Physical restraint of medical inpatients: unravelling the red tape

Patients with decision-making capacity

As with all health-care interventions, a patient is presumed to have the capacity to give or refuse consent to the use of a particular method of restraint, unless there is evidence that he is unable to understand, retain and weigh up information and then communicate a decision due to an ‘impairment of, or a disturbance in the functioning of, [his] mind or brain’. ¹⁰ A patient's capacity to make such a decision will depend on the nature of the decision, and may fluctuate over time. Patients whose decision-making capacity is not impaired, and who are refusing to give consent to a particular method of restraint being used, cannot be restrained against their will, even if their decision appears to be unwise. The only exemption to this general rule is in those situations in which the act of restraint prevents immediate and serious harm to themselves or to other people, for example, dragging a person out of the path of an oncoming vehicle. ¹¹

Patients who lack decision-making capacity and whose liberty is being restricted

Some patients admitted to hospital will be physically unwell and suffering a disorder of the mind (such as delirium or dementia), which means they may lack the capacity to make certain decisions about their care. If incapacity is established using the test from the MCA, then such a patient should be treated in his best interests, a judgement made after examining, among other things, the patient's known beliefs and values, and consulting people involved in his care. ¹² If restraint is used, it must not only be in the patient's best interests and the least restrictive alternative, but also (a) act to prevent him from coming to harm and (b) be of a type and degree that is proportionate to the risk of him suffering harm. ¹³ The analysis of the principle of ‘preventing harm’ as supplementary to the principle of ‘best interests’ will be examined in detail later in the paper.

Patients who lack decision-making capacity and who are being deprived of their liberty

The introduction of the DOLS in the MHA, as an amendment to the MCA, acknowledges that, in some cases, patients who lack decision-making capacity will require care to be provided in ways that deprive them of their liberty, in order to act in their ‘best interests’, and to prevent them from coming to harm. The DOLS introduce new regulatory procedures that provide for the lawful basis for necessary deprivations of liberty, in order to ensure that health and social care practice is consistent with the requirements of the Human Rights Act 1998. Although it appears that the DOLS are primarily intended for care homes, they are also relevant to acute medical settings in circumstances, such as the management of behavioural changes after head injury or cerebrovascular accident, where patients may be kept in hospital for a long period under close supervision, and restrained if they attempt to leave the ward or engage in repeated episodes of self-harm. The DOLS are not, however, an appropriate way of managing short-term mental disorder (e.g. delirium), or behavioural problems, caused by physical illness when the treatment of the physical illness is likely to lead to a rapid resolution of the mental disorder or behavioural problems. ¹⁴

If an appropriate scenario is identified in which it is believed that a patient will need to be deprived of his liberty in hospital sometime in the next 28 days, in his best interests and to prevent him from coming to harm, the hospital managers (the ‘managing body’) must review the case and apply to the primary care trust (PCT) (the ‘supervisory body’) for a standard authorization. ¹⁵ Once an application is received, the PCT arranges six assessments, the outcomes of which decide if the lawful deprivation of liberty is authorized, for how long that authorization should last (up to a maximum period of 12 months), and who should act as the patient's representative. ¹⁶ A review of the authorization can be requested at any time by the patient, their representative or the hospital management. ¹⁷ If the hospital managers believe that it will be necessary to deprive a patient of his liberty before a standard authorization process can be completed, the hospital management may give an urgent authorization for seven days, and must simultaneously apply to the PCT for a standard authorization. ¹⁸ An urgent authorization may only be given if the managers have a reasonable expectation that the standard authorization will be granted.

It is important to recognize that whereas the principles underpinning the management of restraint for patients lacking decision-making capacity are the same (acting in best interests, preventing harm and taking the least restrictive option), irrespective of whether the restraint constitutes a restriction or a deprivation of liberty, the procedures to follow are very different. Restraint techniques that restrict the liberty of patients lacking mental capacity can be managed straightforwardly under the MCA; however, specific authorization is required from the hospital management and PCT (or equivalent authorities for care homes) when the restraint techniques will lead to patients being deprived of their liberty. As with other contexts in which human rights considerations are paramount, the bar of legal protection is set high, ¹⁹ meaning that the DOLS procedures are lengthy and elaborate. However, the degree of complexity has been criticized on the grounds that the procedures are disproportionate to the level of interference being authorized. ²⁰ Such criticism might also go some way to explain why DOLS applications have so far been fewer than expected, ²¹ raising concerns about the adequacy of legal protection for those subject to very restrictive care regimes.

The benefit of restraint

Discussions concerning the moral validity of using physical restraint presume that different methods of restraint will provide ascertainable, measurable benefits associated with minimizing the risk of a patient coming to harm in the hospital environment. It would, of course, be difficult to justify the use of restraint if it offered no clear benefit to individual patients, unless considerations of harm to others were incorporated into the decision-making process. Empirical studies suggest, however, that there is uncertain evidence that restraint measures actually contribute to beneficial outcomes and, indeed, reports of harm being caused by the use of these measures have been noted. With regard to the literature on falls prevention, for example, there are conflicting data reporting, on the one hand, that restraint interventions have an important role to play in managing the risk of serious harm ²² and, on the other hand, that there is no significant relationship between the use of physical interventions, such as bedrails, and the likelihood of a patient falling. ^23,24 Significant questions remain over the efficacy of using physical restraints in falls-prevention strategies, particularly with older adults. Of greater concern is evidence indicating that patients who have been restrained using bedrails have come to harm because of them. ^25–28 Similar evidence is available for other methods of physical restraint, suggesting that physical restraints may themselves be harmful, even when used as indicated. ^29–31

Harm and best interests

Notwithstanding the empirical uncertainty surrounding the potential benefit of physical restraint techniques, the two principles of ‘preventing harm’ and ‘best interests’ are central to the legal regulation of restraining patients who lack the capacity to consent. There are both conceptual and practical difficulties in aligning these two principles when making decisions about restraint in acute medical environments.

Under the MCA and the DOLS, decisions about the ‘best interests’ of adults lacking capacity are based upon subjective judgements, and must take into account their past and present wishes, feelings, beliefs and values. Best interests judgements are evidence-based, grounded in the life-world of the person lacking capacity, and informed by consultation with other individuals, such as family members and friends, who are believed to be in a position to inform on what would be best for that person. ³² In contrast, the avoidance of harm principle, which underpins legally appropriate decisions relating to interventions that place restrictions upon, or constitute a deprivation of, a person's liberty, requires very different procedures to be followed. In addition to considering the main ‘best interests checklist’ within the MCA's Code of Practice, ³³ safeguards introduced under the DOLS require the decision-making process to take into account additional factors: (a) whether any harm to the person could arise if the deprivation of liberty does not take place; (b) what that harm would be; (c) how likely the harm is to arise; (d) what other care options there are which could avoid deprivation of liberty; and (e) if deprivation of liberty is currently unavoidable, what action could be taken to avoid it in the future. ³⁴ Regardless of whether the MCA or DOLS procedures are followed, a core principle of the MCA is that all interventions in the care of patients lacking decision-making capacity must be the least-restrictive alternative. However, unlike best interests assessments, judgements concerning least-restrictive alternatives and harm prevention are based upon objective evidence, and draw primarily upon the professional expertise and skills of health and social care practitioners, such as the ‘Best Interests Assessor’, rather than the insight of family, friends or other caregivers.

In practice, the difficulties with aligning the preventing harm and best interests principles go beyond the challenge of integrating subjective personal evidence about a person's best interests with objective ‘expert’ evidence about harm management. Uncertainty about the appropriate course of action to take will be generated when a patient must be restrained in order to participate in something he enjoys, but the lack of which would not cause any harm. For example, health-care practitioners could be required to restrain a person by strapping him into a wheelchair in order to take him for an outing into the hospital gardens. Although it is in the patient's best interests to leave the ward and all evidence points to him having previously enjoyed spending time in gardens and other open spaces, it is arguable that restraint cannot be used in this scenario on the grounds that (a) there is less likelihood of him coming to harm by not leaving the ward and (b) staying where he is means that restraint is not needed, and therefore equates with the least restrictive alternative. Accordingly, the broad welfare interests of a patient receiving treatment as a medical inpatient are likely to be sidelined due to the primacy given to harm considerations under the law. Decision-making in hospital settings may inadvertently lead to the adoption of a conservative, ‘hands off’ approach to facilitating day-to-day activities which would also be inconsistent with the duties placed upon health and social care practitioners in other supported living environments. This is, we believe, wrong on ethical grounds and would conflict with new policies developed to encourage active risk-taking for ‘vulnerable’ populations in order to prevent individuals' life experiences being substantially limited by the predominance of ‘safety first’ attitudes in the provision of care and support. ^35,36

The MCA also makes it clear that restraint can only be used to prevent harm coming to the patient himself. ¹³ In serious incidences of a patient harming or judged to be at risk of harming another person, the patient may come under the scope of the Mental Health Act 1983 (as amended) if he has a ‘mental disorder’ and is judged to require a transfer to an inpatient psychiatric setting, or, in the case of immediate harm, the patient might be restrained temporarily on the basis of the common law principle of ‘necessity’. ¹¹ However, in situations arising on a general hospital ward where mental health considerations are not relevant, any risk that a patient posed to other patients or their property would not be grounds for restraint under the law. Although other patients may be harmed, their best interests cannot form the basis of decisions to adopt physical restraint in order to ‘avoid harm’ under the MCA or the DOLS.

The nature of personal and environmental restraints

It is important for health-care professionals to recognize that methods of physical restraint are equivalent to any other form of health or nursing care intervention, despite the fact that their primary role is as a care-management strategy rather than as a therapeutic intervention. Therefore, the key legal and ethical principles of autonomy, consent and capacity apply in all cases, and patients able to make their own decisions have the right to refuse ‘good care’ just as they have the right to refuse treatment, however unwise their decision might appear to be.

This clear picture is, however, muddied somewhat when one tries to grapple with defining the nature of a restraint intervention. One challenge facing health-care practitioners is the importance of recognizing that the definition of a restraint intervention lies in its effect not in its intention, regardless of how seemingly insignificant this intervention might be. For example, if a patient's bed sheets are tucked in tightly, and the result of this act is to restrict the patient's movements, the act of making the bed in this way constitutes an act of restraint, regardless of whether the intent of the bed-maker is otherwise.

Another significant challenge facing health-care practitioners in general hospital wards is the fact that, under the MCA, restraint is defined as an intervention (a) involving force, or the threat of force to make a person do something that he is resisting or (b) that restricts a person's freedom of movement, whether he is resisting or not. ³⁷ In other words, the law envisages restraint as an intervention targeted at an individual, with consequences on that individual's freedoms and justified on the basis of the benefit it poses to that individual. However, it is possible to identify a number of methods of physical restraint that are targeted not towards supporting individuals, but instead function as environmental measures designed to create safe treatment and living spaces. For example, using a baffle or keypad lock to secure the door of a geriatric ward in a hospital might be unlawful if it is intended to restrain Mrs A, an elderly woman with advanced dementia and a history of wandering and getting lost, but actually affects the freedom of all patients in that environment, including Mr B who makes a capacitous decision to leave the ward for the purposes of smoking a cigarette. Even if we take Mrs A in isolation from Mr B, the use of a baffle lock functions to control the general ward environment, and has not been tailored to Mrs A's individual circumstances. Accordingly, despite the fact that the baffle lock might protect Mrs A from harm, it can only be in her best interests if it is used specifically to benefit her as part of her care plan, regardless of any broader liberty considerations.

From an ethical perspective, it would appear difficult for an environmental method of physical restraint to be used when the needs of all patients on a ward are taken into account. Preserving Mr B's autonomy interests, for example, would require him to be allowed to leave the ward freely (perhaps by giving him the key code to the door). From a consequentialist perspective, making no attempt to adapt the restraint environment for individual patients on the ward would mean that the benefit of lowering the risk of harm to Mrs A would be difficult to square with denying Mr B the ability to enjoy a cigarette whenever he chose to have one, and, indeed, any other negative impact resulting from the restrictions placed upon him (and, potentially, Mr C, Mr D, Mr E, and so on).

At the very least, the appropriate use of environmental forms of physical restraint requires imaginative and flexible solutions tailored for individual patients. Without careful assessment of the benefits and harms that such restraints might pose to individual patients and, possibly, removal of the restraints in light of these assessments, the legal and moral validity of any form of environmental forms of restraint would appear to be lacking.