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Legal Aspects of Restraints

Vol. 10 •Issue 9 • Page 29
The Learning Scope

Legal Aspects of Restraints

Nurses need to be aware of consequences that may result from improper use

This offering expires in 2 years: April 14, 2010

The goal of this continuing education offering is to educate nurses about legal aspects of restraints. After reading this article, you will be able to:

1. Describe the legal aspects of restraint use.

2. List the physical and psychological consequences that may result from improper restraint use.

3. Discuss how deaths while in restraint or physical hold have affected restraint use in behavioral health.

You can earn 1 contact hour of continuing education credit in three ways: 1) For im-mediate results and certificate, go to www.advanceweb.com/nurses. Grade and certificate are available immediately after taking the online test. 2) Send this answer sheet (or a photocopy) along with the $8 fee (check or credit card) to ADVANCE for Nurses, Learning Scope, 2900 Horizon Dr., King of Prussia, PA 19406. 3) Fax the answer sheet to 610-278-1426. If faxing or mailing, allow 30 days to receive certificate or notice of failure. A certificate of credit will be awarded to participants who achieve a passing grade of 70 percent or better.

Merion Publications Inc. is an approved provider of continuing nursing education by the Pennsylvania State Nurses Association (No. 008-0-07), an accredited approver by the American Nurses Credentialing Center's Commission on Accreditation. Merion Publications Inc. is also approved as a provider by the California Board of Registered Nursing (No. 13230) and by the Florida Board of Nursing (No. 3298).

 

 

 

 

You work in a local community hospital that has several inpatient psychiatric units. Your initial orientation included learning about restraint use, alternative methods, correct application and care of the patient, including monitoring when restraints are applied. You were given an assignment in medicine and cross-trained for psychiatry.

That was 6 months ago. You have been busy learning your role on a busy medical unit and treating patients with a variety of chronic diseases. You have not had to apply restraints to medical patients since orientation.

That's about to change. When you come on duty one day, the staffing office calls and says you are "floating" to psychiatry today.

Restraint Use Gone Wrong?

During this shift, an extremely agitated patient is on the unit. He is responding to internal stimuli. He is irrational, so verbal intervention does not work. He is unable to respond to staff and lunges at another patient. The team contains the patient and moves him toward his room. They use a physical hold, in which two individuals hold the patient's arms above and below the joints; two others hold his legs. They tell you to "do something about his spitting." Another staff member applies the physical restraints used in the facility – leather wrist and ankle restraints.

Automatically, you grab a nearby sheet and put it over the patient's face. He stops struggling, and a few minutes later staff thinks the "episode" is winding down. You remove the sheet and find the patient diaphoretic, bluish and unresponsive. A code is called. This healthy, 24-year-old patient has died. Are you liable? Is the institution liable?

Another Case

Back on your own unit, the average age of the medical patients is 72 years. Most of them have chronic medical conditions that require much physical care and time. For example, several patients have multiple pressure ulcers and you are responsible for the overall management of the unit. One patient who is confused keeps wandering off the unit. The unlicensed professional working with you says she cannot keep running after this patient because she has too much else to do. She expects you to do something.

You call the attending physician and request medication to "keep the patient quiet and hopefully help him sleep — in his bed." Little communication about the patient's condition is shared; you convey the patient is a "management" issue. The request is granted and the patient receives a sedative narcotic. One hour later, the unlicensed professional finds the patient on the floor in the bathroom. X-rays reveal a fractured hip. Are you liable? Is your institution liable?

Mindful of Consequences

Regardless of the setting, healthcare professionals managing patients in restraint need to be aware of the physical and psychological consequences that may result from improper use of restraint. Restraint may be physical in nature, it may be containment in a room where the patient is not allowed to leave freely or it may be use of a medication to sedate a patient to a point where they can not function independently. Whatever the setting, those staff must be educated and competent. Recent Centers for Medicare & Medicaid Services (CMS) guidelines as well as Joint Commission standards for restraint outline the education, preparation and competency expected of all staff who use any form of restraint and care for patients in restraint.

Restraint use for dangerous or inappropriate behavior is most often seen in behavioral health settings. Deaths while in restraint or physical hold became the focus of numerous articles on best practices, patient/family complaints and litigation. This article will focus on the impact the deaths and legal issues have had in the use of restraint in behavioral health today, and the expectation that organizations would see restraints as a less-than- therapeutic process and promote restraint-reduction policies and procedures.

'Deadly Restraint'

The above incidents are not isolated. In 1998, the Hartford Courant published a series called "Deadly Restraint" that reported 142 restraint deaths over a 10-year period. Of these, 59.6 percent occurred in the hospital setting (including psychiatric hospitals and psychiatric units of general hospitals). The Courant further stated 47.2 percent of the 142 deaths involved physical restraints or therapeutic holds, while 44.1 percent involved mechanical restraint, 3.1 percent involved a combination of the two and the remaining 5.5 percent were seclusion related.1

That series of articles prompted a movement away from the standard practice of seclusion and restraint as a therapeutic process. The exposé challenged hospitals and clinicians to recognize seclusion and restraint as a treatment failure, rather than a part of treatment. Previously, when a restraint death occurred, hospital leaders reviewed the cases to see how to improve the restraint policy and procedures. After the Courant articles, facilities sought a proactive approach to eliminate the use of seclusion and restraint in psychiatric settings.

National Response

In 1998, the National Association of State Mental Health Program Directors (NASMHPD) began hearings on patient deaths related to restraints. Following the hearings, NASMHPD issued a policy statement calling for reduction and eventual elimination of seclusion and restraint. In 1999, the association provided a technical report on restraint prevention.

Also in 1999, the U.S. General Accounting Office released its findings, which supported those of the Hartford Courant, as well as additional data. Due to inconsistent reporting mechanisms, the government agency said "the reporting is so piecemeal, the exact number of deaths in which restraint or seclusion was a factor is not known.1 At the same time, CMS proposed interim rules for seclusion and restraint use in hospitals as a condition of participation for hospitals reimbursed by Medicare and Medicaid.

Between 2000 and 2002, the Substance Abuse and Mental Health Services Administration (SAMHSA) reviewed practices of use and evaluation of restraints in children's services. SAMHSA hired Charles Curie, former director of mental health services in Pennsylvania, to promote alternatives to restraint use. Through Curie's leadership, Pennsylvania institutions decreased their restraint use 90 percent over 6 years.2

There was a systematic change in the way restraints were viewed, and facilities implemented policies to discuss strategies to reduce restraints. Staff was encouraged to learn how to identify the early warning signs of escalating behavior. During initial patient assessments, healthcare providers asked about "triggers" that set them off and what strategies they used to calm themselves down. The patient was included in the care planning, and providers were individualizing the care rather than "institutionalizing" the patient to make them fit the milieu of the unit. Curie's vision and leadership resulted in systematic changes that led to the evolution of a coercion-free environment safer for patients and staff.

Restraint-Free Training

In 2003, NASMHPD published a training curriculum that identifies core strategies to reduce the use of seclusion and restraint. Training began across the nation. The American Psychiatric Association and the American Psychiatric Nurses Association (APNA) released restraint-use policy statements that support the core strategies and the belief all individuals have the fundamental right to be free from restraints. Restraints may not be coercive, used for the benefit of staff or applied as a means of punishment. The expectation is seclusion and restraint will be used only after all other means and alternatives have failed, staff members are educated and competent, patients will be carefully monitored, and changes in the plan of care will be made so release occurs as soon as the patient, staff and other patients are no longer at risk for imminent violence.

In 2004, SAMHSA released a request for proposals for states' best practices to reduce seclusion and restraint. From here on, the legal aspects of restraint and the use of them by staff take on significant meaning. There has been much published in recent years by state and individual organizations discussing "best practices." During the summer of 2007, the APNA approved a position statement and standards of practice for the use of restraints and seclusion. Quality-improvement indicators submitted by institutions across the country demonstrate many have effectively reduced seclusion and restraint use to virtually no use and have preserved the safety of the care environment. In fact, evidence shows an increase in patient satisfaction during hospitalization staff satisfaction and increased retention rates for staff.

Organizations were quickly adopting the model originally outlined by NASMHPD as a best practice model. They collaborated with the National Technical Assistance Center for State Mental Health Planning (NTAC) and offered a strategic system to promote change in care delivery titled "Six Core Strategies to Create an Environment Where both Violence and the Need to use Restraint/Seclusion are Rare."

Six Strategies

Strategy 1: Leadership toward organizational change. This strategy outlines a philosophy shift for the organization to strive toward restraint-free care including delegation of roles.

Strategy 2: Using data to inform practice. Institutions are encouraged to track and trend restraint use to drive goals for reduction, as well as education and training.

Strategy 3: Workforce development. Education encompasses understanding the neurological, biological, psychological, and social effects of trauma and violence on humans and the prevalence of these experiences in the patient population. The focus is to shift education of staff into a recovery resiliency model rather than a chronicity model.

Strategy 4: Use of violence and restraint/seclusion reduction tools. Introduction of risk factor for aggression assessments on admission and working from a prevention model is encouraged.

Strategy 5: Consumer roles in patient settings. Planning for introducing "peer specialists" into units as staff roles is encouraged. Advocacy for patients is seen as extremely important.

Strategy 6: Debriefing techniques. The strategy seeks to use information gleaned from a restraint episode from a patient to inform policy and drive care.

In summer 2007, APNA approved a position statement and standard of practice for the use of restraints and seclusion.

Tort Litigation

Tort litigation has been one traditional response to deaths or injuries in seclusion or restraint. These cases brought against agencies and individuals have had increasing success in recent years due to the availability of best practice information regarding practice guidelines. Staff no longer can contend restraints are the only measures to provide safety on a unit.

"Fortunately for me, it has been a number of years since I was locked up and tied down. It has always seemed like overkill," writes William Pflueger, treasurer of the Mental Health Consumer/Survivor Network of Minnesota, in an NTAC newsletter. "Here I am in a locked facility and I get put in a locked room and then strapped and locked to a bed. I was expecting that next a canvas bag would be put over me and I would be dropped into a river."3

The same newsletter offers a legal perspective from Susan Stefan, JD, a senior staff attorney at the Center for Public Representation in Newton, MA. "Not only are the mental health workers who actually injure the clients being sued, but nurses and other supervisors are being found liable for failing to intervene and protect their clients.4 The institution is held accountable for the behavior of its staff. It is responsible for ensuring competent staff care for the patients related to appropriate and effective education and competencies."

In the case of an employer/employee relationship, vicarious liability and respondeat superior are essentially the same thing. The case will look for who was actually negligent, but the plaintiff will go after the "deep pockets" employer. One injured client was awarded $100,000 in compensatory damages and $1.5 million in punitive damages. The state Attorney General's office refused to represent either the mental health workers or the nurse supervisor on appeal.4

Example Case

In Big Town Nursing Home Inc. vs. Newman, a 1970 case involving a 67-year-old man, evidence showed he was placed in a facility against his will. He tried to leave the facility multiple times and was placed in a restraint chair. Staff took away his clothes and did not let him use the phone.

The court described the staff actions as "in utter disregard of the resident's rights." The man had no court order for his commitment, and the admission agreement stated he must not be kept against his will. Staff acted "recklessly, willfully and maliciously by unlawfully detaining him."5

Restraints: Treatment Failure

Most organizations generally believe restraint should be viewed as a treatment failure. The best way to reduce litigation is by continuing to monitor safe use of restraint while working on its reduction with the goal of elimination.

Movement toward this goal will help reduce legal action taken against the organization while meeting the required standards outlined by such organizations as CMS and the Joint Commission.

Charles Curie stated, "To reduce the use of seclusion and restraint is part of a broader effort to reorient the state mental health system toward a consumer-focused philosophy that emphasizes recovery and independence."6 Creating an ecobehavioral perspective is the key to trauma-informed care and the recovery model, which is the culture being created through his vision. It proposes a complex interplay and balance between the staff setting and the patient variables. It maintains any person who is mentally ill has the capability to stabilize, reaching a level of functioning that has some purpose and meaning. Trauma-informed care has two basic principles: 1) staff appreciate the high prevalence of trauma history among the mentally ill population, and 2) an understanding about how such trauma affects neurological, biological, psychological and sociological aspects of the patient. Achieving successful outcomes in this model requires a systematic approach within the organization.

Mandatory Resources

First, leadership must be willing to invest money and time into reorganization to ensure safe practice — weighing the financial costs of staffing changes, environmental changes and unit upgrades against potential litigation over loss of life and the publicity that accompanies it. Second, leadership and unit staff must be committed to education and a movement toward a more democratic treatment model versus control model.

Staff needs to become sensitive to coercion techniques such as holding the keys to the doors, setting times for phone use or issuing ultimatums as a condition for discharge. Other methods include involving patients and families in assessments, care planning and outcomes of care, and conducting initial risk assessments, psychiatric advance directives, peer counseling and advocacy as part of the treatment approach.

Many staff members do not know any methods to control outbursts other than restraints. More education is needed on the use of restraint alternatives, early identification of warning signs, and increased interaction and activity with patients instead of "observation."

All staff must be deemed competent in all areas of crisis intervention, whether they are de-escalating with verbal and nonverbal strategies or applying a locked leather restraint. This is accomplished at a minimum, through initial orientation and annual education and training as recommended in the revised CMS guidelines. They also should have a greater connection with their patients, as outlined in the relationship-based model of care.

A seclusion/restraint reduction plan must be in place. Members of all disciplines and organization levels must be involved. Unless organizations deal with the beliefs, myths and realities of psychiatric care embodied by their staff, they will only increase staff fear and, therefore, resistance. Culture change takes time, yet it must occur before there can be focus on patient-centered activity.

Orchestrating Improvement

Facilities must make performance improvement data the drive behind the culture change. Concrete data reduces the emotional element to change. Data should be easy to understand and access by all members of the team, from aide to administrator.

Team-building is another essential element. Supervisory sessions geared toward staff opening up to one another in a safe environment will assist in decreasing the effects of horizontal violence that can have a negative impact on patient behavior. Patients relate differently to different staff. If patients realize they can choose with whom they interact, their anxiety decreases as well as the number of violent episodes. If a patient needs to be restrained, staff should use information from the debriefing to change the model of care. The plan of care should be individualized and considered a living document until the patient is discharged.

A facility should provide role models and "cheerleaders for change" on the unit. Core leadership should be a "witness" to each restraint episode. Initiation of review and action should take place immediately after the incident so learning and change occur simultaneously.

Using the core strategies outlined by NASMHPD, any organization can adopt the guidelines and make the commitment to protect the organization against litigation and suit. More importantly, the strategies focus on improving patient care; let's try to remember why hospitals came about in the first place and we chose to become healthcare professionals –"First, do no harm."

Big Responsibility

As a result of these new approaches, every episode of seclusion and restraint in every institution across the country takes on new meaning and scrutiny in the courts. Are patients' civil liberties being violated because of unnecessary containment? "Claims of constitutional violations were a common response to systemic overuse of seclusion and restraint, and are likely to re-emerge now that professional judgment in the field strongly supports significant reduction in the use of restraint. Constitutional claims include violations of the 14th Amendment right to minimally adequate treatment, freedom from restraint, and also violation of the Fourth Amendment right to be free from unreasonable search and seizure."3

In addition to increased litigation brought by peer advocacy groups and mental health legal services, regulatory agencies such as state health departments, the Joint Commission and CMS are proposing stricter guidelines for restraint use. Knowing this, courts are leaning toward deferring to agencies to standardize practice measures because of their ability to quickly evaluate and change clinical guidelines. The responsibility for change is in the hands of the practitioners.

References

1. Department of Health and Human Services. (2006, Dec. 8). Centers for Medicare and Medicaid Services. Federal Register, 71(236), 71381.

2. Pyle, E. (2005, April 24). Reformers push to end restraint and seclusion. Retrieved April 6, 2008 from the World Wide Web: http://www.dispatch.com/live/contentbe/dispatch/2005/04/24/20050424-A15-00.html

3. Pflueger, W. (2002, Summer/Fall). Consumer view: Restraint is not therapeutic. NTAC Networks Newsletter, special edition, 7.

4. Stefan, S. (2002, Summer/Fall). Legal and regulatory aspects of seclusion and restraint in mental health settings. NTAC Networks Newsletter, 4.

5. Pozgar, G. (2006). Legal aspects of health care administration (9th ed., p. 40). Boston: Jones and Bartlett.

6. Jorgenson, J., & Geisler, C. (2002, Summer/Fall). Education is key to system wide change. NTAC Networks Newsletter, special edition, page 9

Resources

Barloon, L. (2003). Legal aspects of psychiatric nursing. Nursing Clinics of North America, 38(1), 9-19.

Curran, S. (2007). Staff resistance to restraint reduction: Identifying & overcoming barriers. Journal of Psychosocial Nursing and Mental Health Services, 45(5), 45-50.

Huckshorn, K. (2004). Reducing seclusion restraint in mental health use settings: Core strategies for prevention. Journal of Psychosocial Nursing and Mental Health Services, 42(9), 22-23.

Muir-Cochrane, E.C., & Holmes, C.A. (2001). Legal and ethical aspects of seclusion: An Australian perspective. Journal of Psychiatric and Mental Health Nursing, 8(6), 501-506.

Marianne Howard Siewers is vice president, clinical programs, at Epicare Associates, West Caldwell, NJ. She also is adjunct nursing faculty, Kingsborough Community College, Brooklyn, NY, and former director of behavioral health nursing, Coney Island Hospital, Brooklyn.

Useful Web Sites

The following online resources may provide useful information when you are reviewing your restraint practice and guidelines.


  Last Post: April 8, 2010 | View Comments(1)

Well written

Kathleen  Kobberger,  ApnApril 08, 2010
21 Meadowbrook Rd, NJ




     

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