We often hear the words least restrictive practice, which we often associate with physical or medical restraint. However, an often overlooked area of least restrictive practice is placement, which is more easily thought of as where someone lives and the restrictions placed upon them.
The issue of placement has been once again brought to light in a Court of Protection case that has now been opened to the public on behalf of Tony Hickmott, who was detained in 2001 within a specialist hospital without due process to trial and support a lesser restrictive placement. Tony Hickmott’s family have been actively challenging this placement, in the mind of a community discharge that is near to where they live, highlighting the distance of family support in his present location that has lasted for 20 years. The BBC reports that Tony Hickmott had been assessed as clinically fit for discharge since 2013. But even had he been discharged at this point in time, it raises the question of why he had not been fit for a step-down placement sooner than this?
Since cases such as Bournewood, there has been a move from institutions, with government healthcare frameworks redirecting support to non-clinical settings and increased community working, it is highly surprising the number of locations such as this where institution like practices still continue. As an advocate and health care practitioner, I have observed several cases where this is the case, where CGC’s are requesting their stay within the hospital is extended, a suitable step-down placement has not been identified or no active discussions have been held on this matter, leaving the unsaid statement for those working alongside the individual – that this is the most reasonable placement. In fact, a greatly over looked and under supported area is those within the private care industry, who do not often have any social worker or advocate working alongside them, therefore no voice or objective individual to assess, ask questions and raise challenges if required.
However, it is every health care worker’s responsibility to have these discussions of whether the restrictions in place, including location and type of placement, are the most reasonable, justifiable, and least restrictive. Actively applying the guiding principles of the Mental Capacity Act (2005):
- Presumption of capacity unless proven otherwise
- That capacity to make a specific decision is supported
- That the individual can make what others may consider an unwise decision
- All actions are within the individual’s Best Interest if lacking capacity
- And finally, that all Best Interest decisions are the least restrictive option
This leads us to reflect upon Lady Hale’s powerful conclusion within the case of Cheshire West that “a gilded cage is still a cage”. That even if a placement is the best possible location with all needs being met to a good standard, it still has a very high level of restrictions in terms of privacy, access, choice, routine and tremendous impact on quality of life. Bournewood, alongside this case, laid the foundations and protections that we now know as the Deprivation of Liberty Safeguards (DoLS), soon to be the Liberty Protection Safeguards (LPS). Drawing us back to the rights and protections from the Human Rights Act, alongside our right to object to have a voice; whether this is a quiet and reasonable statement of wishing to leave, a regular passive attempt to vacate the premises putting on a coat and packing their bags or a very loud and distressed presentation of behaviour at the restrictions in place. Drawing us back to the rights and protections from the Human Rights Act, alongside our right to object to have a voice; whether this is a quiet and reasonable statement of wishing to leave, a regular passive attempt to vacate the premises putting on a coat and packing their bags or a very loud and distressed presentation of behaviour at the restrictions in place.
I would observe there is an increasingly large range of options for support dependent upon needs that I have listed those I am aware of below, and all should be considered, weighing up the full evidence of needs, funding and returning to the question of what is the least restrictive:
- Own accommodation with a support package in situ
- Sheltered accommodation with a 24-hour warden + option of additional support package in situ if required
- Supported living accommodation with 24-hour staff that promotes independence and community engagement
- Care home with care staff in situ 24 hours
- Nursing home with nursing and care staff in situ 24 hours
- Complex needs nursing home with a wider range of professional support and 24-hour support
- Forensic nursing home for individuals with challenging behaviour that has 24-hour support in situ
- Fully supported small home placement with assessed ratio of staff 24-7 in the community
- Inpatient unit within a hospital setting
To summarise then, I would encourage all settings to have professional conversations around four key areas:
- Does this individual have capacity for their placement?
- Have they got or do they need a DoLs/LPS in place?
- Is this the least restrictive appropriate setting? Do they need a Care Review to assess?
- Is this individual objecting to their care and does their Responsible Person’s Representative under DoLs aware of this? Is a challenge being raised, as is good practice?
For more information and support around DoLs, LPS and Least Restrictive Practice, please get in touch.