Section 4 Least Restrictive Environment

• Library: Mental Health 2006

Patients are entitled to be placed in a treatment program that is the least restrictive environment required for that patient. “Least restrictive environment” is defined as:

[A] reasonably available setting or mental health program where care, treatment, habilitation or rehabilitation is particularly suited to the level and quality of services necessary to implement a person’s individualized treatment, habilitation or rehabilitation plan and to enable the person to maximize his functioning potential to participate as freely as feasible in normal living activities, giving due consideration to potentially harmful effects on the person and the safety of other facility or program clients and public safety.

Section 630.005(21), RSMo 2000.

The least restrictive environment doctrine was first applied in a mental health case in 1966. In Lake v. Cameron, 364 F.2d 657, 660 (D.C. Cir. 1966), a case in which a patient involuntarily committed to a hospital argued that she should be treated in a setting less restrictive than total confinement, the court held that “[d]eprivations of liberty solely because of dangers to the ill persons themselves should not go beyond what is necessary for their protection.” The least restrictive environment is the combination of therapeutic and preventative interventions that are conducive to the most effective and appropriate treatment that will give the mentally disordered person a realistic opportunity to improve their level of functioning. A person’s physical, social, or biological liberties should only be restricted as necessary to achieve legitimate purposes of protecting society and providing mental health treatment and care for the person. Ingo Keilitz et al., Least Restrictive Treatment of Involuntary Patients: Translating Concepts Into Practice, 29 St. Louis U. L.J. 691, 695–96 (1985). And when courts are called on to analyze a patient’s claim that their liberty interests are being violated, judgments made by professionals will be presumptively valid unless a decision is clearly inconsistent with accepted professional judgment, practice, or standards. Youngberg v. Romeo, 457 U.S. 307, 323 (1982).

This principle also applies if a patient is found to be in some degree incapacitated; the court must apply the least restrictive environment principle in determining the degree of supervision the patient requires. Section 475.075.10, RSMo 2000. “[T]here shall be imposed on the personal liberty of the ward only such restraint as is necessary to prevent him from injuring himself and others and to provide him with such care, habilitation and treatment as are appropriate for him considering his physical and mental condition and financial means.” Section 475.010.10, RSMo 2000. The guardian must “[a]ssure that the ward resides in the best and least restrictive setting reasonably available.” Section 475.120.3(1), RSMo 2000.

The least restrictive environment standard is also imposed in the context of involuntary commitments. After the initial 96 hours, a petition may be filed for additional inpatient detention and treatment or for outpatient detention and treatment. If the court finds that the patient, as a result of mental illness, presents a likelihood of serious harm to the patient or to others, the court shall order either that the patient be detained for inpatient involuntary treatment in the least restrictive environment for a period not to exceed 21 days or that the patient be detained for outpatient detention and treatment in the least restrictive environment for a period not to exceed 180 days. Section 632.335.4, RSMo 2000.

Duty to Protect

(§5.5) Use of Restraints

The duty to protect an individual from self-harm or harm to others may require the use of mechanical or chemical restraints. While the use of restraints is disfavored, they may be necessary for a health care facility or provider to meet its duty to control the conduct of the patient or to protect a foreseeable victim from a patient’s conduct. Bradley v. Ray, 904 S.W.2d 302, 311 (Mo. App. W.D. 1995); see also Restatement (Second) of Torts § 314 (1965). This duty to restrain arises from the special relationship between the health care facility or provider and the patient. By entering into the relationship, the health care facility or provider assumes responsibility for the safety of the patient as well as for any third person known to be threatened by the patient. Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 344 (Cal. 1976).

The expectation is that a health care provider or facility will exercise reasonable care toward a patient as the patient’s mental and physical conditions require. When the health care provider or facility has notice or knowledge of facts that reasonably indicate a patient would be likely to commit self-harm or harm others, the health care provider or facility must use reasonable care based on the circumstances to prevent such harm. Klein v. Bia Hotel Corp., 49 Cal. Rptr. 2d 60, 65 (Cal. Ct. App. 1996).

The imposition of restraints must be balanced against the patient’s right to be free from restraints. “[L]iberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Youngberg v. Romeo, 457 U.S. 307, 316 (1982). But as the United States Supreme Court noted in that decision, “these interests are not absolute; indeed to some extent they are in conflict. . . . [T]here are occasions in which it is necessary . . . to restrain the movement of residents—for example, to protect them as well as others from violence.” Id. at 319–20.

In determining whether a patient’s constitutional right has been violated by the use of restraints, the patient’s liberty interests must be balanced against the potential harm that could occur in the absence of restraints. What is required is to ascertain that professional judgment was exercised. Id. at 321. The judgment exercised by a qualified professional must be respected. As the United States Supreme Court has reasoned:

[T]here certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions. For these reasons, the decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.

Id. at 322–23 (citations omitted).

If restraints are used, there are certain criteria established by Missouri laws that must be met. Section 630.175.1, RSMo 2000, requires the following:

No person admitted on a voluntary or involuntary basis to any mental health facility or mental health program in which people are civilly detained . . . and no patient, resident or client of a residential facility or day program operated, funded or licensed by the department [of Mental Health] shall be subject to physical or chemical restraint, isolation or seclusion unless it is determined by the head of the facility or the attending licensed physician that the chosen intervention is imminently necessary to protect the health and safety of the patient, resident, client or others and that it provides the least restrictive environment.

Section 630.175.2 requires that every use of restraint and the reasons for the restraint shall be documented in the patient’s medical record under the signature of the head of the facility or the attending physician. Restraints also must be withdrawn as soon as they are no longer needed. Section 630.175.3.

For psychiatric hospitals, the following is required:

Written policies shall be established regarding the use of restraints or seclusion. These restraints or seclusion shall be used only on the order of a physician. In the absence of a physician, a registered professional nurse shall make the decision that the use of a mechanical restraint or seclusion is the least restrictive procedure appropriate at the time of the emergency situation. The physician shall be notified immediately and a physician’s order obtained as soon as possible after the occurrence of such an emergency. Physicians’ orders for use of mechanical restraints or seclusion shall be rewritten every twenty-four (24) hours. A full record of any restriction of activity for any patient shall be recorded on the nurse’s notes and shall include the reason for restriction, the type of restriction used, the time of starting and ending the restrictions and regular observations of the patient while restricted.

19 C.S.R. § 30-24.020(1)(D)14.

There are specific regulations defining the requirements for the use of restraints by psychiatric and substance abuse programs. 9 C.S.R. § 10-7.060(2). Restraints may only be imposed when an individual’s behavior presents an immediate risk of danger to self or others and there is no other safe or effective treatment intervention available. Other less restrictive interventions must have been tried and failed or cannot be safely implemented. Restraints may only be implemented by competent, trained staff. Within 1...