To provide treatment for children, it is sometimes necessary to restrain them. How can this be done lawfully?
In all cases, it must be noted that restraint must be necessary. Restraint merely for the convenience of the clinician is unjustifiable; it must be used only where it is necessary to allow clinical management to be provided. Furthermore, the least intrusive type and minimum amount of restraint to achieve the specific treatment must be employed; the minimum amount of force for the shortest possible time. Finally, the least restrictive option should be used. If a simple splint allowing intermittent access to a cannula will suffice, then this will avoid parents and clinicians holding the struggling child down periodically for the same purpose.
In England and Wales, you become an adult on your 18th birthday. Children who are 16 and 17 years are considered as ‘young people’, and this distinction is important, since young people are covered by the Mental Capacity Act 2005 (MCA), and this gives guidance on restraint. Restraint of young people lacking capacity must therefore be necessary, proportionate and using the least restrictive measure, as set out in the paragraph above. Restraint of young people with capacity will be a rare event, and if at all possible should be agreed to by their parents.
Unlike adults, young people do not have an unfettered right to refuse treatment which is necessary to save their lives. We know this because no English court has permitted a young person to choose to die rather than accept life-saving treatment. On the other hand, young people refuse treatment for non-life threatening illness on a regular basis in the NHS. For this reason, unless restraint is immediately necessary to prevent the patient’s death or permanent harm, it should not be employed to allow treatment. Nevertheless, it is completely acceptable to restrain a young person who is at risk of causing himself, clinical staff or bystanders a new injury by his behaviour. As before, restraint in these circumstances should be necessary, proportionate and using the least restrictive measure.
Children younger than 16, to whom the MCA does not apply, are divided into those who have capacity and those who do not. It is the latter group that is most easily dealt with, since parents provide consent for (and usually assistance to) restraining small children for the administration of medicines; for physiotherapy; for injections and cannulas. Equally parents provide consent for their child to be restrained for similar procedures even in their absence, although to do so is undesirable and should be avoided if possible, since the child needs the support of her parents’ presence. In the same way, parents provide consent for an anaesthetic to permit imaging in a motionless child. Clearly, restraint in the absence of parents remains permissible if unavoidably necessary for the immediate welfare of the child.
Older children under 16 who have demonstrated their capacity may still require restraint at times. This is a more difficult situation, since their capacity to make a decision when calm may evaporate due to the coercive effects of fear or distress. In this situation, provided parents remain willing to provide consent for the envisaged procedure, restraining their child remains lawful. However, if you encounter a child who retains their capacity and refuses treatment, what happens next will depend on the circumstances. Only if the proposed procedure is immediately necessary to save life or limb will restraint of the competent refusing child be the correct approach. The vast majority of children in such an extreme clinical state will lack the capacity to make decisions, let alone be in a state to resist the intervention.
If you encounter a child who continues their competent resistance to life or limb saving treatment in a dire emergency, bear in mind the presumption that life is preferable to death; restrain and treat them. As with the slightly older group, it is completely acceptable to restrain a competent child who is at risk of causing himself, clinical staff or bystanders injury by his behaviour. Again, restraint in these circumstances should be necessary, proportionate and using the least restrictive measure.
A child of any age detained under the Mental Health Act 1983 (MHA) may be restrained on the basis of this act to enable treatment for their mental illness to be given. Interestingly, s63 of the act allows us without consent to treat physical manifestations of mental illness in a detained patient, so self inflicted wounds can be sutured; and the immediate steps for liver protection taken after a paracetamol overdose. Otherwise, restraint for treatment of coincidental physical ailments in patients is dealt with as above, according to their age group.
For children needing inpatient treatment under the MHA, their detention in hospital can also be authorised by this act. There is evidence from the European Court of Human Rights that parents may be able to consent to the deprivation of liberty of a competent child with mental illness, providing they are acting responsibly and in good faith on the basis of expert medical advice. This will need to be tested in English courts before we can be certain it will be accepted.
The Deprivation of Liberty Safeguards (DOLS) used for adults who lack capacity may not be used to detain either children or young people in hospital. The Court of Protection would need to authorise the compulsory detention in hospital of a child who lacked capacity but who was not detained under the MHA.
In the meantime, the High Court could authorise the detention of a competent child, in the absence of detention under the MHA.
Department of Clinical Law