish him.

The staff can see that they cannot just let him rush off, in his slippers, looking for a non-existent primary school: the risks to his safety are clear. The home is close to a busy road, and even if Jon didn’t have an accident on the road (which could easily happen since his whole mind is focused on ‘not being late for school’), he is likely to get disoriented and be unable to find his way home.  He’s at risk, too, of abuse from passers-by who would recognise his vulnerability.  So it is in his best interests to restrict his freedom.  If Jon was our relative, we would not want Jon to be allowed out: but we also want staff only to restrict him lawfully.

Making it Legal

There are two parts to this: you need to be able to recognise restraint; and you need to know when it is legal to restrain a person lacking mental capacity, in their best interests.

The Mental Capacity Act (MCA) explains really clearly what ‘restraint’ means, and when it is legal.  It’s important that you take this on board, so that both your practice and your recording can be equally clear.

How Does the MCA Define Restraint?

The law says that someone is using restraint if they:

  • Use force – or threaten to use force – to make someone do something that they are resisting, or
  • Restrict a person’s freedom of movement, whether they are resisting or not.

It’s that second part that sometimes isn’t recognised.  People who lack mental capacity to make the decision to go out, for example, are very often restrained – in that their freedom of movement is restricted, for example by a locked front door or garden gate.  It is important to understand that this are a restraint.  But it isn’t true that this restraint is always wrong: if you think about Jon’s story, you will see that the restraint is completely in his best interests.

When an adult lacks mental capacity to give you consent for your actions, then anything you do to that person, or on their behalf, must be in their best interests, and the least restrictive of their rights that can be identified.

Extra Conditions for Restraint

Already we know that providers must always look for the ‘least restrictive option’: this is the golden thread of the MCA, that we must never restrict people’s freedom to live as they choose, with more than the lightest possible touch.

And we know that we get protection from liability, when someone lacks capacity to consent, by being clear that we are making the decisions within the principles of the MCA.

The MCA explains what this means when we think we might have to restrain someone, in their best interests.  Alongside the rest of the best interests checklist, there are two extra conditions that must be met for this restraint to be lawful – hence, for you to have protection from liability.

These extra conditions are:

  • The person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity; and
  • The amount or type of restraint used, and the amount of time it lasts, must be a proportionate response to the likelihood and seriousness of that harm.

What Would this Look Like for Jon?

Jon’s care staff must start by assessing his capacity to decide to go out, looking for his former school.  He has a diagnosis of dementia, so they know that he meets the first part of the test for capacity: they now have to work out whether he can understand, retain, use or weigh, and communicate his decision.

When they have a conversation with him, his delusion means he cannot understand that he’s long past his school-days; he remains convinced that he’s 8 years old and will be in trouble.  So he does lack capacity for this decision, and the staff must make a decision in his best interests.

Since they can see that they may have to restrain him as defined in the MCA, they need to think about whether stopping him going out at these times is necessary and proportionate.  They can see that it is, so, having recorded their reasons (as laid out in ‘Jon’s Story’), they must look for the ‘least restrictive option’ to keep him safe and happy.

With the real-life person I’ve called ‘Jon’, his relatives, consulted as part of the best interests decision-making, said this had happened when he lived with them.  They’d found that, if one of them took him for a walk when he got like this, he would forget during the walk that he was looking for his school, and return calmly.  Jon’s daughter offered to be rung up when it happened in the care home, and if possible one of the family would come and take him for a walk.  This was very successful and generally removed the need for restraint.  But if nobody was free to take him out at these times, the family also suggested that he could be distracted by being asked about his time as a pilot: his daughter left a scrap-book of photos and articles to use at such times.  At these times, he was restrained until the distraction worked, but the search for the least restrictive option was clearly recorded.  Staff had protection from liability, and were praised for providing excellent care.

For more information, see MCA Code of Practice, chapter 6.

 

 

*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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