The CQC’s position on the use of restraint in learning disability hospitals

Topics covered: autism, CQC, mental capacity, Mental Health, Nythan Smith, safeguarding

A report published on 22 October 2020 focuses on the use of restrictive practices and restraint in specialist hospitals which care for people with learning disabilities and/or autism.  The report is critical of both providers who deliver care to these individuals and of the commissioners of care who fail to properly intervene prior to people’s conditions worsening.

The CQC adopt the position that ‘restrictive practice’ is in and of itself a breach of a person’s human rights. Examples used in the report point to a number of scenarios where it is clear that failings have been identified in the way that people with learning disabilities/autism have been treated. These may be the exception rather than the rule. The report states that people were being subjected to unnecessary restrictions and spending too long in situations where restrictions were in place. The critical point here is, to whom this apparent failing should be placed before.  Some providers care for people who enter their services with the highest level of support being required, large multidisciplinary teams are in place around the person and have significant input in the planning and management of care around a person.  The provider in this scenario is caring for the individual in line with the detailed plan for care which has been clinically signed off by the Responsible Clinician who is the person with ultimate responsibility for those persons detained under the Mental Health Act.  There may appear to be an over-reliance on restrictive practices and restraint as the CQC puts it. But fundamentally if it is found that the provider is working in line with the agreed plan of care for the person then fault should not be assigned. There is a fine balance which needs to be struck in intervening to protect a person from harm happening to themselves or others.

The report states that restraint is to be used as a method of last resort, in all settings.  It is difficult to draw such general conclusions and apply them widely across this highly specialist area of care treatment. The care that is offered must be tailored to the presentation and needs of the particular individual.  There should not be a rush to a one-size-fits-all model of understanding the care that is provided to these people.  The care should be person-centred and the plan for care should cater to the needs of the person who is being cared for. As such it is unwise to draw the conclusion that the existence of restraint is in isolation demonstrative of a poor level of care being offered by providers.

It would appear the conclusion from this report and the State of Care report, that the CQC is not satisfied with the quality of care provision to people with learning disability and autism.  For independent providers the CQC now rates almost 1 in 4 providers as inadequate, which is incomparable to any other service type regulated by the CQC. The key question remains, what has changed, is it the way that these providers have been caring for these people or is this a policy decision by the CQC.  We suggest it is the latter and unfortunately this is likely to further diminish the appetite for providers to enter the market for caring for those within society with the highest level of need.  Irrespective of the culture of de-escalation and the propensity to move away from placing hands on people there are likely still to be people who, owing to their presentation, will require restraint to be applied in a measured way.

The CQC speaks of people having fallen through the gaps and caused to be trapped in the system.  We suggest on occasion a failure to properly understand the care that is provided to some of those in the most need and consequently to look upon care that is delivered in a negative restrictive way is a failing on the CQC’s behalf.  We do not wish to fall into the same trap as the CQC have by over generalising our position on this but it is important to properly interrogate the information provided by each provider rather than reducing the care delivered to a simple analysis of the data on restraints which tells only part of the picture.

For those that fall through the gaps this means that it is increasingly likely that they will find themselves in a secure mental hospital as opposed to an environment which is primed to assist with a potential discharge into the community.  This will lead to people losing the opportunity to rehabilitate from that secure mental health setting.  Further, the impetus for independent providers to step into and continue in the market providing for people with learning disabilities and autism at the higher end of the spectrum is likely to dwindle significantly which is not in the best interests of those people with such needs.  Those providers who care for this cohort of people need to understand the lens through which the CQC is viewing restraint and must be prepared to evidence what measures it is taking to reduce such incidences if possible.  Unfortunately the reality for some providers is the nature of those admitted and their presentation necessitates a degree of restraint being exercised in the best interests of the cared for person. It is not fair to strictly interpret data in the absence of proper context especially if as is clarified in the report the failing in the care of some individuals has occurred a long period prior to any involvement by hospitals that care for such individuals.

Providers, taking into account CQC’s stated position, will need to consider very carefully whether or not to admit people with such challenging behaviour as it is likely to result in CQC ratings falling to Inadequate which brings with it consequent reputational damage.  This is not necessarily in the interests of the service user.

Independent providers of care for autism and learning disabilities are clearly a point of focus for the CQC now with an increase from 1 in 20 being rated inadequate to 1 in 4 in the space of a year and one of the key issues for this shift is the importance of restraint management. It is important to challenge the CQC where such generalised conclusions are drawn and we at Ridouts are well placed to mount that challenge for you to any inspection report which may result in an inadequate rating or enforcement action may be taken by the CQC on the basis of a providers’ levels of restraint.  Providers need to react to this apparent change in approach by the CQC and be prepared to evidence the de-escalation techniques employed and the culture of the provider being such to enable a path through to discharge.  Ensuring all staff are appropriately trained in best practice in respect of the management of any restrictive practices is also a strategy which might dissuade the CQC from drawing negative conclusions on the basis of such practices.  If the CQC adopts this approach to the interpretation of restraints across the entirety of those providing care for individuals with disregard for the particular presentation of each person that is being cared for this is likely to be manifestly unfair.  It appears that this change is a policy decision at the highest level rather than one which has been determined by objective assessment on a case-by-case basis and consequently this may amount to a fettering of the CQC’s discretion. The CQC should be challenged and presented with evidence which demonstrates how the care that is being provided has been properly mapped out and the level of restraint employed by the care provider is appropriate.

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