Mechanical Restraint in England and Wales

Phil Fennell, Professor of Law, Cardiff Law SchoolIntroduction: Physical, Mechanical and Chemical Restraint in Contemporary British Psychiatry and the Role of Seclusion

Mechanical restraint in England and Wales is seen as a weapon in the ‘armamentarium’ of psychiatry in England and Wales, but is very much seen as a last resort when other expedients have failed. The National Institute of Clinical Excellence, a statutory authority set up to issue guidance on health care interventions issued Clinical Guidance in 2005 on short-term management of disturbed/violent behaviour in in-patient psychiatric settings and emergency departments.1 The Guidance lists a number of potential interventions in ascending level of perceived severity beginning with risk assessment, observation, engagement, and de-escalations strategies which are intended to minimise the need for more coercive interventions. Those coercive interventions are then listed in the following sequence: • Physical control and restraint• Seclusion• Emergency sedation• Mechanical restraint.The NICE Guidance defines mechanical restraint as:2 ‘a method of physical restraint involving the use of authorised equipment applied in a skilled manner by designated health care professionals. Its purpose is to safely immobilise or restrict movement of part/s of the body of the individual concerned.’ The Guidance recognises that mechanical restraint is ‘a sensitive issue’ but nevertheless recognised that ‘such restraints are used in very exceptional circumstances, usually in high secure hospitals.’ The Guidance Development Group therefore felt it necessary to make a recommendation in this area, stressing that mechanical restraints ‘ can only be used in such exceptional circumstances and after a multi-disciplinary review’:3

‘Mechanical restraints are not a first line response or standard means of managing disturbed/violent behaviour in acute mental health care settings. In the event that they are used, it must be a justifiable, reasonable and proportionate response to the risk posed by the service user, and only after multi-disciplinary review has taken place. Legal,

1 http://www.nice.org.uk/CG252 Ibid., p 8.3 Ibid., para 1.8.2.6.1

independent expert medical and ethical advice should be sought and documented.’

The Mental Health Act Commission (MHAC), which was established in 1983 as the statutory body charged with visiting psychiatric hospitals and reviewing the care of detained patients has referred to restraint in its Biennial reports to Parliament. The MHAC has now been abolished and its statutory functions assumed by the Care Quality Commission (CQC) which has the wider remit of visiting and inspecting not only psychiatric hospitals but all hospitals and residential care homes. The CQC’s jurisdiction extends to all patients, and unlike that of the MHAC does not depend on patients being detained under mental health legislation.

In 1987 the MHAC noted with 'surprise and misgivings' that restraint garments were in use at Moss Side High Security Hospital, but did not express a corporate view. Altogether 8 patients were involved over a three month period with a total for all of them of 130-135 periods of restraint per month.4 In 1989 the MHAC reported that they had continued to examine carefully the occasions when such garments were used, and the policy governing their use. The number of patients restrained had reduced over the past two years, but one patient had been under restraint for 2,645 hours over a 12 month period.5 Again in 1991, the MHAC noted that four patients continued to be nursed for substantial periods in restraint garments and were pleased to learn of plans for an intensive therapy unit where these four patients could be cared for less restrictively.6

In 1992 the Blom-Cooper Inquiry into Complaints about Ashworth High Security Hospital made condemned the use of ‘mitten suits’ at Ashworth ‘We do not approve the use of any mechanical restraint – and we doubt in any event whether it would be sanctioned by law.’7 No authority was given for this legal proposition.

References to mechanical restraint in subsequent Biennial reports suggest that it has been little used. In 2007 The Mental Health Act Commission reported that:8

‘we rarely see physical restraints (such as body-belts that restrict the movement of the limbs) today, and only as very last resorts, at least in

4 Mental Health Act Commission, Second Biennial Report 1985-1987, London, HMSO, 1987, p. 63.5 Mental Health Act Commission, Third Biennial Report 1987-1989, London, HMSO, 1989, pp. 39-40.6 Mental Health Act Commission, Fourth Biennial Report 1989-1991, London, HMSO, 1991, p. 25.7 Report of Committee of inquiry into Complaints about Ashworth Hospital Cm 2028-1 1992, pp 196-78 Mental Health Act Commission, 12th Biennial Report 2005-2007: Risks, Rights and Recovery (2007) TSO, p 13 2

the population of patients detained under Mental Health Act powers... But we still have unregulated restraint by human hand.’

Whilst mechanical restraint appears to be little used in psychiatric care, manual restraint is extensively used. In 2004 the National Institute for Mental Health in England (NIHME) made training courses for nursing staff on the prevention and management of violence and aggression (‘Control and Restraint’) mandatory for UK psychiatric service providers.9 The NICE Guidance states that:10

• The level of force must be justifiable, appropriate, reasonable and proportionate to a specific situation and should be applied for the minimum possible amount of time.• Every effort should be made to use skills and techniques which do not involve deliberate application of pain.• The deliberate application of pain has no therapeutic value and could only be justified for the immediate rescue of staff, service users or others. In 2009 D. Stewart, Len Bowers, A Simpson, C Ryan, and Maria Tziggili, carried out a literature review on manual restraint of adult psychiatric in-patients, in which they defined manual restraint as ‘physically holding the patient to prevent or restrict movement.’11 They concluded that ‘given the prevalence of manual restraint use across inpatient psychiatric services the lack of data on this practice is striking.’ Although it was difficult to draw conclusions, the data suggests that on an average 20 bed ward there might be between two and five restraint episodes per month, with forensic services at the higher end of this range. They also found that restraint is not confined to the management of violent incidents, but is used to in response to a range of patient behaviours, including absconding, agitation, and refusal to comply with instructions.12 Manual restraint was often followed by emergency sedation/rapid tranquillization, sometimes by seclusion, and sometimes both. The NICE Guidance recommends three drugs for use in rapid tranquillisation: Haloperidol (an ‘old-style’ anti-psychotic, Lorazepam (a hypnotic), and Olanzapine (a ‘new style’ anti-psychotic).

Although there is now more staff training in manual restraint, and control and restraint have traditionally been seen as less undesirable than 9 National Institute for Mental Health in England (2004). Mental Health Policy Implementation Guide. Developing Positive Practice to Support the Safe and Therapeutic Management of Aggression and Violence in Mental Health In-patient Settings. Department of Health, Leeds.10 NICE Guidance, op. cit. n 1, para. 1.8.2.5. 11 D. Stewart, L Bowers, A Simpson, C Ryan, and Maria Tziggili, Manual Restraint of Adult Psychiatric In-Patients: A Literature ReviewInstitute of Psychiatry London 2009, http://www.iop.kcl.ac.uk/iopweb/blob/downloads/locator/l_436_LitRevManRestr.pdf12 Ibid., p 12.3

mechanical restraint, the practice has caused patient deaths, and is an issue of significant current concern.

In 1998 David (Rocky) Bennett, a 38-year-old Afro-Caribbean man who had suffered from schizophrenia for 18 years, became disturbed and was restrained and held in ‘prone’ (face down) restraint for a prolonged period. He died of asphyxiation. The Health Authority carried out an investigation, which reported in 2003 drawing attention to the dangers of prone restraint and recommending that no-one should be held face down for more than 3 minutes. This recommendation was not accepted by the Government.13

The Mental Health Act Commission (MHAC) noted that in 2005 there had been two further deaths of patients through asphyxiation linked to excessive face-down restraint that may have been avoided had staff ceased prone restraint earlier. In one case Geoffrey Hodgkins, a 37-year-old patient had become very disturbed and was held face down for about 25 to 30 minutes and given an injection of haloperidol and lorazepam. He stopped breathing whilst under this restraint. Attempts were made at resuscitation and he was transferred to the local Accident and Emergency Department by ambulance, arriving just before 9.30 that evening. His family arrived at the hospital in the early hours of the next morning, and at 8.30 a.m. he was declared dead and his life-support machine turned off.14

In their next Biennial Report for 2007-2009 the MHAC referred to two inquests held in 2008 which concerned deaths of detained patients attributable to the use of face-down restraint. Kurt Howard died aged 32 in Cefn Coed Hospital, Swansea, in June 2002. Azrar Ayub died aged 24 in Prestwich Hospital, Manchester, in May 2004.15 Incidents like this have led to calls for a debate about the use of mechanical restraint in psychiatry In 2005 Professor Kevin Gournay an eminent profrssor of nursing argued that whilst ‘Ten years ago the use of mechanical restraint would not have been considered ... the level of violence in mental health care - particularly associated with crack cocaine users - is such that it has to be an option. It cannot be ruled out.’16 Professor Gournay was involved in drafting the NICE guidance and was also an author of guidance on the use of restraint in mental health services for the Nursing and Midwifery Council (NMC). He was quoted as 13 Norfolk, Suffolk and Cambridgeshire Strategic Health Authority (2003) Independent Inquiry into the death of David Bennett. December 2003. http://inquest.gn.apc.org/pdf/rocky_bennett_briefing_0204.pdf14 MHAC (2008), Risk, Rights, Recovery: Twelfth Biennial Report 2005-2007, para 2.128.15 Mental Health Act Commission, (2009) Coercion and Consent 13th Biennial Report 2007-2009 TSO 2009 para 5.21.16 David Batty, ‘Calls to Introduce Mechanical Restraint’ The Guardian Wednesday 2 February 2005.4

saying that ‘some patients had said that they would rather be strapped down than physically restrained by nurses or heavily sedated.’ He also referred to the greater risk of asphyxiation and broken bones associated with the use of physical restraint, particularly when used in tandem with medication. Although there has been a tendency to frown upon the use of mechanical restraint in the management of violence to others, there is evidence that it has been extensively used in the management of self harm in elderly patients and patients with learning disabilities. The 1990 version of the Mental Health Act 1983 Code of Practice made reference to physical restraint of disturbed patients, emphasising that it should be used only as a last resort, and never as a matter of course. The type of restraint envisaged was to be carried out by nurses trained in safe methods of control and restraint, not the use of restraint garments or other devices on a continuing basis. In May 1992, Freda Latham, a learning disabled patient, who was not detained, was strangled by her bib by which she had been left attached to a toilet pipe. The three nurses in whose care she had been were acquitted of ill treatment and wilful neglect and conspiracy to pervert the course of justice in March 1994, and in April 1994 the coroner recorded an open verdict.17 The 1993 version of the Code adds an additional paragraph, clearly a response to this case, emphasising that 'Restraint which involves tying or hooking a patient (whether by means of a tape or by using part of the patient's garments) to some part of a building or to its fixtures or fittings should never be used.'18 This paragraph remains in the current version of the Mental Health Act Code, issued in 2008, which goes on to emphasise that:19

‘Mechanical restraint is not a first-line response or standard means of managing disturbed or violent behaviour in acute mental health settings. Its use should be exceptional. If any forms of mechanical restraint are to be employed a clear policy should be in place governing their use.’

In 2001 the MHAC called for open debate about mechanical restraint. Whilst emphasising that they were not ‘advocating the use of mechanical restraint ... it does seem to us that this difficult area needs to be openly discussed with a view to practice guidelines and statutory regulation if possible. We commend this as an area of study under future monitoring arrangements.’20 In 2003 the MHAC observed that groups who are less likely to have formal detained status (such as the frail elderly and learning disability patients) are the most likely to be subjected to forms of mechanical restraint’.21

17 The Guardian, 26 May 1994.18 Department of Health and the Welsh Office, Mental Health Act Code of Practice London, HMSO, 1993, para. 18.9.19 Department of Health, Mental Health Act 1983 Code of Practice, TSO London 2008, para 15.31. 20 MHAC, Tenth Biennial Report 2001-2003: Placed Amongst Strangers para 11.41.5

They took up the issue again in their 2005 Biennial Report following reports of deaths caused through entanglement in harnesses designed to keep patients in chairs or beds. The MHAC reported that they had discussed with the Department of Health instigating notifications of the use of mechanical restraint to inform future Government actions. However, the discussions had stalled at the point when the MHAC suggested that, to ensure the usefulness of data collected from such notifications, the Secretary of State should exercise powers to extend the MHAC remit beyond detained patients for the purposes of the notification procedure.22

Although the jurisdiction of the MHAC did not extend to patients who were not detained under the Mental Health Act, the Healthcare Commission (now also subsumed into the Care Quality Commission, did have jurisdiction over non-detained patients. Two inquiries published by the Healthcare Commission in 2006 and 2007 supported the MHAC’s concerns. In 2006 the Healthcare Commission Joint investigation into the provision of services for people with learning disabilities at Cornwall Partnership NHS Trust found that ‘There was evidence of physical restraint being used illegally and excessive use of pro re nata (PRN) medication to control unacceptable behaviour’23 Moreover, whilst staff were ‘extensively trained in the use of restraint, [they] had little other training. They did not welcome ‘outsiders’, such as psychologists, and used restraint and medication almost exclusively to deal with patients on the ward.’24 In 2007 the Healthcare Commission Investigation into the service for people with learning disabilities provided by Sutton and Merton Primary Care Trust found that there was no system for monitoring the use of restraint, and that one woman had experienced a form of restraint for many years, where a splint on her arm was used to prevent movement in order to stop her putting her hand into her mouth. This had since been gradually reduced to three hours per day. Items such as straps on wheelchairs and splints on limbs were used to restrict movement, and their use was not regularly reviewed to determine whether they were still required.25

In 2008 the British Institute of Learning Disabilities issued guidance on the use of mechanical restraint which provides that:26

21 MHAC (2003) Tenth Biennial Report 2001-2003: Placed Amongst Strangers, para 11.3922 MHAC, Eleventh Biennial Report 2003-2005; In Place of Fear? Para. 4.222.23 Healthcare Commission, Joint investigation into the provision of services for people with learning disabilities at Cornwall Partnership NHS Trust July 2006, p 624 Ibid., p 30.25 Healthcare Commission, Investigation into the service for people with learning disabilities provided by Sutton and Merton Primary Care Trust January 2007, pp 4 and 7.26 British Institute of Learning Disabilities, Use of Mechanical Devices: restrictive physical intervention Principles for Practice Guidance on use of mechanical devices with service users who are presenting with severe self injurious behaviour. (2008).6

As a last resort, the application and use of materials or therapeutic aids such as: belts, helmets, clothing, straps, cuffs, splints, specialised equipment, designed to significantly restrict the free movement of an individual, with the intention of preventing injury; as a result of behaviour that poses significant and proportionate risk to the individual of serious long term harm or immediate injury. The use of the device must be based on the findings of a behavioural risk assessment.

In 2011 the Care Quality Commission produced its first report on monitoring the Mental Health Act 1983, since it took over the jurisdiction of the MHAC, and renewed the call for a policy of notification of all forms of mechanical restraint:27

‘The examples of mechanical restraint encountered by Mental Health Act Commissioners have rarely, if ever, taken place in acute mental health services. They are usually confined to learning disability units, forensic services and services for older people. The idea of requiring notification of all use of mechanical restraint could now be reconsidered, given that the scope of CQC extends across all the services that would need to be included, to obtain a true picture of the use of mechanical restraint. When any form of mechanical restraint is used, it is important that it is supported by a clear policy.’

The picture which emerges is one where mechanical restraint is frowned upon in psychiatry, but, depending on definition, there is evidence that it is widely used in the care of people who lack decision-making capacity and are suffering from mental illnesses of old age or learning disability. Other coercive interventions such as manual restraint, seclusion and rapid tranquillisation are used extensively in British psychiatry, and these raise considerable concern about the protection of the welfare and safety of service users. Seclusion has always played a significant role in the management of disturbed behaviour. Seclusion is defined in the Mental Health Act Code of Practice as Seclusion is the supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others.28 Until 1959 it was subject to regulation by statutory rules. Seclusion continues to occupy a 'twilight zone' between medical treatment and coercion. After the 1959 Act it ceased to be defined and regulated in delegated legislation, but despite its disappearance from the statute book, it continued to be widely practised. In 1974, in A v United Kingdom29, a patient in Broadmoor High Security Hospital complained to the European Commission on Human Rights of an infringement of the prohibition on inhuman or degrading treatment in Article 3 of the European Convention, in that he had been 27 Monitoring the use of the Mental Health Act 1983 in 2009-2010 (2011) pp 72-328 Department of Health, Mental Health Act 1983 Code of Practice, TSO London 2008, para 15.43.29 Application No 6840/74 European Commission of Human Rights Decisions and Reports Vol 10, p. 5, and Vol 20, p 5.7

kept in seclusion for 5 weeks with only limited opportunities for exercise and association. Generally speaking, reatment will be inhuman only if it reaches a level of gravity involving considerable mental or physical suffering, and degrading if the person has undergone humiliation or debasement involving a minimum level of severity.30 However, in Keenan v United Kingdom the European court of Human rights held that in relation to a person with a mental disorder the maintenance of human dignity was of paramount importance and that:31

‘In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 to protection against inhuman or degrading treatment’

In A v United Kingdom the Commission declared the complaint admissible, and visited Broadmoor in 1977. A friendly settlement was reached. The UK Government undertook to introduce a new seclusion policy for the hospital, including an undertaking that seclusion rooms would have not less than 4.7 square metres floor space and would have natural lighting. Patients secluded for longer than three hours would have a programme of care drawn up for them, to be reviewed daily. Patients were to be observed at irregular intervals not exceeding 15 minutes. Written records were to be kept in a special book of the patient's condition. If the patient was secluded for more than 24 hours, the Hospital Management Team should be informed, and if the seclusion lasted for more than 7 days, the hospital managers had to be informed.32

Seclusion is now regulated by the Mental Health Act Code of Practice, which contains detailed recommendations on its use and the content of local policies. It should be used only as a last resort and for the shortest possible time. Seclusion should not be used as a punishment or a threat, or because of a shortage of staff. It should not form part of a treatment programme. Seclusion should never be used solely as a means of managing self-harming behaviour. Where the patient poses a risk of self-harm as well as harm to others, seclusion should be used only when the professionals involved are satisfied that the need to protect other people outweighs any increased risk to the patient’s health or safety and that any such risk can be properly managed.33 The Code specifies that hospitals should have clear written guidelines for the use of seclusion, 'to ensure the safety and well-being of the patient in a dignified and humane environment.'34 Their content is remarkably similar to the guidelines promulgated by the 19th Century Lunacy Commissioners and the 20th

30 Commission v Ireland Judgment of 18 January 1978, Reports of the European Court of Human Rights, Series A Vol 25, Paras. 162, 167 and 179-181.31 Keenan v United Kingdom (2001) ECHR 242.32 A was given an ex gratia payment of £500.33 Department of Health, Mental Health Act 1983 Code of Practice, TSO London 2008, para 15.45.34 Ibid., para 15.47.8

Century Board of Control, declaring seclusion to be a last resort, requiring that the decision be taken by senior staff, and requiring frequent observation. The decision to seclude may be made by a doctor, the nurse in charge of the ward, or another appropriate clinician. The Code also requires that seclusion should be in a suitable environment which provides privacy from other patients, but enables staff to observe the patient at all times, which takes account of the patient’s dignity and well-being, which should be safe and secure where the patient cannot harm him or herself, with adequate furnishings, heating, lighting, and ventilation, be quiet but not soundproofed and should have some means of calling for attention (operation of which should be explained to the patient). Staff may decide what a patient may take into the seclusion room, but the patient should always be clothed.35

In the 1980s and 1990s there were several deaths of patients in seclusion following restraint and emergency sedation. In 1984 Michael Martin having been injected with a ‘Five by Two’ 500 mg of Sodium Amytal (Sodium Amylobarbitone), 200 mg Sparine (Promazine). In 1988 Joe Watts died having been given 200 mg Chlorpromazine (four times BNF recommended 6-8 hourly dose). In 1990 Orville Blackwood two injections - one 150 mg Sparine, and one 150 mg Fluphenazine Decanoate (Modecate). All three patients were of Afro-Caribbean descent, and the inquiries into their deaths raised concerns about racism.

When considering British psychiatry’s contemporary armamentarium and its profound distaste of mechanical restraint, it is important to remember that alternative means of restraint are freely used, and in such use the Gordian knot of discipline, punishment and therapy is just as hard to unravel as it is in relation to mechanical restraint. The key questions are, can such interventions be dispensed with, and if so how? If they cannot be dispensed with how can we ensure that they are not used punitively or in bad faith, so that people are not effectively punished for being ill. In all this it is important to be aware that psychiatry’s armamentarium is socially constructed, and to be cognisant of the processes whereby that construction was effected. The next section of this paper looks at the history of different forms of restraint and their legal regulation in England and Wales.The History of Legal Regulation

This section of the paper examines what might be termed the socio-legal construction of psychiatry’s armamentarium. The birth of modern psychiatry is generally traced to 1792, Pinel’s great unchaining of the lunatics at the Bicetre and William Tuke’s foundation of the Retreat at York based on humane and non-punitive treatment. The conventional account is that approaches whereby people were treated with whips and chains and other punitive methods gave way to recognition that mentally 35 Ibid., paras 15.60-15.61.9

disordered people were ill and deserved to be treated with the kindness and humanity befitting a medical approach. The case of Willaim Norris found incarcerated, where he had been kept for years in a chain and harness restraint device in a basement dungeon at Bethlem was to prove a major inspiration for the process of Lunacy Law reform in the first half of the 19th Century. In 1835 Dr Gardiner Hill at York pioneered non-restraint and in 1839 Dr John Conolly introduced non-restraint at Hanwell and developed it through his own teaching and writing into a comprehensive treatment philosophy of non-restraint which would dominate British psychiatry from the 1840s until the 1880s. Non-restraint became the dominant psychiatric ideology of the 1840s and 1850s because its champions were able to take control of the emergent professional body, the Association of Medical Officers of Asylums and Hospitals for the Insane, and its official organ, the Asylum Journal. At its inaugural meeting in 1841 the Association resolved: 

That without pledging themselves to the opinion that mechanical restraint may not be found occasionally useful in the management of the insane, the members now present have the greatest satisfaction in according their approbation of, and in proposing their thanks to, those gentlemen who are now engaged in endeavouring to abolish its use in all cases.

The basis of Victorian mental health legislation was provided by the Lunacy Act 1845 and the County Asylums Act 1845 which between them set up a system of county asylums and private licensed houses which were inspected by the Lunacy Commission whose task it was to ensure that the insane were humanely treated. One of the prime concerns of the legislation and the Lunacy Commission following the Norris scandal was to regulate the use of mechanical restraint. Asylums and licensed houses were required to keep a register of mechanical restraint. The Lunacy Commission used three methods in their attempts to reduce mechanical restraint in licensed houses -Three methods. First, they recommended that difficult patients be moved to better staffed asylums, Second they insisted on better recording of use of restraint, and third, they ordered the destruction of outmoded methods of coercion. Hervey asserts that in Kent and Surrey by 1860 the Commission had effected the virtual abolition of restraint, except in the severest cases, and in those cases, transfer to larger establishments was often used.36

Whilst the Commission was assiduously striving to eliminate mechanical restraint, in their report for 1843 they noted that those hospitals which professed wholly or partly to have dispensed with restraint, 'employ seclusion or solitary confinement’ While they recognised the potential value of seclusion, they were concerned that it should be a short term expedient, and not a long term means of managing those who were permanently violent and dangerous :37 

36 Hervey The Lunacy Commission 1845-1860 Ph D thesis Bristol, pp 411-41310

Seclusion or solitary confinement is now getting into general use in the treatment of the insane, and great numbers of the proprietors of public and private asylums throughout the country are fitting up and bringing into use solitary cells, and padded rooms for violent and unmanageable lunatics... Seclusion is found to have a very powerful effect on tranquillising and subduing those who are under temporary excitement or paroxysms of violent insanity... As a temporary remedy, for very short periods, in case of paroxysms and of high excitement, we believe seclusion to be a valuable remedy. We are convinced, however, that it should only be permitted for short periods, and that it should not be permitted as a means of managing and treating those persons who are permanently violent and dangerous...

The Commission's recommendation in 1843 that a register of seclusion should be kept as well as the register of mechanical restraint was partly taken up in the Lunatics Act 1845 which introduced a requirement that the names of all patients under seclusion should be recorded in the Medical Visitation Book.38

The Lunatics Act 1853 made this system of regulation by inspection of registers more efficient by requiring the medical officer, on pain of a £20.00 fine, to make a special note in the medical journal of patients under restraint and seclusion, its means and duration, and the reasons for it.39 The Commissioners then inspected the register on their visits. As Tomes observes, 'From the 1840s to the 1880s the non-restraint philosophy was a powerful force shaping English asylum practice’ and the Lunacy Commission represented an important ally, and provider of ammunition via their reports.40 In 1856 John Conolly published his book The Treatment of the Insane without Mechanical Restraint.41 In it he gave various clues that the non-restraint party were not completely averse to corrective treatment when he said that 'A blister behind the nape of the neck, a tepid shower bath, not too violent, sedative medicines, variously prepared food, and very patient persuasion, have certainly often succeeded at Hanwell.' One of the most ardent champions of non-restraint was James Bucknill, editor of the Asylum Journal and Medical Superintendent of Exeter Asylum. Conolly was a frequent contributor to the Journal. The opponents of non-restraint found expression of their views in the Journal of Psychological Medicine, founded and edited by Forbes B. Winslow, a proprietor of a private licensed house, until his death in 1863 when the journal ceased publication. Battle lines were drawn 37  Report of the Metropolitan Commissioners in Lunacy to the Lord Chancellor (1844), pp. 145-6.38 Lunatics Act 1845, s 59.39 The Lunatics Act 1853, s 90.40 Nancy Tomes, 'The great restraint controversy' in W.F. Bynum, R. Porter and M. Shepherd (eds) The Anatomy of Madness: Essays in the History of Psychiatry Vol lll The Asylum and its Psychiatry London, Routledge, 1988, 190-225, at p. 196.41 J. Conolly, The Treatment of the Insane without Mechanical Restraint London, Smith Elder & Co, 1856.

11

along the public/private divide 91 out of 128 private houses employed mechanical restraint. Bucknill was impelled to ‘descend from the editorial chair’ of the Asylum Journal to write an article in its pages denying that seclusion had become the replacement of mechanical restraint. Bucknill asserteded that seclusion was merely 'one of a range of more enlightened treatments' which had replaced it:42

Instead of the periodic bleedings and vomitings that were formerly used, aperients, hypnotics and stimulants are now employed pro re nata [as the circumstances dictate]; and these are pointed at as substitutes for restraint.

In the Lunacy Commission’s 8th Report the Commissioners advocated the disuse of prolonged solitary confinement since ‘Nothing impedes the recovery of a patient so much, or tends to confirm bad habits already contracted, as the abuse of solitary confinement. They went on to say that ‘Seclusion is chiefly used during the acute stage of mania, but also acknowledged that it could be useful ‘in chronic cases for short periods of time as a mode of discipline when a patient has committed some act which he knows to be a breach of good order, or proper subordination.’ So, although the Commission discouraged prolonged seclusion, they accepted it as a form of corrective isolation. In 1858 the Commission issued a circular stating that ‘All seclusion, defined as any amount of compulsory isolation in the day-time, whereby a patient is confined in a room and separated from all associates, was required to be recorded in the Medical Journal. The Commission felt this had produced a beneficial effect in private houses where seclusion had been an ordinary and daily occurrence, because attendants were compelled to bring it to the attention of the medical officer, thereby producing its discontinuation.’ The Visiting Commissioners would note the total amount used in the Visitors' Book. Failure to record was a serious matter, and Commissioners would also inspect the seclusion rooms to ensure that they were suitable. As for restraint, the Commission was prepared to take a hard line in cases involving licensed houses. They would order the removal of patients under restraint to the asylum, and in extreme cases would recommend that the Lord Chancellor revoke the licence. In 1857 they secured the dismissal of the Medical Officer of Haverfordwest County Asylum in Wales, Dr Millard, for refusal to abandon restraint, and for failure to keep proper records of its use in the statutory Medical Journal. They had found one woman restrained in long sleeves made of iron and another in a restraint chair, one of many still in use in the asylum despite repeated recommendations from Commissioners in the past that they should be destroyed.43

42 J. C. Bucknill, On the Employment of Seclusion in the Treatment of the Insane' The Asylum Journal, 1855, vol. 1, pp. 186-189, at p. 187.43 Twelfth Report of the Commissioners in Lunacy to the Lord Chancellor 1858 HC 340, pp. 9-11.12

However, the Commissioners would sometimes be slow to make a decision whether a new intervention fell on one side or the other of the boundary between medical treatment, where they would not intervene, and restraint, where they could. An example was the practice of wet-packing introduced in 1858 by Dr C. Lockhart Robertson, Medical Superintendent of the Sussex Lunatic Asylum, as a treatment for acute mania into English psychiatric practice.44

Wet-packing was initially viewed as medical treatment, but after 1873 was required to be recorded as mechanical restraint after series of patient deaths, much to the chagrin of those who saw it as an effective treatment which should not be stigmatised with the taint of mechanical restraint.

Between 1845-1880 the Lunacy Commission attempted to impose an ethical order on psychiatric treatment, a hierarchy of acceptability from which much modern thinking about what is permissible derives. Although it was not always clear what the concept included, mechanical restraint was frowned upon. Seclusion was allowed but had to be recorded assiduously. The method which the Commission adopted to regulate seclusion, bathing and restraint was to place them under medical control, producing the paradoxical result that whilst intended to limit their use it also legitimised them as medical interventions. Moreover, the boundary between therapy and discipline remained extremely elusive throughout this period, with the Commissioners in favour of the maintenance of good order and ‘subordination’ in asylums.

British doctors of the 19th Century persistently referred to their ‘sheet anchor’ drugs, a reference to the practice of felling a mast to provide an anchor if the ship was in danger of being blown onto the rocks. Until the 1860s the main sheet anchor drug was opium sheet anchor until 1860s, but hemlock, henbane, digitalis, and even cannabis were also used. The difficulty until the invention of the hypodermic syringe in 1854 was of ensuring that the patient took the medicine. By the end of the 1860s the hypodermic injecton of morphine was widely used as a sheet anchor. Also widely used in the 1860s were the bromides and in 1869, again pioneered by Charles Lockhart Robinson came the first British appearance of the hypnotic Chloral Hydrate. Within 18 months 50 million doses had been dispensed in England alone. After 1870 chloral hydrate and bromides became the new sheet anchors, supplemented by another strong sedative, paraldehyde, after 1882.

Ann Digby has shown how, during the 1870s and 1880s, Chloral and Bromides were used on an extensive scale at the York Retreat, which ranked with Hanwell as a symbol of non-restraint and moral management.45 By the late 1870s there was growing concern that restraint by drugs had replaced chains and strait waistcoats. 44 C.L. Robertson, 'On the Sedative Action of the Cold Wet Sheet in the treatment of Recent Mania' (Address to the Brighton and Sussex Medico-Chirurgical Society in April 1861) Asylum Journal of Mental Science, 1861, vol. 7, pp. 265-277.13

In 1879 Conolly's son in law, Henry Maudsley, later the benefactor who founded the Maudsley Hospital, launched an attack on chemical restraint.46 In the same year Dr George Savage, the chief medical officer of Bethlem, and later to be Virginia Woolf’s psychiatrist and the model for Sir William Bradshaw in Mrs Dalloway, published an article in the Journal of Mental Science on the use and abuse of Chloral, alleging it to cause as much insanity as it alleviated and to be a prominent cause of physical ill health, often being used as restraint rather than treatment in violent cases.47

Savage proclaimed that he did not believe ‘that whipping a tired nervous system with strychnine is good, nor deranging an already deranged brain by belladonna, opium, chloral or hyoscyamine will lead to happy results. We may make a desert and call it peace.’48 In 1881 Pritchard Davies, Medical Superintendent of the Kent County Asylum 'Chemical is following mechanical restraint' and was critical of the Commissioners’ role in condoning this :49

The Commissioners ... seldom omit to notice the presence or absence of excitement among the patients in the asylums they visit, and, as it is generally regarded as evidence of skilful treatment to have the wards quiet, any and every means could be adopted to make them so. If this desired result were obtained by means of a strait waistcoat and a gag, or by hitting the patient on the head, public opinion, if not the law, would soon put an end to the practice. But is it more humane to compel the restless and noisy patient to be quiet, by simply crushing them under the stupefying action of drugs?

Poisons such as henbane and powerful laxatives, were both used as a means of disciplining recalcitrant patients, and the debate about the use of hyoscyamine, or extract of henbane, a poisonous alkaloid, proved a good example of the durability of notions of discipline and punishment in relation to chemical restraint which apply equally to physical and mechanical restraint and seclusion. In 188 Robert Cameron wrote an article in the Asylum Journal heaping praise on hyoscyamine, which he said, ‘Judged as a means of restraint', had 'no equal in the pharmacopoeia’ He went on to explain why:50

45 A. Digby, Madness, Morality and Medicine: A Study of the York Retreat 1796-1914 Cambridge University Press, 1985, pp. 127-129.46 W.L. Jones, Ministering to Minds Diseased: A History of Psychiatric Treatment Heinemann, London, 1983, p. 106.47 G.H. Savage, 'Uses and abuses of Chloral Hydrate' J of Mental Science, 1879, vol. 25, pp. 4-8.48 Ibid., p. 8.49 F. Pritchard Davies, 'Chemical Restraint and Alcohol' J of Mental Science, 1881, vol. 26, pp. 526-530 at 529.50 Robert W.D. Cameron, 'Restraint in the Treatment of the Insane' J of Mental Science, 1883, vol. 28, pp. 353-356 and 519-531, at p 353 and 521.14

A general relaxation of the voluntary and involuntary muscular systems with loss of control over the bladder and rectum; paralysis of the legs with staggering gait and ultimate inability to stand; paralysis of the muscles of articulation manifested by increasing difficulty and finally complete loss of the power of speech, the phenomena being not unlike what are seen in some stages of general paralysis. The pupils are widely dilated, the respirations become slower and deeper. There is usually great flushing of the face. The effect on the heart is very much like that produced by digitalis - the pulse beats are reduced in frequency and increased in strength and volume. The subjective symptoms are impairment of vision, a feeling of dryness and suffocation about the throat, confusion of ideas, delirium with hallucinations deepening into stupor and coma.

An editorial by Daniel Hack Tuke in the following edition rebuked Cameron, proclaiming that:51

To punish by drugs is the saddest punishment of all. It is a degradation of medicine, and a double wrong to the patient. A whip scores the skin, and a treadmill tires the limbs; but to poison the brain with hyoscyamine, as a mere punishment, till the lunatic is paralysed and comatose, and can afterward recall the condition only with abject terror, is a cruel injury. Such means might perhaps be justifiable in dealing with an infuriated animal, but to expect a punishment like this to restore reason, self respect, and self control to a human soul is a monstrous and melancholy mistake.’

The Bethlem Restraint Controversy 1888

In 1888 James Bucknill launched an attack in the correspondence columns of the Times on George Savage, the medical director of Bethlem, alleging that he was attempting to revive mechanical restraint, and castigating the Lunacy commission for turning blind eye. Savage admitted that he used ‘soft padded gloves fixed by a screw button at the wrist; strong dresses in which the limbs were free to move, but the hands were enclosed in padded gloves; side arm dresses where the arms of the patient were enclosed in pockets at the side of the dress; the wet pack; and the dry pack. In Bethlem there were no strait waistcoats, handcuffs or 'true instruments of restraint.' No patients were ever kept quiet by drugs and it was 'rare for patients to be held by attendants after the first day or two.' Savage believed that as the profession of alienist could not yet lay claim to any fixed principles, they must be guided chiefly by experience.52

Savage declared that ‘I acknowledge no principle of 'non-restraint', but only the higher one of humanity and humane treatment which, if it means anything, means the use of every method likely to restore health. ... [T]hough the slavery of restraint is over, its service as a handmaiden to 51 J. Mental Science, 1883, vol. 29, pp. 92-97, p 95.52 Annual Report of Bethlem Royal Hospital 1888, pp 38-40.15

the physician will continue to have its place and be better understood. He went on to say that ‘Restraint should be used like any other surgical or medical measure, after careful consideration of the whole consequences, and to the very best judgment of the man who ordered it. On no account should it be allowed to be used but by direct medical order in every case, and on every occasion of use, just as a dangerous medicine is used.’53 The Commission's response to the Lord Chancellor on the Bethlem affair was summarised in their next Annual Report, noting that although restraint was not forbidden, it was discouraged by lunacy statutes, and that both the statutory provisions requiring records to be kept and the actions of the Commission had largely reduced its employment. The Commission now claimed that the general consensus of opinion favoured sparing use of restraint, under proper restrictions and conditions, and that to condemn its use in every case would be adverse to the interests of the insane. Mild forms of mechanical restraint were less objectionable than manual restraint. Section 40 of the Lunacy Act 1890 prohibited mechanical restraint, unless it was in a form approved by the Lunacy Commission and necessary for purposes of surgical or medical treatment, or to prevent the lunatic from injuring himself or others.Section 40(2) required in every case a certificate signed by the medical attendant to be obtained as soon as possible, stating the means of restraint used and the reasons for its imposition. Full records were to be kept, and were to be forwarded to the Commission every quarter. Section 40(4) defined 'mechanical means of bodily restraint' generally to include' all instruments and appliances whereby the movements of the body or of any of the limbs of a lunatic are restrained or impeded.' All such appliances were to be produced for inspection by the Commissioners on their next visit. Whereas for the first 45 years of its existence the Lunacy Commission had been effectively allied to the forces of non-restraint, its uncomfortable task now was to define the methods of mechanical restraint which would be permitted, and to ensure that it was used only for permitted purposes.

Under regulations made in 1895 permissible forms of mechanical restraint were now specifically listed - strait-jackets had to be of a type approved under seal of the Commissioners. A later amendment in 1913 allowed jackets or dresses of some other pattern approved under the seal of the Commissioners, as long as a sample bearing the seal was kept in the institution or workhouse for inspection. The list also included fingerless gloves fastened together at the wrists, baths where the patient was closed in save for an aperture for the head, the wet or dry pack, and sheets or towels when tied to the sides of the bed or other object. The regulation ordered frequent visits by a medical officer and continuous special

53 Ibid., pp 39-40.16

supervision by an attendant, except where gloves were the means of restraint. Under no circumstances were patients to be left unattended.54

Much recorded use of mechanical restraint was for the purpose of force feeding patients, mainly women suffering from depression who were refusing food and fluids. The Lunacy Commission acknowledged that the decision to force feed was a matter of clinical judgment. The pattern of regulation by the Commission is strongly echoed in the modern Mental Health Act Code of Practice, issuing exhortations to use these seclusion and mechanical restraint only as a last resort, and requiring that the reasons be recorded and patients be observed at frequent intervals. The Lunacy Commission then examined these records, and a typical report on a hospital would state that 'mechanical restraint (without specifying what type) was used on so many occasions with so many patients', and a similarly brief account was given of seclusion.

In January 1901 the Commission issued a circular drawing attention to their definition of seclusion as 'the enforced isolation of a patient by day, between the hours of 7 a.m. and 7 p.m. by the closing, by any means whatsoever, of the door of the room in which the patient is.'  Any seclusion was to be authorised by the medical officer and recorded. The patient was to be observed at irregular intervals. Seclusion could be authorised to prevent injury to others or to ensure the patient's safety. It was also permitted for those who were in bed for medical treatment for physical disorder, and, on a voluntary basis for those who wished to have privacy.55

Reliance on placing the instruments of restraint and the prescription of seclusion under the control of doctors as a central plank of the regulatory system, had an important purpose. It was intended to ensure that these interventions were used therapeutically not punitively. It had another important effect. Restraint and seclusion, albeit regulated, came to be perceived as part of the medical repertoire of psychiatry, permissible if authorised and supervised by a doctor, a perception which remains firmly entrenched to the present day. The Lunacy Commission’s functions taken over by the Board of Control in 1913, and these still included visiting and inspecting records of mechanical restraint and seclusion. In 1921 Dr Montague published Experiences of an Asylum Doctor where although he said little about mechanical restraint, he described the over use of seclusion and opposed the over-medication of patients and the punitive use of drugs, particularly purgatives. He described Chloral, Bromide and Croton Oil as still being 'the sheet anchors of all asylum medicinal treatment, and the worst in its effects of the three is possibly Croton Oil.' With Croton, as Lomax put it, 'the bowels are not merely opened, they are scoured out, and not only

54 S R & O 1913 No 712, Board Circular 404, 25 June 1913.55 Fifty-Third Report of the Commissioners in Lunacy, 1899, HC 355, pp. 46-7.

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scoured out but flayed.' It could only be prescribed on a medical order, but Lomax describes how the attendants in the hospital where he worked would recommend a certain number of patients each day for 'crotons', some of whom were genuinely constipated, but many of whom were simply troublesome or refractory.56

The Macmillan Commission, the Royal Commission set up to consider reform of the Lunacy and Mental Deficiency Acts, having heard widespread concernes in evidence about the drug, expressed itself in favour of the careful monitoring of the administration of croton oil. 57In 1930 the Board of Control added it to their circular requesting information from hospitals on the use of sedatives.58 In the 1930s through to the 1950s there was quite extensive use of barbiturate coma therapy (sometimes referred to as m modified narcosis), and insulin coma therapy.

The Mental Health Act 1959 effectively deregulated restraint and seclusion. The Board of Control was abolished and no mention is made of seclusion or restraint in the Mental Health Act 1959. In 1976 the hOuse of Lords held that under the 1959 Act there was an implied power to exercise control and discipline over detained patients.59 Lord Widgery CJ held that:

‘There can, ... be no doubt that the concept of detention and treatment necessarily implies that the staff at the hospital, including the male nurses, can and on occasions must use reasonable force in order to ensure that control is exercised over the patients.’

In addition to this implied statutory power, there is a common law power to use reasonable force to ensure safety of staff and other patients, whether or not patient is detained. In Munjaz v Mersey Care National Health Service Trust and S v Airedale National Health Service Trust [2003] EWCA Civ 1036, Hale LJ as she then was, stated that ‘the common law doctrine of necessity … has two aspects. There is a general power to take such steps as are reasonably necessary and proportionate to protect others from the immediate risk of significant harm. This applies whether or not the patient lacks the capacity to make decisions for himself [or herself]. But where the patient does lack capacity, there is also the power to provide him [or her] with whatever treatment or care is necessary in his [or her] own best interests.’60

56 M. Lomax, The Experiences of an Asylum Doctor, London, George Allen and Unwin, 1921, p. 78. pp. 99-103.57 Report of the Royal Commission on Lunacy and Mental Disorder London, HMSO, 1926, Cmd 2700, para. 21458 Minute Books of the Commissioners in Lunacy, National Archive File MH50/58 1930, Kew59 R v Bracknell Justice, ex p Griffiths [1976] AC 314.60 [2003] EWCA Civ 1036, Hale LJ at para [46].18

It was also thought that there was an implied power under the 1959 Act to give drug treatment without consent to detained patients which was questioned in 1976 by an article by Joe Jacob ‘The Right of the Mental Patient to his Psychosis’61 Jacob argued that no implied power to treat without consent and that clear statutory powers were needed to interfere with fundamental common law right to physical integrity. Anxiety was expressed by nursing staff about the absence of clear statutory authority to give treatment without consent which might in their view leave them open to a battery action. In response to these concerns and to a high number of inquiries into abuses in psychiatric hospitals the Mental Health Act 1983 marked a return to visiting and inspection by Mental Health Act Commission (Now the Care Quality Commission). The Commission was put in charge of administering the new statutory second opinion procedures to apply to drug treatment given without consent (s 58) and ECT (s 58A). The Act also provided that psychosurgery may not be given unless patient certified to be capable and consenting (s 57). As for emergency sedation, drug treatment may be given without consent or compliance with second opinion procedures if immediately necessary to prevent the patient acting dangerously to self or to others (s 62). As under the 1959 Act there is still no express power to restrain or seclude – these interventions are governed by implied power to control and guidance given in the Mental Health Act Code of Practice.62

Under nineteenth-century lunacy legislation, it was simply assumed that because all psychiatric inpatients had been certified, they could be treated for mental disorder without consent. The only areas of ‘treatment’ subject to regulation were seclusion and mechanical restraint, which until 1959 were defined in regulations and were required to be recorded in a register, which would be inspected by members of the Board of Control on their visits to the hospital.63 Under the Mental Health Act 1959, seclusion and restraint ceased to be subject to any legal regulation. Under the 1959 Act, the power to treat without consent, to seclude and to restrain were all

61 39 Modern Law Review 1976 17-4262 In Ireland there is an express statutory provision in relation to restraint and seclusion. Mental Health Act 2001, s 69(1) A person shall not place a patient in seclusion or apply mechanical means of bodily restraint to the patient unless such seclusion or restraint is determined, in accordance with the rules made under subsection (2), to be necessary for the purposes of treatment or to prevent the patient from injuring himself or herself or others and unless the seclusion or restraint complies with such rules.(2) The Commission shall make rules providing for the use of seclusion and mechanical means of bodily restraint on a patient.(3) A person who contravenes this section or a rule made under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.Mechanical means of bodily restraint are defined in Mental Health Commission Rules for Seclusion and Bodily Restraint (para 2.3.1) as “the use of devices or bodily garments for the purpose of preventing or limiting the free movement of a patient’s body”. 63 Mental Deficiency Regulations 1948 (SI 1948 No 1000). 19

treated as implicit in the legislation. When the Mental Health Act 1983 came into force, whereas treatment with drugs or Electro convulsive Therapy was subjected to express statutory regulation, seclusion and restraint were left to be dealt with by soft law in the Code of Practice.

In R (on the application of Munjaz) v Mersey Care NHS Trust; R (on the application of S) v Airedale NHS Trust64 the applicants challenged their seclusion as being in breach of the Mental Health Act Code of Practice. The decisions of the Court of Appeal and the House of Lords establish that legal powers to seclude exist under the 1983 Act (as part of the general power to control detained patients), and outline the impact of Articles 3 and 8 of the European Convention on Human Rights on those powers. The effects had not reached the level of severity necessary to engage Article 3. However, the Court of Appeal held that there was a potential breach of Article 8, under the test in Raininen v Finland,65 where it was held that respect for privacy under Article 8(1) includes the physical and moral integrity of the individual. The European Court of Human Rights held in Raininen’s case that conditions during detention may produce effects on physical or moral integrity which might not reach a level of severity sufficient to breach Article 3, but might nevertheless infringe Article 8.66

The Court of Appeal in Munjaz’s case upheld both challenges to seclusion, holding that European Convention rights obliged it to afford a status and weight to the seclusion Code of Practice consistent with the state’s obligation to avoid ill-treatment of patients detained by or on the authority of the state. Seclusion would infringe Article 8 unless justified under Article 8(2) as strictly necessary for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Since the justifications under the 1983 Act were very broad, the Code of Practice had an important role to play in securing that they had the necessary degree of predictability and transparency to comply with Article 8(2). Moreover, frequent review of the continued need for seclusion was necessary in order to comply with the requirements of Article 13 as specified in Keenan v United Kingdom.67 The Court of Appeal ruling in Munjaz’s case established a lawful basis for seclusion, as part of the implied power to control, and also sought to meet the requirements of Article 13 by affording judicial remedies and requiring the review of seclusion by nursing and medical staff and its immediate termination if no longer necessary.In its 2004 report on Deaths in Custody,68 the Joint Committee on Human Rights supported the recommendation of the Mental Health Act Commission and called for the regulation of seclusion and other forms of 64 R (on the application of Munjaz) v Mersey Care NHS Trust; R (on the application of S) v Airedale NHS Trust [2003] EWCA Civ 1036.65 Raininen v Finland [1997] 26 EHRR 563.66 ibid, at [63]–[64].67 Keenan v United Kingdom (2001) 33 EHRR 38.68 House of Lords, House of Commons, Joint Committee on Human Rights, Third Report of Session 2004–05:Deaths in Custody, HL 15-1/HC 137-1 at [245].20

restraint. The Mental Health Act Commission renewed its call for legal regulation in its 11th Biennial Report ‘not least because of the widespread failure of services to meet the Code’s requirements’.69 The Mental Health Act Commission remained of the view that legal regulation is necessary,

[g]iven that seclusion has potential to infringe Articles 3 and 8 of the ECHR it is essential to meet obligations of Government and Service providers that its implementation is premised upon consistent and predictable standards and that all hospitals employ the same approach.70

It appears that at that time the Government may have been prepared to consider legal regulation, as the Commission stated that ‘[t]he Government has informed us that it intends to pursue the statutory regulation of seclusion through the mechanism of the new Mental Health Bill concerned with medical treatment’.71 The Commission considered that seclusion should not be considered a form of treatment, but should be legally regulated as a management technique.The Government’s willingness to contemplate legal regulation of seclusion seemed to evaporate after the House of Lords granted the hospital’s appeal in the Munjaz case.72 The House of Lords held that, assuming Article 8 to be engaged, it was not necessary for seclusion to be regulated by legal rules rather than the ‘soft law’ Code in order to comply with the requirement in Article 8(2) that ‘interferences be in accordance with law’.73 Lord Bingham confirmed the status of the Code as ‘soft law’:

It is plain that the Code does not have the binding effect of statute or a statutory instrument Guidance not instruction. It is guidance which any hospital should consider with great care and from which it should depart only if it has cogent reason for doing so.74

The court held that the hospital had demonstrated a cogent reason (the fact that the hospital was a special hospital with many difficult patients) for having less frequent observations for patients detained for more than seven days. Therefore their policy did not breach Articles 3, 5, or 8 of the European Convention. It is interesting that the Secretary of State intervened on the side of the hospital and against making it difficult to justify departures from her own Code.Lord Bingham considered that whilst it was obvious that seclusion, improperly implemented, could infringe Article 8, seclusion properly implemented and for the shortest period necessary would not. Even if Article 8 were engaged, properly implemented seclusion for the shortest 69 Mental Health Act Commission, 11th Biennial Report 2003–2005: In Place of Fear? (London, TSO, 2006) at [4.237].70 ibid, at [4.238].71 ibid, at [4.240].72 R (on the application of Munjaz) v Mersey Care NHS Trust [2004] 1 WLR 441.73 R (on the application of Munjaz) v Mersey Care NHS Trust [2005] 3 WLR 793, 79974 ibid, 805. 21

periods necessary would find justification in Article 8(2). Lord Bingham went on to say that the requirement in Article 8(2) that interferences with the right to respect for privacy be in accordance with law was ‘intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied’.75 Although compliance with Article 8 could have been achieved by statutory provisions or regulations,

that was not the model Parliament adopted. It preferred to require the Secretary of State to give guidance and (in relation to seclusion) to call on hospitals to have clear written guidelines. Given the broad range of institutions in which patients may be treated for mental disorder … it is readily understandable why a single set of rules, binding on all, was thought to be undesirable and perhaps impracticable.76

This judicial endorsement of the need for flexibility in relation to seclusion clearly had an impact on Government thinking. Although the Joint Committee on Human Rights Report on the Mental Health Bill 200677 recommended that seclusion and restraint be regulated by law rather than the Codes, the Government has chosen the status quo and has avoided subjecting seclusion to direct legal regulation. Instead these practices remain regulated by the Mental Health Act Code of Practice and by the National Institute of Clinical Excellence Guidance on the short-term management of violence.78 Generally speaking, health professionals are expected to take the Guidance fully into account when exercising their clinical judgement, but it is emphasised that the Guidance does not override the individual responsibility of health professionals to make decisions appropriate to the circumstances of the individual patient, in consultation with the patient and/or guardian or carer. However, the Guidance warns in its preface that

[f]ailure to act in accordance with the guideline may not only be a failure to act in accordance with best practice, but in some circumstances may have legal consequences. For example, any intervention required to manage disturbed behaviour must be a reasonable and proportionate response to the risk it seeks to address. The service should ensure access to competent legal advice when required in relation to the management of disturbed/violent behaviour. 79

75 ibid, 809.76 ibid, 809.77 House of Lords, House of Commons Joint Committee on Human Rights, Fourth Report of Session 2006–7: Legislative Scrutiny: Mental Health Bill HL 40/HC 288 (London, TSO, 2007) paras [102]–[106].78 National Institute of Clinical Excellence, Violence: The Short-term Management of Disturbed/Violent Behaviour in In-patient Psychiatric Settings and Emergency Departments CG 25 (London, Royal College of Nursing, 2005). 79 ibid, 10.22

Express legal authority to restrain does exist under section 6 of the Mental Capacity Act 2005. Restraint is defined in section 6(4) as ‘using or threatening to use force to do an act which the person resists.’ This is capable of extending to physical or mechanical restraint. The person carrying out the restraint (‘D’) has a defence to a battery action if D reasonably believes that P lacks capacity, and D reasonably believes that the act is necessary to prevent harm to P and the act is a proportionate response both to the likelihood of P’s suffering harm, and the seriousness of that harm. The case law of the European Court of Human Rights makes it clear that whilst the situation of vulnerability and powerlessness of patients detained in psychiatric hospitals calls for special vigilance on the part of the authorities, it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible. However, such patients nevertheless remain under the protection of article 3. Although the established principles of medicine are in principle decisive in such cases, and as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading, the court must nevertheless satisfy itself that the medical necessity has been convincingly made out.80 In this case Herczegfalvy had been strapped to a bed, forcibly fed, and given large doses of medication but the European Court of Human Rights held that this was therapeutically necessary and accorded with the principles of medicine accepted at the time.Restraint and seclusion might also breach Article 8 of the Convention. Under Article 8 everyone has the right to respect for private life, which includes physical integrity. In Storck v Germany (2005) Ms Storck had been detained in a private hospital. She had refused to take medication, but it had been administered to her by force. She had been given neuroleptics by force and had been handcuffed to beds, chairs and radiators. Claimed breach of her right to physical integrity contrary to Article 8. Any interference with Article 8 rights must be justified under Article 8(2) that is it must be in accordance with the law and necessary in a democratic society (proportionate) in the interests of • national security,• public safety,• Prevention of disorder or crime,• economic well-being of the country,• protection of health or morals, or for• protection of rights or freedoms of others

In Storck the Strasbourg Court held that not only was there a ‘negative’ obligation on the state and its agents not to interfere with Ms Storck’s right to physical integrity the state also had a ‘positive’ obligation to take

80 Herczegfalvy v Austria (Applications 10533/83) (1992) 15 EHRR 437

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positive steps to secure to its citizens their right to physical and moral integrity, and was therefore under a duty to exercise effective supervision and control over private psychiatric institutions. On the basis of this positive obligation it may be argued that the British Government should introduce an obligation to notify the care Quality Commission central authority of any case where mechanical restraint is used, in order to protect Article 8 and Article 3 rights.

In relation to Human rights in Europe it is important to bear in mind the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) ‘The CPT Standards’. These provide as follows:81

47. In any psychiatric establishment, the restraint of agitated and/or violent patients may on occasion be necessary. This is an area of particular concern to the CPT, given the potential for abuse and ill-treatment. The restraint of patients should be the subject of a clearly-defined policy. That policy should make clear that initial attempts to restrain agitated or violent patients should, as far as possible, be non-physical (e.g. verbal instruction) and that where physical restraint is necessary, it should in principle be limited to manual control.

48. Resort to instruments of physical restraint (straps, strait-jackets, etc.) shall only very rarely be justified and must always be either expressly ordered by a doctor or immediately brought to the attention of a doctor with a view to seeking his approval. If, exceptionally, recourse is had to instruments of physical restraint, they should be removed at the earliest opportunity; they should never be applied, or their application prolonged, as a punishment. The CPT has on occasion encountered psychiatric patients to whom instruments of physical restraint have been applied for a period of days; the Committee must emphasise that such a state of affairs cannot have any therapeutic justification and amounts, in its view, to ill-treatment.

49. Reference should also be made in this context to the seclusion (i.e. confinement alone in a room) of violent or otherwise "unmanageable" patients, a procedure which has a long history in psychiatry. There is a clear trend in modern psychiatric practice in favour of avoiding seclusion of patients, and the CPT is pleased to note that it is being phased out in many countries. For so long as seclusion remains in use, it should be the subject of a detailed policy spelling out, in particular: the types of cases in which it may be used; the objectives sought; its duration and the need for regular reviews; the existence of appropriate human contact; the need for staff to be especially attentive. Seclusion should never be used as a punishment.

50. Every instance of the physical restraint of a patient (manual control, use of instruments of physical restraint, seclusion) should be recorded

81 (CPT/Inf/E (2002) 1 - Rev. 2010) http://www.cpt.coe.int.24

in a specific register established for this purpose (as well as in the patient's file). The entry should include the times at which the measure began and ended, the circumstances of the case, the reasons for resorting to the measure, the name of the doctor who ordered or approved it, and an account of any injuries sustained by patients or staff.  This will greatly facilitate both the management of such incidents and the oversight of the extent of their occurrence.

Conclusion In the United Kingdom mechanical restraint is one element in the psychiatric armamentarium, alongside physical restraint, chemical restraint and seclusion. The British preference for physical restraint over mechanical restraint is now being questioned. Whilst there were calls to ban seclusion in the early 1990s, seclusion and physical restraint have increased in the years since in response to concerns to protect the rights of staff and vulnerable service users against violence from fellow service users. It is not certain whether an express legislative regime of powers and safeguards in relation to restraint is likely to be introduced in Britain, but there is a strong case for a notification requirement as suggested by the care Quality Commission, based on the positive obligations under Articles 3 and 8 of the European Convention in relation to mechanical restraint. The mode of regulation of using central bodies such as the Committee for the Prevention of Torture and the Care Quality Commission will only work effectively if each makes its visits unannounced.

25