In this blog-post I will discuss current polices in Ireland in relation to restrictive practices in the disability sector. I will argue the fact that there not a specific policy in relation to the disability sector in relation to restrictive practices is a serious oversight which indicates a lack of concern with the disability sector, that could result in potential dangers for people who are or will be disabled.
Current policies in relation to restrictive practices in Ireland have gaps which can lead to dangers for people with an intellectual disability. A restrictive practice is defined as “the intentional restriction of a person’s voluntary movement or behaviour” (Hiqa 2019. p. 2). Different types of restrictive practices are (1) Chemical Restraints: the use of medication to modify a person’s behaviour when no medical reason to give the medicine is given (ibid p.3) (2) Mechanical Restraints: the use of devices or garments bodily movements of a person (ibid p. 3) (3) Physical Restraints: which is physical contact which is used with the intention of restricting the movement of a person’s body or a part of a person’s body. (ibid p.3) (4) Environmental Restraints: which is the intentional restriction of a person’s normal access to their environment (ibid p 3). An example of an environmental restraint would be a locked press blocking a person access to their own clothes. There is currently no policy in relation to restrictive practices in disability centres. Disability centres are asked to follow the guidelines provided in ‘Towards a restraint free environment in Nursing Homes’ (2011).
The 2011 policy is generic enough that it is possible to apply it across the disability sector. It offers the following guidance: any use of a restrictive practice must be person-centred, have staff that know the resident’s needs, comprehensive assessments are done, restraints are regularly monitored, recorded, and reviewed, and the organisation must have a policy in place in line with national policy (Department of Health 2011 p. 2). This guidance was specifically designed for nursing homes, but the advice contained in it is generic enough that it is deemed suitable to apply in the disability sector.
However, the fact that there isn’t a specific policy for restrictive practices in the disability sector is troubling given the long history of restrictive practices abuses in the sector. The history of specific abuse in the disability sector has been used as a rationale in the past to justify the creation of specific policies. For example, a criticism of the Convention for the Rights of Persons with Disabilities was that it involved unnecessary duplication since the materials contained in it were contained in Universal Declaration of Human Rights. The obvious rejoinder to this criticism was that given the history of the way people with disabilities have had their rights abused in the past, it is vital that that separate rights for people with disabilities are enshrined in international law. Analogously in the case of restrictive practices. There has been a history of abuses in relation to people with disabilities and restrictive practices. For this reason, the fact that there is not a specific restrictive practice policy in place is a major concern.
There is no specific policy in place for restrictive practices in relation to people with disabilities. The CDRP set a precedent for rights having specific policies in the case of disability. The vagueness of the current policy creates legal problems potentially because it isn’t specific enough as to when people can consent to restrictive practices. The lack of specific policies in relation to the disability sector is troubling. While there is a policy specific to nursing homes, the lack of a specific policy for the disability sector implies that those who are disabled are less worthy of specific policies and protections than older people. Furthermore, the evidence of the rates of restrictive practices that occur in Ireland demonstrates that factors such as age, geographical location, sex, etc appear to play a role in the number of restrictive practices which are introduced (Mental Health Commission 2019 p.1). Having a policy that is specific to nursing homes and using them to govern the behaviour of providers in the disability sector means that factors such as age which may play a causal role in the likelihood of a restrictive practice being necessary won’t be captured in the relevant policies (ibid. p. 5). So, example, the Mental Health Commission 2019 noted that the majority of service users (24%) who were physically restrained were between the age of 18 and 29 (ibid p.5). A policy which gives guidance on restrictive practices and is designed for nursing homes is going be blind to the discoveries of the Mental Health Commission Report.
The government needs to look into this policy because despite the fact that there is an agreed upon philosophy in place that aims to minimise any use of restrictive practices; empirical research indicates that restrictive practices are actually increasing in Ireland (Ibid p. 7). In a society which values freedom of choice and as a universal human right, to have a system where there is an increase in the practice of deliberately restricting a person’s voluntary movement could be construed to be barbaric. However, it is in the context of a balancing of rights that restrictive practices are in place. And sometimes where a person’s life is in danger the right to life should take precedence over the right to liberty (Freeman 2015 p.7).
The current approach isn’t working because it strikes with too broad a stroke. The there isn’t enough empirical detail about specific disability related factors in the current policy. Furthermore, the current policy aims to balance the right to liberty with the right to health. To ensure that a person’s liberty is respected to the greatest extent possible, it is emphasized that we need to try and ensure that we work with people in terms of augmentative communication tools to help them express their needs and wishes as best they can. The current policy in relation restrictive practices and nursing homes has only a cursory discussion of communication and would need to be updated in light of the assisted decision-making act. Furthermore, guidance on what augmentative devices are considered reliable is needed in order to help people accurately assess whether a person is actually expressing a particular wish in relation to a restrictive practice or not.
It has been demonstrated that a key factor in reducing restrictive practices in relation to physical restraints is the introduction of sensory rooms to help service users relax (Champagne and Stromberg p. 34). These benefits can be seen in nursing homes, psychiatric units, intellectual disability centres etc. However, the type of sensory rooms that will work will vary depending on the profile of the service users. Some sensory equipment will be very useful for people on the autism spectrum, while this same equipment will not necessarily have the same effects on people in a nursing home with Dementia. The 2011 policy in relation to nursing homes does mention the importance of person-centred care and to this degree it would take into account the different types of sensory rooms that may be helpful in reducing the prevalence of restrictive practices. However, more specific guidance in a policy designed directly for those in the disability sector would be very useful in terms of instructing providers on how to reduce restrictive practices.
The 2011 policy in relation to restrictive practices belies a false objectivity in how it thinks about such practices. In her paper ‘Care Ethics and Physical Restraints in residential childcare’ Laura Steckley discusses the underlying philosophy which practitioners use to justify the use of restrictive practices and notes that justifications come from both a Utilitarian and a Deontological perspective. The Utilitarian argument is that the use of a restrictive practice can be justified if its use results in less negative consequences than would have occurred if the restrictive practice had not been imposed. While the rights-based philosophy which draws in deontological arguments is influenced by the social contract tradition. This tradition focuses on rational agents entering into binding agreements and as a result they tend to focus less on our interdependent vulnerable nature.
Policies in relation to restrictive practice don’t explicitly state the philosophical premises which underlie their position. In practice they use a rights-based approach. Thus, some debates around implementing a restrictive practice will involve an argument which aims to balance the right to health against the right to autonomy. The advice to use the least restrictive practice, which is necessary, for the shortest possible time seems common-sensical but it doesn’t really specify enough detail to be useful. Steckley argues that reducing restrictive practices involves the following factors:
“Effective restraint reduction involves strong leadership, investment in staffing, training and development, unit culture, therapeutic relationships. There are also proven effects of alternatives to restraint including Snoezelen or Sensory rooms as alternatives to restraints” (Steckley, p.199)
Things like unit culture and therapeutic relationships are hard to measure and as we discussed above different kinds of sensory rooms will be appropriate to help reduce the need for restrictive practices for individualised service users.
The combination of advice to use the least restrictive practice necessary coinciding with discussing of the importance of therapeutic relationships and unit cultures, creates an ambiguity of scope. Things like therapeutic relationships involve a human factor, that are qualitative in nature, there is an intersubjective element to such relationships. While speaking of things such as “least restrictive practice necessary” moves into the realm of quantitative thinking. This gap between policy advice and actual day to day practice involving human relationships may be the reason why we are finding it so difficult to reduce the number of restrictive practices which are employed in Ireland currently.
Critique of Policy Options
Policies in relation to restrictive practices need to be considered in the context of the Convention for the Rights of Person’s with Intellectual Disabilities. Article 3 of the CDRP’s first principle notes the importance of “individual autonomy including the freedom to make one’s own choices” (The United Nations 2006 Article 3). Another factor to be considered in relation to restrictive practices is the Irish constitution section forty which guarantees the rights of Irish Citizens in Law (ibid 3). Any policy in relation to restrictive practice will need to ensure that it is not contravening the rights described in the CDRP and the Irish Constitution.
The ‘Towards a restraint free environment in Nursing Homes’ (2011), specifies that a restrictive practice is only justified if it can be demonstrated that the cost of not using a restrictive practice is higher than the cost of using it. So, for example if a person, continually takes off their seat belt this could potentially result in the death of a service user. In this instance it could be deemed that an angel guard can be used to protect the service user from hurting themselves because of not wearing a seat belt. But before any restrictive practice can be put in place; it is necessary to get the consent of the person who may be the recipient of the restrictive practice.
Some people with an intellectual disability may not be capable of consenting to a restrictive practice being put in place for them. On page 7 of the ‘Towards a Restraint Free Environment in Nursing Homes’, cognitive disability is mentioned when it comes to the issue of consent. The very cursory remarks do reference the importance of assuming capacity with people unless we have compelling evidence to indicate otherwise. An updated policy that was specific to the disability sector would have to refer to the 2015 ‘Assisted Decision-Making Act’. In section 3 of this Act, there is a detailed discussion on the importance of functional assessments in deciding any issues in relation to a person’s capacity to consent. And it is noted that “a person’s capacity to act is judged based on their ability to understand a decision is being made at a particular time, and to understand the consequences of the decision, in the context of available choices at the time” (Assisted Decision-Making Act p.15)
The Assisted Decision-Making Act notes that there are four key criterion which should be met if we are to deem a person unable to make a decision. The person is unable to understand information relevant to making the decision, to retain that information long enough to make a voluntary choice, to use or weigh that decision as part of a process of making a decision, is unable to communicate his decision even through a third party or through using augmentative communication (ibid p.15).
Any specific policy which relates to the use of restrictive practices for people who have an intellectual disability will have make use of the Assisted Decision-Making Act. But in the specific case of disability studies further criterion may be needed to specify when a person is communicating their choices through augmentative technology. The case of Anna Stubblefield an academic who was convicted of raping an adult with a profound intellectual disability warns of the dangers of ambiguity. Stubblefield argued that through facilitated communication, DJ the profoundly intellectually disabled adult she was caring for, was able to consent to having sex with her (Engber 2018 p. 2). The scientific evidence that assisted decision making is a valid technique for helping non-verbal people communicate is scant (Wombles 2014 p.5). And ultimately Stubblefield pled guilty of the rape. Nonetheless it is important that any future policy is specific about the types of technologies which are acceptable in assisted communication.
In the case of restrictive practices, it is vital that a policy is specific about when consent can be given, and if it cannot be given, a legal definition must be in place which can specify why it is deemed that consent cannot be given. So, for example, in cases of restrictive practices, we need specific laws in place which will specify what forms of augmentative communication devices are suitable for getting consent from a service user. If our policies are not specific enough to provide guidance on this issue it would be possible for a service to use unproven techniques such as facilitated communication as evidence that consent has been given. This lax attitude could result in pseudo-consent being used as justification for draconian restrictive practices being used for service users who did not consent to the practices.
- Create a new policy which is specific to disability and restrictive practices.
- Ensure that the policy is written in such a manner that there is less of a gap between the intersubjective relationships which occur in the disability sector and specific advice from when restrictive practices are justified according to the new policy.
- Ensure that the new policy has up to date empirical data on trends which involve increases or decreases in restrictive practices, the types of restrictive practices which are more common, have relevant data on which groups are most likely to be restricted to a restrictive practice etc.
- Ensure that the new policy is in line with specific recommendations from the Assisted Decision-Making Act.
- Ensure that the policy lists which current communication devices are deemed legitimate devices to help people with disabilities with communication issues to communicate their needs.
A new policy on Restrictive Practices which is specific to the disability sector and is updated with information from the Assisted Decision-Making Act needs to be developed. This policy needs to reflect the intersubjective and emotional nature of care work and be written in a manner that lessens the typical gap between policies This policy needs to be more explicit on what types of augmentative communication devices are deemed valid to use as a tool to try and help people give consent around issues such as restrictive practices being put in place. If we are to try and ensure that we do not continue with the human-rights abuses which have occurred repeatedly to people who have an intellectual disability.
Champagne, T, and Stromberg, N. (2004) “Sensory Approaches in inpatient psychiatric settings: innovative alternatives to seclusion & restraint” Journal of Psychosocial Nursing and Mental Health Services. 42 (9) pp 34-44.
Department of Health (2011) Towards a Restraint Free Environment in Nursing Homes.
https://assets.gov.ie/18830/9ef5610bf0814bf792263e844e0d9378.pdf [Accessed on 30/04/22]
Engber, D. (2018) “The Strange Case of Anna Stubblefield, Revisited.” The New York Times.
https://www.nytimes.com/2018/04/05/magazine/the-strange-case-of-anna-stubblefield-revisited.html [Accessed 29/4/22]
Freeman, C. M. (2015) “Reversing hard won victories in the name of human rights: A critique of the General Comment on Article 12 of the UN convention on the Rights of Persons with Disabilities.” The Lancet Psychiatry 2 (9).
Hiqa (2019) Guidance for promoting a care environment that is free from Restrictive Practices: Older People’s Services.
https://www.hiqa.ie/sites/default/files/2019-03/Restrictive-Practice-Guidance%20_DCOP.pdf [Accessed on 2/5/2022]
Mental Health Commission (2019) The Use of Restrictive Practices in Approved Centres.
https://www.mhcirl.ie/sites/default/files/2021-01/Restrictive%20Practices%20Activity%20Report%202019.pdf [Accessed 1/5/22]
Steckley, L. (2015) “Care Ethics and physical restraint in residential child-care” in M Barnes, Brannelly T,. Ward, L, & Ward, N. (ED). Ethics of Care: Critical advances in international perspective (pp. 195-206). Bristol: Policy Press.
The Irish Statute Book (2015) Assisted Decision Making (capacity) Act 2015. https://www.irishstatutebook.ie/eli/2015/act/64/enacted/en/html [Accessed on 25/04/22]
The Irish Statute Book (1937) Constitution of Ireland.
https://www.irishstatutebook.ie/eli/cons/en [Accessed on 1/5/22]
The United Nations (2006) The Convention on the Rights for Persons with Disabilities.
https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-with-disabilities-2.html [Accessed 30/4/22]
Wombles, K. (2014) “Some Fads never die-they only hide behind other names: Facilitated Communication is not and never will be Augmentative or Alternative Communication.” Evidence Based and Communication based Assessment and Intervention. Volume 8. Issue 4.