Regulating the use of restraint in health care and disability settings

Addressing the current lack of a common legal framework for regulating the use of restraint on persons with disabilities in mental health, disability and aged care sectors.

The ‘Regulating the use of restraint’ project addressed the lack of a common legal framework for regulating the use of restraint on persons with disabilities in mental health, disability and aged care sectors. Its main objective was to support government policies aimed at reducing, with a view to eliminating, the adverse consequences of restraint and other restrictive practices.

The use of restraint to control behaviour occurs in a wide range of institutional and other settings in Australia and around the world. These practices are controversial due to the adverse physical and psychological impacts that may result, particularly as some forms are inherently dangerous and involve serious deprivations of liberty, interference with personal integrity and loss of dignity.

Physical injuries have also been reported during the use of physical and mechanical restraint, and experiences of physical and mechanical restraint have been reported as overwhelmingly negative. In Australia, deaths have resulted from:

  • asphyxia and cardiac arrest during the use of bodily force (generally referred to as physical restraint);
  • overdoses resulting from the use of medication to control behaviour (generally referred to as chemical restraint);
  • the use of a wheelchair restraint strap on an elderly person (the use of a device to control behaviour is generally referred to as mechanical restraint).

While there is some existing regulation of the use of restraint in these settings, legal frameworks differ significantly and there is inconsistency between different models in terms of the scope, method and content of regulating restraint. This state of patchwork regulation is unsustainable as it fails to protect the human rights of those subject to restraint.

In Australia, there is growing impetus for national reform on this issue, in light of Australia’s ratification of the Convention on the Rights of Persons with Disabilities and the advent of the National Disability Insurance Scheme.

The purpose of this project was to assess different models of regulating the use of restrictive practices and identify options for effective regulation to reduce, with a view to eliminating, the use of various forms of restraint on persons with disabilities.

The project team included two partner investigators who are experts in United Kingdom and European mental disability law, disability law and human rights law, Professor Lisa Waddington (Maastricht University, Netherlands) and Professor Peter Bartlett (University of Nottingham, United Kingdom).

The project also brought together research academics, clinicians, regulators and mental health consumers and considered models used in Australia, the United Kingdom, the Netherlands, Germany, New Zealand and beyond.

Objectives:

The project aimed to:

This is an Australian Research Council Discovery project.

Restrictive Practices in Health Care and Disability Settings

Legal, Policy and Practical Responses

Edited by Bernadette McSherry and Yvette Maker

Book Cover. Restrictive Practices in Health Care and Disability Settings. Legal, Policy and Practical Responses.

Book Description

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.

Table of Contents

Part I: Background: rationales and options for reform

1. Restrictive practices: options and opportunities
Bernadette McSherry and Yvette Maker

2. Ending restraint: an insider view
Cath Roper, Mary O’Hagan, Hamilton Kennedy and Helena Roennfeldt

Part II: Designing legislation and policy to support change

Introduction to Part II

3. Human rights and rapid tranquillisation
Peter Bartlett and Stephanie Sampson

4. The regulation of restrictive practices on people with intellectual impairment: the challenges and opportunities posed by a rights-based approach
Kim Chandler

5. Beyond restraint: gender-sensitive regulation of the control of women’s behaviour in Australian mental health and disability services
Yvette Maker

6. Attempts to reduce the use of restrictive interventions in England between 2014 and 2019
Guy Cross

Part III: Implementing and monitoring reform

Introduction to Part III

7. Legal regulation and policy on the use of restraint and coercive measures in health care institutions in the Netherlands
Lisa Waddington

8. Queensland’s new physical restraint framework: implementation and lessons since the commencement of the Mental Health Act 2016
John Allan and Amber Manwaring

9. Showing restraint: the uses and limitations of data in supporting restraint reduction
Grant Sara

10. The Court, the law and German psychiatry’s slow progress towards human rights
Margret Osterfeld and Martin Zinkler

Part IV: Changing culture and practice

Introduction to Part IV

11. The intractable use of restraint, organisational culture and ‘othering’: lessons from the Oakden scandal
Bernadette McSherry

12. Being recovery-oriented and reducing the use of restrictive interventions in mental health care: the challenges in achieving transformation
Lisa Brophy, Justine Fletcher and Bridget Hamilton

13. Psychotropic use in Australian aged care homes: what can be done to ensure appropriate use?
Juanita Breen (previously Westbury)

14. Engaging doctors to reduce restraint: practice and pragmatics around restraint in clinical care
Nathan Gibson

Part V: Conclusions

15. Regulating restrictive practices: challenges and possibilities
Bernadette McSherry and Yvette Maker

Publications

McSherry, B. and Maker, Y. (eds) Restrictive Practices in Health Care and Disability Settings: Legal, Policy and Practical Responses (Routledge, 2021).

Maker, Y. ‘Gender, Trauma and the Regulation of the Use of Restraint on Women in Australian Mental Health Services’ (2020) 28:1 Journal of Law and Medicine, 68-74.

Maker, Y., and McSherry, B. 'Regulating restraint use in mental health and aged care settings: Lessons from the Oakden scandal', (2019) 44:1 Alternative Law Journal, 29–36

McSherry, B. and Maker, Y. ‘International Human Rights Law and Mental Health: Challenges for Law and Practice’ (2018) 25:2 Journal of Law and Medicine 315

McSherry B., 'Regulating seclusion and restraint in health care settings: The promise of the Convention on the Rights of Persons with Disabilities' (2017) International Journal of Law and Psychiatry, Elsevier

McSherry B., and Waddington L., 'Treat with care: the right to informed consent for medical treatment of persons with mental impairments in Australia' (2017) 23:1 Australian Journal of Human Rights, 109-129

McSherry B., and Tellez, J. 'Current Challenges for the Regulation of Chemical Restraint in Healthcare Settings' (2016) 24 Journal of Law and Medicine 15-19

Media

‘Darkest moment of their life’: Mental health system still failing patients, The New Daily, 22 March 2019

Alone, restrained and drugged: calls for mental health system reform, The Age, Saturday 19 January 2019

Nursing home residents ‘doped for years at a time’, The Australian, 15 January 2019

Medication as a restraint in the aged-care sector, The Law Report: ABC Radio National, 24 April 2018

In the dark: Our use of chemical restraints, Counterpoint: ABC Radio, 26 June 2017

Chemical restraint: behind locked doors, Pursuit, 6 June 2017

Four Corners: is using restraints akin to torture? The Conversation, 26 July 2016

For information about this project, please contact:

Yvette Maker
Senior Research Associate
Melbourne Social Equity Institute
Phone: +61 3 9035 7467
Email: maker.y@unimelb.edu.au
Twitter @ymaker