Key legislation - Mental Health Act 1983

The Mental Health Act (MHA) 2007 came into force in November 2008. The Act primarily amends and updates the MHA 1983. I It supports dignity in care by setting out the processes that must be followed and the safeguards for patients, to ensure that they are not inappropriately detained or treated. The main purpose of mental health legislation is to ensure that people with serious mental disorders can be treated without consent where it is necessary to prevent them from harming themselves or others. The 2007 Act was also used as a vehicle to introduce the Deprivation of Liberty Safeguards into the MCA 2005.

The main changes to the 1983 Act made by the 2007 amendments are:


In the rare circumstances that restraint needs to be used, staff will be protected from liability (e.g., criminal charges) if certain conditions are met. If restraint is used, staff must reasonably believe that all of these apply:

Restraint can include physical restraint or verbal warnings to stop someone going somewhere or doing something. It can also be far more subtle and can include preventing someone from moving freely, for example by placing a walking frame out of reach. Locking doors to prevent people from harm is quite common: while of itself it does not amount to a deprivation of liberty, it must be recognised as a restraint and its use carefully considered for each individual person. If a person has capacity to go out safely, locked doors must not be used to prevent their normal activities.

There are no clear distinctions between restriction, restraint and the deprivation of liberty, each individual case must be evaluated. The Deprivation of Liberty Code of Practice (2.3) offers this guidance: ‘The difference between deprivation of liberty and restriction upon liberty is one of degree or intensity. It may therefore be helpful to envisage a scale, which moves from “restraint” or “restriction” to “deprivation of liberty”. Where an individual is on the scale will depend on the concrete circumstances of the individual and may change over time.’

The MCA Code of Practice (S.6) sets out specific rules on the use of restraint, both verbal and physical, and on the restriction of liberty. Restraint should only be used as a last resort or in exceptional circumstances. Staff administering restraint must be appropriately trained, and they must record when and why they have restrained a person.

Restraint may also be used under common law (as distinct from the MCA 2005) in the rare circumstances where there is a risk that the person lacking capacity may harm someone else. Again, staff must make a record of when and why they used restraint. The Code of Practice on Deprivation of Liberty Safeguards (PDF file) offers guidance relating to restraint.

Frontline practitioners should do all they can to remove excessive restrictions on the rights of individuals in their care. They should seek advice about the legal position of people who they think are possibly being detained without legal safeguards. If such a person is in a care home or hospital, the management should contact the local supervisory body and, if necessary, complete an application to deprive the person of their liberty lawfully within the Deprivation of Liberty Safeguards. Care providers should ensure that people using services and their families know how to use the complaints procedure and that there are whistleblowing procedures for staff who feel that their concerns are not being addressed within the service.