Mental incapacity and restraint for treatment: present law and proposals for reform

Abstract

The House of Lords in F v West Berkshire Health Authority [1989] considered the lawfulness of providing care and treatment for a mentally incapacitated adult. They did not, however, directly consider the use of restraint to enable the provision of care in the face of resistance from the patient. The law has since had good cause to give consideration to this important issue. This paper establishes the present law in the context of using restraint to deliver care. Although the legal principles established have derived from what might be considered to be “hard cases”, life-and-death cases, they apply to all aspects of routine medical, dental and nursing care. Further, the paper considers the recent government proposals and the effect those proposals may have on the routine care of such patients.