Medical Treatment: Decisions and the Law

6. Restraint and Deprivation of Liberty

Introduction

Lurking in the background of any consideration of the treatment to be given to somebody who lacks capacity or suffers from severe mental illness is the prospect of compelling the patient to receive the care or treatment, whether they like it or not, and whether or not they are prepared to agree or cooperate.

Restraint may be required to get a patient to the hospital, as well as to achieve the desired assessment and/or treatment of the patient once they arrive, and to transfer them back.

Particularly where an incapable patient cannot understand the benefits of undergoing an uncomfortable or anxiety-provoking procedure, their forcible resistance to the intervention may need to be overcome before the treatment that is deemed to be in their best interests can be safely delivered.

Such compulsion will inevitably take the form of physical restraint, sedation/chemical restraint, or confinement of the patient, and it is the lawfulness of these actions that are the subject of this chapter.

From the outset it is important that a distinction is made between the lawfulness of the treatment itself (the subject of many other chapters in this book), and that of the associated compulsion that might prove necessary in order to deliver it.

In making this distinction, it must be recognised that there are many occasions when a proposed medical treatment intervention can be practicably achieved only if some degree of restraint of the patient is employed. In some cases the nature or degree of this restraint will itself be a significant factor, even the deciding factor, in determining whether the treatment is in the person’s best interests.

It has long been recognised that reasonable and proportionate restraint may be a necessary adjunct to the proposed treatment of physical disorder and hence justified under the common law doctrine of necessity if in the incapable patient’s best interests. This principle is now enshrined, and defined, in the Mental Capacity Act 2005 (‘MCA’). The courts providing declaratory relief, however, have been keen to scrutinise both the necessity for, and proportionality of, any restraint employed.

Previously, these matters had been considered under the High Court’s inherent jurisdiction for incapable patients. However, the MCA has created a statutory basis for lawfully restraining an incapable adult and, where the restraining measures employed amounted to a deprivation of liberty, a judge sitting in the Court of Protection has the jurisdiction to declare such acts lawful under MCA s 15(1)(c) or to make an order consenting to confinement which would otherwise be a deprivation of liberty under MCA s 16(2)(a). Outside the jurisdiction of the MHA, since April 2009, restraint which amounts to a deprivation of liberty can now only be authorised:

  • by the Court under MCA s 16(2)(a); or
  • by the Supervisory Body under Schedule A1 of the MCA; or
  • in an emergency situation, under s 4B of the MCA.

Many of the earlier common law principles will still apply to decisions regarding restraint and deprivation of liberty under the MCA. Issues of best interests, necessity and proportionality will still be paramount, and are now to be addressed within the MCA’s statutory framework.

This chapter is not concerned with issues of restraint and deprivation of liberty in order to provide treatment for mental disorder under the Mental Health Act 1983 (‘MHA’), as this subject is fully dealt with in other works. This chapter focusses on restraint and deprivation of liberty where it is for the purpose of providing medical treatment and care for purely physical conditions, which cannot be provided under the MHA.

While the distinction between physical treatment and treatment for a mental disorder must be maintained, it is not always easy to do so. There is a complex, difficult exercise to be conducted when considering whether a person who may be potentially subject to a deprivation of liberty under the mental health jurisdiction is ineligible to have any deprivation of liberty authorised under the MCA.

An initial view that the MHA always took primacy over the MCA as the appropriate regime for authorising a deprivation of liberty is no longer regarded as correct. Thus, where a patient requires treatment for a mental disorder in a hospital, but does not have capacity to consent to, or refuse, informal admission, it may be necessary to consider whether the Deprivation of Liberty Safeguards (‘DOLS’) regime ought to be the more appropriate regime for authorisation, thus rendering detention under s 2 or s 3 of the MHA unnecessary.

Conclusion

The issues surrounding restraint and deprivation of liberty are complex, not least because of the challenges involved in first identifying when a deprivation of liberty in terms of Art 5 ECHR is likely to be occurring and then attempting to disentangle the complex provisions of the MCA and its interaction with the MHA.

The problems facing hospitals, local authorities and the courts have only been added to by the huge expansion in the scope of people to be regarded as being deprived of their liberty following the Cheshire West decision. The procedural problems raised are particularly acute in the context of social care, and are far from being resolved. The effect of Cheshire West is also felt in the context of hospital treatment, partly as a consequence of the impact on available resources caused by that decision. Despite these numerous problems, it is hoped that  the decision in LF that a patient in the ICU will often not be regarded as  being deprived of their liberty will be the first step in reducing unnecessary bureaucracy surrounding the provision of essential, uncontroversial treatment to those who are acutely ill. At the time of writting, LF was subject to appeal, hence the law governing these types of admission may change again.

Although there is now a large body of reported case law, in many areas this has only served to make the position more, rather than less confusing for all involved. This confusion is shared by some of the judges and lawyers who regularly undertake cases. Indeed, as Mostyn J recently stated:

‘the literal words of the Supreme Court’s test [in Cheshire West] are perfectly easy to understand. But for we hoplites who have to administer  it as first instance the scope and ramifications of the test are, with respect, extremely confusing.’

The fears expressed by Gunn seven years ago that it is ‘completely unrealistic’ to expect health and social work professionals to be able to keep up with the relevant case law2 are more true now than ever before.

The reported cases inevitably relate to the more complex, controversial medical treatment decisions made. The body of case law hides the fact that most deprivations of liberty in the hospital setting can – and should – be managed under the DOLS regime with only a light touch from the lawyers. However, hospitals and clinicians are routinely encouraged to ensure that applications for authorisation of a deprivation of liberty are made promptly, in anticipation of problems arising rather than in response to them. It is of course easy for lawyers and Judges to give this advice. It may be that in some cases, the ‘wait and see’ policy means that a problem goes away before it is necessary to involve the lawyers. However, when it does not, the urgency that results increases the risk of error, and in the long-term may lead to extra work and legal costs. Where problems are anticipated, it is always advisable to seek specialist advice sooner rather than later.

The regime is now seven years old, but faces significant reform following the completion of the Law Commission’s report and draft bill. This is expected in 2016. The Law Commission’s interim statement, published on 25 May 2016, confirms that radical change lies ahead. It has suggested that the DOLS regime will be entirely replaced by a much simpler, cheaper process. The interface between the MCA and the MHA seems likely also to be simplified. Whatever changes are made, the fundamental need will remain to anticipate likely deprivations of liberty in advance, and take the necessary steps to ensure they are properly authorised.

Contents

  • A Introduction 6.1
  • B Restraint 6.8
  • Restraint authorised under the MCA 6.12
  • Restraint and Article 3 ECHR 6.16
  • Proportionality and restraint 6.21
  • Practical issues 6.29
  • C Deprivation of liberty 6.34
  • Background: the ‘ Bournewood gap ’ 6.34
    • What is a ‘deprivation of liberty’? The decision in Cheshire West 6.39
    • The position prior to the Supreme Court decision in Cheshire
      West 6.40
    • The facts in MIG and MEG 6.45
    • The facts in P v Cheshire West 6.48
  • The basis for the decision in Cheshire West 6.50
  • Identifying a deprivation of liberty: ‘a gilded cage is still a cage’ 6.55
    • The acid test 6.62
  • The impact of the decision in Cheshire West 6.63
  • Identifying a potential deprivation of liberty in the hospital context 6.65
    • Place and duration of the patient’s stay 6.70
    • Deprivation of liberty for serious medical treatment: NHS Trust v FG 6.72
    • Admission to an intensive care unit: R(LF) v HM Senior Coroner for Inner South London 6.79
  • Pointers for the future 6.87
  • D Authorising a deprivation of liberty 6.93
  • Court authorisation 6.98
    • Does P need to be a party to proceedings ? 6.102
    • Review of authorisations by the court 6.106
  • The DOLS procedure 6.108
  • Is the patient ineligible to be detained under the MCA ? 6.114
  • E Conclusion 6.128
  • 6.1 Restraint and Deprivation of Liberty
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