Section 5 Use of Restraints

• Library: Mental Health 2006

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 hour of initiation of restraints, a licensed practitioner or certified substance abuse counselor must conduct a face-to-face assessment of the physical and psychological well-being of the resident. An order of the licensed practitioner or certified substance abuse counselor is then required to continue the restraint, and it must define specific time limits. For adults, restraints may only be applied for 4 hours; for individuals ages 9–17 for 2 hours; and only 1 hour for individuals under age 9. The need for continuing restraints must then be re-evaluated and when necessary, re-ordered. Evaluations for every alternate renewal period must be based on face-to-face observation by a licensed practitioner or certified substance abuse counselor. Individuals in restraints must be continuously monitored. The clinical director or quality improvement coordinator must review each episode of restraint within 72 hours of its occurrence.

Restraints may be imposed both on voluntary and involuntary patients. If a patient needs to be civilly detained, restraints may be used during the time required to obtain the order for civil detention. If the patient needs to be transferred to another health care facility, the patient may be restrained and transferred even without the patient’s consent. The duty of the health care facility and providers is to take reasonable steps to protect the patient from causing self-harm or harming others. Restraints are a reasonable measure provided that they are used in the correct way and for an appropriate reason.

(§5.6) Civil Detention for Mental Disorder

As part of the duty of health care providers to protect patients, there is a duty to initiate civil detention when the statutory criteria are met. Civil detention shall be initiated when there is reasonable cause to believe that a person presents a likelihood of serious harm as a result of a mental disorder.

“Likelihood of serious harm” includes any of the following but does not require actual physical injury to have occurred:

1. A substantial risk that serious physical harm will be inflicted by a person upon his own person, as evidenced by recent threats, including verbal threats, or attempts to commit suicide or inflict physical harm on himself
2. A substantial risk that serious physical harm to a person will result or is occurring because of an impairment in his capacity to make decisions with respect to his hospitalization and need for treatment as evidenced by his current mental disorder or mental illness which results in an inability to provide for his own basic necessities of food, clothing, shelter, safety or medical care or his inability to provide for his own mental health care which may result in a substantial risk of serious physical harm . . .; or
3. A substantial risk that serious physical harm will be inflicted by a person upon another as...