Module 2 of 2 · 45 minutes
Best interests decisions, restraint and advocacy
By the end of this module you will be able to
- Chair or contribute to a best interests decision correctly
- Explain when an IMCA must be instructed
- Apply sections 5 and 6 on acts in connection with care and restraint
- Recognise unlawful restraint, including chemical and environmental
Work through it
1 interactive for this module, built on the WAJD Teach engine. Nothing moves until you ask it to, and every one has a written version if you would rather read it.
Amara We hold best interests meetings. Are we doing them right?
Nadia Ask yourself one question. Was the person in the room, or in the file?
Amara In the file, usually.
Nadia Then probably not. Section 4 says the person must be involved as fully as possible. Not consulted about. Involved.
Amara Even if they cannot follow a meeting?
Nadia Then you go to them, at a time and in a way that suits them, and you record what they communicated including non verbally. Somebody who cannot follow a meeting can still show you very clearly that they hate the shower and love being outside.
Amara How much weight do their wishes carry?
Nadia Real weight. Past and present wishes, anything written down when they had capacity, their beliefs and values, and the things they would have considered.
Amara And if the clinically best option is the opposite?
Nadia Then you have a genuinely hard decision, which is what the process is for. But a decision that is clinically optimal and contrary to everything the person ever expressed is not a best interests decision. It is a professional preference with a form attached.
Amara What must never come into it?
Nadia Age, appearance, condition or behaviour. Those four are named in the Act specifically because they are the shortcuts people take.
Amara When do we need an advocate?
Nadia An IMCA must be instructed where the person lacks capacity, there is nobody appropriate to consult other than paid staff, and it is serious medical treatment or a change of accommodation.
Amara We know our residents very well.
Nadia You do, and for this purpose a paid carer does not count. That is not an insult, it is the entire point. The advocate exists so an unbefriended person has somebody whose only interest is theirs, with no service, no rota and no budget in the background.
Amara Let us do restraint, because I think we do things we do not call restraint.
Nadia Almost every service does. Section 5 protects you for acts done in connection with care, if you reasonably believed the person lacked capacity and it was in their best interests.
Amara And section 6?
Nadia Restricts that where restraint is used. Two conditions, both required. You reasonably believe it is necessary to prevent harm to that person. And it is proportionate to both the likelihood of the harm and how serious it would be.
Amara Define restraint for me, because I think we are narrow about it.
Nadia Using or threatening force to make somebody do something they resist, or restricting their liberty of movement, whether or not they resist.
Amara Whether or not they resist.
Nadia Which is the phrase that catches everybody. And it is not only physical. Sedating medication given to manage behaviour rather than treat a condition is chemical restraint. A keypad they cannot operate is environmental restraint. Removing somebody's walking frame or their shoes is restraint.
Amara We take shoes off at night.
Nadia For comfort, or so they do not go out? Because those are the same action with completely different legal characters, and only one of them needs the necessity and proportionality test.
Amara And telling somebody they are not allowed out?
Nadia Psychological restraint, and it is the one nobody records at all. Same test. And if what you are doing goes beyond restraint into continuous supervision and not free to leave, section 6 does not authorise that. That needs a DoLS authorisation.
The written material
Running a best interests decision
Section 4 lists what must be considered, and the process fails in a predictable way: it becomes a meeting where professionals decide what they think is best and record that they consulted.
The person must be involved as fully as possible. Not consulted about, involved. That means meeting them, at a time and in a way that suits them, and recording what they communicated including non verbally.
Their past and present wishes carry real weight, including anything written when they had capacity. So do their beliefs and values, and the things they would have considered if able. A decision that is clinically optimal and contrary to everything the person ever expressed is not a best interests decision, it is a professional preference with a form attached.
Consult anyone named by them, carers, family, an attorney or deputy. And record the reasoning, not just the outcome, because the reasoning is what makes it reviewable.
When an advocate is required
An Independent Mental Capacity Advocate must be instructed where a person lacks capacity, has nobody appropriate to consult other than paid staff, and the decision concerns serious medical treatment or a change of accommodation to a hospital or care home beyond defined periods.
Nobody appropriate means no family or friends willing and able to be consulted. A paid carer, however well they know the person, does not count for this purpose, and that is the point: the advocate exists so that an unbefriended person has somebody whose only interest is theirs.
IMCAs may also be instructed for care reviews and adult protection cases. Failing to instruct where required makes the decision vulnerable to challenge, and services frequently miss it because the person seemed settled.
Restraint, and the two conditions
Section 5 protects a carer from liability for acts done in connection with care or treatment, provided they reasonably believed the person lacked capacity and that the act was in their best interests.
Section 6 restricts that where restraint is used. Restraint means using or threatening force to make somebody do something they resist, or restricting their liberty of movement whether or not they resist. Two conditions must both be met: you reasonably believe it is necessary to prevent harm to the person, and the restraint is proportionate both to the likelihood of that harm and to its seriousness.
Restraint is not only physical. Chemical restraint through sedating medication given to manage behaviour, environmental restraint through locked doors or removed walking aids, and psychological restraint through telling somebody they are not allowed to go out, are all restraint and all engage the same test.
Anything beyond restraint, amounting to a deprivation of liberty, needs authorisation. Section 6 does not authorise that.
- Physical: holding, guiding against resistance, blocking
- Chemical: medication given to manage behaviour rather than treat a condition
- Environmental: locked doors, keypads, removed walking aids or shoes
- Psychological: telling somebody they may not leave or must wait for permission
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