Restrictive Practices in Health Care and Disability Settings

Legal, Policy and Practical Responses

Bernadette McSherry, Yvette Maker, Bernadette McSherry, Yvette Maker

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000290257
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume explores different models of regulating the use of restrictive practices in health care and disability settings.

The authors examine the legislation, policies, inspection, enforcement and accreditation of the use of practices such as physical, mechanical and chemical restraint. They also explore the importance of factors such as organisational culture and staff training to the effective implementation of regulatory regimes. In doing so, the collection provides a solid evidence base for both the development and implementation of effective approaches to restrictive practices that focus on their reduction and, ultimately, their elimination across health care sectors. Divided into five parts, the volume covers new ground in multiple respects. First, it addresses the use of restrictive practices across mental health, disability and aged care settings, creating opportunities for new insights and interdisciplinary conversations across traditionally siloed sectors. Second, it includes contributions from research academics, clinicians, regulators and mental health consumers, offering a rich and comprehensive picture of existing regulatory regimes and options for designing and implementing regulatory approaches that address the failings of current systems. Finally, it incorporates comparative perspectives from Australia, New Zealand, the Netherlands, Germany and England.

The book is an invaluable resource for regulators, policymakers, lawyers, clinicians, consumer advocates and academics grappling with the use and regulation of restrictive practices in mental health, disability and aged care contexts.

Part I Background

Rationales and options for reform

1 Restrictive practices

Options and opportunities

Bernadette McSherry and Yvette Maker

Introduction

In many health and social care contexts around the world, it is deemed acceptable and necessary to control service users’ behaviour where that behaviour is considered to be risky, harmful, hazardous, challenging or otherwise unwanted. Various forms of restraint are used to control behaviour in a wide range of institutional and other settings. As explained later, in general terms, restraint may be ‘physical’, ‘mechanical’ or ‘chemical’ in nature.

The use of these different forms of restraint is controversial. Some forms are inherently dangerous and may involve serious deprivations of liberty, interference with physical and mental integrity and loss of dignity. The use of restraint may also cause injury and sometimes even death. Despite these hazards, different types of restraint continue to be used pursuant to varying levels and kinds of legal regulation and oversight.

There is growing impetus for reforms to either introduce effective regulation of restraint or improve its existing regulation in many parts of the world. A major driver of change internationally has been the United Nations’ (UN) recognition of the use of various forms of restraint on persons with disabilities as breaching several human rights. The UN Convention on the Rights of Persons with Disabilities (CRPD) (2007), to which over 180 States are now party, protects a person’s freedom from torture and cruel, inhuman or degrading treatment or punishment (Article 15) and emphasises that ‘[e]very person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others’ (Article 17). The UN Committee on the Rights of Persons with Disabilities, which monitors implementation of the CRPD, has repeatedly expressed its concerns about the use of restraint. It has recommended action to reduce or abolish restraint in its ‘concluding observations’ on reports submitted to it from many States Parties to the Convention including Slovenia, Luxembourg, the United Kingdom, Ethiopia, Thailand, Croatia, Germany, Denmark, the Republic of Korea, Mexico, Kenya and Australia.

It is therefore timely to consider the role and limits of regulation in relation to restraint across mental health, disability and aged care settings. This edited volume arises from a Discovery project funded by the Australian Research Council (DP160100679). It brings together authors from diverse backgrounds and disciplinary perspectives, including consumers, policymakers, public servants, clinicians and academics with expertise in law, social work, nursing, consumer perspectives, psychiatry, psychology and pharmacy. It discusses different models of regulating the use of restrictive practices, including legislation, policies and guidelines, as well as inspection, enforcement and accreditation, and explores the importance of factors such as staff training, availability of resources, data quality and organisational culture in relation to the effective implementation of regulatory regimes. In doing so, this volume is intended to provide an evidence base for the development and implementation of consistent and effective approaches to restraint that prioritise the minimisation, and ultimately elimination, of these practices across health care and disability settings.

Definitions and scope

Restraint is used across a wide range of health and social care settings, and on people with a variety of diagnoses and needs. This volume focuses on the use of restraint in mental health facilities, disability services (community and residential) and residential aged (or adult social) care in Australia, New Zealand, England, the Netherlands and Germany. Regulatory frameworks and cultural norms governing the use of restraint in these settings differ greatly across these jurisdictions and sectors. Restraint is also permitted or tolerated in a range of other settings worldwide, including forensic mental health services, hospital emergency departments, prisons, juvenile detention facilities, schools, homes and within communities.

Restraint can take many forms. The common feature of all forms of restraint is its purpose, namely, to control a person’s behaviour. In this volume, we differentiate between three major forms of restraint: physical, mechanical and chemical restraint. Except where noted by the authors of individual chapters, we follow the broad definitions of those practices as they are used in England and Wales and the six states and two self-governing territories in Australia. We use ‘physical restraint’ to refer to the use of direct physical contact, where one or more staff members use their bodies to restrain a person (for example, Department of Health (UK) 2014). We use ‘mechanical restraint’ to describe the use of devices such as straps, jackets or belts to control a person’s behaviour (for example, Disability Act 2006 (Vic): section 3). We use ‘chemical restraint’ to refer to the use of a medication for the purpose of controlling or subduing a person’s behaviour rather than for the purpose of treating an illness or medical condition (for example, Mental Health Act 2013 (Tas): section 3).

Other terms may be used to describe similar interventions in other contexts and jurisdictions. In some cases, the same terms are used to mean different things. For example, the umbrella term ‘bodily restraint’ is sometimes used to refer to both physical and mechanical restraint (Mental Health Act 2014 (Vic): section 3). The term ‘prone restraint’ refers to a specific form of physical restraint during which the person is held on the ground in a face-down position (see Cross in Chapter 6 in this volume). Terms such as ‘rapid tranquillisation’ or ‘sedation’ may be used instead of ‘chemical restraint’ (see Bartlett and Sampson in Chapter 3 in this volume). Other forms of restraint are also identified and regulated in some places. For example, ‘environmental restraint’ or ‘restriction’ may refer to restricting access to some parts of the person’s environment, including items and activities by, for example, using physical barriers, locks or other means to stop the person entering particular places or accessing valued items or activities (National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018: rule 6(e); NSW Government undated: 1). ‘Emotional restraint’ is sometimes used to refer to situations where people feel constrained from expressing their views openly and honestly for fear of the consequences (National Mental Health Consumer and Carer Forum 2009: 5).

Approaches to the regulation of restraint use in the mental health, disability and aged care sectors also vary within and across jurisdictions. Three main forms of regulation are discussed in this volume. The first is legislation, found in most Australian states and territories but not in all sectors (see, for example, Chandler in Chapter 4, Allan and Manwaring in Chapter 8 and Brophy, Fletcher and Hamilton in Chapter 12 in this volume). The second form of regulation is policy documents such as guidelines, codes of practice and procedures relied upon, for example, in England, Wales and Scotland (see Bartlett and Sampson in Chapter 3 and Cross in Chapter 6 in this volume). The third is regulation through a body with powers of inspection, enforcement and/or accreditation, as found in the Netherlands (see Waddington in Chapter 7 in this volume).

Even where regulation exists, legislation and policies may not reflect recent interpretations of international human rights law (see Bartlett and Sampson in Chapter 3 and Chandler in Chapter 4 in this volume, among others). Practices within settings may also vary greatly, with some instances of the overuse of restraint reflecting poor organisational cultures (see McSherry in Chapter 11 in this volume).

In light of the diversity of definitions and regulatory approaches, each chapter of this volume includes a definition of the forms of restraint and regulation addressed in that chapter. We draw connections between different systems in the introductions to the substantive parts of this volume.

Part I, which includes this chapter, introduces the key issues and questions about the use and regulation of restraint addressed in this volume. It also outlines the rationale for working towards elimination rather than just reduction. Parts II, III and IV address respectively what we consider to be the three key elements of regulatory reform to work towards this goal: regulation through legislation, policy or other means (Part II); implementing and monitoring regulatory change (Part III); and changing culture and practice (Part IV). A final, concluding chapter in Part V reviews the volume’s major themes and identifies further research and practices that may support reform endeavours. While the chapters are organised into parts, they address interrelated issues and themes. We outline these common themes in this introductory chapter.

Several themes found in the wider literature on restraint and behaviour control in health and social care contexts are not addressed in this volume. They include the use of restraint in general medical settings, emergency departments and forensic psychiatry settings; the use of restraint on children and adolescents in schools, places of detention and other settings; and the use of restraint in homes and within communities. We acknowledge that restraint use is a global concern (see, for example, efforts to reduce the practice of ‘pasung’ in Indonesia: Daulima 2018) and that this volume addresses a relatively narrow band of high-income countries. The themes identified may resonate and serve as a starting point for efforts to reduce, if not eliminate, the use of restraint in other countries. We are mindful, however, of the dangers of homogenising the way that diverse cultures understand sickness, impairment or disability and health and efforts to control other people’s behaviour.

The next section provides an overview of how the use of restraint reflects wider concerns about human rights and their limits.

Background: the wider context and options for reform

While there is growing awareness that prevailing approaches to the use of restraint and other restrictive practices are problematic and unsustainable, opinions vary as to whether reduction, minimisation or elimination should be the ultimate goal of reform. This diversity of opinion is reflected in the present volume. Some authors discuss reduction or minimisation of the use of restraint, with the assumption that restraint will continue to be necessary in some instances of last resort, for example, where there is a serious and urgent risk to the individual’s health or life, or a risk to the safety of others. Other authors focus on the ultimate goal of elimination of the use of all forms of restraint on the basis that these practices are entirely inappropriate. There are several compelling rationales for working towards such elimination. Research evidence indicates that restraint can be counter-therapeutic (Bonner et al. 2002), as well as having the potential to cause serious, long-term harm including physical injury and death (Parker and Miles 1997; Evans, Wood and Lambert 2003; Mohr, Petti and Mohr 2003), in addition to fear, pain and psychological harm (Fish and Culshaw 2005; Frueh et al. 2005; Strout 2010; Rose et al. 2017). There is also evidence that restraint and other restrictive practices may be used for reasons that are not permitted by law or policy, for instance, to punish or because of a lack of awareness of alternatives (Muir-Cochrane, Holmes and Walton 2002; Bartlett and Sandland 2007; Foster, Bowers and Nijman 2007). Studies also suggest that restraint does not necessarily achieve safety goals, for example, in the case of the use of mechanical restraints such as belts and bedrails to reduce falls among aged care residents (Tinetti, Liu and Ginter 1992; Capezuti et al. 2002).

Several UN bodies have called for the abolition of the use of restrictive practices on the basis that they are a violation of human rights (see Maker and McSherry 2019). As touched on earlier, the UN Committee on the Rights of Persons with Disabilities has suggested that the use of restraint on persons with disabilities constitutes a violation of several of the CRPD’s provisions, including its Article 15, which addresses the right to be free from torture or cruel, inhuman or degrading treatment or punishment; Article 16, which sets out the right of all persons with disabilities to be free from exploitation, violence and abuse; and Article 17, which affirms the right to respect for the physical and mental integrity of every person with disabilities on an equal basis with others (Kumble and McSherry 2010; Committee on the Rights of Persons with Disabilities 2015).

Similar statements have come from other quarters within the UN, including the High Commissioner for Human Rights and the Special Rapporteur on Health (Human Rights Council 2017; United Nations General Assembly 2017). The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatme...