This week two further judgments were published relating to unauthorised, unlawful, deprivation of liberty. The rulings in C v A Local Authority (2011)
(Re C) and Cheshire West and Chester Council v P (2011)
(Re P) both give extensive consideration to the legal boundaries on the use of restraint, and the relationship of restraint to deprivation of liberty. The ruling in Re C related to an eighteen year old man with learning disabilities and autism in a residential school. The judgment particularly focussed on the school’s use of seclusion as a response to his ‘challenging behaviour’ and his nakedness, as he would often remove his clothing. The ruling in Re P related to a thirty-eight year old man with Down’s syndrome and cerebral palsy, in a small residential care setting 
. The judgment particularly focussed on the use of restraint and restrictive measures to address P’s incontinence, and his dangerous practice of putting pieces of torn up, soiled, incontinence pad in his mouth.
The ruling in Cheshire West and Chester Council v P
 has received a fair amount of attention as local authority employees were implicated in misconduct
through re-writing care records after a hearing to conceal levels of usage of restraint. However, my feeling is that in the longer term the ruling in C v A Local Authority
may have more important consequences, as it sets out high, and far reaching, standards for the lawful use of restraint and seclusion under s6 MCA
. The case was picked up on by the Independent
, who are giving quite extensive coverage to issues relating to deprivation of liberty in care settings. To avoid this post becoming excessively long, I’ve broken it up into three shorter posts. The first post is on how both cases highlight the importance of recognising and acknowledging the use of restraint and seclusion through correct language and procedures. The second post
is on the guidance set out by the Court of Protection in both these cases on the lawful conditions for the use of restrictive measures. If you read only one post, read the second one, as the headline of these cases should be that following the ruling in Re C, good practice guidance on the use of restraint and seclusion – including the Mental Health Act 1983 (MHA) code of practice – may have new legal force behind them in schools and community care settings.
The third and final post
will return to consider the ambiguities and contradictions in the evolving meaning of ‘deprivation of liberty’ in Court of Protection case law.
The dangers of euphemistic language
A common theme across both cases was a failure by care staff, service providers and commissioners of care, to acknowledge that certain acts and practices amounted to restraint or seclusion. “Restraint” tends to be associated with detaining institutions, rather than community based care settings, and yet we know it occurs in both. In 2007 CSCI conducted some qualitative research on restraint in the care of older people (Rights, Risks and Restraint
), and they note a lack of clarity and consensus over the meaning of restraing (section 5.3). Because my research is socio-legal, I tend to think of restraint in terms of the criteria set out in s6(4) Mental capacity Act
, as the use, or threat of use, of force ‘to secure the doing of an act which P resists’ or restricting P’s ‘liberty of movement, whether or not P resists’. The approach taken by CSCI is in many ways broader than this, and may well be preferable. They ask, for instance, whether forms of monitoring (e.g. CCTV, or tagging people), or medications that change people’s behaviour, might also amount to restraint. Certainly I would imagine both of these examples would engage (at least) Article 8 of the European Convention on Human Rights, and it seems to me that with creative use the Court of Protection could expand the meaning of s6 MCA to accommodate these cases – although I’m not aware of it doing so as yet (except under the broader ‘best interests’ remit). In any case though, CSCI give examples of services restricting individual’s liberty of movement, or coercing them into acts which they resist, which are not recognised by staff as restraint. Where restraint is not correctly identified, calling upon providers and commissioners to acknowledge and treat restrictive practices as acts of restraint may elicit as surprised a response as the fabled fish who is asked ‘how’s the water?’
In the case of P, care staff regarded forcible sweeps of P’s mouth (to prevent ingestion or choking upon incontinence pads) as as ‘first aid’ rather than restraint . Consequently such interventions were not well documented, nor did it occur to services that they might stand in need of a policy to ensure practices were always lawful. The statement of H, the Head of Operations in Adult Social Care at Cheshire West and Chester Council, said:
‘…support staff seem to think that physical restraint is somehow “a bad thing” that should be avoided. This in part is due to a confusion of language between the Court and care staff. They perceive physical intervention as an action to prevent someone from hurting themselves or others as part of the wider care and support plan. The Court seems to me to define it more broadly as any hands on care. ‘ 
It’s not especially clear from H’s statement whether he himself recognises that ‘hands on care’ that is restrictive of liberty, that secures the doing of acts that service users resist, are forms of restraint. The care provider’s general ethos that restraint is ‘bad’ seems to have come – intentionally or otherwise – from a perceived policy of ‘no restraint’ by the local authority  (although there appears to have been confusion as to whether the local authority had “a no restraint policy” or simply “no restraint policy” ). Interestingly, in the context of discussing their policy on restraint the local authority referred to a document called ‘Guidance to Staff on Violence in the Work Place’, which discursively situates restraint in the context of a response to violent aggression. In my, admittedly incomprehensive, experience of working in social care, the belief that acts only amount to restraint if they are a response to violent aggression is quite common.
Discussions in Re C surrounded the use of seclusion. The court heard that C was regularly confined to a secured, padded room known as the ‘blue room’. The room was said to have been designed by an autism adviser , and was said to have ‘a calming influence’ on C . Although C would at times enter the blue room of his own accord, staff would prevent him from leaving it if he was aggressive, or undressed . The experts and the court expressed concern that terminology was disguising the true use of the ‘blue room’ for seclusion; the consultant psychiatrist said:
‘The term ‘blue room’ has no meaning or purpose, except that by naming it by its colour rather than purpose, it avoids people having to think about what is its purpose and what regulations govern its use. In this case it disguises the fact that the room is being used for many purposes and to the extent that one of its purposes is a seclusion room that alternative terminology would be contrary to the MHA 1983 Code of Practice paragraph 15:44. The blue room is the management method used to deal with C’s aggression while also being used by C as a safe place: which purposes are arguably ethically incompatible.’ 
The use of the ‘blue room’ will be the subject of future hearings, considering whether it violated C’s Article 3 and 8 rights. The case touches upon fairly harrowing evidence of conditions within it, but does not draw any firm conclusions pending the future hearing. The mother’s evidence was that ‘there is frequently an acrid and pungent smell of faecal matter in the vicinity of the room which is overpowering in the room itself’ and she has ‘seen evidence of him urinating and defecating in the blue room, which does not contain a toilet facility and engaging in distressing behaviours including the smearing and eating of his own faeces’ . The description is reminiscent of concerns raised by the CQC in their most recent State of Care report
that conditions in seclusion rooms in psychiatric wards could violate patients’ dignity and privacy (p23). There is also a suggestion by the experts that the use of seclusion may have caused psychological damage . The local authority deny this .
In their defence, the local authority cited Ofsted reports that stated that the school met the needs of pupils and comments, but that ‘one young person chooses to use a seclusion room excessively’ . The local authority conceded, however, that Ofsted’s discussion of the use of the seclusion room was ‘a mild response to an extraordinary situation and was an analysis lacking in rigour’. There is a stark contrast between the evidence of the mother and the experts on the conditions within the blue room, and the euphemistic language of the local authority as a ‘safe place’ with a ‘calming influence’. It’s interesting to note that Ofsted’s own use of language on this matter has an inherent structural tension: they explicitly described it as a seclusion room, rather than a ‘safe place’, but rather oxymoronically referred to P as ‘choosing’ to use it. The very definition of seclusion is that even if entry into a confined space is by choice, remaining within it is not. The case raises yet further questions as to how attuned regulators within the care sector are to human rights issues.
In both cases the use of restrictive physical practices were obscured by euphemistic language: the ‘blue room’ or ‘first aid’. This in turn meant that in Re P, there was no policy on the use of restraint, nor was it documented properly, nor was there appropriate care planning and risk assessments surrounding its use. In Re C, descriptions of the ‘blue room’ as ‘calming’ and a ‘safe place’ masked its more sinister use for containment and behaviour management in a service that seemed unable to acknowledge or respond to C’s underlying needs. Further hearings will determine whether this violated C’s rights, and had any harmful effects. The issue of using legally correct language around restraint, seclusion and restrictions on liberty is not taken up in court merely for its own sake: concrete practices are embedded within legal discourses, and use of legally correct language will alert people to the legal procedures and safeguards, and good practice guidance, that is required. It is to these I now turn