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PRACTICE

special needs

The treatment of adult patients with a


mental disability. Part 3: The use of
restraint
A. M. Bridgman,1 and M. A. Wilson,2

Over recent years practitioners are increasingly being asked to


attend to, or to provide treatment for, adult patients with some
degree of mental illness, either in their homes or in the dental
surgery. This final paper in the series deals with the lawful
delivery of care or treatment in the face of resistance,
through the use of restraint.
dults who have lost or who have never
had full mental capacity may require
dental treatment either routinely or occasionally, as emergency care. The first paper
in this series dealt with the issues of consent
and the lawfulness of treating patients incapable of giving their consent. The second
paper concerned itself with the assessment
of competence as patients with a mental disability are not necessarily incapable of making decisions for themselves.
For many such patients dental treatment
poses no difficulties. For some patients their
loss of capacity is not so severe as to affect
their level of understanding and disable
them from understanding their treatment
requirements and partaking in the decision
making process. For others their capacity to
decide for themselves may be severely compromised, yet they remain co-operative and
compliant throughout treatment provision.
They may have little or no understanding
but whether or not they are consenting is
immaterial because treatment will be lawful
so long as it is considered to be in the
patients best interests.
There remains a third group of patients
for whom the delivery of care may be a
problem. This is the patient without full

1*Clinical Teacher and Lecturer for Ethics & Law,


Turner Dental School, University of Manchester
Dental Hospital, Higher Cambridge Street,
Manchester M15 6FH; 2Consultant in Restorative
Dentistry, Turner Dental School, University of
Manchester Dental Hospital, Higher Cambridge
Street, Manchester M15 6FH
*Correspondence to: Andrew Bridgman
REFEREED PAPER

Received 15.12.99; accepted 15.03.00


British Dental Journal 2000; 189: 195198

In brief

Active resistance will usually require


some form of restraint to enable safe
and effective care.
The use of restraint is a clinical
decision.
The use of restraint in such
circumstances would be lawful
provided that it was reasonable
restraint.
In the determination of reasonableness
reference would be made in the first
instance, to accepted practice.

imposes a duty upon the dentist to assist


the patient or provide treatment in their
best interests.1 Any treatment provided in
furtherance of that duty would then be lawful notwithstanding the patients lack of
consent or apparent refusal. Failure to fulfill
that duty and provide treatment may result
in liability for negligence. The question that
arises is, how far does this duty extend? The
patients resistance may be so fierce that
some form of restraint may be necessary to
enable safe and effective delivery of care.
Does that duty extend so far as to make the
use of restraint lawful?
This paper reviews the law in this area of
special needs dentistry. The use of
restraint is an issue that has only been
recently addressed by the Courts and in
cases far removed from the practice of dentistry. Nevertheless, the principles of law
derived from these cases apply equally to all
aspects of health care, including dentistry,
and of course the patients general care.

Lawful restraint
mental capacity who actively resists attempts
at the provision of dental treatment.
A Case Scenario 3 is presented here (in
the Box below) for the actively resistant
patient. When presented with such a situation an assessment of the patients competence is a legal and moral requirement. The
dentist cannot simply accept the resistance
at face value. If the patient is thought to be
competent then their resistance should be
considered indicative of their true wishes
not to have treatment and those wishes
should be respected. If, as is likely in this
case the patient is incompetent then the law

The use of restraint was not considered in


the landmark case of F v West Berkshire HA
in 1989.2 That case had the effect of making
the doctor the patients proxy and conferred
a duty of care to provide such treatment that
would be considered to be in the patients
best interests. It did not consider whether
that duty includes the use of restraint or
whether the use of restraint is lawful. Perhaps it was not an issue; maybe F was compliant, or expected to be compliant. On the
other hand it could be argued that it was
implicit in the judgment, and unless that
were so then the courts view of what treatment was in the patients best interests

Case Scenario 3 the actively resistant patient


n elderly couple, patients of a practice for many years, attend and ask the dentist
to treat their 35-year-old son who has severe mental disability and is cared for
at home. They think he is having toothache or perhaps earache; he is hitting the side
of his head. The problem is made greater because he cannot communicate and will
not let anyone approach him. No radiographs are possible.

BRITISH DENTAL JOURNAL VOLUME 189 NO. 4 AUGUST 26 2000

195

PRACTICE

special needs

would be rendered nugatory [of no value]


if the patient could simply frustrate it by
resisting.3

The Mental Health Act


The first cases to consider this issue explicitly
did so under the provisions of the Mental
Health Act 1983. This Act enables doctors to
dispense with the patients consent (either
through incapacity or despite a valid refusal)
for treatment for their mental disorder if that
treatment is given by or under the direction of
the responsible medical officer.4 The Courts
have stretched the causal and symptomatic
link between mental illness and physical manifestations of the illness to declare that treatments such as forced feeding for anorexia and
Caesarean section would be treatment for the
mental illness. They considered that relieving
symptoms is just as much a part of treatment
as relieving the underlying cause5 and if the
patients consent is not required then the
doctor is entitled, should he deem it clinically
necessary, to use restraint to the extent to
which it may be reasonably required.6
In so far as dental treatment is concerned
the Mental Health Act will rarely be the vehicle for legal authority to use restraint. However, a patient detained under the Act is just as
likely as any person to suffer toothache, either
acute or chronic. There is evidence to suggest
that pain can exacerbate psychological distress7 and it is suggested that dental pain may
affect a patients emotional state and/or
behaviour. Thus dental treatment, without
consent and with reasonable restraint, might
be justified under the provisions of the Act if
co-morbidity of pain and the mental illness
was apparent and the responsible medical
officer felt that relief of symptoms would
improve the patients mental condition. Additionally, the Act may provide for dental treatment for those patients whose mental
disorder manifests itself in a compulsion for
self-harm by biting themselves. The courts
have considered the prevention of self-harm8
and dental treatment in such cases may well
extend to extractions or splint fixation.

Common Law
The general tenet of this paper is the treatment of patients living within the community seeking routine dental care. For these
196

patients whether or not the use of restraint


is lawful will not be governed by the Mental
Health Act but will be dependent on
common law decisions of the court. In the
first case to consider restraint at common
law the court satisfied itself that it does have
the power to authorise the use of reasonable
restraint.9 That judgment appears to leave
authority to use restraint with the court,
seemingly requiring an application to be
made to the court in each case that the use of
restraint might be necessary. Such a requirement could not have been the intention of
the court. For if every treatment where the
use of restraint was envisaged required the
approval of the court, not only would the
judicial system become overwhelmed, but
the whole process of medical and dental
treatment for special needs patients would
grind to a halt. The difficulty was resolved
by the Court of Appeal who confirmed the
previously suggested opinion that the use of
restraint was implicitly a part of the best
interests test and that the decision or
authority to use restraint lay with the
medical or dental professional. Lady Justice
Butler-Sloss considered that it follows from
the decision that a patient is not competent to
refuse treatment that such treatment may
have to be given against her continued objection if it is in her best interests that the treatment be given despite those objections. The
extent of force or compulsion, which may
become necessary, can only be judged in each
individual case and by the health professionals. It may become for them a balance
between continuing treatment which is
forcibly opposed and deciding not to continue
with it.10 A clinical decision.
A recent case illustrates this point very
well. A patient (D) with long-standing psychiatric illness lacked the capacity to participate in treatment decisions. He developed a
serious kidney complaint and was described
as being at the near end stage. He required
dialysis three to four times per week, for up to
4 hours per session. Because D was completely uncooperative the only possible
means of providing the dialysis would be
under general anaesthesia which was considered to be impractical and also dangerous in
view of Ds difficulties and disabilities. The
doctors treating D were concerned because

they recognised their legal duty to treat D in


order to seek to improve or prevent deterioration in his physical well being. Did this duty
extend to the use of general anaesthesia as a
form of restraint? The court declared that:
notwithstanding the defendants inability to
consent or refuse medical treatment, it is lawful as being in the best interests of the patient
that the plaintiff [the doctors] do not impose
haemodialysis upon him in circumstances, in
which, in the opinion of the medical practitioners responsible for such treatment, it is not
reasonably practicable to do so.11
Clearly the use of restraint is a clinical
decision.

How much restraint?


The best interests test arises from the
principle of necessity and this principle
requires that any action taken must be such
as a reasonable person would in all the
circumstances take.12 The law has determined that whether such action was lawful
would be decided by application of the
Bolam test, that of accepted practice. Therefore in determining the lawful use of
restraint to provide dental treatment to
adult patients with a mental disability, the
law will pay considerable regard to practices
adopted by dentists working in the field of
special needs dentistry. What would other
dentists consider a reasonable course of
action in order to deliver care? Table 1 shows
the acceptability of the various methods of
controlling a patients behaviour among
practitioners of special needs dentistry
from the results of a questionnaire distributed at a meeting of the British Society of
Dentistry for the Handicapped.13 The questionnaires presented case scenarios; either a
case relating to a 28-year-old patient who
had learning disability, or a case relating to a
62-year-old with senile dementia.
The table shows that practitioners are
prepared to accept a broad range of restraint
varying from the use of moderate physical
force to the use of general anaesthesia. It
should be noted that the use of physical force
does not seem as acceptable for the provision
of treatment as it does for an examination,
and is not a popular means of inducing general anaesthesia or sedation. In addition
more than half of the practitioners were keen

BRITISH DENTAL JOURNAL VOLUME 189 NO. 4 AUGUST 26 2000

PRACTICE

special needs
Table 1

Acceptability amongst dentists providing treatment for 'special needs'


adult patients of the various methods of restraint to provide dental care

28-year-old patient

Physical restraint to enable examination


Physical restraint to enable treatment under local anaesthesia
Oral sedation to enable examination and/or treatment
Intravenous sedation to enable examination and/or treatment
General anaesthesia to enable examination and/or treatment
Use of physical force to administer IV sedation or intravenous induction
Surreptitious use of premedication for IV sedation or general anaesthesia

62-year-old patient

Physical restraint to enable examination


Physical restraint to enable treatment under local anaesthesia
Oral sedation to enable examination and/or treatment
Intravenous sedation to enable examination and/or treatment
General anaesthesia to enable examination and/or treatment
Use of physical force to administer IV sedation or intravenous induction
Surreptitious use of premedication for IV sedation or general anaesthesia

Dentists
out of 24

18
2
22
15
24
6
15

72
4.5
90
64
100
21
59

Dentists
out of 26

16
3
21*
16
23
8
17

66
12
80
66
96
33
71

*For one dentist this was the only acceptable method

to stress that acceptability depended upon


the prevailing circumstances; depended on
the individual patient and the desirability or
need for treatment. Several suggested that
when faced with such circumstances, unless
an emergency, they would attempt to treat
using the least intrusive method and they
would be prepared to advance the alternatives should failure dictate this process. They
would be prepared to abandon proposals if
more intrusive methods might not be justified, and this approach has received support
from the law.14 The views of special needs
practitioners would appear to agree with the
opinion expressed by Butler-Sloss in the
Court of Appeal.
Although it is likely that the Court will use
the Bolam test in its determination of the
reasonableness of restraint, this is by no
means certain. The Court has recently
restated its long held view that it, and not
the dental profession, will be the ultimate
arbiter when determining such matters. The
Court will not be bound to follow professional opinion unless that opinion can be
shown to be reasonable or responsible.15 In
such an instance the Court is, in its determination of reasonableness, likely to turn to
other areas of the law.
In her book Mental Health Law, Brenda

Hoggett suggests that whether the means of


restraint is considered to be reasonable may
be subject to the same two tests as those
imposed by the Criminal Law Act 1967 for
the use of reasonable restraint in the prevention of a crime. The first requirement is that
the force must not be excessive, it must be
no more than is necessary to control the
patients behaviour and allow the proposed
procedure to be carried out successfully. In
Case Scenario 3, if the level of resistance
could be overcome with minimal force such
as holding the patients hands, or light oral
sedation then the use of general anaesthesia
might not be considered reasonable. Even
though other dentists having previously
encountered similar problems might have
used general anaesthesia.
The second requirement is that the degree
of force or restraint employed must be in
proportion to the expected benefits of the
proposed intervention or treatment. In Case
Scenario 2 the examination revealed two
decayed teeth with evidence of associated
infection. In Case Scenario 3 there is some
indication, from the parents, that the
patient is suffering considerable pain. The
decisions to intervene and use restraint to
enable that intervention, probably with general anaesthesia, must be made in the expec-

BRITISH DENTAL JOURNAL VOLUME 189 NO. 4 AUGUST 26 2000

tation of an overall benefit for the patient.


The factors being considered include the
risks of physical or psychological injury
arising from the use of physical force, the
risks of general anaesthesia against the likelihood of problems from those teeth in the
future, and the difficulty of accessing emergency care. It is one thing to forcibly remove
an obviously painful tooth under general
anaesthesia, or to force an examination and
treatment where there some evidence that
the patient is or may be suffering. It is
another to use general anaesthesia to carry
out nothing more than a routine inspection.
An examination to detect early disease and
enable prevention of problems will be of
reasonable benefit to the patient, but in the
face of fierce resistance that benefit is
unlikely to justify the use of general anaesthesia.
The issues surrounding the use of
restraint are complex but the law is quite
clear. The use of reasonable restraint is lawful if to do so would be in the patients best
interests. It is very likely that accepted practice and professional opinion will determine reasonableness. It is therefore
surprising that, within the British literature,
medical and dental, the use of restraint is
not widely discussed. Although there are in
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PRACTICE

special needs

Table 2

existence published guidelines, they are not


directly related to the provision of dentistry,
they are not readily accessible to busy special needs practitioners and they are not in a
concise format.16
In the United States of America a comprehensive list of guidelines for the use of
restraint has been published. In 1994
Shuman and Bebeau produced a list of ten
key features of the application of restraint
to enable dental care. They adopted
guidelines previously published in 1987
by the Academy of Dentistry for the
Handicapped as the foundation to their
extended list:
1. Restraint is necessary for safe and effective treatment
2. The restraint is not for punishment or
the convenience of the staff
3. The least restrictive restraint is used
4. The restraint should cause no physical
trauma and minimal physiological
trauma
5. Reasonable benefits are expected as a
result of the treatment
6. There is consent for the treatment
7. There is consent for the restraint
8. The restraint is specifically selected
based on the planned treatment
9. The dental staff are trained in the safe
use of restraint
10. Restraint use is clearly documented,
including type, duration and reason
for use.17
With the exception of points 6 and 7,
these guidelines adequately describe the
correct conditions for the lawful application
of restraint in the United Kingdom.

Summary
The law in relation to the use of restraint to
enable the provision of care has developed
piecemeal over the past 16 years. The cases
that have established the current principles
of law have tended to be hard cases involving life or death decisions. Nevertheless,
those principles apply to all aspects of heath
care treatments, including dentistry.
Clinical decisions with regard to routine
dental treatment should not be a problem.
The issue of competence and the issue of
reasonable restraint are crucial to the deci198

Legal references explained

Name of case
Year reported
T vT and another
[1988]
Glossary of titles:

All ER
Med LR
FLR
BMLR

Vol.
1

Reported in:
Title
Page
All ER
613

Judge
Wood

At page
617

All England Reports


Medical Law Reports
Family Law Reports
Butterworths Medico-legal Law Reports

sion to act benevolently for patients unable


to choose for themselves. There is a clear
need for the publication of concise guidelines in relation to both these issues. The
guidelines in relation to the assessment of
competence should relate to the standards
required in law, particularly with regard to
the level of understanding and the amount
of information to be processed, in order to
ensure that patients with a mental disability
are not too easily disenfranchised. Such
guidelines would not only assist the special
needs practitioner but may also help to
protect the rights of the patients, and perhaps their carers.
On 27th October 1999 the Lord Chancellor outlined reforms for the medical treatment of persons who are mentally
incapacitated.18 However, no timetable has
been set for legislative changes and it could
be many years before such legislation is
enacted. The reforms will put the common
law duty to act in the best interests of
patients disabled from making decisions on
a statutory footing through a general
authority to act reasonably. The reforms
propose to give authority to the patients
appointed attorney and the court, or its
appointed manager, to give a valid consent
on behalf of the patient. However, it is suggested that the proposals are not likely to
have any significant effect on the practice of
special needs dentistry. The difficult issues
of competence and the use of restraint will
still need careful attention. These are issues
that the profession needs to address.
With thanks to those practitioners in attendance at
the annual conference of the British Society of
Dentistry for the Handicapped in London on 5th
December 1997 who completed my questionnaire.
The very detailed responses show that they gave a
considerable amount of their time, indicative of their
professionalism and dedication to the care of their
special needs patients.

The following legal references are described


in full in Table 2.
1
2
3
4
5
6
7

8
9
10
11
12
13
14
15
16

17
18

F v West Berkshire HA 2 All ER [1989] 545


ibid.
Grubb A. Treatment without consent (anorexia
nervosa) adult. Med Law Rev 1994; 2: 95-99.
Section 63, except for treatment under Sections
57 and 58
Re KB (adult)(mental patient:medical
treatment) [1994] 19 BMLR 144
Tameside and Glossop Acute Services Trust v CH
[1996] 1 FLR 762 per Wall J 775
von Korff M, Simon G. The relationship
between pain and depression. Br J Psych
(suppl) 1996 June; 101-108.
Hodgkiss A D, Sufraz R, Watson J P.
Psychiatric morbidity and illness behaviour in
women with chronic pelvic pain. J Psychosom
Res 1994; 38: 3-9.
B v Croydon Health Authority [1995] 1 All ER
683
Norfolk and Norwich Healthcare (NHS) Trust v
W [1996] 2 FLR 613 at 615
Re MB [1997] 8 Med LR 217 at 225
Re D (Medical Treatment:Mentally disabled
patient) [1998] 2 FLR 22 per Sir Stephen
Brown at 24
F v West Berkshire Health Authority [1989] 2 All
ER 545 per Goff LJ at 615
Conference held in London on 5th December
1997
Re D (Medical Treatment:Mentally Disabled
Patient) [1998] 2 FLR 22
Bolitho v City and Hackney Health Authority
[1997] 2 FLR 180
Department of Health. Guidance on permissible
forms of control in childrens residential care.
LAC(93)13.
British Institute of Learning Disabilities. A
policy framework to guide the use of physical
interventions (restraint) with adults and
children with learning disabilities and/or autism.
Kidderminster: BILD Publications, 1996.
Royal College of Psychiatrists. Strategies for the
management of disturbed and violent patients in
psychiatric units. Council report CR41, March
1995.
Shuman S K, Bebeau M J. Ethical and legal
issues in special patient care. Dent Clinics N Am
1994; 38: 553-575 at p.565.
Making Decisions. Cm4465 October 1999.

BRITISH DENTAL JOURNAL VOLUME 189 NO. 4 AUGUST 26 2000

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