Can a healthcare professional restrain a resident where there is a concern that his or her behaviour poses a risk to themselves or others?

Yes, but only if and this is crucial - the resident consents to the restraint or the restraint is otherwise permitted by law.

This is relevant to nursing home providers and centres that care for people with disabilities.

RESIDENTS' RIGHTS

Residents have a fundamental right to their liberty. This right is enshrined in the Constitution. A person's liberty cannot be restricted or detained in some way unless they either consent to it or permitted by law.

Any restriction or detention of a person's liberty must be a last resort and must be subject to appropriate safeguards. Any restrictive measure should be proportionate and the least intrusive measure in the circumstances. It should also be kept under regular review.

A resident's liberty should never be restricted for disciplinary reasons or for the convenience of staff.

POTENTIALLY UNLAWFUL RESTRAINTS

  • Chemical restraints - Giving sedatives to a resident to control their behaviour and make them more "manageable".
  • Environmental restraints - Locking doors to stop a resident from wandering at night.
  • Physical restraints - Physically holding a resident down, using limb restraints, using clothing to restrict their movement or removing their mobility aids.

It may be necessary to restrict a resident's liberty in certain circumstances for a brief period of time, e.g. where there is an urgent and significant risk to their safety or the safety of others. It is important to have a policy in place to deal with these circumstances. and to report and address the circumstances immediately afterwards.

CONSENT

If the legal basis for a restriction of liberty is the resident's consent, the consent must be fully informed. For example, you should ensure the resident understands how the restraint will be used, how it will assist him/her, the potential negative outcomes, and possible alternatives to restraint use.

If there are any doubt as to a resident's capacity to consent, appropriate legal and medical advice should be sought.

OTHER LEGAL BASIS

If the resident does not have capacity to consent, it may be necessary to apply to the High Court for an order authorising the detention and/or restraint, together with any ancillary orders that may be necessary. This might include an order permitting managerial staff to restrain a resident from leaving the facility.

A court order will usually be necessary where the person lacks capacity and falls outside any statutory regime that might offer protection (such as the mental health legislation). The High Court can be requested to use what is known as its "inherent jurisdiction" to step in to protect the person's best welfare and interests. The wardship procedure may also be appropriate depending on the circumstances. The Court will only use its inherent jurisdiction where it is absolutely necessary to do so and any order the court makes will usually be for a defined period and subject to periodic review.

The reason the intervention of the High Court is necessary is that you are dealing with some of the most vulnerable members of society. It is imperative that certain restrictive measures that affect vulnerable persons who do not have capacity to consent are subject to appropriate independent oversight and scrutiny.

Before making an order, the High Court will need medical evidence to show that the restriction in question is in the person's best interests and is proportionate in the circumstances of the case. This might include psychiatric or other expert reports and medical assessments. It may also need to review a care plan setting out how the restriction will be imposed and how its use and necessity will be reviewed.

The following are some examples of orders made by the High Court:

Order for detention in Central Mental Hospital: In HSE v JO'B, the High Court ordered that a young man with severe learning disabilities be detained in the Central Mental Hospital. The young man had been in psychiatric care in the UK for a number of years as there was no appropriate facility for him in Ireland. However, he wished to return to Ireland and his family were also anxious that he be cared for here. The medical experts all agreed that he required care and treatment in conditions of therapeutic security at a medium to high security level, and that the Central Mental Hospital was the only facility in Ireland that could meet his needs. The Court was satisfied that the man's best interests would be served by making an order for his detention in the Central Mental Hospital. However, as this order involved a serious interference with his liberty, the Court stated it would review the case on an ongoing basis to ensure that the order continued to be justified.

Order for continued detention in facility in UK: In HSE v JB, the High Court ordered that a vulnerable 17year old who suffered from bi-polar disorder continue to be detained at a psychiatric facility in the UK where he was receiving treatment. The young man had expressed a desire to return to Ireland. The Court was conscious of his constitutional right as an Irish citizen to reside in Ireland. But it heard medical evidence that it was in his best interests to remain at the UK facility and to continue his treatment there. The Court built a number of safeguards into its order, including recommending that a committee of doctors be established to oversee his eventual transition to Ireland and to advise when and how this might be effected.

Order to carry out medical treatment: Earlier this year the High Court made an order permitting doctors to carry out a mastectomy on an intellectually disabled woman who had breast cancer. The woman lacked the capacity to understand she had breast cancer or what would happen if she did not receive treatment. The medical evidence was that a mastectomy was the best option available in the circumstance. The Court was satisfied that the woman's best interests required that she get the recommended optimal treatment.

BEST PRACTICE FOR CARE FACILITIES

  • If you are asked to take a person into your care and you anticipate that there may be issues with their capacity to consent, deal with this proactively, and by court application, if necessary, to ensure there is a legal basis for their admission to your facility and that you can provide adequate and appropriate care.
  • Have a policy in place that deals with the use of restrictive measures. Ensure that the policy respects residents' fundamental rights and is in line with the Constitution, the European Convention on Human Rights, any sector-specific legislation and guidelines. Seek legal advice on this, if necessary.
  • Ensure all relevant personnel are trained on the use of restrictive measures and understand the policy and any protocols that may be in place.
  • Ensure there is a legal basis for any restrictive measure that must be imposed particularly if it might amount to detention. Seek an appropriate court order if necessary.
  • Document any restrictions imposed, the reasons for the restriction and the legal basis. Use the least restrictive measure possible and limit any restrictions in time.
  • Regularly review any restrictive practices that are used in your facility and identify whether any improvements can be made and ensure that you comply with both the regulatory and legal requirements.