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 article. From the outset it is important that a distinction is made between the lawfulness of the treatment itself (the subject of many chapters in Medical Treatment: Decisions and the Law, Third Edition), 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.
This article is adapted from Medical Treatment: Decisions and the Law, Third Edition written by members of Serjeants’ Inn Chambers, and edited by Christopher Johnston QC. This title is also available as part of a subscription on Bloomsbury Law Online.