Belts, straps and harnesses, as we all know, can be invaluable devices to assist in the management of posture in wheelchairs, and the use of such devices is frequently welcomed by both wheelchair users and their support teams. This equipment, which helps provide stability and can limit slipping and tipping in people with poor independent postural control, may, however, also limit active movement.

The need to review and clarify our practice in relation to provision of belts, straps and harnesses arose from the growing number of referrals to our postural management service which included a request specifically for this type of equipment. Often the referral centred on managing the risks associated with active movement rather than the management of posture, and gave rise to concern regarding the question of restraint. A retrospective review of referrals suggested that this was particularly relevant in relation to individuals with dementia, learning disability and/or challenging behaviour, and this prompted a small group of therapists and bioengineers at the Southeast Mobility and Rehabilitation Technology (SMART) Centre in Edinburgh to formulate a protocol for the provision of straps and harnesses to wheelchair occupants.

Often forceful or vigorous movements, or more subtle behaviour such as removal of feet from footplates, can give rise to serious concerns about the occupant’s safety, or that of someone else, and direct intervention may be justified. However, these individuals often have cognitive or/and communicative impairment and so are not able to give informed consent to the use of such equipment. Our aim in developing a more formal procedure was to ensure that we were always delivering our service ethically and in accordance with the law. The goal was to provide a practice framework which was systematic, transparent and consistent.

LEGAL BACKGROUND

Our first task was to try to understand the law a little better, and a literature review was undertaken.

The fundamental legal basis relevant to the use of physical restraint is the European Convention on Human Rights (ECHR) which impacts on all law and legislation in Council of Europe member states. The Human Rights Act 1998 formalises this by requiring all UK courts to interpret the law in accordance with the ECHR. In Scotland, we are also subject to legislation passed by the Scottish Parliament, including the Adults with Incapacity (Scotland) Act 2000.

The ECHR comprises a number of Articles and a number of Protocols. Articles 2 to 18 set out the main rights and freedoms required under the convention. The following is a summary of the articles that could be considered by the courts as relevant to the issue of restraint, with some commentary and guidance from other sources. Even though most of this guidance was written for Scotland, we hope that readers across the UK and beyond will find it helps interpretation.

Article 3

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

The Mental Welfare Commission for Scotland (2006) advises that ‘poor practice on restraint’ could fall into the categories of inhumane or degrading treatment.

Article 5

‘Everyone has the right to liberty and security of person.’

The article, however, qualifies this by setting out the circumstances in which a person can lawfully be deprived of liberty, and these include reasons such as lawful imprisonment, and detention for the purposes of preventing the spread of infectious diseases. Lawful detention of ‘persons of unsound mind’ is also listed as an exception. It is interesting to consider the difference between the word ‘detention’, which is used in the article, and ‘restraint’ which is not. The Mental Welfare Commission for Scotland (2006) helps out with this by saying that ‘The difference between restraint and detention is a matter of degree. There is no difference in the nature or substance of the controls. The law says restraint is a restriction on someone’s liberty and detention is deprivation of liberty. Regular and consistent restraint may amount to detention.’

The exception for persons of unsound mind in Article 5, however, does not automatically permit the use of restraint on individuals with incapacity. The Mental Welfare Commission for Scotland (2006) advises that, ‘If restraint could constitute ‘detention’, those involved should seek legal authority for the detention, under either the Mental Health (Care and Treatment) Act or the Adults with Incapacity Act. Reliance on common law powers is unlikely to satisfy the ECHR requirements of due process.’

Article 5 is also considered by the Scottish Government in its Code of Practice (CoP) on the Adults with Incapacity Act (Scottish Government, 2000). This document is intended for local authorities providing community care services, and advises that whether an intervention amounts to a deprivation of liberty or not ‘will depend on the circumstances of each individual case.’ Furthermore, it goes on to say, ‘What amounts to deprivation of liberty depends on the interaction and accumulation of factors, as well as degree and intensity, in relation to the specific circumstances of the individual.’ It therefore appears that it is the combination of factors which should be considered when assessing whether an individual may be deprived of his/her liberty. The CoP presents an illustrative list of such factors later in the document.

They comprise:

• the person’s past and present wishes
• access to resources
• the extent/nature of limitations on contact
• internal design of physical environment and accessibility
• external physical environment and access
• use of restraints
• skill and abilities of staff
• effect of change in care regime

From the wheelchair and seating services perspective, therefore, the most relevant of these is the use of restraints. In considering restraints the CoP cites ‘limitations on movement such as placing the person in seating or situations from which they do not have the physical ability to remove themselves/duration of any limitations’ could be a factor contributing to a deprivation of liberty. The CoP gives an example of the use of restraint to administer treatment or care, and notes that such occurrences ‘should be seen as an indicator that a person’s wishes may be being overridden, and careful consideration should be given as to whether they are deprived of their liberty.’ It would therefore appear that the provision of equipment for the purposes of limiting or preventing movement could be considered as a deprivation of liberty on its own, or in combination with other factors in the individual’s life which wheelchair and seating services may not be aware of.

Article 8

This article states that ‘Everyone has the right to respect for his private and family life, his home and his correspondence’, and then goes on to detail the circumstance under which a public authority may interfere with this right which includes when it is in the interests of public safety. The Mental Welfare Commission for Scotland (2006) suggests that the use of restraint could be challenged under the ‘respect for private life’ clause, but also says ‘Article 8 permits interference with someone’s autonomy if this is lawful and necessary for public safety, the protection of health or the protection of others. Any of these might be a justification for the use of restraint. Staff should tell the person why he or she is being restrained, if possible.’

BEST PRACTICE

It was therefore clear to us that people should not be deprived of their liberty, that they should not be subjected to inhuman or degrading treatment, and that their private lives should be respected. The use of postural management equipment which limits volitional movement might be considered to interfere with any of these rights. However, most of the guidance and commentary on the law also concedes that circumstances do exist where such equipment can be employed lawfully. Our next task therefore was to try to identify current best practice to ensure, to the best of our abilities, that equipment would always be supplied and used lawfully.

There are a number of bodies and organisations that publish advice concerning this. Amongst these we found the following advice in an Information Sheet on Physical Interventions for Challenging Behaviour published by the Challenging Behaviour Foundation (2008), which is itself derived from the policy guidelines of the British Institute for Learning Disabilities:

• Restrictive physical interventions should only be used in the best interests of the person with learning disabilities
• They should only be used in conjunction with other strategies to help people learn to behave in nonchallenging ways
• They should be individualised and subject to regular review
• They should employ minimal force and not cause pain

Implicit in this is the acknowledgement that such measures may be necessary in some circumstances. We therefore decided that when we receive requests for equipment which we consider could be construed as restraint, we should go through a process which tries to ensure that the above best practice is being followed.

STRAPS AND HARNESSES INFORMATION RECORD

In order to make an informed decision about provision, detailed information is required and is often not available at the point of assessment. To ensure this information is available we developed a form to be signed by a registered health professional, and completed in consultation with as many other parties involved with the support, care and welfare of the wheelchair user as possible and reasonable. Our aims seek to achieve good consultation and consensus that all other avenues to managing the problem have been explored. However, the responses form an integral part of the assessment with the ultimate decision on provision being the responsibility of the seating team.

The form comprises the following 10 questions and adopts a standard approach to risk assessment to evaluate the need for the intervention being considered. This approach involves estimating both likelihood and severity of potential injury arising from not providing the intervention, on a scale of 1 to 5. The form is also accompanied by guidance notes explaining some of the legal background, as well as notes on completing the form.

Question 1 It is important that the wheelchair user, and all parties involved with their care, is able to contribute to this assessment. Please ensure that the people listed below are consulted and give their names. If they were not consulted in this process, please state why.

• Wheelchair user
• Proxy
• Principal carer
• Key worker

Question 2 (see para 4 below) Give the names of any other people who have contributed to this document, and state their position or relationship to the wheelchair user.

Question 3 Describe the movement/behaviour which presents risk.

Question 4 Describe the potential injuries to the wheelchair user and others which may arise from the movement/behaviour.

Question 5 For each injury listed in the answer to question 4, state who could be injured, e.g. wheelchair user, wheelchair attendant, other. State also under what circumstances/environment the injury could occur, and estimate the likelihood of the injury occurring, and the potential severity of the injury. Use the scores in the Table 1 below.

Question 6 For each injury rated with likelihood of 3 or more above, state how many times this has occurred in the past six months.

Question 7 Confirm that you have considered the following approaches in the management of the risks identified in 4 and 5.

• Alterations to the wheelchair user’s environment
• Changes to the wheelchair user’s routine/activities
• Training, education and/or therapy for the wheelchair user

Question 8 Describe your proposed solution to the management of this risk. Include a description of supportive strategies as well as details of straps and/or harnesses.

Question 9 Describe how the wheelchair user will benefit from the implementation of the proposed strap(s) and/or harness(es).

Question 10 Describe the system that will be used for monitoring and reviewing the use of the proposed strap(s) and/or harness(es).

Table 1

INITIAL EXPERIENCES

The form was introduced through a series of training events largely aimed at occupational therapists, physiotherapists and clinical scientists and has been in use for about one year now. The quality of responses varies significantly, and lack of clarity often highlights a situation where restraint is considered acceptable and would lead our team to take a very cautious approach to intervention. Comprehensive and well considered responses tend to demonstrate a situation in which provision of equipment forms a small part of a total strategy.

In addition to providing a record to be retained for legal purposes it has provided the following benefits:

1. It has helped to promote inclusion of all the parties involved with an individual’s care
2. It has facilitated discussion about more comprehensive approaches to the management of challenging behaviour
3. It has facilitated problem solving amongst the care ‘team’
4. It has, on occasion, enabled caregivers to consider behaviour as a means of communicating
5. It has helped health care professionals to clarify their responsibility in making referrals to our service where previously they may have acted as gatekeepers without committing to the referral aim
6. It has enabled professional service users (referrers) to clarify best interest for their clients, form a basis for their own intervention, and provide clear documentation of the decision-making process

References

Challenging Behaviour Foundation, 2008. Physical Interventions for Challenging Behaviour. [online]

Available at http://goo.gl/5eOXmO [Accessed 24 January 2013]

Mental Welfare Commission for Scotland, 2006. Rights, risks and limits to freedom

Scottish Government, 2000. Adults with Incapacity (Scotland) Act 2000: Code of Practice: For Local Authorities Exercising Functions under the 2000 Act.