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9.1.3 Restrictive Practices

SCOPE OF THIS CHAPTER

This procedure aims to ensure a Human Rights perspective is embedded in all contacts with service users. It is intended to inform staff and managers to ensure that any restrictive practices are lawfully and appropriately introduced, consistently recorded and understood by staff and service users and /or their families.

The procedure aims to uphold the rights of all people, including those who may not have capacity to consent to aspects of their care arrangements.

Services should always work closely with the person in planning care. (If there is question about the person’s mental capacity to engage with a decision, then the Mental Capacity Act 2005 must be used to assess capacity to make specific decision and where appropriate make Best Interest decisions).

For training purposes this procedure can be downloaded as a PDF and printed.

AMENDMENT

This chapter was updated in October 2016.


Contents

  1. Definition and Scope
  2. Law
  3. General Principles
  4. Deprivation of Liberty
  5. Process of Decision Making
  6. Safeguards to Prevent Abuse Arising from the Practice
  7. Review of Restrictive Practices
  8. Auditing and Monitoring
  9. Emergency Situations
  10. Staff Support, Training and Awareness
  11. Flow Chart - Process for the Use of a Restrictive Practice or Physical Intervention
  12. Flow Chart - Restrictive Practices/Physical Interventions in Emergency Situations

    Form RP1: Individual Potentially Restrictive Practices Checklist

    Form RP2: Restrictive Practice Guidelines Form

    Form RP2A: Review of Restrictive Practices

    Form RP3: Restrictive Practices/Physical Intervention Service Monitoring Form

    Form CB1: Form for Recording Restrictive Practices/Physical Intervention

    Appendix 1: Summary of the Restrictive Practice Procedure

    Appendix 2: Notes on the Mental Capacity Act

    Appendix 3: Notes on Deprivation of Liberty Safeguards

    Appendix 4: References and Working Group


1. Definition and Scope

Restrictive Practice: Any practice, which could be construed as potentially restricting a person’s rights of choice, self-determination, privacy, freedom or freedom of movement must be considered within this procedure.

This is whether or not the practices are in accordance with, or against, the person’s wishes. This includes anything introduced to prevent harm to a person, other people, or property, or to manage the risk of this, and includes restraint of any kind.

The procedure should be applied whether or not the person has capacity, and whether or not they are in agreement with the procedure. (This differs from many restrictive intervention procedures which usually apply only if acting against the person’s will).

Situations which require the on-going use of a restrictive practice, e.g. the use of locked doors or wheelchair straps, should be given the same full consideration as other restrictive practices.


2. Law

Key legislation is:

  • Mental Capacity Act 2005;
  • Health and Social Care Act 2008;
  • Human Rights Act 1998;
  • Mental Health Act 1983;
  • Deprivation of Liberty Safeguards 2007;
  • The Care Act 2014.


3. General Principles

“The governing principle behind good approaches to choice and risk is that people have the right to live their lives to the full as long as that does not stop others from doing the same. Fear of supporting people to take reasonable risks in their daily lives can prevent them from doing the things that most people take for granted. What needs to be considered is the consequence of an action and the likelihood of any harm from it. By taking account of the benefits in terms of independence, well-being and choice, it should be possible for a person to have a support plan which enables them to manage identified risks and to live their lives in ways which best suit them.”
Independence, choice and risk: a guide to best practice in supported decision making DoH 2007

Applying a robust, person centred procedure for managing restrictive practices is crucial to achieving this balance between supporting people to live their chosen lifestyle and safety whilst maintaining the person’s rights.

3.1 The fine line between abuse and the use of a restrictive practice to manage risk, cannot be under-estimated. There is therefore a need for clear and robust procedures and for close monitoring of those procedures, and the way that they are applied, in order to protect vulnerable people.
3.2 It is vital that there is an honest, open and transparent approach to identify and monitor the use of any potentially restrictive practice.
3.3 Risks must be managed with the least infringement to a person’s rights as possible and any restriction must be for the least possible amount of time.
3.4 The agreed use of a restrictive practice should always be regarded as temporary.
3.5 People using the service, and where appropriate their relative, representative or advocate, must be involved in discussions and decisions about the use of a potentially restrictive practice.
3.6

If there is any exception to these discussions taking place, the reason for this should be proportionate, justified and fully recorded.

The Mental Capacity Act 2005 states that no one can be labelled ‘’unable to make a decision merely as a result of a particular medical condition or diagnosis.

Capacity must be assessed in relation to each decision. Anything done for a person without capacity must be in their ‘best interests’.
3.7 People have the right to lead fulfilling lives, and this will usually involve living with a degree of risk. Imposed restrictions to a person’s freedom or rights may only be agreed when it can be evidenced that the person does not have the mental capacity to make their own decision. The measures taken must be proportionate to the degree of risk, and it must be demonstrated that less intrusive or less restrictive measures cannot be used to achieve the same end.
3.8 People using the service (and their chosen representatives) must be informed about their rights, and of the organisation’s procedure relating to restrictive practices. Information must be given to service users, in an understandable way. If the person using the service (or their carers/representatives) are dissatisfied with the outcome of any decision, this should be reviewed and they must be made aware of the Complaints Procedure, and encouraged to use it.
3.9 Review of any incidents should involve the person.
3.10 The principles of reasonableness, best interests and duty of care should apply when considering the use of a potentially restrictive practice. Any methods used must directly promote the welfare of the person using the service and have regard for the safety and well-being of other individuals.


4. Deprivation of Liberty

4.1 Where people who lack capacity to consent to restrictions or restraints in their care arrangements and these might amount to a Deprivation of Liberty, they need to be independently assessed and authorised either through the Deprivation of Liberty Safeguards procedures (registered care homes and hospitals), or through an application to the Court of Protection (Supported living and other domestic settings). Prior to requesting an authorisation under the safeguards as with other restrictive practices, it will need to be demonstrated that care is being provided in the least restrictive manner possible and that all other ways of providing care have been exhausted.
4.2

There will be a Deprivation of Liberty if a person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements. If a deprivation of liberty is necessary, it can only be authorised by a procedure set out in law, which enables the lawfulness of that deprivation of liberty to be reviewed.

For more information about DoLS see Care Quality Commission (CQC) briefing Weblink.

See the full Deprivation of Liberty Code of Practice.

See also Appendix 3: Notes on Deprivation of Liberty Safeguards.


5. Process of Decision Making

5.1 Everyone using the service must have an up to date Risk Assessment which must involve the person.
5.2 If a potentially restrictive practice is identified through the risk assessment process, or at any other point, there must be a restrictive practice discussion.
5.3 Examine the risks, what has been tried previously to manage these, and the consequences of the likely impact of proposals on everyone involved. The consequences of undertaking a restrictive practice versus not doing so must be fully considered. The proposed practice to manage the risk must be proportional to the likelihood and seriousness of harm.
5.4

Gain the service user’s views. Agreement from the person concerned should always be sought as to the best way to manage the risk. The person must be involved with discussions about a potentially restrictive practice from the start. If the person lacks capacity to consent to the practice, they must still be involved as fully as possible in the discussions and decision making process as whilst they make lack capacity to consent to the practice their wishes and feelings must be taken into account.

The person’s chosen relatives/carers/representative/advocate should also be involved, unless the person concerned opposes this. If any of this is not appropriate/possible, the reasons why must be fully documented and be justifiable under scrutiny.

(The person’s chosen representative does not have legal right to make health and welfare decisions unless they hold Lasting Power of Attorney and they have been given the authority to make the decision(s) concerned. However, it is good practice for them to be consulted and for their views to be taken into account, especially if the person lacks capacity to make the decision).
5.5

When gaining the views of the service user it should be remembered that different communication abilities and communication preferences should be taken into account. Complex verbal speech may well not be the best way to either give the information about the proposed practice, or the best way for the person to be expected to communicate their point of view and level of understanding.

The communication mode should be adapted as appropriate, e.g. consider the use of British Sign Language (BSL) or Makaton, Symbols, pictures, objects of reference, booklets, the use of simplified language or key words. The person’s facial expression, body language and behaviour in given situations may also give strong clues as to the persons wishes. Gathering information by proxy – asking those who know the person best will also very likely be beneficial. Consider the person’s present wishes as well as those in the past if known. Specialist disciplines such as Speech & Language Therapists may be able to support this process.

The person’s individual communication needs should be fully documented in their care plan.

Any staff involved in discussions about the potentially restrictive practice should have had regular contact with the person using the service (i.e. they should be known to them).
5.6 There must be documented consideration to capacity, consent and best interests.
5.7 Expert multi-disciplinary advice and agreement should be sought as appropriate, to ensure the principles of the least restrictive practice are followed, e.g. an OT may be aware of specialist equipment that gives the greatest freedoms to the person using the service. The least restrictive intervention should be applied to reduce risks.
5.8 From April 2015 (in line with the Care Act 2014 Care and Support Statutory Guidance) planned restrictions, for people who are assessed as not having capacity to consent to those restrictions, must be documented, reported and agreed by a social worker. (N.B. The definition of a social worker is a title protected in law. I.e. they should not be confused with a different social care professional)
5.9 Restrictive practices may only be used in the circumstances for which they are agreed. This must be clearly spelt out to prevent mis-use or over use of the restriction.
5.10 Where it is difficult to reach agreement and the issues have been fully discussed within a multi-disciplinary context, a senior manager may agree the need for legal advice. The review/meeting must be written up, and signed by all those involved. (A review form is provided in the Appendix, which can be used for this).
5.11 There must be a review date, identified at the point of agreeing the practice, to ensure that the practice is temporary and will be properly re-examined. (The review dates must never be beyond a year away)
5.12 A potentially restrictive practice that is put in place for one service user should not affect the rights of others, e.g. if access to the kitchen has to be limited for one person, it should be demonstrated how other people can have access to it. There are potentially three groups of people who may be at risk when a potentially restrictive practice is being considered for a person using a care service. These are the person using the service, staff who could be involved with the intervention, and others in the vicinity including others using the service, visitors, staff and members of the public. The need to protect and uphold the rights of all these people must be considered.
5.13 The completed Guidelines for Agreed Restrictive Practice must be signed by everyone who has contributed to the decision making processes e.g. the service user, and/or their representative, the key worker, the manager of the service and multi- disciplinary professionals. (Form RP2: Restrictive Practice Guidelines Form can be used to record this).
5.14 Where the service user does not have capacity to consent to the practice, or is resistant to the practice being used, this must be fully documented. In this instance agreement via the Best Interests Decision making process to implement the practice should be agreed, and monitored by a senior manager – ideally a manager external to the immediate service, as well as any registered manager.
5.15 When the service user is in agreement with the practice the manager of the service should still agree to the restrictive practice, (e.g. Registered Manager in CQC registered services).


6. Safeguards to Prevent Abuse Arising from the Practice

6.1 The Guidelines for any agreed Restrictive Practice needs to give clear instructions for staff. Guidelines must clearly specify the occasions where it may/may not be used and how to prevent it negatively affecting the rights of others. (Form RP2: Restrictive Practice Guidelines Form can be used to record this).
6.2 If there are any changes to the person’s relevant circumstances, any concerns or any instances of the restrictive practice being ineffective, then this should trigger an early review of the practice.
6.3 From April 2015, in accordance with the Care Act, planned restrictions, for people who are assessed as not having capacity to consent to those restrictions, must be documented, reported and agreed by a social worker. Service commissioners must be informed about restrictive interventions used for those for whom they have responsibility.
6.4 Staff must be familiar with this policy and act in accordance with it. They should have an understanding of how misuse of restrictive practices can result in abuse of vulnerable adults, and be aware of their responsibilities.


7. Review of Restrictive Practices

7.1 As said earlier in this procedure, the agreed use of a restrictive practice should always be regarded as temporary, and should have a review date specific to that practice.
7.2 The review date must be planned at the time of agreeing the potentially restrictive practice. It must be proportionate to the practice and never more than a year in the future.
7.3 The person using the service, their family and advocates as appropriate should be involved with the review. Multi-agency input should be fully considered.
7.4

Whether the restrictive practice should continue to be agreed must be explored, i.e.:

  • Does the risk continue to exist?
  • Are the measures put in place effective to manage this risk?
  • Are the measures still the least restrictive way to manage the risk?
  • What is the impact on the persons’ quality of life?
  • What is the persons view?
  • Are the measures justifiable, reasonable and in the persons best interests?
  • Do the measures result in a potential deprivation of Liberty?
  • Is the balance between maximising choice & wishes and managing risks justifiable?
  • Adequacy of the safeguards to prevent abuse of the practice must be discussed again.

The review Form RP2A: Form may be used for the recording of the review.

7.5 The process should be fully recorded and signed by all those involved with the review. The person’s support/care plan should be amended and updated as necessary. All staff involved with providing the service must be made aware of any changes.


8. Auditing and Monitoring

8.1 Any restrictive practice must be monitored to ensure procedures are correctly implemented, and that all principles are adhered to in guiding decisions and practice.
8.2 All restrictive practices, in each service, must be openly and clearly listed and be made available for monitoring and auditing.
8.3 A senior manager (ideally external to the service) should audit restrictive practices a minimum of every 6 months. Owners and board level members of the organisation should be made aware of restrictive practices used in their services.
8.4 Restrictive practices in each service should be monitored by the manager of the service 3 monthly and ideally a manager outside the service 6 monthly. Form RP3: Restrictive Practices/Physical Intervention Service Monitoring Form may be used for this.
8.5 There is non statutory best practice guidance from the Department of Health outlined in ‘Proactive and Proactive Care: Reducing the need for restrictive Interventions 2014’. This guidance says that services should publish a public, annually updated, accessible report on the use of restrictive interventions which outlines the training strategy, techniques used (how often) and reasons why, whether any significant injuries resulted, and details of ongoing strategies for bringing about reductions. Services should comply with this guidance.
8.6 Information on the use of restrictive practices must be available to Inspectors and auditors of the service.
8.7

Auditing and monitoring must include checking to ensure:

  • The decision making process is evidenced, and demonstrates that the least restrictive intervention has been sought to manage the risk i.e. that this procedure is being followed in practice;
  • The service user and/or their representative have been genuinely involved with the process;
  • Review dates are followed, with the person and appropriate others involved.
8.8 Restrictive Practices should be discussed in supervisions and team meetings as appropriate, to check if they are still needed/ proportionate/or if there are any issues with them or they need to change.
8.9 The service user should be involved in reviewing any incidents and in debriefing if possible. Their family/ representative should be kept informed and involved as appropriate.
8.10 Planned, but reactive, restrictive practices should also be appropriately recorded incident forms which allow them to be collated and reviewed for patterns or further preventive action. E.g. when restrictions are applied to support the person during challenging behaviours. A CB1 incident form can be used for this. They should reviewed by the manager of the service or above.
8.11 An Incident Form may also be used if current guidelines are proving ineffective, and this should prompt an early review of the practice. Incident or challenging behaviour forms should be collated and reviewed for patterns to inform the restrictive practice review.


9. Emergency Situations

9.1 Individual staff should not apply/introduce potentially restrictive practices outside of these procedures, except in emergency situations or unforeseen circumstances.
9.2 An emergency situation is an occasion where there is an unforeseen, immediate possibility of harm occurring to a service user, others or property as a result of anticipated service user actions.
9.3 In the event of an emergency situation, the least restrictive intervention to prevent harm should always guide the action taken. Action taken must be reasonable to fulfil duty of care and proportional to the risk to the person and/or others.
9.4 Senior managers should be notified of the incident. Consideration should be given as to whether the CQC (Care Quality Commission) or a social worker should be notified of the incident. The appropriate incident or notification forms should be completed.
9.5 Restrictive practices should also be appropriately recorded on incident forms which allow them to be collated and reviewed for patterns or further preventive action. A CB1 incident form can be used for this.
9.6 Incidents which involve emergency restrictive practices should be reviewed by the manager of the service level or above within 48 hours.
9.7

The review meeting should involve the manager, the service user, those involved with the emergency situation, and the service user's representative as appropriate. The review discussion and outcomes must be recorded.

Also see Potentially Restrictive Practices/Physical Interventions Emergency Flowchart.


10. Staff Support, Training and Awareness

10.1 Good communication between everyone involved with potentially restrictive practices is vital to secure a consistent approach, and the development of good practice. There needs to be an open culture of reflecting, questioning and examining practice to ensure that everyone is working within procedures, and that service users’ rights to freedom and choice are maintained.
10.2 The management of the service has the responsibility for setting the culture by establishing clear principles and identifying good practice.
10.3 Managers should be aware of the likely need of staff for additional support e.g. debriefing, group discussion, supervision and possibly counselling where potentially restrictive practices have been used.
10.4 In order to create a culture that works well to minimise the use of restrictive practices staff need the right knowledge, skills and attitudes. The culture should place human rights at the heart of good practice.
10.5 Managers should ensure that staff are supported to understand and implement this procedure.
10.6 The Skills for Care document ‘A Positive and Proactive Workforce’ (2014) is particularly helpful in relation to staff development in respect of restrictive practices.
10.7

Training relevant to peoples’ development needs around restrictive practice will vary according to the type of service and role of the member of staff. This may include, but is not limited to:

  • Safeguarding Adults;
  • Mental Capacity Act;
  • Deprivation of Liberty Safeguards;
  • Restrictive Practices;
  • Managing Risks;
  • Mental Health Act;
  • Positive Behaviour Support.
10.8

Staff should be able to:

  • Understand and implement the principles of always working towards reducing restrictions;
  • Recognise when practices may be potentially abusive;
  • Understand and implement the principles of the Mental Capacity Act (2005);
  • Understand the authority(legal) under which decisions have been made i.e. with the person’s consent or in the person’s best interests (MCA 2005);
  • Use risk assessment processes to manage risks with the least restrictive practice;
  • Follow agreements in risk assessments and care plans;
  • Recognise when a person is being deprived of their liberty, and needs a DOLS referral.
10.9 Value based recruitment, induction, training, supervisions, debriefing, reviews and staff meetings, attending best practice forums, seeking advice of experts are all examples of methods where staff learning and development relating to restrictive practices can be supported.
10.10 Staff and their managers should be aware of the training requirements as set by their sector skills council. For front line social care workers this is Skills for Care.
10.11 There is an expectation that managers, senior managers and senior/‘Board level’ managers are aware of how staff development needs are met, and the content of any training.
10.12

Different professional groups may have codes of practice that they should abide by:

  • Codes of practice for social care workers;
  • Codes of practice for employers of social care workers;
  • The Code: Standards of Conduct, Performance and Ethics for Nurses and Midwives;
  • The Code of Ethics and Professional Standards for Occupational Therapists;
  • The HCPC Standards of Conduct, Performance and Ethics.
10.13

Good practice in staff induction includes exploring and developing a member of staff’s understanding of their role and duties under their code of practice and also relevant policy and procedures, including this procedure.

10.14

Staff should take responsibility for their own practice and development and should be supported in this through regular supervision and performance reviews. There are tools that may be of help in appraising and developing capabilities such as:

  • Mental Capacity Act Capability Framework;
  • Safeguarding Adults Capability Framework;
  • Professional Capabilities Framework for Social Workers.


11. The Process for the use of a Restrictive Practice or Physical Intervention

Click here to view process flowchart.


12. Potentially Restrictive Practices/Physical Interventions Emergency Flowchart

Click here to view emergency flowchart.


Form RP1: Individual Potentially Restrictive Practices Checklist

Click here to view form RP1.


Form RP2: Restrictive Practice Guidelines Form

Click here to view form RP2.


Form RP2A: Review of Restrictive Practices

Click here to view form RP2A.


Form RP3: Restrictive Practices/Physical Intervention Service Monitoring Form

Click here to view form RP3.


Form CB1: Form for Recording Restrictive Practices/Physical Intervention

Click here to view form CB1.


Appendix 1: Summary of the Restrictive Practice Procedure

People have the right to lead fulfilling lives, and this will usually involve living with a degree of risk. Imposed restrictions to a person’s freedom or rights may only be agreed when it can be evidenced that the person does not have the mental capacity to make their own decision. The measures taken must be proportionate to the degree of risk, and it must be demonstrated that less intrusive or restrictive measures cannot be used to achieve the same end.

A potentially restrictive practice that is put in place for one service user should not affect the rights of others.

Ensure people using the service & their chosen representatives are given information about their rights in relation to restrictive practices, in an accessible format

Use the procedure to help you stop and think through any potentially restrictive practice with appropriate other people.

The forms will help you evidence that you have gone through the correct processes.

Basic Principles

  • Involve Service User, relatives/ representatives as appropriate.
    Evidence their involvement;
  • Consider & document Mental Capacity where relevant.
    Identify whether the service user may lack capacity to consent to use of the restrictive practice and assess/make Best Interest Decision in accordance with the Mental Capacity Act;
  • Have clear Guidelines to safeguard against mis-use or overuse of the practice;
  • Make sure agreed permitted restrictive practices are included in care plan information;
  • Get the right level of management sign off – at least the manager for the service and external manager, especially if contentious. Consider whether DOLS application is needed;
  • Make sure the restrictive practices used in the service are regularly audited - at least 3 monthly, and that board level members of the organisation are aware of them;
  • Make sure each restrictive practice is reviewed at the agreed interval which must never be longer than a year.

The process leading to the decisions must be evidenced and all information must `be kept together in the service user’s file. The index at the front of a person’s file should have a heading for potentially restrictive practices which indicates exactly where information on restrictive practices are kept, in order that the information is easily accessible for reference by staff and auditors.

The person using the service and/or their representative should have access/copies of the completed The Guidelines for Agreed Restrictive Practice (Form RP2: Restrictive Practice Guidelines Form).

Documentation you can use

  • Form RP1: Individual Potentially Restrictive Practices Checklist to show the total restrictive practices in place for each person;
  • RP2 forms should be used to evidence the risk that the practice is designed to manage, the decision making procedure, who was involved and explanation of why this is the least restriction;
  • CB1 form may be used each time a reactive restrictive practice is used (the CB1 forms can be analysed to assist review of the practice;
  • Review form RP2A;
  • RP3 form to show Audit and Monitoring of restrictive practices.


Appendix 2: Notes on the Mental Capacity Act

The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions.  It clarifies who can take decisions, in which situations, and how they should go about this.  It enables people to plan ahead for a time when they may lose capacity. 

The whole Act is underpinned by a set of five key principles:

5 Key Principles

  1. Presumption of Capacity. Every adult has the right to make his or her own decisions and must be assumed to have capacity unless it is proved otherwise;
  2. The right for individuals to be supported to make their own decisions. People must be given all relevant information and appropriate support before anyone concludes that they cannot make their own decisions;
  3. The right for individuals to make what might be seen as eccentric or unwise decisions;
  4. Best interest. Anything done for or behalf of people without capacity must be in their best interests;
  5. Least restrictive intervention. Anything done for or on behalf of people without capacity should be in the least restrictive of their rights or freedoms.

Assessing capacity. No one can be labelled ‘incapable’ as a result of a particular medical condition or diagnosis. Capacity is assessed in relation to each decision at the time it needs to be made.

Mental Capacity Act 2005 Decision making Ability and Best Interests

Ability to make decisions

A person is unable to make a decision if (s)he is unable:

  1. To understand the information relevant to the decision;
  2. To retain the information;
  3. To use or weigh that information as part of the process of making the decision; or
  4. To communicate his/her decision (whether by talking, using sign language or any other means).

An Independent Mental Capacity Advocate (IMCA) is someone appointed to support a person who lacks capacity to make particular decisions in relation to changes of accommodation, serious medical treatments, but has no one to speak up for them, and protective measures (safeguarding).

Best interests

The Act provides a checklist of factors that decision makers must work through in deciding what is in the best interest of the person. Carers and family members have a right to be consulted.

The mental capacity act provides a checklist for decision makers to work through when determining the best interests of a person who lacks capacity.

The decision maker must consider the Statutory Best Interests check list:

  • Whether the person is likely to regain capacity in relation to the matter in hand and the decision can wait until then;
  • The decision maker must permit and encourage the person to participate in the decision making;
  • The person’s past and present wishes and feelings;
  • The belief and values that would be likely to influence the person’s decision if they had capacity;
  • The other factors that the person would be likely to consider if they had capacity.

The decision maker must take into account and consult with the views of:

  • Anyone named by the person as someone to be consulted on the matter or matters of that kind;
  • Anyone engaged in caring for the person or interested in the person’s welfare;
  • An Independent Mental Capacity Act Advocate if statutory criteria met;
  • Any donee of a lasting power of attorney;
  • Any court appointed deputy.

See Mental Capacity Act 2005 - Summary.


Appendix 3: Notes on Deprivation of Liberty Safeguards

Restraint and Deprivation of Liberty

Restraint can only be used if the person restraining believes it is necessary to prevent harm, and if the restraint is proportional to the likelihood and seriousness of harm.

The Supreme Court has now confirmed that to determine whether a person is objectively Deprived of their Liberty the key questions to ask, described as the ‘acid test’ are:

  • Is the person free to leave? (The person may not be saying this or acting on it but the issue is about how staff would react if the person did try to leave even if they are physically incapable of doing so);
  • Is the person subject to continuous supervision and control?

(N.B. There can be a broad interpretation of the word ‘supervision’).

All 3 factors must apply.

The following are no longer relevant to determining deprivation, but may be relevant as to whether the deprivation is in the person’s best Interests.

  • The person’s compliance or lack of objection;
  • The relative normality of the placement; and
  • The reason or purpose behind a particular placement.

Registered care homes and hospitals act as ‘Managing Authorities’ and have the responsibility to identify people within their care whom they feel may come within the scope of the Deprivation of Liberty Safeguards. Prior to issuing an Urgent Authorisation or requesting a Standard Authorisation, Managing Authorities must consider all the factors of the case, and ensure that deprivation of liberty is a last resort and that all alternative, less restrictive options have been exhausted.

Managing Authorities must be mindful of the cumulative effect and degree of any restrictive practices being proposed. If the Managing Authority feels the restrictive practices amount to a deprivation of the relevant person’s liberty then a request for a DoLS assessment must be considered.

This is only applicable if the Managing Authority has also assessed / established that the person is lacking capacity to make decisions about the proposed care or treatment.

The safeguards have created the new roles of Managing Authorities and Supervisory Bodies. References in this policy to Supervisory Body will refer to Brighton & Hove City Council.

A person may also be ‘deprived of their Liberty’ in domestic settings such as supported living, shared lives, or their own homes. In these situations, the DoLS safeguards do not apply, and the deprivation can only be authorised through an application to the Court of Protection.

In Brighton & Hove there is a single point of contact for all DoLS enquiries and requests for authorisations whether the relevant person is accommodated in a care home or hospital. The contact details for this referral route are:

Access Point,
3rd Floor,
Bartholomew House,
Bartholomew Square,
Brighton,
BN1 1JE.
Tel: 01273 295 555
Fax: 01273 296372
E-mail: Dols@brighton-hove.gov.uk.

This referral route will be available between 9-5 on Monday to Friday. DoLS enquiries and referrals will be passed to a Best Interest Assessor for a decision regarding the most appropriate course of action.

If the request for a Standard Authorisation is appropriate a Best Interests Assessor will be allocated to carry out an assessment under the Deprivation of Liberty Safeguards. The assessment will include consultation with the Managing Authority and other parties as appropriate.

Managing Authorities should expect to be asked (and be able to evidence):

Expect to be asked:

  • How you’ve tried Involved the Service User, relatives/ representatives as appropriate and how capacity has been tested? How do you know what is important to the person in their chosen lifestyle and how has this been taken into account?
  • How you’ve gone about Risk Assessing together with involvement from the right people and experts? What are the risks you are trying to manage, what has happened previously because of the risks?
    What other ways have been considered to manage the risk?
  • What alternatives to deprivation of liberty have been considered;
    Who was involved in the discussion/ gave advice as to how to manage it?
    How you ensure the restrictions on liberty are the least restrictive for the minimum amount of time of time?
  • What guidelines you have to safeguard against mis – use of the restrictive practice, and when will it be reviewed?
  • Has it had an appropriate level of sign off? – who has been involved and agreed with the decision as to how to manage the risk to date?

The Managing Authority should use the prescribed forms. They can also be requested from the Access Point – details above.

The Managing Authority must tell the Relevant Person’s friends, family, carers or Independent Mental Capacity Advocate if they are making a request for a DoLS authorisation.

Managing Authorities should ensure they send the forms to the responsible Supervisory Body where the Relevant Person is ordinary resident. If the Managing Authority is unsure as to the Relevant Person’s ordinary residence then they should send the forms to their local Supervisory Body.

Click here to view Deprivation of Liberty Safeguards Applications - Simplified flow chart for residential care home providers (managing authorities) as a continuation of risk assessment and restrictive practice.

For more information about DoLS, see Care Quality Commission (CQC) briefing Weblink.

See The full Deprivation of Liberty Code of Practice.


Appendix 4: References and Working Group

(Many of these documents are available on the Adult Social Care Policy and Procedure Link).

  • DH Positive and Proactive Care: Reducing the need for restrictive Interventions 2014;
  • Independence Choice and Risk DH 2007 a Guide to Best Practice in Decision Making;
  • Rights, Risks and Restraint, CSCI 2007, An exploration into the use of restraint in the care of older people;
  • SCIE Oct 2014 The Mental Capacity Act and Care Planning;
  • DH/Skills for Care 2014 A Positive and Proactive Workforce;
  • Nothing Ventured, Nothing Gained Risk Guidance for people with Dementia DH 2010;
  • DOLS – Putting them into practice SCIE 2014 report 66;
  • Winterbourne View Concordat A plan of Action, DH Dec 2012;
  • SCIE Care Planning and the MCA 2014.

Law and Governmental Guidance

Associated Documents

  • East Sussex, Brighton and Hove Adult Protection Multi-agency Management Group Policy and Procedures for the Protection of Vulnerable Adults;
  • Department of Health Physical Intervention Guidelines for Learning Disability Services;
  • Complaints Procedure.

Associated Forms

  • Incident Report Forms;
  • Adult Protection Alert.

Documents Associated with Procedure for the use of Potentially Restrictive Practices

Working Group

(Original Working Group 2006: chaired by Sara Fulford Care Standards Officer, Revised 2009 Sara Fulford and John Child).

Revised Dec 2014: Sara Fulford (Care Standards Officer) with working group : Edwina Sabine B&HCC MCA advisor; Julian Seaborne, OM for quality assurance B&HCC services, Sarah Lines OM Wayfield Avenue; Tracy Mair SIM B&HCC LD Services; Lou Aish, SIM B&HCC; Diane Skudder – Behaviour Support Team; Tim Wilson; Workforce development Manager; Ann Lee, Regent House; M. Sadek, Westwood Care Home; D O’Donnell, Hereford House; Janet Chapman, Victoria Nursing Homes.

End