Health boards have been warned they may be breaking the law if they isolate people with mental health problems or learning disabilities – even if they do not lock the door.

New guidance from the Mental Welfare Commission (MWC), defines seclusion as keeping someone in a locked room but also any situation where staff are preventing a person from leaving, whether the door is locked or not.

It says the practice is sometimes necessary, particularly when there is a risk of harm to others. 
But, without proper procedures, it can be unlawful, not just in hospitals but even if it takes place in a person’s own home or another community setting.

A Good Practice Guide, published today by the Commission, says that when seclusion takes place it must be for the shortest time possible and the safety, rights and welfare of the person involved must be protected. 

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And it warns: “Some observers believe that no one receiving care for any form of mental illness, learning disability or related conditions should ever be locked in a room on their own.”

Previous guidance has been limited to the seclusion of people in hospital settings, the MWC says, and has focused on situations where the door to a ward or room is locked. 
However, the new guidance says this is not the only time the rules should apply.

“Seclusion implies use of a locked door”, it states. “However, where someone prevents a person from leaving a room, by physically blocking the exit, this should still be considered seclusion.” 

Despite this, some health boards and community services believe seclusion only relates to the use of a locked room, the MWC says. As a result, some health boards do not have a policy on its use, claiming it does not happen.

Without clear policies, mental health services can break the law without meaning to. A  2017 MWC report said: “Unlawful detention can occur inadvertently – for example ... when an informal patient [who hasn’t been detained under the Mental Health Act] is told that they can’t leave the ward or when a nurse is positioned at a ward exit to discourage informal patients from leaving.”

Alison Thomson, executive director of nursing at the MWC, said: “It is clear from observation and inquiries that seclusion is used in a number of hospitals in Scotland and in other settings.”

In some situations, she added, especially if there is a risk of harm to others, the individual being cared for may agree that some form of seclusion would be beneficial. “But it is critical that care providers clearly understand whether or not they are using seclusion.”

Even if it is with consent, it is vital clear records are kept in all cases, the guidelines state.

Seclusion should never be used to compensate for staff shortages or an “inadequate environment”, the report adds; nor should seclusion ever be used, or its use threatened, as a punishment. 

Ms Thomson added: “We also ask all health boards in Scotland to create a policy on the use of seclusion, regardless of whether they say it is used or not.” 

This would allow staff to decide for themselves whether an action they are taking qualifies, she said.

Official figures suggest that in recent years there has been a reduction in the use of seclusion for people with mental health issues and learning disabilities. 

But health boards should try to cut its use further, the MWC says, and look for less restrictive care arrangements wherever possible, adding: “Failure to do this has the potential to lead to inhuman and degrading treatment of some of the most vulnerable people in our society.”