Restraint, physical health and the detained patient: the rights in play

Norfolk and Suffolk NHS Foundation Trust v HJ [2023] EWFC 92 concerned the question of whether specific authorisation is required to administer physical health treatment under conditions of restraint to a person detained under the Mental Health Act 1983 who lacks the capacity to consent to the treatment.  This is a question that had been considered in some detail by Baker J (as he then was) in NHS Trust v Dr A [2013] EWHC 2442 (COP), including the legal quirk that it was necessary to have recourse to the inherent jurisdiction to authorise such additional deprivation of liberty as might arise even in the case of a person lacking the relevant decision-making capacity.[1]

The facts of Dr A’s case – concerning a detained patient on hunger strike – were very stark.  The facts of HJ’s case might be said to be much more ‘routine’ (although the outcome of no less importance to HJ herself).  In summary, HJ had a range of physical and cognitive impairments, and required enemas to treat her for constipation.   The process of providing HJ with an enema was described in some detail in the judgment by a Nurse O thus:

She explained that when staff consider that HJ is suffering signs of distress and an enema may be needed, she is guided or physically escorted from the “pod area” towards her bed and placed in the prone position and rolled onto her left side. Staff will then go on either side of the bed and hold her arms for reassurance.  Once HJ is on the bed, nursing staff explain to her that they need to administer an enema. At this time HJ will typically either attempt to pull at staff clothing or grip onto staff hands or body parts.  The administration of the enema itself requires 4 people to assist with the physical restraint required; one person on each side to restrain arms, one to administer the enema and a fourth person to hold both legs and prevent HJ from kicking staff. A fifth person is also required to open doors entering her room, support her head if needed and monitor her physical state during the restraint.  HJ will continue to be loud and verbally aggressive towards staff throughout this process.

    1. Nurse O further explained that:

(i)       The typical duration of physical restraint when administering the enema with HJ on the bed is approximately “3-5 minutes in length”;

(ii)      It may take between “30 seconds to 5 minutes” for HJ to be physically escorted from the pod area to her bedroom. This escort may require some form of physical restraint (such as holding her forearms), although hand holding can be used more often than not;

(iii)     HJ has had other forms of treatment provided via the same restraint procedure including: (i) administration of depot medication once per week (although this has not been required since March 2023); (ii) administration of rapid tranquilisation by intra-muscular injection on a PRN basis; (iii) taking blood samples; (iv) the administration of skin ointment (although she could not recall when this was last needed); and (v) transfers to an acute hospital for medical treatment;

(iv)     The provision of enemas under restraint is reported to take “slightly more time” than other forms of treatment;

(v)      HJ can remain agitated and/or distressed for up to an hour after the administration of an enema, although sometimes this can also resolve within a few minutes;

(vi)     If HJ is not provided with an enema and has no bowel movement, it can become very painful for her in the short-term in addition to the serious longer-term risk of bowel perforation;

(vii)    Two other service users within the ward also require physical restraint to deliver treatment, although not to the same extent, frequency or durations as HJ; 

(viii)    A record is kept in HJ’s medical notes whenever physical restraint is used;

(ix)      HJ’s ongoing care and treatment is discussed and reviewed during MDT meetings on a weekly basis, although there is no formal review of the restraint plan; and

(x)      Staff would be prepared to undertake a more structured review of HJ’s restraint plan on a periodic basis, including consideration about whether this method of delivery remains necessary and proportionate and whether any less restrictive measures could be used.

HJ’s constipation was a physical disorder not caused by her mental disorder, such that treatment – including potential restraint – could not be administered under Part 4 MHA 1983.   The Trust caring for her therefore applied for a determination (presumably under the inherent jurisdiction) that it was lawful to deprive her of her liberty whilst administering the enemas; the Official Solicitor acting on her behalf agreed both that such authority was required, and that granting it was in her best interests. David Lock KC, sitting as a Deputy High Court judge, took a different view – namely that no formal authority was required.

David Lock KC started with s.5 MCA 2005, outlining how it provides a codified defence of necessity.  In passing, it is clear from his analysis, applying that of Lady Black in NHS Trust v Y [2018] UKSC 46, that s.5 is not limited to emergency situations as suggested, obiter, and incorrectly, by Mostyn J in ​Somerset NHS Foundation Trust v Amira [2023] EWCOP 25.  David Lock KC then turned to s.6,  outlining how its “broad effect” is that, where such treatment is reasonably believed to be in P’s best interests, restraint short of a deprivation of liberty can lawfully be imposed on P without any further authorisation where it is reasonably believed by those providing the care that it is necessary to prevent harm and the restraint used is proportionate to the likelihood and seriousness of that harm.

On the facts of HJ’s case, David Lock KC agreed that, given that only “proportionate restraint” was used to administer the enemas, the Trust clinicians could, in principle, bring themselves within the terms of s.6 MCA 2005, such that, “if matters had stopped at that point, there would have been no need for the Trust to come to court because the legal approvals needed under these procedures of the MCA do not require court oversight” (paragraph 22).

The Trust, however, had been concerned that the process of administering enemas to HJ was depriving her of her liberty (it is not entirely clear from the judgment precisely what gave rise to the Trust’s concern that the line was crossed from restriction upon liberty to deprivation of liberty).   It was that concern – initially shared by the Official Solicitor – that David Lock KC questioned, and which led ultimately to the parties agreeing that, in fact, no deprivation of liberty was taking place, an agreement endorsed by the court.  At paragraph 32 he set out his conclusion, reached after an analysis of the relevant domestic and Strasbourg case-law as to the principles to apply when deciding whether medical treatment provided to someone in lawful detention amounts to a further deprivation of their liberty, requiring specific authorisation:

(a) the starting point should be that it will only be in exceptional cases (see Bollan/Munjaz) where something that happens to a person who has already been lawfully deprived of their liberty will amount to a further deprivation of that person’s residual liberty;

(b)   Article 5 will only arise in an exceptional case because the usual position is that “Article 5(1)(e) is not in principle concerned with suitable treatment or conditions” (Ashingdane); and 

(c)   the acid test for the engagement of article 5 in any case involving an alleged deprivation of residual liberty is whether there is an unacceptable element of arbitrariness in the actions which are taken by a state body and which are said to deprive a person of their residual liberty (see Idira). 

Applying those principles, therefore:

32.  […] it must follow that, save in exceptional circumstances, any proper and lawful exercise of clinical judgment by clinicians in administering medical treatment to a detained person will not amount to a deprivation of the person’s residual liberty because there is no element of arbitrariness in the actions of the clinical staff.  If restraint is imposed in order to enable treatment to be administered for a physical health condition for a person who lacks capacity to consent under the MCA, the tests for the lawfulness of that restraint are set out in section 6 MCA.  If those conditions are satisfied, the usual consequence will be that there will be no independent breach of the patient’s rights under article 5 ECHR.   Part of the reason that, in my judgment, there will be no breach of article 5 rights in such circumstances is that the Trust owes a common law duty of care to HJ.  That duty means that, whilst she is detained in hospital, Trust staff are required to provide her with appropriate medical treatment to meet her physical and psychological needs. The Trust discharge that duty by administering medical treatment to her, including enemas as described above, and there is nothing arbitrary about their application in HJ’s case.  On the contrary, as set out above, this is a carefully thought-out treatment plan which is designed to meet her medical needs in a lawful and proportionate manner.  I do not consider that acts taken by clinical staff to discharge that duty are capable of amounting to the type of exceptional circumstances which could lead to a further deprivation of HJ’s residual liberty.  In my judgment, HJ cannot be deprived of her liberty as a result of actions of Trust staff that, to discharge their duty of care to HJ, they are required to take.  I therefore consider that the revised position adopted by the Trust was correct and that the Official Solicitor was also correct to make the concession that HJ was not being deprived of her liberty when she was being administered enemas.

Importantly, David Lock KC also went on to consider HJ’s Article 8 ECHR rights, engaged by decisions made to apply enemas and the accompanying decisions to use restraint to enable the treatment to be administered.   There was no dispute, as he noted, that Article 8 ECHR contains procedural as well as substantive obligations.  In general terms, and echoing (although not expressly referring to, the decision of the ECtHR in AM-V v Finland [2017] ECHR 273), he found that:

35.  The process leading up to the administration of enemas is required by section 4 MCA to fully take into account HJ’s views, albeit they are not decisive.  Overall, the sections 4 and 6 MCA decision making process is a process mandated by statute and, if followed, in my judgment satisfies the requirements of fairness and properly respects a patient’s article 8 rights.

He also noted that, as restraint which was applied to HJ was to take place within a mental health unit, there were the additional procedural obligations imposed by the Mental Health Units (Use of Force) Act 2018, and that the Trust:

36. […] has explained how it is complying with the terms of the 2018 Act.  It has appointed a responsible person or suitable seniority, adopted a policy regarding the use of force on patients by staff who work in its mental health units and is providing appropriate training.  None of the steps taken by the Trust to implement the terms of the 2018 Act have been criticised by the Official Solicitor and it appears to me that the evidence provided about the way restraint is applied to HJ is consistent with the Trust policy and the recording of the use of restraint follows (if not exceeds) the requirements of the 2018 Act.  I also note that the requirements of the 2018 Act supplement the duty on the Trust to have regard to the Statutory Code of Practice published under the MHA.

David Lock KC continued:

37. In J Council v GU & Ors Mostyn J considered that the procedural requirements under article 8 required an additional degree of oversight because restraint was taking place outside of mental health detention and was thus occurring in a setting where there were “no equivalent detailed procedures and safeguards stipulated anywhere for persons detained pursuant to orders made under the Mental Capacity Act 2005”:  see judgment at paragraph 14.   This case is different because (a) it takes place within the legal framework applying to patients who are detained under the MHA and (b) the procedural requirements of the 2018 Act are required to be followed and, on the evidence, are being followed.  In those circumstances, I do not accept that the existing legal obligations on the Trust need to be supplemented in order to ensure compliance with HJ’s article 8 rights.   On the contrary, it seems to me that the requirements on the Trust to continue to comply with the best interests decision making processes under section 4 MCA, the need to ensure that any level of restraint is justified under section 6 MCA and the additional procedural requirements imposed on the Trust by a combination of the MHA framework and the 2018 Act provide an entirely adequate procedural framework to protect HJ’s article 8 rights.  I therefore do not accept that it is either necessary or appropriate to supplement these obligations with provisions within a court order.

Nonetheless, and presumably because the matter was, in fact, before the court, David Lock KC indicated that he was prepared to make a declaration under s.15 MCA 2005 that the Trust was acting lawfully in administering enemas to HJ in accordance with the protocols described in the evidence in this case.   However, he made clear that no declaration was needed under the inherent jurisdiction because he was satisfied that the MCA 2005 provided a sufficient framework for governing the lawfulness of the actions of the Trust and clinical staff employed by the Trust.


Substantively, it is important to see a Trust discharging its obligations to secure against the risks of constipation, a problem which is too often ignored, not just in cases such as HJ’s but also – and perhaps especially – in the context of those learning disabilities   One would hope that the consideration given to the steps required would have been equally careful had HJ not been detained but was in the community.

Procedurally, the case raises two interesting questions.  The first is as to whether, had HJ not been subject to the MHA 1983 (or a DoLS authorisation), it would have been legitimate simply to rely upon ss.5-6 MCA 2005.  On one view, it is perhaps a non-question, because any care plan which contained that level of planned restriction in relation to medical interventions would almost inevitably contain sufficient restrictions upon the person’s physical liberty more generally that they would need to be detained under either the MHA 1983 or under the MCA 2005.  However, paragraph 22 of David Lock KC’s judgment could be read as suggesting that restrictions of those being used to secure HJ’s treatment could be imposed without requiring formal authorisation.   With respect, I would suggest that, for a person who is not detained, ss.5-6 would only give the thinnest of legal ice under the feet of professionals drawing up and implementing a care plan of the kind in play for HJ given not just the nature of the restrictions but, in particular, their frequency – no matter how benignly intended.

The second question is as to whether the answer given by David Lock KC to the question of whether HJ was subject to a deprivation of her residual liberty is entirely convincing viewed through the prism of the ECHR.  His essential answer rested upon the fact that the clinicians were doing that which they were required to do so to discharge their common law duty of care to her, such that the consequences of their action could not give rise to a deprivation of her residual liberty.  The European Court of Human Rights in the Bournewood case held that reliance upon the common law doctrine necessity was not an answer to the charge that HL had been arbitrarily deprived of his liberty for purposes of Article 5 ECHR (see paragraphs 118-119).  David Lock KC’s analysis also comes close to the approach of the Courts of Appeal in the Cheshire West cases in conflating why steps are being taken to confine the person with what the consequences of those steps are: an approach strongly deprecated by the majority of the Supreme Court.  That having been said, it is perhaps appropriate to note that the ECtHR in the Munjaz case did seem to elide the two in precisely that way in holding that Col. Munjaz was not deprived of his residual liberty by being subject to sustained periods of segregation, noting that the periods were “foremost a matter of clinical judgment,” and “could only continue for as long as those responsible for [his] care judged it necessary” (paragraph 71).

Whether or not the answer to the Article 5 question was entirely convincing (and, indeed, whether or not the Strasbourg case-law is entirely coherent), it is important that all concerned recognised that matters did not stop at Article 5, but that Article 8 was just as important.  Indeed, in Munjaz, the ECtHR emphasised that “the importance of the notion of personal autonomy to Article 8 and the need for a practical and effective interpretation of private life demand that, when a person’s personal autonomy is already restricted, greater scrutiny be given to measures which remove the little personal autonomy that is left” (paragraph 80, emphasis added).  In this regard, it is of no little interest to note the emphasis placed upon the Mental Health Units (Use of Force) Act 2018 (incidentally, the first time that it has featured in a judgment).

The Mental Health Units (Use of Force) Law – commonly known as Seni’s Law – was introduced to respond to what might be thought to be a very different problem, that of force being used as a response to behaviours identified as challenging.  But the breadth of the 2018 Act’s definition of force[2] means that – rightly – the provisions designed to secure greater accountability and transparency should apply to situations such as that of HJ, at least when they are detained in a mental health unit.  Some might well ask why equivalent provisions should not apply in relation to those subject to deprivations of liberty in other settings which are, to all intents and purposes, identical.

[1] Incidentally, another casualty of the decision not to implement the Mental Capacity (Amendment) Act 2019 is that s.16A MCA will not be being repealed, the provision which caused the problem in Dr A.

[2] Although note that its definition is not the same as that of ‘restraint’ for purposes of the MCA 2005.  Restraint for purposes of the MCA 2005 arises where a person “(a)uses, or threatens to use, force to secure the doing of an act which P resists, or (b)restricts P’s liberty of movement, whether or not P resists” (s.6((4)).  Force for purposes of the 2018 Act involves “(a) the use of physical, mechanical or chemical restraint on a patient, or (b) the isolation of a patient.”

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