This post is the second in a series of three posts on the lawful use of restraint, and its relationship to deprivation of liberty. It relates to the rulings in C v A Local Authority (2011) (Re C) and Cheshire West and Chester Council v P (2011) (Re P). The first post is on the importance of recognising restraint where it is occurring. The final post is on the evolving meaning of deprivation of liberty in Court of Protection case law.
The MCA has often been praised for its succinct and elegant construction (such praise, obviously, does not extend to the deprivation of liberty safeguards), and the provisions on restraint are a case in point. The MCA does not create any new torts or offences of ‘unlawful restraint’[1]; instead it codifies a general defence against criminal charges or litigation for acts which would otherwise be a breach of a person’s common law or statutory rights. In order to apply this defence, Section 5 MCA requires that a person takes steps to establish whether P has capacity in relation to any act in connection with care and treatment, and if they lack capacity any acts done must be in P’s best interests. Section 6 MCA places further conditions upon the lawful use of restraint: it must be believed to be necessary to prevent harm to P, and it must be a proportionate response to the likelihood and severity of the harm that would befall P without restraint. The general principles of the MCA further refine the conditions under which this defence can be applied, in particular that before an act is done ‘regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action’ (MCA s1(6)).
