Restraint and deprivation of liberty: ethical considerations Anne Slowther

1. Restraint and deprivation of liberty: ethical considerations Anne Slowther

2. The concept of liberty What does freedom mean to you? Nottingham 2011

3. Isaiah Berlin 1909-97Essay ‘On Liberty’ Nottingham 2011

4. Positive and negative liberty • Negative liberty is freedom from • Positive liberty is freedom to Nottingham 2011

5. The Ulysses contract Restraint as autonomy enhancing Nottingham 2011

6. Nottingham 2011

7. Restraint and deprivation of liberty in health care • Restriction of negative liberty (Freedom of movement) • Legal framework is • Mental Health Act (competent patients) • Mental Capacity Act (non competent patients) Nottingham 2011

8. Ethical reasons for restraint in health care • To protect the patient from harm • To promote the patient’s best interests • To protect others from harm • To promote patient autonomy (positive freedom) Nottingham 2011

9. Types of restraint • Holding a patient’s arm against her will to take a blood sample • The use of mittens or bandaging to prevent patients pulling out nasogastric or endotracheal tubes. • The use of bed rails to prevent patients falling out of bed • Preventing patients leaving a hospital or nursing home • Electronic tagging of patients • Physical restraint of a violent patient • Chemical sedation in cases of extreme agitation (e.g. post operatively) • Rapid tranquilisation in acutely disturbed patients to reduce the risk of violence or injury Nottingham 2011

10. Avoidance of harm • What constitutes a harm? • Harm to the patient should be viewed from the patient’s perspective. • Harm to others must be serious and not merely inconvenience. • What about the harm of restraint? • Physical, psychological • Violating autonomy is a harm Nottingham 2011

11. Autonomy The libertarian view of autonomy ‘…the only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others.’ JS Mill, On Liberty Principled or relational autonomy Autonomy includes responsibility to behave in certain ways. Nottingham 2011

12. Respecting autonomy in situations of restraint • Informing patient • Involving patient • Least restrictive form of restraint Nottingham 2011

13. Best interests Is there a difference between avoiding harm and acting in the patient’s best interests? Nottingham 2011

14. Emma Jones is 25 and has severe learning disabilities as well as congenital heart disease.  She lives with her parents and every two months spends one week in a young adult hospice. When at the hospice Emma enjoys herself greatly and interacts well with staff and other residents.  Her mood and general well being improve and this improvement lasts for at least a week after she returns home.  However Emma finds it distressing and becomes agitated when she is required to get into a car to travel to and from the hospice.  She struggles and tries to get back into the house or hospice.  In order to get her into the car it is necessary to use some restraint and pressure.  Nottingham 2011

15. Best interests • Proportionality • Reducing need for restraint • Considering other less restrictive methods • Respect for dignity Nottingham 2011

16. Fair allocation of resources • How do we balance the interests and needs of one patient with that of others? • Is restraint or deprivation of liberty a consequence of insufficient resources? • Is lack of resources a morally justifiable reason for restraint? Nottingham 2011

17. Transparency and accountability • Transparent decision making processes • Formal review • Appeal’s process • Legal framework Nottingham 2011

18. Legal framework 1 MCA • Principle 6 ‘Before the act is done or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action (MCA Section 1) Nottingham 2011

19. Legal framework 1 MCA • In section 1.6 the MCA sets out two further conditions that must be satisfied (over and above the conditions of lack of capacity and best interests) before a person can be restrained. These are • That the restraint is necessary in order to prevent harm to the person. • That the restraint is proportionate to:- • the likelihood of the person suffering harm if not restrained, and • the seriousness of that harm Nottingham 2011

20. Legal framework 1 MCA The MCA excludes from the definition of restraint a deprivation of liberty as defined in article 5 of the Human Rights Convention. Deprivation of liberty is seen as such a significant harm that separate amendments to the MCA have been made through the Mental Health Act 2007 Nottingham 2011

21. Legal framework 1 MCA This restricts deprivation of liberty to cases where there has been approval by a court or under the specific regulation of a new Schedule (Schedule A1. hospital and care home residents: deprivation of liberty) • Deprivation of liberty must be to prevent harm • Patient must be suffering from a mental disorder as defined under the Mental Health Act • DOL must be proportionate • Minimum level of restraint Nottingham 2011

22. Deprivation of liberty safeguards Nottingham 2011

23. Legal framework 1 MCA • Definition of deprivation of liberty Based on existing case law, the following factors may be considered by the courts to be relevant when considering whether or not deprivation of liberty is occurring: The person is not allowed to leave the facility. The person has no, or very limited, choice about their life within the care home or hospital. The person is prevented from maintaining contact with the world outside the care home or hospital. Nottingham 2011

24. Legal framework 1 MCA It is possible to deprive a person who lacks capacity of their liberty in an emergency situation to give life sustaining treatment or to prevent a serious deterioration in the person’s condition Nottingham 2011

25. Assessment process • Age assessment; • No refusals assessment; • Mental capacity assessment; • Mental health assessment; • Eligibility assessment; • Best interests assessment. Nottingham 2011

26. Legal framework 2: MHA • Patients may be detained under the Mental Health Act whether or not they have capacity. • Providing they fulfil the conditions of the MHA • Have a mental disorder • Are a danger to themselves or others • Proposed treatment is for the mental disorder Nottingham 2011

27. Legal framework 2: MHA • There will, however, be a small group of incapacitated individuals who will need to be deprived of their liberty in their best interests but who do not necessarily meet criteria for detention under the MHA. These may include those with head injury, learning disability or dementia. Provisions for such individuals are now covered by amendment to the MCA in the Mental Health Act 2007. Nottingham 2011

28. Legal framework 2: MHA • Pointers to the use of the MHA rather than MCA • If there is deprivation of liberty and the criteria for detention under the MHA are present. • To over-ride an Advance Decision to refuse treatment for mental disorder (with the exception of ECT) • to over-ride an attorney who is refusing consent to treatment for mental disorder • If the person is resisting treatment for mental disorder and restraint is required regularly or for a prolonged period of time Nottingham 2011

29. Legal framework 2: MHA Mr B suffers schizophrenia and has previously been admitted to hospital and treated successfully with a antipsychotic drugs. Between episodes he makes a good recovery and decides to make an advance refusal of treatment with all antipsychotics as he considers the side effects of this type of treatment unacceptable. • Mr B becomes unwell again and passively co-operates with admission to hospital. He is extremely frightened by auditory hallucinations stating that he is going to be executed. He refuses oral antipsychotics believing these drugs will kill him. It is the view of the psychiatric team that Mr B lacks capacity to decide about treatment. The consultant thinks treatment should be given by injection. The team is aware that Mr B has made an advance decision to refuse treatment with all antipsychotic drugs. Nottingham 2011