Why The Term ‘Least Restrictive’ Has Nothing To Do With Physical or Mechanical Restraint
Every now and then I hear someone stating things like “Staff must use the least restrictive method when restraining a patient” etc.
Or “any physical intervention must be the least restrictive option”, or words to that effect.
However, those statements are wrong.
They are wrong because they are being used in the wrong context.
I do understand the principle, ethics and morality argument.
No one wants staff rushing in and immediately resorting to high level techniques where they are not required.
But that isn’t the point I’m raising here.
The point is the term “least restrictive” has nothing to do with a physical or mechanical use of force option.
Let me explain.
Least restrictive is a principle contained in the Mental Capacity Act which states that: “before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”
An important point to note here is that the Mental Capacity Act is not an ‘Act’ that governs the use of force.
Therefore, ‘least restrictive’ isn’t a use of force term and isn’t governed by any of the laws that relate to the use of force, such as: Section 3 (1) Criminal Law Act, Common Law and the Criminal Justice and Immigration Act.
The Mental Capacity Act (MCA) is purely and primarily designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment.
The MCA and Dols (Deprivation of Liberty Safeguards) are designed to decide whether or not a person lacks capacity and (with regards to the restriction of that person’s liberty) whether a person can have their liberty removed for the purposes of detaining them for treatment.
Note the last part of the last sentence – “for the purposes of detaining them for treatment”.
In its correct legal context therefore, the principle of ‘least restrictive’ only applies to the removal of a patient’s liberty for the purpose of treatment based on a decision made about their mental capacity or lack of.
That’s it. Period.
It is not a legal use of force standard when it comes to dealing with anger, aggression and violence.
Therefore, it doesn’t apply to the use of force for physical restraint, self-defence or the use of mechanical restraints.
Looking at this another way let’s say (just for the purpose of illustration) that the application of handcuffs (a use of force option) was considered to be a highly restrictive intervention because of the restriction it imposes on someone.
On that assumption, handcuffing someone therefore, would not (generally speaking) be classed as a ‘least restrictive’ intervention.
But if it was reasonable in the circumstances to apply them, because a greater harm was being prevented, then that highly restrictive use of force intervention would be lawful under Section 3 (1) Criminal Law Act, Common Law and the Criminal Justice and Immigration Act.
And if it was used to prevent a death then that would also be consistent with the positive obligation to preserve life as required by Article 2(1) of the Human Rights Act 1998.
Article 2(1) is an absolute right. That means it cannot be derogated against.
And all public authorities (including NHS trusts) MUST take positive steps to promote and preserve the right to life where a risk to life is known to exist.
Failure to do so is breaking the law.
In the same way, someone could argue that a technique that causes discomfort or pain is not a least restrictive option, but a highly restrictive intervention.
But (again) if it is preventing a greater harm from occurring then it may well be reasonable in the circumstances and (possibly in some circumstances) also be in the best interest of the patient for such a technique to be applied.
And again, if it prevents a death from occurring then it is (again) consistent with the legal obligation owed to all people under Article 2(1) of the Human Rights Act.
The problem is the vernacular used by healthcare staff who do not understand the concept of reasonable force so are layering the words ‘least restrictive’ from the Mental Capacity Act and DOLS that isn’t, in it’s correct legal context, anything to do with the law that relates to the use of force.
Using the term ‘least restrictive’ in a use of force context can cause confusion when it comes to use of force options such as the use of handcuffs, other types of restraint equipment, and more restrictive physical techniques.
This can result in staff believing that they can’t use certain techniques or equipment.
It can also result in staff believing (or acting under management duress) that any force used must be the ‘least restrictive’ as opposed to reasonable.
This is possibly where the incorrect legal term ‘minimum force’ starts to raise it’s head.
But as you’ll know if you’ve been trained by me or have followed me for some time, ‘minimum force’ is also not a legal standard contained in any of the laws that govern the use of force.
It is a social standard.
In fact, it was a police invention, but I don’t have time to cover that in this post.
And if staff believe that they can’t use certain techniques or equipment because they would not be the ‘least restrictive option’ then that could result in staff being taught to use techniques or systems of restraint that do not provide the ability for staff to effectively control a violently aggressive patient/service user.
This can increase the risk of human error or failure, which in turn can lead to an injury or death occurring that could have been prevented had the correct information, instruction and training been given around the correct legal principles.
In short, organisations promoting a ‘least restrictive’ approach may be commissioning training that will fail in certain circumstances.
That creates a liability for the commissioning agency.
And what about a person of influence (trainer, manager, director, inspector, etc) who is advising, instructing or training staff that they must use a ‘least restrictive’ use of force option.
Well, they are giving incorrect and potentially illegal advice.
And if you were to do a root cause analysis you may well find that the information, instruction, training and advice given could be classed as a ‘rule based’ or ‘knowledge based’ mistake under HSG 48 and/or a systematic or causal failing in a ECFA (Effects and Causal Factors Analysis).
And if that ‘rule’ or ‘knowledge’ based failing led led to an injury or death (that wouldn’t have occurred had they been given the right information, instructions, advice or briefing) then that would amount to a breach of the Health & Safety at Work Act, possibly even the Human Rights Act (in the event of a death) and could even lead to a prosecution under the Corporate Manslaughter and Homicide Act.
It could also possibly even be classed as ‘Wilful Neglect’ under Sections 20 to 25 of the Criminal Justice and Courts Act 2015.
There is one way we can all prevent things like this from occurring.
Simply call it what it is.
Restraint is restraint, is restraint.
You can call it whatever you like, but if you use physical force and/or mechanical restraints to restrict someone’s liberty you have restrained them.
You haven’t ‘least restricted’ them.
A good friend of mine Bungy Williams always says: “If it looks like a duck, walks like a duck, quacks like a duck, it’s a duck!”
If you are interested in attending a no BS (but legally accurate) Restraint Trainer Course then check out our BTEC Level 3 Restraint Instructor Award Course here – https://nfps.info/physical-intervention-trainer-course/
Other Related Blog Posts and Videos:
Who Would Be Held Liable For Giving Illegal Information and Training (Video)
Don’t Blame Staff When You Provide Them With a System With Failure Built In (HSG48)
The Implications of Article 2 of the Human Rights Act – https://www.youtube.com/watch?v=20prVGx9VD0&t=95s
How Many Legs Does A Dog Have – https://nfps.info/how-many-legs-does-a-dog-have-video/