Legal framework

Common law

Health professionals have a duty of care to their patients and service users and must take reasonable steps to avoid acts or omissions that are likely to cause foreseeable harm to the individual. This includes employing a suitable standard of care.

Equality Act 2010

Organisations have a responsibility for tackling health inequalities and promoting equality of access to healthcare for all people. This includes avoiding direct or indirect discrimination on the basis of age or disability.

Human Rights Act 1998 and the European Convention on Human Rights

All public authorities, including the NHS, have a statutory duty to act in accordance with the Human Rights Act 1998. The act codifies the protections of the European Convention on Human Rights into UK law, including the ones covered by the following articles:

Article 2 – Right to life
Article 3 – Prohibition of torture, inhuman or degrading treatment
Article 5 – Right to liberty and security of person
Article 8 – Right to respect for private and family life
Article10 – Freedom of expression
Article14 – Prohibition of discrimination.

The Mental Health Act 2007 (as amends the Mental Health Act 1983)

Under the Mental Health Act 1983 Code of Practice, people with mental disorders should get the care and treatment they need for their own health or safety and for the protection of others, including staff and third parties. The main principles include:

1. Respect for the person’s past and present wishes and feelings
2. Respect for diversity including religion, culture and sexual orientation
3. Minimising restrictions on liberty
4. Involvement of the person in planning, developing and delivering care and treatment
5. Avoidance of unlawful discrimination
6. Effectiveness of treatment
7. Encouraging the involvement of carers and other interested parties
8. Wellbeing and safety of person receiving care and public safety

The Mental Capacity Act 2005

The Mental Capacity Act 2005 provides a statutory framework for people who lack capacity to make decisions for themselves and where this is not possible for decisions to be made in their best interests. This framework is underpinned by five principles:

  1. A person must be assumed to have capacity unless it is established that he lacks capacity
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision
  4. An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests
  5. The least restrictive option should be considered before any decision is made on behalf of the incapacitated individual.

Deprivation of Liberty Safeguards (under the Mental Capacity Act 2005)

Deprivations of Liberty Safeguards (DoLS) exist for individuals who lack the mental capacity to consent to their treatment or care. The safeguards are designed to prevent arbitrary decisions to deprive a person of liberty by:

  •  providing the person with a representative
  •  allowing a right of challenge against the unlawful deprivation of liberty
  •  providing a right for deprivation of liberty to be reviewed and monitored regularly.

When making arrangements for the care of someone who lacks capacity, healthcare providers must apply for authorisation for the deprivation of liberty based on the following considerations:

  1.   Is deprivation of liberty in the person’s best interests?
  2. Is it needed to keep the person safe from harm?
  3. Is it a reasonable response to the likelihood of the person suffering harm?

Some essential reading

Age UK (2010). Still hungry to be heard.

Alzheimer’s Society. Person-centred dementia care training.

Alzheimer’s Society (2009). Counting the cost: Caring for people with dementia on hospital wards. London: Alzheimer’s Society.

Alzheimer’s Society and Royal College of Nursing (2010). This Is Me. London: Alzheimer’s Society and Royal College of Nursing.

Baker & Shephard (2005). ‘The re-branding of behavioural approaches for people with learning disabilities and challenging behaviour’. Learning Disability Review, Volume 10 Issue 2.

Bradford Dementia Group (2005). ‘Dementia Care Mapping’.

Brighton and Sussex Foundation Trust (2012). Guidelines for the management of behavioural disturbance and cognitive impairments following acute brain injury.

British Geriatrics Society (2011). Quality care for older people with urgent and emergency care needs – Silver book. United Kingdom: British Geriatrics Society.

British Psychological Society’s Faculty for the Psychology of Older People (FPOP) (2013). Alternatives to Antipsychotic medication: psychological approaches in managing psychological and behavioural distress in people with dementia.

Brooker, Dawn (2006). Person-centred dementia care: Making services better. London: Jessica Kingsley Publishers.

Department of Health (2003), Confidentiality: NHS Code of practice.

Department of Health (2007). Best practice in managing risk: principles and evidence for best practice in the assessment and management of risk to self and others in mental health services. London: Department of Health.

Department of Health (2008). Code of Practice – Mental Health Act 1983. London:TSO.

Department of Health (2010). Confidentiality: NHS Code of practice – Supplementary Guidance on Public Interest Disclosures.

Department of Health (2011). No health without mental health: a cross-government mental health outcomes strategy for people of all ages. London: Department of Health.

Department of Health (2011). Living well with dementia: A National Dementia Strategy Good Practice Compendium. London: Department of Health.

Department of Health (2012). Common core principles for supporting people with dementia: a guide to training the social care and health workforce.

Department of Health (2013). Patients First and Foremost: The Initial Government Response to the Report of the Mid Staffordshire Public Enquiry.

Department of Health (2013). The NHS Outcomes Framework for 2013/14. London: Department of Health.

Department of Health (2013). The NHS Constitution – The NHS Belongs to all of us.

Department of Health (2012). Transforming care: A national response to Winterbourne View Hospital – Department of Health Review: Final Report.

Department of Health and NHS Commissioning Board (2012). Compassion in Practice – Nursing, midwifery and care staff: Our vision and strategy.

Design Council (2011). Design solutions and practical toolkits to reduce violence and aggression in A&E. London: Design Council.

Harwood R et al (2012). Guidelines on the emergency control of the acutely disturbed adult patient, University of Nottingham.

Harwood R et al (2012). Managing behaviour and psychological problems in patients with diagnosed or suspected dementia.

Healthcare Commission (2007). National Audit of Violence 2006-7 Final Report: Older people’s services. London: College Centre for Quality Improvement and Royal College of Psychiatrists.

John, Christopher (1995). Model of Structured Reflection.

Khwaia, Masum and Beer, Dominic, ed. (2013). Prevention and Management of Violence: Guidance for Mental Healthcare Professionals.

King’s Fund (2012). Enhancing the Healing Environment (EHE). London: King’s Fund.

Kitwood, T (1997) Dementia reconsidered: The person comes first. Buckingham: Open University Press.

McGill, Peter. Positive Behaviour Support (PBS). The Tizard Centre, University of Kent.

National Institute for Health and Clinical Excellence (2005). The short term management of disturbed/violent behaviour in in-patient psychiatric settings and emergency departments. NICE Clinical Guideline CG25.

National Institute for Health and Clinical Excellence (2006). Supporting people with dementia and their carers in health and social care. NICE Clinical Guidelines, CG42.

National Institute for Health and Clinical Excellence (2007). Acutely ill patients in hospital- recognition of and response to acute illness in adults in hospital. NICE Clinical Guidelines, CG50.

National Institute for Health and Clinical Excellence (2005). Guidelines on emergency control of the acutely disturbed adult patient in inpatient psychiatric settings and emergency departments. NICE Clinical Guidelines, CG 25.

National Institute for Health and Clinical Excellence (2009). Schizophrenia: Core interventions in the treatment and management of schizophrenia in adults in primary and secondary care. NICE Clinical Guidelines, CG82.

National Institute for Health and Clinical Excellence (2010). Delirium: Diagnosis, prevention and management. NICE Clinical Guidelines, CG103.

National Institute for Health and Clinical Excellence (2012). Autism: recognition, referral, diagnosis and management of adults on the autism spectrum. NICE Clinical Guidelines CG142.

National Patient Safety Agency (2012). National Reporting and Learning System (NRLS) data.

NHS Staff Survey 2012

NHS Protect (2005). Promoting Safer and Therapeutic Services: Implementing the national syllabus in mental health and learning disability services.

NHS Protect (2009). Tackling violence against staff.

NHS Protect (2010), Cost of violence against NHS staff – A report summarising the economic cost to the NHS of violence against staff.

NHS Protect (2013). Conflict resolution training: implementing the learning aims and outcomes.

Poole, Julia (2009). Nursing Management of Disturbed Behaviour in Aged Care Facilities. NSW Health.

Regnard C, Reynolds J, Watson B, Matthews D, Gibson L, Clarke C. (2007). Understanding distress in people with severe communication difficulties: developing and assessing the Disability Distress Assessment Tool (DisDAT). J Intellect Disability Res.; 51(4): 277-292.

Royal College of Nursing (2008). Lets talk about restrain: rights, risks and responsibilities.

Royal College of Psychiatrists, British Psychological Society and Royal College of Speech and Language Therapists. (2007) Challenging Behaviour – A Unified Approach.

Royal College of Psychiatrists (2011). Report of the National Audit of Dementia Care in General Hospitals. London: Royal College of Psychiatrists.

Shephard (2012). ‘In Celebration: Living a life through Positive Behaviour Support’. Learning Disability Review, Volume 17 Issue 2.

Stokes, G (2000). Challenging behaviour in dementia: a person-centred approach. Bicester: Speechmark.

The Mid Staffordshire NHS Foundation Trust Public Enquiry (chaired by Robert Francis QC) (2013). Report of the Mid Staffordshire NHS Foundation Trust Public Enquiry.

Work Safe British Columbia (2010). Dementia: Understanding the risks and preventing violence.