1. Patient Restraints The View from the Ethical Window Eike-Henner W. Kluge University of Victoria

2. Sample Case R was in the middle stages of Alzheimer's Disease –Cognitive impairment Memory Understanding Reasoning Emotions Was a “wanderer” and “helper” Given to violent outbursts towards other residents and staff Rarely if ever physically aggressive –No substantiated reports Severely impaired balance function

3. “restraint”: definition Device or protocol for restricting mobility of patient –slide rails that restrict patient’s movement and pt. cannot remove rails –chairs –head / limb immobilization devices –seclusion where pt. cannot leave –etc. –[Medical / pharmacological restraints]

4. Two logically / ethically distinct categories Device or protocol necessary for treatment Device or protocol not necessary for treatment –“protection” –convenience

5. Embedding of professional actions Professional actions occur in a social context The social context is subject to legal constraints. Therefore it may be appropriate to begin with some legal considerations

6. Criminal Code of Canada s.265 (1) A person commits assault when (a)without consent of another person, he applies force intentionally to that other person, directly or indirectly; (b)he attempts or threatens, by an act or gesture, to apply force … if he has, or causes the other person to believe on reasonable grounds he has, present ability to effect his purpose…

7. Criminal Code of Canada s.265 (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force… (b) threat or fear of application of force… (c) fraud; or (d) the exercise of authority

8. Criminal Code of Canada S. 27: legitimate use of force to prevent the commission of an offence –“to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be likely to cause immediate and serous injury to the person or property of anyone.”

9. Criminal Code of Canada S. 37: legitimate use of force to prevent assault –“.. Justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault..”

10. Some provincial statutory provisions ADULT GUARDIANSHIP ACT [RSBC 1996] CHAPTER 6 –1. In this Act: "abuse" means the deliberate mistreatment of an adult that causes the adult (a) physical, mental or emotional harm, or (b) damage to or loss of assets, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

11. ADULT GUARDIANSHIP ACT [RSBC 1996] CHAPTER 6 (cont.) 44. The purpose of this Part is to provide for support and assistance for adults who are abused or neglected and who are unable to seek support and assistance because of (a) physical restraint, (b) a physical handicap that limits their ability to seek help, or (c) an illness, disease, injury or other condition that affects their ability to make decisions about the abuse or neglect

12. ADULT GUARDIANSHIP ACT [RSBC 1996] CHAPTER 6 (cont.) 45 (1) This Part applies whether an adult is abused or neglected in a public place, in the adult's home, a relative's home, a care facility or any other place except a correctional centre Ss. 11-15 of the Health Care (Consent) and Care Facilities (Admissions) Act do not contain contrary indications.

13. Some (disquieting) facts: Inverse relationship between use in nursing homes and negative incidents (including deaths) –The relationship between physical restraint removal and falls and injuries among nursing home residents. Capezuti E. et al. J Gerontol A Biol Sci Med Sci, 53(1):M47-52 1998 Jan –Physical restraint use and falls in nursing home residents. Capezuti E. et al. J Am Geriatr Soc 1996 Jun;44(6):627-33. –Restraint reduction reduces serious injuries among nursing home residents. Neufeld RR, Libow LS, Foley WJ, Dunbar JM, Cohen C, Breuer B. J Am Geriatr Soc 1999 Oct;47(10):1202-7. –Deaths caused by physical restraints Miles SH, Irvine P.. Gerontologist 1992;32(6):762-6

14. Some (disquieting) facts: Medical order –Documentation spotty 1 –Blanket orders? PRN ? –Time limit? –Reason? “to help settle“ Frequently nursing decision when applied Frequency range 7.4% to 17% in acute care setting 2 1 Janet V. Kow, David B. Hogan. Use of physical and chemical restraints in medical teaching units CMAJ 2000;162:339-340 2 Robbins LJ, Boyko E, Lane J, Cooper D, Jahnigen DW. Binding the elderly: a prospective study of the use of mechanical restraints in an acute care hospital. J Am Geriatr Soc 1987;35:290-6.; Frengley JD, Mion LC. Incidence of physical restraints on acute general medical wards. J Am Geriatr Soc 1986;34:565-8.

15. The View from the Ethical Window

16. Beneficence Non-Malfeasance ImpossibilityEquality and Justice Autonomy and Respect Fidelity Relevant Ethical Principles

17. Derivative Ethical Principles Legitimate Infringement Least Intrusive Alternative

18. Ethically, restraints can be ordered / agreed to by Physician or hcp in charge Duly empowered proxy [Role of relevant Legislation]

19. Standard ethical indications : Principled practice Danger to self –Beneficence, non-Malfeasance, Fidelity Danger to others –non-Malfeasance, Fidelity Necessary to achieve legitimate therapeutic aim –Fidelity

20. Convenience vs. practical necessity Convenience Practical necessity –Danger to self third party –Hcp as agent of institution –Duty to warn / alert administration patients / substitutes authorities public Fidelity

21. General procedures Ethically based requirements –Necessity Impossibility Beneficence non-Malfeasance –Least intrusive alternative Autonomy Fidelity –Informed consent if possible (pt. or substitute)Informed consent Autonomy Equality Fidelity

22. Standard ethical protocols By authorised professional Not for convenience or punitive –Legitimate infringement, Equality, Fidelity, Beneficence Continuously assessed, monitored and re-evaluated –Fidelity, non-Malfeasance Evaluated within one hour by physician or independent qualified hcp –Fidelity, non-Malfeasance –One-hour rule standard in most jurisdictions Autonomy, Fidelity, non-Malfeasance Training of staff –Fidelity, non-Malfeasance

23. Simultaneous use of restraint and seclusion Higher level of necessity Impossibility, Fidelity, Legitimate infringement, Least intrusive alternative Greater level of care Fidelity, non-Malfeasance –Continuous monitoring face-to- face with hcp or –Continuous monitoring through video and audio with pickups in close proximity to patient Sample website: www.hcfa.gov/quality/4b2.htm

24. Some basic considerations Is restraint a matter of convenience? Is restraint a matter of necessity? Who identified the necessity? What is the place of the restraint in – the specific treatment plan – the overall protocol – in the professional / institutional culture Has there been –review –consultation

25. Other Restraints Chemical restraints are subject to the same considerations as physical restraints – with the added caution of pharmacological interaction.

26. The End

27. Informed consent Parties –Patient –Proxy decision-makers Standards –Reibl v. Hughes –Fleming v. Reid –Ciarlariello v. Schacter.

28. Autonomy and respect for persons Everyone has the right to be treated not as an object but as an autonomous decision-maker who is entitled to respect as an individual.. [

29. Equality and justice All persons are the same insofar as they are persons, and should be treated equally. Differential treatment should be based solely on ethically relevant differences..

30. Beneficence Everyone has a duty to try and maximize the good..

31. Non-Malfeasance Everyone has a duty to try and minimize harm..

32. Fidelity The existence of a duty entails a corresponding obligation to fulfil the duty to the best of one’s ability..

33. Impossibility No-one can have a duty to do what is impossible under the circumstances that obtain. Limiting condition –The impossibility is not due to an inappropriate action on part of the individual her/himself..

34. Principle of Legitimate Infringement: basic version The fundamental rights of the individual person are conditioned by the equal and competing rights of other persons..

35. Principle of the Least Intrusive Alternative A right may be infringed only for ethically proportionate reasons. The infringement must be demonstrably necessary to achieve the otherwise legitimate aim. The infringement must infringe the relevant right only to the degree necessary to achieve the otherwise legitimate aim..