Art & science | mental capacity
Legal implications of restrictive physical interventions in people with dementia Using a case study, Louisa Jackman and colleagues examine the rights and responsibilities of staff in care homes Correspondence [email protected] Louisa Jackman is associate lecturer, Newcastle University, Newcastle upon Tyne Charlotte Emmett is senior law lecturer, Northumbria University, Newcastle upon Tyne Tom Sharp is assistant psychologist, Northumberland, Tyne and Wear NHS Foundation Trust, Newcastle upon Tyne Joanna Marshall is principal clinical psychologist, Tees, Esk and Wear Valleys NHS Foundation Trust, County Durham Date of submission August 15 2014 Date of acceptance September 30 2014 Peer review This article has been subject to double-blind review and has been checked using antiplagiarism software Author guidelines rcnpublishing.com/r/ nop-author-guidelines
Abstract Dementia care environments are now home to thousands of people who have complex mental and physical health needs. Many of these people have lost capacity or have fluctuating capacity to make decisions about their care. There can be times when restrictive physical interventions are necessary to protect a person’s wellbeing and to administer required treatment and care. However, nurses working in care settings may not be aware of their rights and liabilities, and those of care staff, when such interventions are used for therapeutic purposes. This article seeks to address areas of uncertainty and clarify the legal responsibilities of care teams by exploring the issues raised through a fictitious case vignette. Keywords Alzheimer’s disease, care homes, dementia, Deprivation of Liberty Safeguards, law, restrictive physical interventions IN THE UK, there are an estimated 773,502 people living with late-onset (over 65 years) dementia, two thirds of whom live in care settings. The prevalence of dementia in care settings is estimated to be between 58% and 90% (Alzheimer’s Society 2014). People’s journey into care often happens as a result of behaviour that emerges as they try to make sense of their environment, hampered by impaired cognition and poor insight, variously labelled as distressed behaviour, behaviour that challenges or behavioural and psychological
24 December 2014 | Volume 26 | Number 10
symptoms of dementia. This behaviour has been reported to present in 30% to 60% of people living with dementia (Institute of Public Care 2011). One of the most common reasons for people to be moved into care is to manage risk because their behaviour might endanger them or threaten others. However, those entering care do not always have capacity to make this decision and/or may disagree with their placement. Under these circumstances, they might attempt to leave or resist attempts to be cared for. It then falls to the staff caring for them to make decisions about restricting their movements to maintain their safety, for example, by locking doors, or their wellbeing, for example, by using restrictive physical interventions to administer medication and personal care (Howarth et al 2014). Through a fictitious case vignette (see box), this article examines how the law governs the use of restrictive physical interventions in dementia care homes. The legal issues posed for staff when they apply such interventions are considered, which can appear to be at odds with their perceived duty of care. The article addresses some areas of uncertainty and clarifies, where possible, the legal accountability of health and social care professionals in circumstances where domestic laws and concepts of human rights play an increasingly important role. Although there is excellent guidance emerging for care staff working with behaviour that challenges, for example, NHS Protect (2013), the case vignette is one in which staff might view themselves as planned instigators of restrictive physical interventions rather than reacting to an unusual situation. This may raise particular issues in the way they perceive their role. Furthermore, restrictive interventions are NURSING OLDER PEOPLE
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not confined to nursing care settings where NHS guidance might have a more prominent place. While the article focuses primarily on the incapacity laws of England and Wales under the Mental Capacity Act (MCA) 2005, in Scotland broadly similar principles would apply under the Adults with Incapacity (Scotland) Act 2000, with comparable incapacity legislation expected in the future in Northern Ireland.
The importance of mental capacity An appropriate starting point when considering the nurse’s response to Mr Stanley’s care is a reminder that, in law, adults with mental capacity can refuse treatment interventions if they choose. Unless a person is being treated under the Mental Health Act 1983, this right is held by all adults of any age. Refusals of treatment made by competent adults must be respected, however irrational or unwise their choices may appear to others. Old age, physical frailty, the fact that a person has a diagnosis of dementia and has voluntarily entered institutional care, should not, alone, diminish this right in law – although these factors often do in practice (Boyle 2008). In fact, an extensive body of literature suggests that the legal rights of older people with
Case vignette: Arthur Stanley Arthur Stanley is 85 years old. He has a mixed vascular-Alzheimer’s dementia and is being cared for in the dementia unit of a care home. The front door and the door to the unit are locked and a code is required to enter. Mr Stanley refuses to receive any form of medical treatment or to get changed or washed. He has regular urinary tract infections and can have bouts of diarrhoea. Staff have often resorted to using restrictive physical interventions to administer treatment and care. This can involve up to four members of staff and they report having, on occasion, started the process of undressing and washing him before he is fully awake to minimise his struggle. He sometimes expresses his wish to return home. He is referred to a local mental health nursing team, which specialises in working with people with behavioural support needs. During the initial assessment visit, the nurse is told that care home staff often have to hold Mr Stanley’s arms to remove soiled clothing and wash him. He does not seem particularly affected by this after the event. NURSING OLDER PEOPLE
dementia in care homes are not well understood by professionals and can routinely give way to institutional pressures (Commission for Social Care Inspection (CSCI) 2007), paternalistic care practices and misplaced assumptions of incapacity (House of Lords 2014). Consequently, when Mr Stanley enters his care home, although inevitably he may experience constraints on his lifestyle choices, he will not automatically lose his public and private law rights (CSCI 2007). These rights persist as long as he retains the capacity to make particular choices and those choices do not interfere unreasonably with the rights of others. Furthermore, legal capacity will be presumed until proven otherwise (part 1 MCA, section 1(2)). Those proposing treatment against his will must establish, on balance, that he lacks the capacity to make the choice (s2(4)). Before the outcome of the capacity assessment, any person who uses or threatens force on Mr Stanley without his consent, no matter how minor, and no matter how benevolent the intent, would potentially breach his human rights and commit a trespass to the person – an assault, battery or false imprisonment. These are torts (civil wrongs) as well as criminal offences for which the perpetrator may be sued for compensation, or found criminally liable and punished. In this way, Mr Stanley’s personal autonomy – his competent right to choose what shall be done to his own body – takes precedence over any duty of care that a care professional may owe to him (Grubb et al 2010). Pausing here for a moment, it is clear that an accurate assessment of Mr Stanley’s decision-making capacity is critical when deciding the correct legal response to his refusal of care or any attempt he makes to leave his care setting. However, evidence presented to a recent House of Lords’ Select Committee (2014) investigating the use of the MCA in practice suggests that in many cases, capacity assessments are not being carried out when required, are poorly carried out or are not appropriately recorded. Research studies have also found that, in practice, nurses in care settings can lack confidence in carrying out capacity assessments and, understandably, may have difficulties respecting ‘risky’ decisions made by competent older adults when they conflict with their perceived ‘duty of care’ or their own personal values (Emmett et al 2013). Anecdotally, nurses and care workers may often not believe they are responsible for moment-to-moment assessments of capacity, thinking this should be left to more senior staff or to doctors. December 2014 | Volume 26 | Number 10 25
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Art & science | mental acute care capacity Assessing capacity It is important that Mr Stanley’s capacity is properly assessed using the MCA. He will lack capacity if he is ‘unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’ (s2(1)). Whether he is unable to make a decision for himself depends on his ability to understand relevant information, retain it even for a short period of time, use or weigh up that information as part of the process of making a decision and communicate his decision (s3(1)(a-d)). There must be a connection between the disorder of mind or brain, which may be temporary or permanent (s2(2)) and a person’s inability to make the specific decision. Put another way, Mr Stanley’s dementia, which may be associated with memory loss and problems with reasoning and decision making, must be the cause of his inability to make the decision in question. It is also important to note that, even in the context of having dementia (a permanent impairment), Mr Stanley may be capacitous to make decisions. He may also experience delirium (temporary impairment) due to his frequent urinary tract infections. Once treated, he may regain capacity to make decisions and the capacity assessment would then need to be repeated. Details of the assessment process – who must carry out assessments, when and how – are set out in chapters 3 and 4 of the MCA Code of Practice (‘Code’) (Department for Constitutional Affairs 2007). Capacity decisions are made on an issue-by-issue basis. This means that a person may be deemed not to have capacity in one area of life, for example, choosing where to live, but may be able to make decisions about another, for example, taking or refusing medication. So, it is worth stressing that when restrictive physical interventions are being proposed, a person’s capacity to consent to this particular aspect of care must be considered. The various care options need to be explained to Mr Stanley as part of the capacity assessment process, including the foreseeable consequences – benefits and risks – of deciding to accept care or not, or failing to make a decision as well as any proposed use of restrictive physical intervention (s3(4)). To demonstrate capacity Mr Stanley would only need to understand and weigh the salient factors, and if he makes an unwise decision this should not necessarily lead to a finding of incapacity unless it is considered that the ‘irrational’ decision stems from his inability to understand and weigh relevant information because of delusional beliefs caused by mental disorder. 26 December 2014 | Volume 26 | Number 10
Finally, the capacity assessment process and its outcome must be recorded by the assessor, who must be able to justify how questions have been put to Mr Stanley during the assessment process, what efforts have been made to maximise his capacity and why there is a reasonable belief that he lacks capacity, if this is the case. This should also be the case when visiting doctors or nurse prescribers make capacity decisions about medication.
Consequences of incapacity and the use of restrictive interventions If Mr Stanley is found to lack mental capacity, and in the absence of a valid and applicable advance decision refusing particular treatment interventions or the appointment of a proxy decision maker under a lasting power of attorney, carers will be under a duty to treat him in his ‘best interests’ (s4). However, where restrictive physical interventions are needed to effect treatment and care, the intervention will only be lawful if the intervention used is necessary to prevent harm to Mr Stanley (note: not harm to other people) and is proportionate to the likelihood and seriousness of such harm (s6(2) and (3)(a-b) MCA; 6.40-6.48 Code). To be ‘proportionate’, any intervention must be the least intrusive, using the minimum amount of force necessary to achieve an outcome that is in the best interests of the person (s1(6); 6.47 Code). Importantly, force should never be used just for convenience or to expedite care (6.44 Code). At the very least, other less restrictive options such as persuasion and discussion should have been explored with Mr Stanley first, using advocates if necessary. Restrictive physical interventions should be seen as the last resort (6.48 Code). In Mr Stanley’s case, there would need to be evidence that reasonable attempts had been made to ascertain his capacity or that the least intrusive methods had been tried as a first-line intervention (Royal College of Nursing (RCN) 2013). Restrictive physical interventions, as they are defined in the MCA, are not restricted to a threat or use of force; they would also include restricting a person’s liberty of movement whether or not that person resists (s6(4)(b)). As a result, staff might not always realise that what they are doing constitutes restriction, especially when an intervention is carried out with therapeutic intent (CSCI 2007). Physical restriction, or the use of mechanical restrictions, such as limb ties, vests, straps, wheelchair bars and brakes and bedside rails, keys and baffle locks on doors would all potentially fall within this definition (Gastmans and Milisen 2006). Chemical restrictions such as sedatives, antipsychotics and anxiolytics NURSING OLDER PEOPLE
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or psychological or verbal restrictions that might include repeatedly shouting at people or depriving them of equipment or possessions they consider necessary to do what they want to do, for example, taking away walking aids, glasses, outdoor clothing or keeping them in nightwear with the intention of stopping them from leaving, would all fit this description (RCN 2008). Section 4 of the MCA sets out common factors that must always be considered by those making best interests decisions and each factor must be weighed in order to arrive at an objective assessment of what is best for the person concerned. Of course, the use of physical restriction can often add new risks that will have to be balanced against the benefits of any proposed intervention. There should be an attempt to ascertain Mr Stanley’s past and present wishes, any long-standing attitudes to personal interventions, any known or suspected concerns he may have about particular carers administering care, for example, and any long-term effect that restriction may have on his mental and physical welfare and personal dignity. Throughout the decision-making process, it is important to try to involve him where practicable. On each occasion when restriction is applied, a careful explanation should be given to him in terms that maximise his ability to understand. Consultation with any relatives or persons ‘interested in his welfare’ will be necessary as part of this decision-making process (s4(7)(b)). Ultimately, nurses must be able to justify the use of restriction. Objective reasons for the planned intervention, including the pre-arranged strategies for the use of force and risk assessments must be recorded in full in Mr Stanley’s care plan with close reference to the criteria of section 4 and the care plan should be reviewed regularly (Sells and Howarth 2014).
Disproportionate restriction and its legal consequences The use of disproportionate restriction to administer treatment and care to Mr Stanley and to ensure his safety can lead to concerns that he is being deprived of his liberty. This is significant because article 5 of the European Convention on Human Rights (ECHR) (European Court of Human Rights 1950) protects a person’s right to liberty and security, which can only be lawfully interfered with on certain defined grounds, such as detention of a person of ‘unsound mind’ (article 5(1)(e)). However, detention will only be lawful if it is in accordance with ‘a procedure prescribed by law’ NURSING OLDER PEOPLE
(5(1)) and only when it can be reviewed quickly so that any detention can end when it is no longer justified (article 5(4)). The defence that section 5 of the MCA affords decision makers when carrying out ‘acts in connection with care and treatment’ does not extend to acts that deprive Mr Stanley of his liberty. Section 4A MCA makes this clear. Any such deprivation will need to be authorised separately under the Deprivation of Liberty Safeguards (DoLS) of the MCA. Carers will need to make the difficult distinction between actions that amount to restriction only, and those that deprive people of their liberty which require DoLS authorisation. The Supreme Court ruling in P v Cheshire West and others [2014] offers the most recent judicial guidance on what may amount to a deprivation of liberty in health and social care settings. The court identified that the ‘acid test’ would fall to two central elements. Whether: 1. The incapacitated person concerned is under continuous supervision and control; and 2. Is not free to leave. In the case of Mr Stanley, the degree and intensity of the controls over his movements and the cumulative effect of his restriction (see s2.12 of the supplementary DoLS code of practice (Ministry of Justice 2008)) suggest that the circumstances surrounding his treatment in the care home would be likely to amount to a deprivation of liberty because care staff have continuous supervision and control over his movements, evidenced by his repeated restriction and regular reliance on his carers for many aspects of his care, and if he attempted to leave the home staff would no doubt prevent him from doing so. In these circumstances, urgent authorisation of his care plan under DoLS would need to be given by the managing authority of the care home, pending an application for standard authorisation from the ‘supervisory body’ (the local authority) (chapter 6 of the supplementary DoLS code). Disproportionate restriction might also engage articles 3 and 8 of the ECHR. Under article 3, Mr Stanley would have an absolute right not to be subjected to ‘inhuman or degrading treatment or punishment’. However, the threshold for breaching article 3 is set high and interventions that are a medical or therapeutic necessity are not generally regarded as inhuman or degrading so as to breach article 3. Non-consensual treatment would also engage article 8 which protects a person’s right to ‘respect for private and family life’ and which encompasses a person’s physical and psychological December 2014 | Volume 26 | Number 10 27
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Art & science | mental acute care capacity integrity. Even minor interferences with a person’s physical self may fall in the scope of article 8 if they are carried out against the person’s will. However, article 8 is a qualified right, meaning that interferences can be justified in certain circumstances; Mr Stanley’s non-consensual treatment would most likely be justified in the interest of his health, under article 8(2). Finally, unreasonable or disproportionate use of restrictive interventions can, in certain circumstances, amount to abuse of vulnerable adults
Revisiting Mr Stanley The visiting nurse recognised the staff’s concerns and raised a safeguarding alert. It was acknowledged in this process that some staff were unclear about how best to deal with the situation. There was some difference of opinion about whether Mr Stanley’s personal preference should take precedence over his physical health. The nurse conducted a capacity assessment with staff and deemed Mr Stanley not to have capacity. A best interests meeting was arranged. An advocate was organised to represent Mr Stanley’s wishes. The outcome of the best interests decision was that staff should intervene with Mr Stanley’s personal hygiene even against his wishes when they deemed him to be at risk. They agreed what constituted ‘at risk’. To support the care plans for this decision, a group of staff met to agree a person-centred plan that encompassed a variety of approaches that staff should try before resorting to restrictive physical interventions. Pivotal to these care plans was that care interventions should be offered only when absolutely necessary, giving Mr Stanley full information about proposed interventions. However, they also agreed to take naturally occurring opportunities to encourage improved hygiene. For example, arranging a trip out of the home that might prompt him to ‘spruce himself up’ and using opportunities such as doctor’s examinations to wash his body when he consented. Further, due to the day-to-day restrictions on Mr Stanley’s life, recent guidance suggested that Deprivation of Liberty Safeguards authorisation should be sought. The manager and staff at the home were given guidance about how to record these events and the visit. 28 December 2014 | Volume 26 | Number 10
as defined in England by the ‘No Secrets’ guidance (Department of Health and Home Office 2000), triggering adult safeguarding procedures, criminal and disciplinary procedures and referrals under local multi-agency procedures for safeguarding adults. Section 44 of the MCA also introduces the criminal offences of ill-treatment and wilful neglect when any person who has the care of an incapacitated person reasonably believes that person lacks capacity and ill-treats or wilfully neglects that person. Ill-treatment encompasses deliberate acts as well as reckless/thoughtless acts. Wilful neglect, however, requires a serious departure from required standards and usually requires that a person has deliberately failed to carry out an act that they were aware they were under a duty to perform in a person’s best interests. A person found guilty of either offence can face a maximum penalty on indictment of up to five years’ imprisonment or a fine, or both. Mr Stanley’s case raises the complexities frequently faced by nurses and care workers in dementia-care settings. The approach is revisited in the light of current guidelines in the box.
Conclusion Good practice in the use of restrictive physical interventions in dementia settings suggests that a consistent approach should be adopted, which reflects legal standards, governmental and professional guidance and local policy (Department of Health, Social Services and Public Safety 2005). Nevertheless, current knowledge of the laws that underpin this area remains patchy among service provider organisations, their staff and visiting public sector clinicians (House of Lords 2014). The following issues have been identified as central for consideration in care homes: ■ Decisions to use restrictive physical interventions in a person’s best interests will have serious implications for a person’s civil liberties and human rights. Staff need to be familiar with the domestic and human rights framework that governs the work they do. Moreover, as there is some room for interpretation in these areas, there must be proper recording of individual capacity assessments and best interests decisions and robust justification in care plans that stand up to internal and external scrutiny. ■ Any interventions used should be a necessary and proportionate response to the likelihood of harm to the person and used as the last resort. NURSING OLDER PEOPLE
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■ The use of repeated restrictive interventions to administer treatment and care in an incapacitated person’s best interests should form part of a broader therapeutic strategy where the least restrictive options have been explored first and have been unsuccessful. ■ Repeated use of restrictive interventions in care homes may amount to a deprivation of liberty, which requires authorisation under the safeguards of the MCA.
Further information ■ Dementia page of the RCN: www.rcn.org.uk/ development/practice/dementia ■ Mental Capacity Act: www.gov.uk/government/ collections/mental-capacity-act-making-decisions ■ Restrictive practices: www.skillsforcare.org.uk/ Skills/Restrictive-practices/Restrictivepractices.aspx
Online archive For related information, visit our online archive and search using the keywords Conflict of interest None declared
References Alzheimer’s Society (2014) Dementia UK: Second Edition. Overview. www.alzheimers.org. uk/site/scripts/download_info.php?fileID=2323 (Last accessed: October 28 2014.) Boyle G (2008) The Mental Capacity Act 2005: promoting the citizenship of people with dementia? Health and Social Care in the Community. 16, 5, 529-537. Commission for Social Care Inspection (2007) Rights, Risks and Restraints: An Exploration into the Use of Restraint in the Care of Older People. CSCI, Newcastle. Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. The Stationery Office, London. Department of Health and Home Office (2000) No Secrets: Guidance on Developing and Implementing Multi-agency Policies and Procedures to Protect Vulnerable Adults From Abuse. DH, London.
NURSING OLDER PEOPLE
Department of Health, Social Services and Public Safety (2005) Human Rights Working Group on Restraint and Seclusion: Guidance on Restraint and Seclusion in Health and Personal Social Services. www.dhsspsni.gov.uk/restraint_ and_seclusion_august_2005.pdf (Last accessed: October 29 2014.) Emmett C, Poole M, Bond J et al (2013) Homeward bound or bound for a home? Assessing the capacity of dementia patients to make decisions about hospital discharge: comparing practice with legal standards. International Journal of Law and Psychiatry. 36, 1, 73-82. European Court of Human Rights (1950) European Convention on Human Rights. www. echr.coe.int/Documents/Convention_ENG.pdf (Last accessed: October 29 2014.) Gastmans C, Milisen K (2006) Use of physical restraint in nursing homes: clinical-ethical considerations. Journal of Medical Ethics. 32, 3, 148-152.
Grubb A, Laing J, McHale J (Eds) (2010) Principles of Medical Law. Third edition. Oxford University Press, Oxford. House of Lords (2014) Select Committee on the Mental Capacity Act 2005 Report of Session 2013–14 Mental Capacity Act 2005: Post-Legislative Scrutiny. The Stationery Office, London. Howarth A, Sells D, Mackenzie L et al (2014) Are we forcing people with dementia to receive care? International Journal of Geriatric Psychiatry. 29, 7, 768-770. Institute of Public Care (2011) Investing in Prevention for Older People at the Health and Social Care Interface. Oxford Brookes University, Oxford. Ministry of Justice (2008) Mental Capacity Act 2005 Deprivation of Liberty Safeguards: Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice. tinyurl.com/mljrmmn (Last accessed: October 29 2014.)
NHS Protect (2013) Meeting Needs and Reducing Distress: Guidance on the Prevention and Management of Clinically Related Challenging Behaviour in NHS Settings. www.nhsbsa.nhs. uk/Documents/SecurityManagement/Meeting_ needs_and_reducing_distress.pdf (Last accessed: October 29 2014.) P v Cheshire West and others [2014] UKSC 19. http://supremecourt.uk/decided-cases/docs/ UKSC_2012_0068_Judgment.pdf (Last accessed: October 29 2014.) Royal College of Nursing (2008) ‘Let’s Talk about Restraint’: Rights, Risks and Responsibility. RCN, London. Royal College of Nursing (2013) Draft Guidance on the Minimisation of and Alternatives to Restrictive Practices in Health and Adult Social Care, and Special Schools. tinyurl.com/psy4abt (Last accessed: October 29 2014.) Sells D, Howarth A (2014) The Forced Care Framework: guidance for staff. Journal of Dementia Care. 22, 6, 30-34.
December 2014 | Volume 26 | Number 10 29
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Legal implications of restrictive physical interventions in people with dementia Using a case study, Louisa Jackman and colleagues examine the rights and responsibilities of staff in care homes Correspondence [email protected] Louisa Jackman is associate lecturer, Newcastle University, Newcastle upon Tyne Charlotte Emmett is senior law lecturer, Northumbria University, Newcastle upon Tyne Tom Sharp is assistant psychologist, Northumberland, Tyne and Wear NHS Foundation Trust, Newcastle upon Tyne Joanna Marshall is principal clinical psychologist, Tees, Esk and Wear Valleys NHS Foundation Trust, County Durham Date of submission August 15 2014 Date of acceptance September 30 2014 Peer review This article has been subject to double-blind review and has been checked using antiplagiarism software Author guidelines rcnpublishing.com/r/ nop-author-guidelines
Abstract Dementia care environments are now home to thousands of people who have complex mental and physical health needs. Many of these people have lost capacity or have fluctuating capacity to make decisions about their care. There can be times when restrictive physical interventions are necessary to protect a person’s wellbeing and to administer required treatment and care. However, nurses working in care settings may not be aware of their rights and liabilities, and those of care staff, when such interventions are used for therapeutic purposes. This article seeks to address areas of uncertainty and clarify the legal responsibilities of care teams by exploring the issues raised through a fictitious case vignette. Keywords Alzheimer’s disease, care homes, dementia, Deprivation of Liberty Safeguards, law, restrictive physical interventions IN THE UK, there are an estimated 773,502 people living with late-onset (over 65 years) dementia, two thirds of whom live in care settings. The prevalence of dementia in care settings is estimated to be between 58% and 90% (Alzheimer’s Society 2014). People’s journey into care often happens as a result of behaviour that emerges as they try to make sense of their environment, hampered by impaired cognition and poor insight, variously labelled as distressed behaviour, behaviour that challenges or behavioural and psychological
24 December 2014 | Volume 26 | Number 10
symptoms of dementia. This behaviour has been reported to present in 30% to 60% of people living with dementia (Institute of Public Care 2011). One of the most common reasons for people to be moved into care is to manage risk because their behaviour might endanger them or threaten others. However, those entering care do not always have capacity to make this decision and/or may disagree with their placement. Under these circumstances, they might attempt to leave or resist attempts to be cared for. It then falls to the staff caring for them to make decisions about restricting their movements to maintain their safety, for example, by locking doors, or their wellbeing, for example, by using restrictive physical interventions to administer medication and personal care (Howarth et al 2014). Through a fictitious case vignette (see box), this article examines how the law governs the use of restrictive physical interventions in dementia care homes. The legal issues posed for staff when they apply such interventions are considered, which can appear to be at odds with their perceived duty of care. The article addresses some areas of uncertainty and clarifies, where possible, the legal accountability of health and social care professionals in circumstances where domestic laws and concepts of human rights play an increasingly important role. Although there is excellent guidance emerging for care staff working with behaviour that challenges, for example, NHS Protect (2013), the case vignette is one in which staff might view themselves as planned instigators of restrictive physical interventions rather than reacting to an unusual situation. This may raise particular issues in the way they perceive their role. Furthermore, restrictive interventions are NURSING OLDER PEOPLE
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not confined to nursing care settings where NHS guidance might have a more prominent place. While the article focuses primarily on the incapacity laws of England and Wales under the Mental Capacity Act (MCA) 2005, in Scotland broadly similar principles would apply under the Adults with Incapacity (Scotland) Act 2000, with comparable incapacity legislation expected in the future in Northern Ireland.
The importance of mental capacity An appropriate starting point when considering the nurse’s response to Mr Stanley’s care is a reminder that, in law, adults with mental capacity can refuse treatment interventions if they choose. Unless a person is being treated under the Mental Health Act 1983, this right is held by all adults of any age. Refusals of treatment made by competent adults must be respected, however irrational or unwise their choices may appear to others. Old age, physical frailty, the fact that a person has a diagnosis of dementia and has voluntarily entered institutional care, should not, alone, diminish this right in law – although these factors often do in practice (Boyle 2008). In fact, an extensive body of literature suggests that the legal rights of older people with
Case vignette: Arthur Stanley Arthur Stanley is 85 years old. He has a mixed vascular-Alzheimer’s dementia and is being cared for in the dementia unit of a care home. The front door and the door to the unit are locked and a code is required to enter. Mr Stanley refuses to receive any form of medical treatment or to get changed or washed. He has regular urinary tract infections and can have bouts of diarrhoea. Staff have often resorted to using restrictive physical interventions to administer treatment and care. This can involve up to four members of staff and they report having, on occasion, started the process of undressing and washing him before he is fully awake to minimise his struggle. He sometimes expresses his wish to return home. He is referred to a local mental health nursing team, which specialises in working with people with behavioural support needs. During the initial assessment visit, the nurse is told that care home staff often have to hold Mr Stanley’s arms to remove soiled clothing and wash him. He does not seem particularly affected by this after the event. NURSING OLDER PEOPLE
dementia in care homes are not well understood by professionals and can routinely give way to institutional pressures (Commission for Social Care Inspection (CSCI) 2007), paternalistic care practices and misplaced assumptions of incapacity (House of Lords 2014). Consequently, when Mr Stanley enters his care home, although inevitably he may experience constraints on his lifestyle choices, he will not automatically lose his public and private law rights (CSCI 2007). These rights persist as long as he retains the capacity to make particular choices and those choices do not interfere unreasonably with the rights of others. Furthermore, legal capacity will be presumed until proven otherwise (part 1 MCA, section 1(2)). Those proposing treatment against his will must establish, on balance, that he lacks the capacity to make the choice (s2(4)). Before the outcome of the capacity assessment, any person who uses or threatens force on Mr Stanley without his consent, no matter how minor, and no matter how benevolent the intent, would potentially breach his human rights and commit a trespass to the person – an assault, battery or false imprisonment. These are torts (civil wrongs) as well as criminal offences for which the perpetrator may be sued for compensation, or found criminally liable and punished. In this way, Mr Stanley’s personal autonomy – his competent right to choose what shall be done to his own body – takes precedence over any duty of care that a care professional may owe to him (Grubb et al 2010). Pausing here for a moment, it is clear that an accurate assessment of Mr Stanley’s decision-making capacity is critical when deciding the correct legal response to his refusal of care or any attempt he makes to leave his care setting. However, evidence presented to a recent House of Lords’ Select Committee (2014) investigating the use of the MCA in practice suggests that in many cases, capacity assessments are not being carried out when required, are poorly carried out or are not appropriately recorded. Research studies have also found that, in practice, nurses in care settings can lack confidence in carrying out capacity assessments and, understandably, may have difficulties respecting ‘risky’ decisions made by competent older adults when they conflict with their perceived ‘duty of care’ or their own personal values (Emmett et al 2013). Anecdotally, nurses and care workers may often not believe they are responsible for moment-to-moment assessments of capacity, thinking this should be left to more senior staff or to doctors. December 2014 | Volume 26 | Number 10 25
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Art & science | mental acute care capacity Assessing capacity It is important that Mr Stanley’s capacity is properly assessed using the MCA. He will lack capacity if he is ‘unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’ (s2(1)). Whether he is unable to make a decision for himself depends on his ability to understand relevant information, retain it even for a short period of time, use or weigh up that information as part of the process of making a decision and communicate his decision (s3(1)(a-d)). There must be a connection between the disorder of mind or brain, which may be temporary or permanent (s2(2)) and a person’s inability to make the specific decision. Put another way, Mr Stanley’s dementia, which may be associated with memory loss and problems with reasoning and decision making, must be the cause of his inability to make the decision in question. It is also important to note that, even in the context of having dementia (a permanent impairment), Mr Stanley may be capacitous to make decisions. He may also experience delirium (temporary impairment) due to his frequent urinary tract infections. Once treated, he may regain capacity to make decisions and the capacity assessment would then need to be repeated. Details of the assessment process – who must carry out assessments, when and how – are set out in chapters 3 and 4 of the MCA Code of Practice (‘Code’) (Department for Constitutional Affairs 2007). Capacity decisions are made on an issue-by-issue basis. This means that a person may be deemed not to have capacity in one area of life, for example, choosing where to live, but may be able to make decisions about another, for example, taking or refusing medication. So, it is worth stressing that when restrictive physical interventions are being proposed, a person’s capacity to consent to this particular aspect of care must be considered. The various care options need to be explained to Mr Stanley as part of the capacity assessment process, including the foreseeable consequences – benefits and risks – of deciding to accept care or not, or failing to make a decision as well as any proposed use of restrictive physical intervention (s3(4)). To demonstrate capacity Mr Stanley would only need to understand and weigh the salient factors, and if he makes an unwise decision this should not necessarily lead to a finding of incapacity unless it is considered that the ‘irrational’ decision stems from his inability to understand and weigh relevant information because of delusional beliefs caused by mental disorder. 26 December 2014 | Volume 26 | Number 10
Finally, the capacity assessment process and its outcome must be recorded by the assessor, who must be able to justify how questions have been put to Mr Stanley during the assessment process, what efforts have been made to maximise his capacity and why there is a reasonable belief that he lacks capacity, if this is the case. This should also be the case when visiting doctors or nurse prescribers make capacity decisions about medication.
Consequences of incapacity and the use of restrictive interventions If Mr Stanley is found to lack mental capacity, and in the absence of a valid and applicable advance decision refusing particular treatment interventions or the appointment of a proxy decision maker under a lasting power of attorney, carers will be under a duty to treat him in his ‘best interests’ (s4). However, where restrictive physical interventions are needed to effect treatment and care, the intervention will only be lawful if the intervention used is necessary to prevent harm to Mr Stanley (note: not harm to other people) and is proportionate to the likelihood and seriousness of such harm (s6(2) and (3)(a-b) MCA; 6.40-6.48 Code). To be ‘proportionate’, any intervention must be the least intrusive, using the minimum amount of force necessary to achieve an outcome that is in the best interests of the person (s1(6); 6.47 Code). Importantly, force should never be used just for convenience or to expedite care (6.44 Code). At the very least, other less restrictive options such as persuasion and discussion should have been explored with Mr Stanley first, using advocates if necessary. Restrictive physical interventions should be seen as the last resort (6.48 Code). In Mr Stanley’s case, there would need to be evidence that reasonable attempts had been made to ascertain his capacity or that the least intrusive methods had been tried as a first-line intervention (Royal College of Nursing (RCN) 2013). Restrictive physical interventions, as they are defined in the MCA, are not restricted to a threat or use of force; they would also include restricting a person’s liberty of movement whether or not that person resists (s6(4)(b)). As a result, staff might not always realise that what they are doing constitutes restriction, especially when an intervention is carried out with therapeutic intent (CSCI 2007). Physical restriction, or the use of mechanical restrictions, such as limb ties, vests, straps, wheelchair bars and brakes and bedside rails, keys and baffle locks on doors would all potentially fall within this definition (Gastmans and Milisen 2006). Chemical restrictions such as sedatives, antipsychotics and anxiolytics NURSING OLDER PEOPLE
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or psychological or verbal restrictions that might include repeatedly shouting at people or depriving them of equipment or possessions they consider necessary to do what they want to do, for example, taking away walking aids, glasses, outdoor clothing or keeping them in nightwear with the intention of stopping them from leaving, would all fit this description (RCN 2008). Section 4 of the MCA sets out common factors that must always be considered by those making best interests decisions and each factor must be weighed in order to arrive at an objective assessment of what is best for the person concerned. Of course, the use of physical restriction can often add new risks that will have to be balanced against the benefits of any proposed intervention. There should be an attempt to ascertain Mr Stanley’s past and present wishes, any long-standing attitudes to personal interventions, any known or suspected concerns he may have about particular carers administering care, for example, and any long-term effect that restriction may have on his mental and physical welfare and personal dignity. Throughout the decision-making process, it is important to try to involve him where practicable. On each occasion when restriction is applied, a careful explanation should be given to him in terms that maximise his ability to understand. Consultation with any relatives or persons ‘interested in his welfare’ will be necessary as part of this decision-making process (s4(7)(b)). Ultimately, nurses must be able to justify the use of restriction. Objective reasons for the planned intervention, including the pre-arranged strategies for the use of force and risk assessments must be recorded in full in Mr Stanley’s care plan with close reference to the criteria of section 4 and the care plan should be reviewed regularly (Sells and Howarth 2014).
Disproportionate restriction and its legal consequences The use of disproportionate restriction to administer treatment and care to Mr Stanley and to ensure his safety can lead to concerns that he is being deprived of his liberty. This is significant because article 5 of the European Convention on Human Rights (ECHR) (European Court of Human Rights 1950) protects a person’s right to liberty and security, which can only be lawfully interfered with on certain defined grounds, such as detention of a person of ‘unsound mind’ (article 5(1)(e)). However, detention will only be lawful if it is in accordance with ‘a procedure prescribed by law’ NURSING OLDER PEOPLE
(5(1)) and only when it can be reviewed quickly so that any detention can end when it is no longer justified (article 5(4)). The defence that section 5 of the MCA affords decision makers when carrying out ‘acts in connection with care and treatment’ does not extend to acts that deprive Mr Stanley of his liberty. Section 4A MCA makes this clear. Any such deprivation will need to be authorised separately under the Deprivation of Liberty Safeguards (DoLS) of the MCA. Carers will need to make the difficult distinction between actions that amount to restriction only, and those that deprive people of their liberty which require DoLS authorisation. The Supreme Court ruling in P v Cheshire West and others [2014] offers the most recent judicial guidance on what may amount to a deprivation of liberty in health and social care settings. The court identified that the ‘acid test’ would fall to two central elements. Whether: 1. The incapacitated person concerned is under continuous supervision and control; and 2. Is not free to leave. In the case of Mr Stanley, the degree and intensity of the controls over his movements and the cumulative effect of his restriction (see s2.12 of the supplementary DoLS code of practice (Ministry of Justice 2008)) suggest that the circumstances surrounding his treatment in the care home would be likely to amount to a deprivation of liberty because care staff have continuous supervision and control over his movements, evidenced by his repeated restriction and regular reliance on his carers for many aspects of his care, and if he attempted to leave the home staff would no doubt prevent him from doing so. In these circumstances, urgent authorisation of his care plan under DoLS would need to be given by the managing authority of the care home, pending an application for standard authorisation from the ‘supervisory body’ (the local authority) (chapter 6 of the supplementary DoLS code). Disproportionate restriction might also engage articles 3 and 8 of the ECHR. Under article 3, Mr Stanley would have an absolute right not to be subjected to ‘inhuman or degrading treatment or punishment’. However, the threshold for breaching article 3 is set high and interventions that are a medical or therapeutic necessity are not generally regarded as inhuman or degrading so as to breach article 3. Non-consensual treatment would also engage article 8 which protects a person’s right to ‘respect for private and family life’ and which encompasses a person’s physical and psychological December 2014 | Volume 26 | Number 10 27
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Art & science | mental acute care capacity integrity. Even minor interferences with a person’s physical self may fall in the scope of article 8 if they are carried out against the person’s will. However, article 8 is a qualified right, meaning that interferences can be justified in certain circumstances; Mr Stanley’s non-consensual treatment would most likely be justified in the interest of his health, under article 8(2). Finally, unreasonable or disproportionate use of restrictive interventions can, in certain circumstances, amount to abuse of vulnerable adults
Revisiting Mr Stanley The visiting nurse recognised the staff’s concerns and raised a safeguarding alert. It was acknowledged in this process that some staff were unclear about how best to deal with the situation. There was some difference of opinion about whether Mr Stanley’s personal preference should take precedence over his physical health. The nurse conducted a capacity assessment with staff and deemed Mr Stanley not to have capacity. A best interests meeting was arranged. An advocate was organised to represent Mr Stanley’s wishes. The outcome of the best interests decision was that staff should intervene with Mr Stanley’s personal hygiene even against his wishes when they deemed him to be at risk. They agreed what constituted ‘at risk’. To support the care plans for this decision, a group of staff met to agree a person-centred plan that encompassed a variety of approaches that staff should try before resorting to restrictive physical interventions. Pivotal to these care plans was that care interventions should be offered only when absolutely necessary, giving Mr Stanley full information about proposed interventions. However, they also agreed to take naturally occurring opportunities to encourage improved hygiene. For example, arranging a trip out of the home that might prompt him to ‘spruce himself up’ and using opportunities such as doctor’s examinations to wash his body when he consented. Further, due to the day-to-day restrictions on Mr Stanley’s life, recent guidance suggested that Deprivation of Liberty Safeguards authorisation should be sought. The manager and staff at the home were given guidance about how to record these events and the visit. 28 December 2014 | Volume 26 | Number 10
as defined in England by the ‘No Secrets’ guidance (Department of Health and Home Office 2000), triggering adult safeguarding procedures, criminal and disciplinary procedures and referrals under local multi-agency procedures for safeguarding adults. Section 44 of the MCA also introduces the criminal offences of ill-treatment and wilful neglect when any person who has the care of an incapacitated person reasonably believes that person lacks capacity and ill-treats or wilfully neglects that person. Ill-treatment encompasses deliberate acts as well as reckless/thoughtless acts. Wilful neglect, however, requires a serious departure from required standards and usually requires that a person has deliberately failed to carry out an act that they were aware they were under a duty to perform in a person’s best interests. A person found guilty of either offence can face a maximum penalty on indictment of up to five years’ imprisonment or a fine, or both. Mr Stanley’s case raises the complexities frequently faced by nurses and care workers in dementia-care settings. The approach is revisited in the light of current guidelines in the box.
Conclusion Good practice in the use of restrictive physical interventions in dementia settings suggests that a consistent approach should be adopted, which reflects legal standards, governmental and professional guidance and local policy (Department of Health, Social Services and Public Safety 2005). Nevertheless, current knowledge of the laws that underpin this area remains patchy among service provider organisations, their staff and visiting public sector clinicians (House of Lords 2014). The following issues have been identified as central for consideration in care homes: ■ Decisions to use restrictive physical interventions in a person’s best interests will have serious implications for a person’s civil liberties and human rights. Staff need to be familiar with the domestic and human rights framework that governs the work they do. Moreover, as there is some room for interpretation in these areas, there must be proper recording of individual capacity assessments and best interests decisions and robust justification in care plans that stand up to internal and external scrutiny. ■ Any interventions used should be a necessary and proportionate response to the likelihood of harm to the person and used as the last resort. NURSING OLDER PEOPLE
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■ The use of repeated restrictive interventions to administer treatment and care in an incapacitated person’s best interests should form part of a broader therapeutic strategy where the least restrictive options have been explored first and have been unsuccessful. ■ Repeated use of restrictive interventions in care homes may amount to a deprivation of liberty, which requires authorisation under the safeguards of the MCA.
Further information ■ Dementia page of the RCN: www.rcn.org.uk/ development/practice/dementia ■ Mental Capacity Act: www.gov.uk/government/ collections/mental-capacity-act-making-decisions ■ Restrictive practices: www.skillsforcare.org.uk/ Skills/Restrictive-practices/Restrictivepractices.aspx
Online archive For related information, visit our online archive and search using the keywords Conflict of interest None declared
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Department of Health, Social Services and Public Safety (2005) Human Rights Working Group on Restraint and Seclusion: Guidance on Restraint and Seclusion in Health and Personal Social Services. www.dhsspsni.gov.uk/restraint_ and_seclusion_august_2005.pdf (Last accessed: October 29 2014.) Emmett C, Poole M, Bond J et al (2013) Homeward bound or bound for a home? Assessing the capacity of dementia patients to make decisions about hospital discharge: comparing practice with legal standards. International Journal of Law and Psychiatry. 36, 1, 73-82. European Court of Human Rights (1950) European Convention on Human Rights. www. echr.coe.int/Documents/Convention_ENG.pdf (Last accessed: October 29 2014.) Gastmans C, Milisen K (2006) Use of physical restraint in nursing homes: clinical-ethical considerations. Journal of Medical Ethics. 32, 3, 148-152.
Grubb A, Laing J, McHale J (Eds) (2010) Principles of Medical Law. Third edition. Oxford University Press, Oxford. House of Lords (2014) Select Committee on the Mental Capacity Act 2005 Report of Session 2013–14 Mental Capacity Act 2005: Post-Legislative Scrutiny. The Stationery Office, London. Howarth A, Sells D, Mackenzie L et al (2014) Are we forcing people with dementia to receive care? International Journal of Geriatric Psychiatry. 29, 7, 768-770. Institute of Public Care (2011) Investing in Prevention for Older People at the Health and Social Care Interface. Oxford Brookes University, Oxford. Ministry of Justice (2008) Mental Capacity Act 2005 Deprivation of Liberty Safeguards: Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice. tinyurl.com/mljrmmn (Last accessed: October 29 2014.)
NHS Protect (2013) Meeting Needs and Reducing Distress: Guidance on the Prevention and Management of Clinically Related Challenging Behaviour in NHS Settings. www.nhsbsa.nhs. uk/Documents/SecurityManagement/Meeting_ needs_and_reducing_distress.pdf (Last accessed: October 29 2014.) P v Cheshire West and others [2014] UKSC 19. http://supremecourt.uk/decided-cases/docs/ UKSC_2012_0068_Judgment.pdf (Last accessed: October 29 2014.) Royal College of Nursing (2008) ‘Let’s Talk about Restraint’: Rights, Risks and Responsibility. RCN, London. Royal College of Nursing (2013) Draft Guidance on the Minimisation of and Alternatives to Restrictive Practices in Health and Adult Social Care, and Special Schools. tinyurl.com/psy4abt (Last accessed: October 29 2014.) Sells D, Howarth A (2014) The Forced Care Framework: guidance for staff. Journal of Dementia Care. 22, 6, 30-34.
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