Mechanical Restraint in England and Wales

Mechanical Restraint in England and Wales

Phil Fennell, Professor of Law, Cardiff Law School

Introduction: Physical, Mechanical and Chemical Restraint in Contemporary British Psychiatry and the Role of Seclusion

Mechanical restraint in England and Wales is seen as a weapon in the ‘armamentarium’ of psychiatry in England and Wales, but is very much seen as a last resort when other expedients have failed. The National Institute of Clinical Excellence, a statutory authority set up to issue guidance on health care interventions issued Clinical Guidance in 2005 on short-term management of disturbed/violent behaviour in in-patient psychiatric settings and emergency departments.[1]The Guidance lists a number of potential interventions in ascending level of perceived severity beginning with risk assessment, observation, engagement, and de-escalations strategies which are intended to minimise the need for more coercive interventions. Those coercive interventions are then listed in the following sequence:

•Physical control and restraint

•Seclusion

•Emergency sedation

•Mechanical restraint.

The NICE Guidance defines mechanical restraint as:[2] ‘a method of physical restraintinvolving the use of authorised equipment applied in a skilled manner by designated health care professionals. Its purpose is to safely immobilise or restrict movement of part/s of the body of the individual concerned.’

The Guidance recognises that mechanical restraint is ‘a sensitive issue’ but nevertheless recognised that ‘such restraints are used in very exceptional circumstances, usually in high secure hospitals.’ The Guidance Development Group therefore felt it necessary to make a recommendation in this area, stressing that mechanical restraints ‘ can only be used in such exceptional circumstances and after a multi-disciplinary review’:[3]

‘Mechanical restraints are not a first line response or standard means of managing disturbed/violent behaviour in acute mental health care settings. In the event that they are used, it must be a justifiable, reasonable and proportionate response to the risk posed by the service user, and only after multi-disciplinary review has taken place. Legal, independent expert medical and ethical advice should be sought and documented.’

The Mental Health Act Commission (MHAC), which was established in 1983 as the statutory body charged with visiting psychiatric hospitals and reviewing the care of detained patients has referred to restraint in its Biennial reports to Parliament. The MHAC has now been abolished and its statutory functions assumed by the Care Quality Commission (CQC) which has the wider remit of visiting and inspecting not only psychiatric hospitals but all hospitals and residential care homes. The CQC’s jurisdiction extends to all patients, and unlike that of the MHAC does not depend on patients being detained under mental health legislation.

In 1987 the MHAC noted with 'surprise and misgivings' that restraint garments were in use at Moss Side High Security Hospital, but did not express a corporate view. Altogether 8 patients were involved over a three month period with a total for all of them of 130-135 periods of restraint per month.[4] In 1989 the MHAC reported that they had continued to examine carefully the occasions when such garments were used, and the policy governing their use. The number of patients restrained had reduced over the past two years, but one patient had been under restraint for 2,645 hours over a 12 month period.[5] Again in 1991, the MHAC noted that four patients continued to be nursed for substantial periods in restraint garments and were pleased to learn of plans for an intensive therapy unit where these four patients could be cared for less restrictively.[6]

In 1992 the Blom-Cooper Inquiry into Complaints about Ashworth High Security Hospital made condemned the use of ‘mitten suits’ at Ashworth ‘We do not approve the use of any mechanical restraint – and we doubt in any event whether it would be sanctioned by law.’[7]No authority was given for this legal proposition.

References to mechanical restraint in subsequent Biennial reports suggest that it has been little used. In 2007 The Mental Health Act Commission reported that:[8]

‘we rarely see physical restraints (such as body-belts that restrict the movement of the limbs) today, and only as very last resorts, at least in the population of patients detained under Mental Health Act powers... But we still have unregulated restraint by human hand.’

Whilst mechanical restraint appears to be little used in psychiatric care, manual restraint is extensively used. In 2004 the National Institute for Mental Health in England (NIHME) made training courses for nursing staff on the prevention and management of violence and aggression (‘Control and Restraint’) mandatory for UK psychiatric service providers.[9] The NICE Guidance states that:[10]

•The level of force must be justifiable, appropriate, reasonable and proportionate to a specific situation and should be applied for the minimum possible amount of time.

•Every effort should be made to use skills and techniques which do not involve deliberate application of pain.

•The deliberate application of pain has no therapeutic value and could only be justified for the immediate rescue of staff, service users or others.

In 2009 D. Stewart, Len Bowers, A Simpson, C Ryan, and Maria Tziggili, carried out a literature review on manual restraint of adult psychiatric in-patients, in which they defined manual restraint as ‘physically holding the patient to prevent or restrict movement.’[11] They concluded that ‘given the prevalence of manual restraint use across inpatient psychiatric services the lack of data on this practice is striking.’ Although it was difficult to draw conclusions, the data suggests that on an average 20 bed ward there might be between two and five restraint episodes per month, with forensic services at the higher end of this range. They also found that restraint is not confined to the management of violent incidents, but is used to in response to a range of patient behaviours, including absconding, agitation, and refusal to comply with instructions.[12] Manual restraint was often followed by emergency sedation/rapid tranquillization, sometimes by seclusion, and sometimes both. The NICE Guidance recommends three drugs for use in rapid tranquillisation: Haloperidol (an ‘old-style’ anti-psychotic, Lorazepam (a hypnotic), and Olanzapine (a ‘new style’ anti-psychotic).

Although there is now more staff training in manual restraint, and control and restraint have traditionally been seen as less undesirable than mechanical restraint, the practice has caused patient deaths, and is an issue of significant current concern.

In 1998 David (Rocky) Bennett, a 38-year-old Afro-Caribbean man who had suffered from schizophrenia for 18 years, became disturbed and was restrained and held in ‘prone’ (face down) restraint for a prolonged period. He died of asphyxiation. The Health Authority carried out an investigation, which reported in 2003 drawing attention to the dangers of prone restraint and recommending that no-one should be held face down for more than 3 minutes. This recommendation was not accepted by the Government.[13]

The Mental Health Act Commission (MHAC) noted that in 2005 there had been two further deaths of patients through asphyxiation linked to excessive face-down restraint that may have been avoided had staff ceased prone restraint earlier. In one case Geoffrey Hodgkins, a 37-year-old patient had become very disturbed and was held face down for about 25 to 30 minutes and given an injection of haloperidol and lorazepam. He stopped breathing whilst under this restraint. Attempts were made at resuscitation and he was transferred to the local Accident and Emergency Department by ambulance, arriving just before 9.30 that evening. His family arrived at the hospital in the early hours of the next morning, and at 8.30 a.m. he was declared dead and his life-support machine turned off.[14]

In their next Biennial Report for 2007-2009 the MHAC referred to two inquests held in 2008 which concerned deaths of detained patients attributable to the use of face-down restraint. Kurt Howard died aged 32 in CefnCoed Hospital, Swansea, in June 2002. AzrarAyub died aged 24 in Prestwich Hospital, Manchester, in May 2004.[15]

Incidents like this have led to calls for a debate about the use of mechanical restraint in psychiatry In 2005 Professor Kevin Gournayan eminent profrssor of nursing argued that whilst ‘Ten years ago the use of mechanical restraint would not have been considered ... the level of violence in mental health care - particularly associated with crack cocaine users - is such that it has to be an option. It cannot be ruled out.’[16] Professor Gournay was involved in drafting the NICE guidance and was also an author of guidance on the use of restraint in mental health services for the Nursing and Midwifery Council (NMC). He was quoted as saying that ‘some patients had said that they would rather be strapped down than physically restrained by nurses or heavily sedated.’ He also referred to the greater risk of asphyxiation and broken bones associated with the use of physical restraint, particularly when used in tandem with medication.

Although there has been a tendency to frown upon the use of mechanical restraint in the management of violence to others, there is evidence that it has been extensively used in the management of self harm in elderly patients and patients with learning disabilities. The 1990 version of the Mental Health Act 1983 Code of Practice made reference to physical restraint of disturbed patients, emphasising that it should be used only as a last resort, and never as a matter of course. The type of restraint envisaged was to be carried out by nurses trained in safe methods of control and restraint, not the use of restraint garments or other devices on a continuing basis. In May 1992, Freda Latham, a learning disabled patient, who was not detained, was strangled by her bib by which she had been left attached to a toilet pipe. The three nurses in whose care she had been were acquitted of ill treatment and wilful neglect and conspiracy to pervert the course of justice in March 1994, and in April 1994 the coroner recorded an open verdict.[17] The 1993 version of the Code adds an additional paragraph, clearly a response to this case, emphasising that 'Restraint which involves tying or hooking a patient (whether by means of a tape or by using part of the patient's garments) to some part of a building or to its fixtures or fittings should never be used.'[18] This paragraph remains in the current version of the Mental Health Act Code, issued in 2008, which goes on to emphasise that:[19]

‘Mechanical restraint is not a first-line response or standard means of managing disturbed or violent behaviour in acute mental health settings. Its use should be exceptional. If any forms of mechanical restraint are to be employed a clear policy should be in place governing their use.’

In 2001 the MHAC called for open debate about mechanical restraint. Whilst emphasising that they were not ‘advocating the use of mechanical restraint ... it does seem to us that this difficult area needs to be openly discussed with a view to practice guidelines and statutory regulation if possible. We commend this as an area of study under future monitoring arrangements.’[20] In 2003 the MHAC observed that groups who are less likely to have formal detained status (such as the frail elderly and learning disability patients) are the most likely to be subjected to forms of mechanical restraint’.[21]

They took up the issue again in their 2005 Biennial Report following reports of deaths caused through entanglement in harnesses designed to keep patients in chairs or beds.The MHAC reported that they had discussed with the Department of Health instigating notifications of the use of mechanical restraint to inform future Government actions. However, the discussions had stalled at the point when the MHAC suggested that, to ensure the usefulness of data collected from such notifications, the Secretary of State should exercise powers to extend the MHAC remit beyond detained patients for the purposes of the notification procedure.[22]

Although the jurisdiction of the MHAC did not extend to patients who were not detained under the Mental Health Act, the Healthcare Commission (now also subsumed into the Care Quality Commission, did have jurisdiction over non-detained patients. Two inquiries published by the Healthcare Commission in 2006 and 2007 supported the MHAC’s concerns. In 2006 the Healthcare Commission Joint investigation into the provision of services for people with learning disabilities at Cornwall Partnership NHS Trust found that ‘There was evidence of physical restraint being used illegally and excessive use of pro re nata (PRN) medication to control unacceptable behaviour’[23] Moreover, whilst staff were ‘extensively trained in the use of restraint, [they] had little other training. They did not welcome ‘outsiders’, such as psychologists, and used restraint and medication almost exclusively to deal with patients on the ward.’[24] In 2007 theHealthcare Commission Investigation into the service for people with learning disabilities provided by Sutton and Merton Primary Care Trust found that there was no system for monitoring the use of restraint, and that one woman had experienced a form of restraint for many years, where a splint on her arm was used to prevent movement in order to stop her putting her hand into her mouth. This had since been gradually reduced to three hours per day. Items such as straps on wheelchairs and splints on limbs were used to restrict movement, and their use was not regularly reviewed to determine whether they were still required.[25]

In 2008 the British Institute of Learning Disabilities issued guidance on the use of mechanical restraintwhich provides that:[26]

As a last resort, the application and use of materials or therapeutic aids such as: belts, helmets, clothing, straps, cuffs, splints, specialised equipment, designed to significantly restrict the free movement of an individual, with the intention of preventing injury; as a result of behaviour that poses significant and proportionate risk to the individual of serious long term harm or immediate injury. The use of the device must be based on the findings of a behavioural risk assessment.

In 2011 the Care Quality Commission produced its first report on monitoringthe Mental Health Act 1983, since it took over the jurisdiction of the MHAC, and renewed the call for a policy of notification of all forms of mechanical restraint:[27]

‘The examples of mechanical restraint encountered by Mental Health Act Commissioners have rarely, if ever, taken place in acute mental health services. They are usually confined to learning disability units, forensic services and services for older people.The idea of requiring notification of all use of mechanical restraint could now be reconsidered, given that the scope of CQC extends across all the services that would need to be included, to obtain a true picture of the use of mechanical restraint. When any form of mechanical restraint is used, it is important that it is supported by a clear policy.’

The picture which emerges is one where mechanical restraint is frowned upon in psychiatry, but, depending on definition, there is evidence that it is widely used in the care of people who lack decision-making capacity and are suffering from mental illnesses of old age or learning disability. Other coercive interventions such as manual restraint, seclusion and rapid tranquillisation are used extensively in British psychiatry, and these raise considerable concern about the protection of the welfare and safety of service users.

Seclusion has always played a significant role in the management of disturbed behaviour. Seclusion is defined in the Mental Health Act Code of Practice as Seclusion is the supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others.[28] Until 1959 it was subject to regulation by statutory rules. Seclusion continues to occupy a 'twilight zone' between medical treatment and coercion. After the 1959 Act it ceased to be defined and regulated in delegated legislation, but despite its disappearance from the statute book, it continued to be widely practised. In 1974, in A v United Kingdom[29], a patient in Broadmoor High Security Hospital complained to the European Commission on Human Rights of an infringement of the prohibition on inhuman or degrading treatment in Article 3 of the European Convention, in that he had been kept in seclusion for 5 weeks with only limited opportunities for exercise and association. Generally speaking, reatment will be inhuman only if it reaches a level of gravity involving considerable mental or physical suffering, and degrading if the person has undergone humiliation or debasement involving a minimum level of severity.[30] However, in Keenan v United Kingdom the European court of Human rights held that in relation to a person with a mental disorder the maintenance of human dignity was of paramount importance and that:[31]

‘In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 to protection against inhuman or degrading treatment’