Delivering essential care and treatment in acute medical settings and in particular in special care dentistry to patients who lack capacity presents many complex legal and professional dilemmas for nursing and medical staff. Crisis Prevention Institute Senior Vice President and member of the , Chris Stirling examines some of the issues involved in this difficult subject.
The Mental Capacity Act (2005) sets out the expectation that it must always be assumed that everyone has capacity and as such, has the right to refuse (even if refusal amounts to an unwise decision) or consent to treatment, delivering care and treatment becomes much more compromising to clinical teams when a patient lacks capacity to consent to treatment in circumstances when:
- such treatment is considered essential to prevent a serious deterioration of the patient’s condition;
- a failure to deliver such treatment may be neglectful;
- the patient is uncooperative, challenging or even aggressive when any attempt to provide treatment is undertaken; or
- the use of manual restraint (often called ‘clinical holding’ in acute medical settings and special care dentistry) is necessary in order to safely deliver the treatment.
To support dental (and other) professionals providing essential care and treatment for people who may lack capacity (e.g. children and adults with developmental disabilities, impaired mental health or impaired cognitive function related to an underlying medical condition), the Crisis Prevention Institute delivers a ‘Holding Skills for Essential Care and Treatment’ course for clinical staff faced with these dilemmas. This programme helps practitioners make Best Interest Decisions, safely deliver essential care and treatment, improve patient outcomes, satisfy legal and ethical responsibilities, ensure clinical excellence and effectiveness and minimise reputational risk.
What does the Mental Capacity Act allow?
The Mental Capacity Act allows restrictions and restraint (manual, chemical, mechanical or environmental) to be used in a person’s support, but only if they are in the best interests of a person who lacks capacity to make the decision themselves. Restrictions and restraint must be proportionate to the harm the care giver is seeking to prevent, and can include:
- using locks or key pads which stop a person going out or into different areas of a building;
- the use of some medication, for example, to calm a person;
- close supervision in the home, or the use of isolation;
- requiring a person to be supervised when out;
- restricting contact with friends, family and acquaintances, including if they could cause the person harm;
- physically stopping a person from doing something which could cause them harm;
- removing items from a person which could cause them harm;
- holding a person so that they can be given care, support or treatment;
- bedrails, wheelchair straps, restraints in a vehicle, and splints;
- the person having to stay somewhere against their wishes or the wishes of a family member; or
- repeatedly saying to a person they will be restrained if they persist in a certain behaviour.
Which patients are we talking about?
Whilst typically in acute medical settings and special care dentistry it might be assumed that individuals with severe intellectual disability are more likely to lack capacity and present clinical teams with such dilemmas, the Mental Capacity Act is clear that a patient’s diagnosis, behaviour, or appearance should not lead clinical teams to assume capacity is absent. Conversely, whilst the majority of people with an intellectually disability may have capacity especially when the appropriate information and support is provided, there are a range medical conditions that can adversely affect cognitive functioning resulting in impaired capacity to consent (e.g. dementia and other cognitive conditions, intoxication, trauma, stroke, post anesthesia, hypoglycemia, hypoxia).
As such, it is critical that all front line clinical staff have a good working understanding of the Mental Capacity Act (2005) and the Deprivation of Liberty Safeguards (DoLS) (2007) in order to ensure that each patient is individually assessed for their understanding so that clinical teams can support patients to make informed decisions about their treatment, and that clinical teams know how to make best interest decisions that determine the right outcome for those patients without capacity.
Best interests decision making: What’s involved?
If a patient lacks capacity to make a particular decision, then whoever is making that decision or taking action on that person’s behalf must do this in the person’s best interest. This means clinical staff should not make assumptions about the patient, and:
- consider all circumstances and whether any decision can wait until further consultation has taken place;
- establish the patient’s past and current wishes;
- gain an understanding of the patient’s beliefs and values; and
- establish if there is a need for consultation with others. This could be the patient’s carers or close relatives, an Independent Mental Capacity Advocate (IMCA), Lasting Power of Attorney or the Court of Protection.
When making best interests decisions there are certain key considerations to bear in mind:
- Does the treatment amount to a serious medical treatment or involve potential serious consequences?
- What are the risks and benefits of treatment?
- Are there any side effects or implications from the treatment itself?
- What are the implications of stopping treatment once it has commenced?
- If treatment isn’t carried out, will there be more serious consequences for the patient?
- Does the patient lack capacity to make the decision about the treatment? Before someone can make a decision one behalf of a patient, they have to have a reasonable belief that they no longer have the capacity to make that decision themselves. This means asking questions like:
- Do you have a general understanding of what decisions need to be made?
- Do you have a general understanding of the consequences of the decision?
- Do you show this general understanding in the way you behave and make decisions?
Next step considerations
Once it has been established that a patient lacks capacity and a best interest decision to deliver the care and treatment has been reached, many clinical teams are then faced with the next challenge – how do we deliver care and treatment safely, especially in those circumstances when a patient is unable to cooperate or reacts aggressively to staff thereby making the intervention unsafe? It is at this point that the clinical team may decide to use manual restraint (clinical holding) to enable the treatment to be carried out safely. As with any decision to use restrictive interventions (manual restraint), there are a number of elements to consider:
- Is a decision to go ahead with treatment and to use a restrictive intervention still in the patient’s best interests?
- Is the action being taken a last resort – i.e. is there clear evidence of imminent or immediate risk of harm to the patient or others?
- Have all other possible non-physical interventions being explored and ruled out? (However, even when sedation is considered as an alternative intervention, it is often necessary to manually restraint the patient in order to administer the medication).
- Is the level of restriction reasonable and proportionate, and is it the least restrictive intervention for the least amount of time?
- Does the level of restriction minimise injury and avoid pain when balanced against not applying the restriction?
- Is there scope to reduce its use in the future?
- How do you ensure restrictive interventions are not misused and/or abused?
Does the use of manual restraint in acute medical settings and special care dentistry amount to a Deprivation of Liberty?
Finally, many nursing and medical staff involved in making Best Interests Decisions for those individual patient who lack capacity are unsure whether or not the use of manual restraint to deliver essential care and treatment in acute medical settings falls under the Deprivation of Liberty Safeguards (2015) following the Supreme Court judgement in 2014, which consisted of two key questions:
- Is the person subject to continuous supervision and control? and
- Is the person free to leave? – with the focus being not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave.
Even when considering the above points, many clinical teams remain unclear whether or not manual; restraint crosses the line and deprives patients of their liberty. Whilst the Supreme Court judgement further supports the importance of individual assessments of capacity which takes account of an individual’s presenting circumstances at the time care and treatment is needed, an application for a standard or urgent authorisation is not typically required.
However, there may be some circumstances when it would make sense to consider a deprivation of liberty application if a patient is subject to:
- frequent use of sedation/medication to control their behaviour;
- regular use of manual restraint is needed to deliver essential care and treatment or to manage behaviour;
- the patient objects verbally or physically to the restriction and/or restraint;
- the family and/or friends, or advocates object to the restraint;
- the patient is permanently or routinely confined to a particular room or side ward and any attempts to leave this area are prevented; and
- possible challenge to the restraint being proposed to the Court of Protection or the Ombudsman, a letter of complaint, or a solicitor’s letter
The key issue for clinical teams to bear in mind is that the use of manual restraint can, in some circumstances, take away a person’s freedom and so deprive them of their liberty. As such, clinical staff do not need to be experts in the law relating to Mental Capacity and Deprivation of Liberty; they just need to know when a person might be deprived of their liberty as a result of their actions and ensure the appropriate decisions and action are taken.
Final decisions about what amounts to a deprivation of liberty are made by courts. The Code of Practice for DoLS gives examples of where courts have found people being and not being deprived of their liberty. These examples, together with other cases which have gone to the courts, should be used as a guide. In terms of the use of restrictive interventions (specifically manual and chemical restrictions) for essential care and treatment in acute medical settings and special care dentistry, DoLS do not apply.
Whilst DoLS does not apply to use of restrictive practices for the delivery of essential care and treatment, it is important that those professionals responsible for delivering such treatment which involves the use of restrictive interventions ask themselves the key question: Does the level of restrictive intervention amount to or considered to be a potential deprivation?
If the answer is yes, then there are clear legal and professional responsibilities to ensure any decision to continue with treatment, and to use restrictive interventions to do so, requires a robust and transparent decision making process which demonstrates that such action is in the patient’s best interests.