The Legal Aspects of Restraint in the Emergency Department
Updated: Aug 18
As humans we are inherently biased by emotion and personal experience. I recently had an elderly patient who reminded me of my grandmother. She was of a similar age, fiercely independent and my mere presence seemed to be able to irritate her.
She presented with severe hypertension and an episode of blurry vision, which had resolved. She was happy for investigations but was adamant that she didn’t want any treatment. When it was suggested that her blood pressure may have been related to the episode of blurred vision she proceeded to teach me about alternative therapies in blood pressure reduction. After her tests came back unremarkable she scoffed at the idea of coming into the hospital and wanted to head home despite being aware of the risks involved. She became even more dismayed when we tried to organize a taxi home for her as she lived only five minutes away from the hospital. She also didn’t want to wait until it became bright outside. It was around 02.00am in the morning!! My heart was broken. There was no doubt in anyone’s mind that this lady had capacity and yet the thought of this elderly lady, who reminded me so much of my own grandmother, walking home with her stroller in the middle of the night still makes me uneasy.
Writing this article I tried to picture my reaction if after a date a man suggested I was incapable of walking five minutes home by myself. I would definitely be angry, consider him sexist and there would be no chance of a second date. This patient was angry with me at the time. Perhaps she considered me ageist! Perhaps my reaction will deter her from coming to hospital again the next time she feels she needs to.
One of the most difficult and unpleasant aspects to working in an Emergency department is having to make the decision to restrain a patient. When we are in medical school we learn protocols and gold standard treatments of various illnesses and then we are pushed out into the workforce where we learn that real life medicine can be very different to textbooks. We learn that the best management of a disease may not be the best treatment for a patient and what we believe to be in the best interest of a patient does not necessarily align with what the patient believes is best for them.
This then brings us to the big question- when is overriding a patient’s autonomy- using chemical or physical restraint to detain a patient or to carry out what we believe is in their best interests the right thing to do? To answer this question one firstly needs to understand the concept of capacity
Every adult patient is presumed to have capacity to consent. Patients have the right to decide what happens to their own body. They also have a right to refuse medical treatment or withdraw consent. (1). Patients who have previously been deemed not to have capacity do not necessarily lack capacity in the current situation and their capacity needs to be reassessed (1)
A patient can be considered not to have capacity
1. If they are unable to understand and retain the information given to them
2. If they are unable to apply that information to themselves and subsequently make a decision.
3. If they are unable to communicate their decision –( when given the all the help and support they may need to do so) (1)
When a patient is deemed not to have capacity it is important to try and contact the person with the legal authority to make decisions on behalf of that patient (1)
If this is not possible the following should be considered;
1.Which treatment option would give the best clinical benefit to the patient
2.The patient’s past and present wishes, if they are known;
3. Whether the patient is likely to regain capacity to make the decision
4.The views of other people close to the patient who may be familiar with the patient’s preferences, beliefs and values
5.The views of other health professionals involved in the patient’s care (1)
The AC versus CUH case has recently highlighted in Ireland the complexities of detaining a patient against their wishes. On the 17th October 2019 the case went all the way to the supreme court which is the first time that the supreme court has given a decision on such a matter. (2) The hospital wished to detain a 96- year old lady with dementia, who was deemed not to have capacity, against her wishes and the wishes of her adult children. The hospital believed that it was in her best interest and raised concerns in regards to the patient’s safety at home.
At the High Court, the patient was made a ward of court and orders were made to detain her
At the Court of Appeal it was ruled that that the hospital had unlawfully detained her in breach of her constitutional right to liberty, despite being in agreement that the patient didn’t have capacity
The decision was taken to the Supreme Court, which ruled that under the doctrine of necessity, a hospital had the right to lawfully detain a person briefly in circumstances where there is a concern that the patient would be put at risk if they were discharged. However it was found that even though a person may not have the ability to make a decision about a particular matter, it does not mean that their wishes in relation to it can be totally disregarded (para 394) (2)
The doctrine of necessity is of particular importance in regards to restraining and detaining patients who are not deemed to have capacity in an Emergency department scenario, as we do so in emergency situations as a brief and temporary solution until patients either regain capacity, are deemed safe to discharge or are under the care of speciality teams. It is essential to bear in mind that the doctrine of necessity permits detaining a patient in the interest of their own personal safety for no longer than is necessary to take appropriate legal steps.
In regards to the detaining a patient, the use of physical or chemical restraint to do so should only be considered when other approaches have failed.(1) It may be possible to de-escalate a situation by determining why a patient wants to leave and addressing this, e.g. providing a cup of tea or allowing the patient outside to have a cigarette. If a patient lacks capacity to make a decision about treatment or examination and this may subsequently cause harm to themselves or others; then appropriate physical or chemical restraint may be used when it is in the patient’s best interest. However, this must be for the minimum amount of time and using the minimum dose of medication required. (paragraph 52.1-52.) (1)
There are separate considerations in relation to detaining patients with mental illness, which are outlined in the Mental Health Act 2001. It can only be applied if detention is likely to benefit the patient. While the Mental Health Act 2001 allows the detention of patients with mental illness- consent to treatment is still required. Treatment without consent may only be given under the Mental Health Act if a consultant Psychiatrist believes
1. The patient by reason of his/ her mental disorder, is incapable of giving consent and
2. The treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering (3)
Unfortunately, occasionally patients may be physically restrained briefly in the Emergency department environment under Criminal Law and the Non-Fatal Offences Against the Person Act, 1997. This would be where a patient is deemed to have capacity but are violent, threatening and a risk to yourself, other staff or patients and restraining the patient is done to protect yourself and others until the Gardai can arrive. (4)
We would all prefer never to be faced with the scenario of having to restrain a patient but unfortunately this is an unrealistic wish in the career of an Emergency medic, which is why it is essential to be aware of the laws guiding us.
Essentially the take home message that I'm trying to convey is that we all see the same scenario from a different point of view- and if a patient has capacity, when it comes to their healthcare, the only point of view that really matters is theirs- no matter how much you may disagree with it. If however a patient lacks capacity then it is important to do what is in the best interests of the patient while trying to maintain their dignity and taking their previous wishes and the wishes of their loved ones into account.
And obviously it goes without saying.......document everything!!
1. Medical Council Ireland. Guide to Professional Conduct and Ethics. 2019;(8th Edition). Available from: http://www.betacourt.ie
2. Condell Mary. Notes on AC V Cork University Hospital. Decision of the Supreme Court given on 17th October 2019. Supreme Court Record No. 2018/122.
3. Mental Health Commission. Reference Guide Mental Health Act 2001 Part one- Adults.
4. Office of the Attorney General. Non Fatal Offences Against the Person Act, 1997. Report No.: Section 20.
Peer review - Cian McDermott