Creating a fairer Britain
Title of guidance:
Year published: 2007
Length: 64 pages
Format: PDF (458Kb)
Other formats: printed copy or other formats on request - phone: 0870 240 7535
Producer/ Publisher: Commission for Social Care Inspection (now part of the Care Quality Commission)
Type or organisation: Inspectorate
Adult Social Care | Health | Inspection and regulation | External Service Guidance | Human Rights Act | GB wide| Case studies
Audience: Senior Executives | Service management | Front-line service personnel | Elected councillors, board members, trustees | Policy managers and directors | Legal directors |
Topics: Human rights | restraint | assessing risk | proportionality | blanket policies / individual assessment | balancing competing rights | involvement and participation | autonomy | mental capacity | residential care
This guidance aims to support those involved in adult social care to balance people's right to make choices and take risks with the need to ensure their safety and well-being. The report outlines how the Human Rights Act offers a framework to help achieve this balance and to resolve practical dilemmas. It focuses on the restraint of older people and contains practical examples of both positive care practice and practice that infringes people's right to dignity and autonomy. It outlines law and policy relevant to restraint and offers a set of guiding principles for its legitimate use. It lists the type of procedures and policy documents that constitute a good restraint policy. It also provides a broad definition of restraint.
This report demonstrates that restraint takes many forms and that people's understanding and experience of it differ widely. Quotations from surveys of older people, carers, relatives and staff illustrate the complexity of the judgments required: a practice that is acceptable and reassuring to some may be unacceptable and distressing to others.
The report adopts a broad definition of restraint which includes:
The report sets out the legal and policy frameworks relevant to the use of restraint. The Human Rights Act (HRA) includes the rights of people to have their privacy respected and means that physical and chemical restraints are unlawful unless there is sufficient reason. The Act requires public authorities to act preventatively to ensure that the right systems are in place rather than taking action only after things have gone wrong.
A key message from this report is that human rights can be infringed when public authorities are excessively risk averse as well as when they fail to act to prevent risk. Human rights principles can support balanced and proportionate decision-making in either circumstance.
It is important to note that not all care home residents enjoy direct legal protection under the HRA - specifically, people who pay for their own care in homes run privately or by charities are excluded. This anomaly does not detract from the value of human rights principles as a guide to policy and practice, regardless of the availability of legal redress.
The report outlines the requirements of the Mental Capacity Act 2005 in relation to restraint of people who are unable to make decisions for themselves. For restraint of a person who lacks capacity to be legal, it must:
In any event, the least restrictive action must be taken; that is, the minimum force for the shortest time.
The report further explains the 'deprivation of liberty safeguards', introduced in 2007 as a result of a judgment by the European Court of Human Rights to ensure that people in hospitals and care homes who lack capacity are not deprived of their liberty without lawful authorisation.
Unless older people do not have capacity, restraint may only take place with their consent or in emergency to prevent harm to themselves or others. Used inappropriately, restraint can constitute abuse, as well as being a criminal offence.
The report presents evidence to suggest that restraint does not necessarily keep people safer. For example, older people may become frustrated by restraints, so that those determined to move are likely to have worse accidents. They may become less mobile, less fit and more likely to develop pressure sores, or become incontinent or depressed.
The report provides some examples of restraint that infringe dignity and that fall short of the human rights requirements for necessity and proportionality. For example:
'Disruptive residents fastened into wheelchairs and then locked in bedrooms'(Care home manager).
'The manager gave night-time medication at tea time so residents could be put to bed at 6.30 pm.'
'... many residents are somewhat corralled into the communal areas on the ground floor whilst others are room-bound and relatively isolated.'
The report highlights the uncertainties care staff face in responding to the intricacies and intimacies of people's lives. It offers examples of positive practice and sensitive care that may help resolve dilemmas for care staff in some situations. The emphasis is on understanding the causes of behaviour, and on techniques for negotiation and de-escalation and therapeutic approaches to avoid the inappropriate use of restraint.
'A staff member whispered to a resident who was agitated; the resident responded by whispering back and became calm.'
'Using hip protectors or knee and shoulder pads for someone who was prone to falls.'
A key message is that the decision to use restraint should be based on an individual's situation and not become a 'blanket' policy: for example, a keypad system introduced to ensure the safety of one person may become a restraint to everybody, regardless of their personal situation. Individual risk assessments should be undertaken and decisions recorded; the decisions should justify that the method of restraint used is the least restrictive possible.
Understanding the duty of care of the care provider is also fundamental. There is a distinction between putting people at risk and enabling them to choose to take reasonable risks; duty of care, then, does not mean that people have to be kept safe from every eventual risk.
The report acknowledges that pressure on resources can force staff into ways of working that neither they, nor the older person, would want (or can be perceived to do so). It argues that council purchasing staff and care providers have responsibilities to negotiate prices and funding that allow for adequate numbers of trained and skilled staff. More broadly, the report argues that restraint is a 'human rights issue where government, regulators, commissioners and care providers have responsibilities to support staff and improve services to older people'.
It should be noted that care based on human rights principles is not necessarily more costly than the alternatives; indeed, there is evidence that by acting preventatively, such care may be less expensive in the long run.
The guided does not directly address issues of equality.
Note: Since this guidance was published the law on human rights protection for people in private and voluntary sector care homes has been clarified by an amendment in the Health and Social Care Act 2008. This makes clear that the Human Rights Act covers all people whose care home fees are paid by a public authority regardless of the type of home.
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