The Department of Health has just published guidance as part of its new Positive and Safe programme (which will apply across all health and adult social care services). This guidance responds, in part, to the DH report into the actions required following the Winterbourne View scandal, and in part to the report published by Mind in June 2013 on the abuse of restraint techniques. It sets out a range of positive and proactive approaches with the entirely laudable aim of “developing a culture across health and social care where physical interventions are only ever used as a last resort when all other alternatives have been attempted and only then for the shortest possible time” (paragraph 4). The key actions that it sets out are divided into four areas:
• Staff must not deliberately restrain people in a way that impacts on their airway, breathing or circulation, such as face down restraint on any surface, not just on the floor.
• If restrictive intervention is used it must not include the deliberate application of pain.
• If a restrictive intervention has to be used, it must always represent the least restrictive option to meet the immediate need.
• Staff must not use seclusion other than for people detained under the Mental Health Act 1983.
• People who use services, families and carers must be involved in planning, reviewing and evaluating all aspects of care and support.
• Individualised support plans, incorporating behaviour support plans, must be implemented for all people who use services who are known to be at risk of being exposed to restrictive interventions.
Leadership, assurance and accountability:
• A board level, or equivalent, lead must be identified for increasing the use of recovery-based approaches including, where appropriate, positive behavioural support planning, and reducing restrictive interventions.
• Boards must maintain and be accountable for overarching restrictive intervention reduction programmes.
• Providers must ensure that internal audit programmes include reviews of the quality, design and application of behaviour support plans, or their equivalents.
• Accurate internal data must be gathered, aggregated and published by providers including progress against restrictive intervention reduction programmes and details of training and development in annual quality accounts or equivalent.
• Service commissioners must be informed by providers about restrictive interventions used for those for whom they have responsibility.
Monitoring and oversight:
• Care Quality Commission’s (CQC) monitoring and inspection against compliance with the regulation on use of restraint and its ratings of providers will be informed by this guidance.
• CQC will review organisational progress against restrictive intervention reduction programmes.
• CQC will scrutinise the quality of behaviour support plans which include the use of restrictive interventions.
Deprivation of liberty
The capacity anoraks will no doubt be interested to see the DH’s analysis of the legal framework at paragraphs 98-104, reproduced here:
“The lawful use of restrictive interventions in respect of people who lack capacity
98. Sections 5 and 6 permit restrictions on liberty in the circumstances outlined above, but do not authorise acts that deprive a person of their liberty. Whether or not an act amounts to a deprivation, rather than a restriction, of liberty depends on the circumstances of the individual case. Factors which may amount to a deprivation of liberty in the circumstances of individual cases include:
• staff having complete control over a person’s care or movements for a long period of time
• staff making all decisions about a person, including choices about assessments, treatment and visitors and controlling where they can go and when
• staff refusing to allow a patient to leave, for example, to live with a carer or family member
• staff restricting a person’s access to their friends or family.
99. There will be a deprivation of liberty if a person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements. If a deprivation of liberty is necessary, it can only be authorised by a procedure set out in law, which enables the lawfulness of that deprivation of liberty to be reviewed. Legal authority to deprive the person of their liberty may be obtained under the Deprivation of Liberty Safeguards (DoLS) in the MCA or the MHA. Each regime provides a procedure to authorise deprivation of liberty.
100. The DoLS were incorporated in the MCA to ensure that there is a procedure for authorising deprivation of liberty in hospitals and care homes for adults who lack capacity to consent to admission or treatment for mental disorder. The Court of Protection can authorise deprivation of liberty in other settings. Detailed guidance on DoLS procedures can be found within the Deprivation of Liberty Safeguards Code of Practice40.
101. Where the person is unable to consent and it is not clear restrictive interventions are in the person’s best interest, consideration should be given to approaching the Court of Protection for a best interests decision as to the appropriateness of the proposed intervention.
102. The key safeguards afforded to people deprived of their liberty under the MCA are:
• the right to a representative and/or a independent mental capacity advocate
• the right to challenge a deprivation of liberty
• mechanisms for the deprivation of liberty to be reviewed.
103. The MHA authorises deprivation of liberty if the person meets the criteria for being detained for the purpose of assessment and/or treatment for mental disorder, even in the absence of their consent. Guidance is given on the delivery of safe and therapeutic care and safeguards around the use of restrictive interventions in chapter 15 of the MHA Code of Practice.
104. Statutory or common law defences may apply, in the rare circumstances where, neither the MCA nor MHA apply. Reasonable force may be used for the purposes of self-defence, the defence of others, prevention of crime, lawful arrest or to protect property. In order to be ‘reasonable’, the force involved should be necessary and proportionate in the specific circumstances. Force should only be used as a last resort. These justifications and defences should not be relied on for the recurrent, long- term, and/or planned use of restrictive physical interventions in respect of an individual.
This guidance is very welcome, in particular in the approach that it takes that encompasses all those from the front-line up to senior managerial level, and then beyond to the CQC. Its implementation will, of course, be crucial…
One point that it is some interest is that this appears (albeit silently) to be the DH’s first reaction to the actual implications of the Cheshire West judgment as to when a deprivation of liberty will arise (as to what should happen where one is in place). Particularly interesting is that the DH’s guidance at paragraphs 98-9 would appear to be wider than that given by Lady Hale for the majority – in that, whilst the guidance states (correctly) that a deprivation of liberty will arise if the acid test is satisfied, it also appears to suggest that a deprivation of liberty could arise if (for instance) contact is restricted between the patient and their family. It is not obvious that the Supreme Court would have agreed with this (albeit that they would no doubt have said that this was something that required – probably careful – justification under Article 8(2)). It is therefore cheering (for those of us holding the line that the decision was correct!) to see that the Department of Health are not seeking to set out a restrictive interpretation of the decision.