The End of Seclusion and Restraint
| Publication year | 2006 |
| Citation | Vol. 2006 No. 07 |
July 2006 - #3. The End of Seclusion and Restraint
This article is presented by the staff of Vermont Protection and Advocacy, Inc., Vermont's federally mandated and authorized disability watchdog organization, in order to broaden and intensify the discussion regarding the use of violent and coercive practices against people with disabilities.(fn1) The article will discuss the growing trend towards the elimination of violence and coercion on in-patient, locked psychiatric units around the country and in Vermont in terms of the substantive due process rights of involuntarily committed psychiatric patients to be free from the arbitrary and harmful use of coercion against them. It is the authors' hope that increasing awareness among Vermont attorneys of the rights of individuals on in-patient psychiatric units in Vermont will lead to more scrutiny over the use of such violent and coercive practices and speed the elimination of the use of seclusion and restraint and the violence associated with those measures against people with disabilities.
The Seminal Case: ______Youngberg v. Romeo_______
For most of the history of mental health treatment the use of force, seclusion, and restraint, and the violence associated with those measures, was an accepted reality of day-to-day treatment milieus.(fn2) It was not until the 1982 seminal decision in Youngberg v. Romeo that Constitutional limits on the use of coercive practices in psychiatric and other treatment settings were clearly articulated.(fn3) In Youngberg,the mother of a man with profound retardation who was involuntarily institutionalized in Pennsylvania filed suit against state officials after her son suffered multiple injuries and lengthy restraint procedures. The Court agreed with the mother, finding that the Constitution requires that, once a state takes a person into custody, the person has a right to reasonably safe conditions of confinement, freedom from unreasonable bodily restraint, and to habilitation (training) that is minimally adequate as reasonably may be required by these interests.(fn4) In his opinion for a unanimous Supreme Court, Justice Powell wrote: "If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed-who may not be punished at all-in unsafe conditions."(fn5) The Court announced in Youngberg that the relevant question when analyzing whether the use of coercion and violence against involuntarily committed patients was unconstitutional was whether or not professional judgment had been exercised in the fact-specific situation. When determining whether the state has met its obligation to provide constitutionally adequate treatment- that is, freedom from unreasonable use of force or restraint-"decisions made by the appropriate professional are entitled to a presumption of correctness."(fn6)
The Court's decision in Youngberg clearly identified that there are Constitutional limits to the amount of force that can be used against an involuntary patient in a hospital or other treatment facility, yet it left the actual definition of what is excessive to the amorphous and potentially fluid determination of "professional judgment."
The Legal Standard: ______Professional Judgment_____
There are several good reasons why the courts should require the input of medical professionals and defer, in part, to those medical professionals when they do exercise professional judgment in ordering coercive interventions against psychiatric patients. Use of seclusion and restraint and the violence associated with those measures poses serious health risks, both physical and psychological. Prone restraints, use of controlling agents like OC spray or Tasers, and even the neurobiological and psychological effects of trauma, can have life-threatening medical consequences. In May 2004 VP&A reported on the suicide death of a patient at the Vermont State Hospital in 2003 whose restraint experience the previous day appears to have been a precipitating factor for his completed suicide effort.(fn7) Medical professionals should have the training to understand if medications or other aspects of the patient's illness may have symptoms or side effects, such as motor restlessness or tremors, that may increase the already notable pain, discomfort, and possibility of injury associated with the use of restraints. Often medications, known as chemical restraints, provide an alternative to physical restraints. Use of chemical restraint may appear more humane but often has equally adverse consequences. It is still not uncommon to find both mechanical and chemical restraints, and seclusion, all used concurrently on some units.
Medical professionals should also be in a position, based on experience, training, and level of responsibility, to insure that all less intrusive, restrictive, and potentially dangerous alternatives to the use of seclusion and restraint (and the violence associated with those measures) have been evaluated, attempted, and shown to be ineffective. However, it is not uncommon to find that the individuals on the units making the immediate decisions about the use of seclusion and restraint, and the violence associated with those measures, are not the doctors or psychiatrists contemplated by the judiciary's decisions, but rather the line staff- mental health workers and psychiatric technicians or, possibly, a nurse or a nurse manager. These staff members (especially those on the evening and night shifts), while quite likely working heroically under difficult circumstances, are also likely to have the least amount of training and experience in the use of alternative or non-violent strategies to de-escalate potentially out-of-control situations on in-patient units.
The standard used to determine if there has been a failure to use professional judgment in the use of seclusion and restraint...
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