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Legal requirements around restrictive practice

This page is designed to answer the following questions:

NOTE: Although this page has been marked as complete, it has not yet been peer-reviewed or quality-assured, therefore it should be considered a ‘first draft’ and any information should be fact-checked independently.

For this assessment criterion, you will be required to reflect on your understanding and application of the legal requirements and implications relating to restrictive practice in your setting. You should also be able to demonstrate that you are familiar with recent case law and codes of practice.

Liberty Protection Safeguards/Deprivation of Liberty

Deprivation of Liberty Safeguards (DoLS) will be replaced with Liberty Protection Safeguards (LPS) in April 2022. They are a set of procedures under the Mental Health Act 2015 that allow healthcare professionals to take away an individual’s freedom or liberty when they do not have the mental capacity to agree to it and it is in their best interests. This could be, for example, locking doors so that an individual is unable to leave their residence on their own.

For a healthcare professional to deprive an individual of their liberty lawfully, they must apply to the local authority (known as a standard authorisation). The individual must be assessed to ascertain if a deprivation of liberty is appropriate. This ensures that individuals are protected from having their liberty deprived if there is a less restrictive alternative solution.

Provision for obtaining informed consent

Informed consent must be obtained before restrictive practices may be used. This could be from the individual themselves, their next of kin, their advocate or the local authority/court of protection (in the case of a DoLS/LPS application). All staff that may have to use restrictive practices as part of their work must undergo relevant training.

Assessing mental capacity, including the work of the Independent Mental Capacity Advocates

A clear and evidence-based rationale must be presented to demonstrate that an individual lacks the mental capacity to make a decision. The Mental Capacity Act Code of Practice provides practical guidance for how mental capacity decisions should be made.

For big decisions, an Independent Mental Capacity Advocate (IMCA) must be consulted if the individual does not have anyone else to speak up on their behalf.

Best Interests Assessments

All decisions made on behalf of an individual that lacks the capacity to make decisions for themselves must be made in their best interests.

Best Interests Assessments involve gathering information from several sources and making a decision about if an action (such as a DoLS) is in an individual’s best interests. To understand the process, take a look at Lincolnshire County Council’s Best Interest Checklist.

P v Cheshire West case 2014

P v Cheshire West was a landmark case because it redefined what constitutes a deprivation of liberty, which had a wide-ranging effect across the country. The acid test for a deprivation of liberty was defined as:

  1. Patient or resident lacks the capacity to consent to make a decision to be accommodated in the care settings
  2. They are not free to leave
  3. Staff have complete and effective control over the person

The full advice to providers from Cheshire West following the decision from the Supreme Court can be found here.

Assessment criteria

Learners reflect on their understanding and application of the legal requirements and implications relating to restrictive practice in adult care services and be aware of recent case law and codes of practice, for example:

  • Liberty Protection Safeguards/Deprivation of Liberty
  • Provision for obtaining informed consent
  • Assessing mental capacity, including the work of the Independent Mental Capacity Advocates
  • Best Interests Assessments
  • P v Cheshire West case 2014
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