Control and restraint

AuthorAlan Parkin
Publication Date01 May 2001
48 © Pavilion Publishing (Brighton) Limited The Journal of Adult Protection Volume 3 Issue 2 • May 2001
In an earlier paper, ‘The Care and Control of
Elderly or Incapacitated Adults’, I expressed
the view that some of the legal difficulties
identified in that area might be alleviated by
legislation emanating from the deliberations
at that time of the Law Commission (Parkin,
1995). However, it is now several years since
the Commission engaged with the issues of
capacity and produced a well-researched and
widely debated set of discussion papers and
reports. All who are concerned with the issue
of capacity can only have welcomed these,
whether they accepted the final recommenda-
tions or not.
The Commission’s recommendations in
respect of control and restraint were clear and
trenchant (Law Commission, 1995). At
paragraph 4.33 of their final report (Mental
Incapacity) the Commission stated:
‘We have concluded that two important
messages can be conveyed by a new statutory
provision about confinement and coercion.
First, the fact that the civil liberties of people
without capacity are regularly infringed by
coercive and restraining treatment can be
challenged by the introduction of a statutory
prohibition against such treatment expressed
in clear terms. On the other hand, however,
the difficult realities of the caring situation
can be addressed by a clear statement of the
circumstances in which coercive or confining
behaviour will in fact be justified. This will
provide reassurance to people who can at
present only rely on common law defences
whose scope and very existence are known
only to a select band of legal experts.’
The Draft Bill annexed to the report included
the following:
‘We recommend that the general authority to
provide care to a person without capacity
should not authorise the use or threat of
force to enforce the doing of anything to
which that person objects; nor should it
authorise the detention or confinement of
that person, whether or not he or she objects.
This provision is not to preclude the taking
of steps which are necessary to avert a
substantial risk of serious harm to the
person concerned’ (Draft Bill, clause 5).
It remains unfortunate that despite the
engagement of the Lord Chancellor’s
Department in further consultation and the
production of yet more sets of recommenda-
tions and conclusions (Who Decides? 1997;
Making Decisions, 1999) little appears to have
happened to warrant optimism that specific
legislation will follow
. There is even less cause
for optimism that the issue of control and
restraint will be considered as part of any
forthcoming legislation, as no specific recom-
mendation in this area appeared in the Lord
Chancellor’s 1999 paper.
The main intentions of the Law
Commission’s work were to put what was
previously an ill-defined area on a statutory
basis. However, the specific issues of control
and restraint, particularly in the context of
developing methods of electronic tagging or
CCTV have not gone away and may well have
become more widespread over time.
Common law and criminal law are clearly
capable of dealing with obvious cases
amounting to assault and neglect. Yet there
remains a wide grey area based on the close
Legal column
Control and restraint Alan Parkin
Academic Director, The Law School,
University of Hull

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