Consent and Ethics: Adults

Restraint

Restraint is the use or threat of force to make someone do something they are resisting or restricting a person’s freedom of movement, whether they are resisting or not. Restraint may be physical, mechanical, chemical (such as sedative drugs like Propofol) or psychological restraint. Restraint of a patient lacking capacity is lawful where it can be demonstrated that it is necessary to ensure their safety and that all other alternatives have been considered. It must be proportionate, being the minimum amount to achieve the desired objective and be in the patient’s best interests. Where restraint is used, it is important to consider whether a deprivation of liberty has occurred.

• RCoA statement on the use of restraint
• Restraining adult patients in hospital – University Hospital Southampton NHS Foundation Trust
• Mental incapacity and restraint for treatment: present law and proposals for reform. Bridgman AM. Journal of Medical Ethics 2000;26:387-392.
• The anaesthetist, restrictive interventions and restraint teams by Dr L Brennan

Deprivation of Liberty Safeguards (DoLS)

Occasionally circumstances may arise when treating a patient without capacity that treatment in their best interests can only be accomplished by depriving them of their liberty. Where an individual is being provided with care and treatment in circumstances that amount to a deprivation of liberty, that deprivation has to be authorised.  Factors that indicate that an individual may be deprived of liberty include:

1. that the person is confined to a restricted place for a non-negligible period of time
2. that the person does not have the capacity to consent to their care and treatment in those circumstances
3. that the person is subject to ‘continuous and complete supervision and control’
4. that the person is not free to leave.

The fact that care or treatment amounts to a deprivation of liberty does not mean that it is inappropriate.  It means only that it reaches a certain threshold of restriction such that authorisation is required. Identifying and authorising a deprivation of liberty should not substitute for or impede the delivery of care. The focus of decision-making must remain the best interests of the patient.
  
When an individual lacking capacity is identified as being at risk of deprivation of liberty in a hospital or care home setting, the 'managing authority' of the hospital or care home has to make an application to a 'supervisory body' to request an authorisation of the deprivation. In the case of an NHS hospital, the managing authority will be the NHS body responsible for its running.  In England the supervisory body is the local authority, if the patient is in a care home. In Wales it is either the National Assembly for Wales or a Local Health Board, or the relevant local authority for a patient in a care home. Normally this application should be made in advance, however in an emergency, the hospital can issue an emergency authorisation, with a standard authorisation then sought within seven days.

The following links give a more comprehensive overview of DoLS:

• Deprivation of Liberty in Intensive Care – Mental Capacity Law and Policy
• British Medical Association (BMA) advice and resources covering DoLS

The following NHS Heath Education England e-Learning for Healthcare e-Learning module may also be of use: e-Learning Deprivation of Liberty Safeguards

A recent court decision however in the case of R (Ferreira) v HM Senior Coroner has questioned whether DoLS applies in Intensive Care. The court ruled that Cheshire West (the case from where DoLS originated) did not apply as the patient in question was receiving treatment course for a physical illness which would be the same had been administered to a person with capacity. Furthermore, her inability to leave stemmed from this physical illness and she would have been otherwise free to leave were she able. Thus in the eyes of the court her Article 5 rights were not in breach. If applied widely, this decision would remove the need for DoLS applications from the majority of ICU admissions where patients are being treated for a medical illness. The Law Society has proposed a fundamental revision of DoLS and the DoH has a consultation ongoing on the subject.

This link summarises the recent developments in DoLS

Below are some podcasts to illustrate some more complex issues as case studies or reviews:

• The Law Society – Deprivation of Liberty Safeguards
• Inside the Ethics Committee, BBC Radio 4 – Advanced Decisions
• Inside the Ethics Committee, BBC Radio 4 – Mentally Ill and refusing Treatment
• Inside the Ethics Committee, BBC Radio 4 – Phobia, capacity and consent
• Inside the Ethics Committee, BBC Radio 4 – Dementia and treatment
• Inside the Ethics Committee, BBC Radio 4 – Restraining Patients in ICU (ITEC)