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The legal position on restraint
In this chapter, we will look at the legal position on restraint and introduce:
- 'Mental capacity' and 'best interests'
- Mental Capacity Act 2005 and Code of Practice
- Deprivation of Liberty Safeguards
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The legal position on restraint
Making a decision to restrain a resident is obviously a serious one, and because of this, it is important to have some basic awareness of the legal position on restraint.
The Mental Capacity Act (2005) and its Code of Practice set out the most important legal information on restraint - we'll look at this in more detail shortly.
But first, are you familiar with these two terms?
The care team needs to be clear about the meaning and application of both these ideas when making decisions about restraint.
Click on each term to discover its meaning.
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The legal position on restraint
Mental capacity
Does the resident understand what they are doing and the risks they are exposing themselves to? This is called 'mental capacity'. The Mental Capacity Act assumes that people do have capacity unless proved otherwise, and sets out a test for establishing whether someone has capacity to make a particular decision at a particular time.
If the resident has capacity, restraint can only be used if they consent to this, or in an emergency to prevent harm to themselves or others or to prevent a crime being committed.
If the person lacks capacity, then a decision to use restraint should be made based on the person's best interests.
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The legal position on restraint
Best interests
If a person lacks mental capacity, the care team will need to lead on making a 'best interests' decision - that is, is it in the person's best interests that restraint is used? The restraint should only be used to protect the person from harm, and should be proportionate to the likelihood of harm, and for the shortest time possible - it should be the least restrictive option. The Mental Capacity Act (offer a link to checklist for MCA) gives a checklist of factors to consider when making best interests decisions and it is important that the care team can show it was thinking in terms of the person's best interests when deciding to use a form of restraint.
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The legal position on restraint
Taking a closer look at the law
Click on each question below to reveal the relevant words from the Mental Capacity Act's Code of Practice (2007).
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The legal position on restraint
How does the law define restraint?
'Someone is using restraint if they:
- use force - or threaten to use force - to make someone do something that they are resisting
- restrict a person's freedom of movement, whether they are resisting or not.' s6.40
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The legal position on restraint
When might it be necessary to use restraint?
'Anybody considering using restraint must have objective reasons to justify that restraint is necessary. They must be able to show that the person being cared for is likely to suffer harm unless proportionate restraint is used. A carer or professional must not use restraint just so that they can do something more easily. If restraint is necessary to prevent harm to the person who lacks capacity, it must be the minimum amount of force for the shortest time possible.' s6.44
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The legal position on restraint
What if the resident is about to hurt someone else? - for example, another resident or staff memeber?
'If a person who lacks capacity to consent has challenging behaviour, or is in the acute stages of illness causing them to act in a way which may cause harm to others, staff may, under the common law, take appropriate and necessary action to restrain or remove the person, in order to prevent harm, both to the person concerned and to anyone else.' s6.43
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The legal position on restraint
A word about 'Deprivation of Liberty' safeguards
The Mental Capacity Act includes 'Deprivation of Liberty' safeguards for people who may be deprived of their liberty (freedom) in a hospital or care home - possibly through ongoing inappropriate restraint. The safeguards include a range of measures to check that the restrictions are in the person's best interests and whether they lack the capacity to consent to them.
This is a complex area and best examined with dedicated resources - such as the Code of Practice for the Deprivation of Liberty safeguards (2008) (you can find this on the Department of Health's website ). Care home managers should lead on this and know when to take appropriate action.
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The legal position on restraint
Could restraining a resident mean you are depriving them of their liberty or freedom? If you are using restraint appropriately, the answer to this is 'no'. But the safeguards are a reminder that care homes need to be careful and to monitor and minimise their use of restraint.
Want to know more about the law and restraint? Look up SCIE's web resources on the Mental Capacity Act for information on all aspects of the Act, including signposting to a wealth of resources produced by SCIE and other key organisations.
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- The legal position on restraint