An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

We are all familiar with the need to restrain adult patients who, due to their behaviour, are endangering themselves or others. Whilst necessary, we all find this to be an onerous task, since compelling a patient to have treatment is not a customary clinical activity.

Broadly, patients behaving dangerously are in one of three categories. By far the largest group are adult inpatients who have lost their capacity. Because they are incapacitated, such people must be treated in their best interests. Their clinical management must continue, obliging us to ensure that treatment and investigation continues. Clinical interventions are inherently unpleasant, almost always involving the patient being touched, in circumstances where the patient’s objections will be overruled, albeit politely. It is little wonder that such perplexed, frightened or irritated patients sometimes need to be restrained if they are to be treated in their best interests.

Irrespective of their lack of capacity, (and perhaps particularly importantly because of it), clinicians strive to be invariably polite to the patient whose consent to the potentially unwanted touch is waived in this way. Nevertheless, clinicians may restrain patients to facilitate management provided that the treatment is necessary; that the restraint used is proportionate to the degree of resistance that the patient employs to avoid the administration of the treatment. In addition, the form of restraint must be the least restrictive option available to achieve the desired result. The legal authority for this approach comes from the Mental Capacity Act 2005 (MCA).

It is clear that both physical and chemical restraint can be employed in these circumstances. It is a matter of clinical judgement which to use, but both have advantages and risks attached. Physical restraint is usually easily available; but can result in harm to both staff and the patient. Physical restraint is humiliating; who is to say that an incapacitated person cannot feel humiliation?

Physical restraint may be unrealistic over a prolonged period, and for that reason chemical restraint is sometimes used. This has the advantage of being relatively easily maintained; although this may encourage clinicians to use it for longer than it is necessary; restraint used for clinical convenience (rather then in the patient’s best interests) is unlawful. It seems likely that chemical restraint will prolong the patient’s incapacity, and thus becomes a more restrictive option than is needed to achieve the desired result. However, if it is clear that the patient will need restraint to achieve their clinical management objectives over a prolonged period of time; this may prove to be a better option than repeated and fraught periods of physical restraint. If prolonged restraint is contemplated, by whatever means, clinicians must consider the type of restraint, and the practical arrangements that will need to be in place to achieve the desired outcome using the least restrictive option. These considerations should be recorded in the patient’s care plan.

Restraint in an incapacitated adult also achieves a different goal, which is to ensure that the patient remains unharmed by their own actions; and that the staff looking after them, and bystanders, are also protected from harm.

These latter aims provide the sole reason for a clinician to restrain the second category of adult patients; those who have capacity. When an adult with capacity refuses treatment, or decides to leave the hospital despite not having the recommended treatment, we have no authority whatsoever to stop them doing so. By all means remind them that they are behaving contrary to advice, but accept that they are exercising their autonomy.

The only circumstance when restraint of the adult competent patient can be justified is to prevent him or her from harming staff or bystanders. Although staff are understandably wary of tackling badly behaved competent patients, they have a right to do so. The English common law allows all citizens to defend themselves against attack, providing they use a reasonable degree of force to do so. Equally, it is legitimate to prevent an unlawful attack on bystanders; again providing reasonable force is used. This common law right is encompassed in the Criminal Justice and Immigration Act 2008.

Finally, the Mental Health Act 1983 (MHA) provides us with authority to restrain patients who require treatment for their mental illness. But the converse is not true. The MHA gives us no authority to restrain any patient for treatment for physical conditions unrelated to their mental illness. Thus a diabetic patient detained under the MHA for the treatment of their psychosis may be restrained to facilitate the administration of antipsychotic drugs; but not to administer the insulin necessary to treat their diabetes. If this patient lacked capacity, the patient could be restrained with the authority of the MCA, in order to administer insulin. If they were competent to decide whether or not to accept the insulin, they could refuse it if they chose.

Robert Wheeler
Department of clinical law

Restraining adult patients in hospital