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.

Some Context

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.

Policy Recommendations

• 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.

Concluding remarks

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.

                                                   Bibliography

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.

Introduction

In this blogpost I will discuss restrictive practices in the disability sector from the point of view of care ethics. I will begin by outlining what care ethics is, and how it differs from traditional philosophical conceptions. I will then move on to describing restrictive practices from the point of view of policy, and how the policies rely on an implicit philosophy which misunderstands lived human experience and hence offers impractical policy advice.

Care Ethics

Care ethics is a philosophy which focuses on our dependent and relational nature as human beings. The philosophy opposes itself to the Cartesian tradition which conceives of humans as disembodied agents who make their decisions based on logical dispassionate reasoning. In her 1982 book ‘In a Different Voice’ psychologist Carol Gilligan distinguished between male and female ways of reasoning. She argued that male ways of thinking were individualistic and rationalistic while female thinking was more relational and interpersonal. She also claimed that female thinking focused more on care than male thinking.

            There has been a healthy debate on the degree to which Gilligan’s essentialist psychological speculations stand up to critical scrutiny. But I will bracket that question for the purposes of this blog-post. Whether people agree with Gilligan’s essentialist theories of human nature or not, empirical data strongly indicates that the majority of care burdens falls on women’s shoulders. And this fact clearly has had an impact on our philosophical conception on the nature of ethical theorising.

            Descartes is a paradigm example of the modern western philosopher. His atomistic emphasis on reason and his disembodied conception of the mind creates a picture of man as an isolated independent figure who uses the power of reason to deduce the nature of reality. On this Cartesian picture, the body and the mind are separate entities.

            A substantial proportion of the great philosophers in the western cannon were not family men. And those who did have families, were affluent people who relied on their wives and servants to provide the majority of care for their children. So, it is unsurprising that care wasn’t high on the philosophical agenda[1]. To the great philosophers, care was an unimportant background task performed by those, who they believed to be lesser people, primarily women. Eva Kittay puts the point cogently:

“There is a plausible explanation for why there is little in the long history of moral thought that highlights care, whether as a virtue or as the basis for right action. Very few of those who have penned moral theories have been women or had access to the experiences of women when not in the company of men. Women, moreover, have been in a position neither to make decisions in the sphere that men have dominated, nor have they been sufficiently independent of a man’s power to say what it is that they really think. The systematic moral scrutiny applied to promises, contracts, and conduct in battle and business was not applied to areas that men didn’t occupy, like care for children and the ill. (Kittay 2019 p. 166).

This lack of emphasis on the importance of care as an ethical concept feeds into the objectivist paradigm which treats humans as independent, disembodied, rational Cartesian egos.

            Care ethics with its emphasis on relationships, dependency and embodiment provides a corrective to traditional philosophy. Gilligan opposed her care-ethics to what she called the justice paradigm (Kittay 2019 p. 166). A large proportion of the justice paradigm is the social contract theory. This theory which involves a paradigm of self-sufficient individuals coming together to agree on rules they have to live by. It has been noted by critics of the social contract theory[2], that the theory leaves out people with an intellectual disability as being active agents in construction of a social contract.

            Utilitarian philosophy with its emphasis on objective context independent moral rules, and deontology with its moral obligations and universal rules are often pitted against each other as alternative ethical frameworks. While the two systems are obviously opposed to each other in terms of the importance of consequences to our ethical systems they do share one thing in common; both think that it is possible to discover context independent moral rules which can govern our behaviours.

            Care-ethics with its focus on interpersonal context dependent factors in ethical deliberation represents a different more grounded way of thinking about ethics. Policies which deal with ethical issues are sometimes vague about their underlying philosophical justifications. But despite the fact that they appeal to things like universal rights, the primary mode of policy guidance is led by a kind of crude utilitarian calculus. In the next section I will discuss this crude utilitarian calculus in relation to restrictive practice and discuss how care-ethics offers a corrective to this idealistic approach.

Social Care and Care Ethics

            In the Social Care field restrictive practices are a source of embarrassment. Official guidance is to try and drive out restrictive practices entirely. However, it is acknowledged by practitioners in the social care field that sometimes these practices are necessary. But a practice that, for example, restricts a person’s movement against their will, is a violation of their human rights. To justify these practices policies appeal to pragmatic and utilitarian considerations which in effect argue that the harm done by the restrictive practice is less than the harm that would be caused if it wasn’t implemented.

Utilitarian arguments can be used to justify draconian practices. This is something that has long been noted in other areas of ethics. It is easy to throw out justifications for draconian actions which have with blasé appeals to utilitarian considerations. Thus, people have often justified dropping a nuclear bomb during WW2 on the grounds that doing so saved countless lives. But the truth is we cannot realistically calculate how many people could have died if the bombs were not dropped.

            Likewise, in the case of restrictive practices, the pretence that we can objectively calculate that a restrictive practice is justified because of numbers assigned on a risk assessment is idealistic at best. Assigning numbers on a page gives an appearance of objectivity which my not be present. It could be argued that we can estimate the potential risk of damage, if an incident occurs, and estimate the likelihood that the person engaging in the risky behaviour, and with this data we can estimate the overall danger. With this in place if the probability of someone being seriously hurt is extremely high then a restrictive practice may be justified.

            All of this sounds reassuringly objective. However, in reality things are not that simple. When we are estimating the probability of a behaviour occurring, we can appeal to previous incidents over the last 12 months to estimate the probability of the behaviour. But the probability of a behaviour has to be specified against a set of background conditions. If I drink coffee every morning at 8am the probability of me drinking it tomorrow would be high; but if I fell into a coma the night before I won’t be drinking coffee tomorrow. On a Bayesian analysis you can also calculate the odds of me falling into a coma. And factor it into your overall analysis of the probability of my drinking coffee tomorrow. But there will always be some uncertainty.

            In the case of restrictive practice similar considerations apply. If we take the case of self-injurious behaviour. If a service-user is engaging in severe self-injurious behaviour every day that could cause them serious damage, then then the probability that they could hurt themselves tomorrow would be high. However, when you factor in background conditions, things change. In his ‘Care Ethics and Restraint in Residential Child Care’ Steckley notes that there is good empirical evidence that Snoezelen and sensory rooms can result in a reduction in the need for restrictive practices (Steckley 2015 p 200). Furthermore, he notes that things like staff training, unit culture, therapeutic approaches and primarily relationships are potent causal features of reducing restrictive practices (ibid p. 200). When one tries to factor these things into our background conditions which may change the probability of a behaviour occurring things get tricky. It is hard to assign a number to a culture changing, or to a relationship between a service user and a staff resulting in changed behaviour. And this is where the false objectivity of the implicit utilitarian calculus which is appealed to in our restrictive practice policies gets exposed. Hiqa 2019 note:

“The use of a restrictive practice is warranted when there is a real and substantive risk to a person and this risk cannot be addressed by a non-restrictive means.” ( Hiqa 2019 p. 5)

But as we have seen above despite the objective sounding language it is extremely difficult to calculate when a risk is extremely high and cannot be addressed using non-restrictive mean.

Social Care practice in Ireland is replete with concepts such as person-centred planning, community inclusion etc. And these concepts find their way into policies. But policies are also written with calculations designed to implemented in an efficient black and white manner in Capitalist market. And this black and white philosophy is not flexible enough to do justice to concepts such as person-centred care etc. The black and white philosophy may fit people who are “rational, autonomous, capable of making a choice, possessed of adequate information” (Toronto 2010 p. 159). Toronto notes that a lot of service users do not fit the above description. But the truth is we all don’t always fit the above description. As our discussion of restrictive practices above indicates we sometimes act on inadequate information and our choices aren’t always strictly rational. Holland notes that the quality of care suffers when it is considered a commodity not a process. (Holland 2010. pp. 163-166). And I think this is true in terms of policies when they are constructed according to strict utilitarian or deontological principles. The value of care ethics is that it focuses on our human and dependent nature. One difficulty with this conception is that we live in a world run according to rabid-Capitalism and this Capitalist system with its focus on the bottom line will find care-ethics with its ambiguities and focus on context a difficult philosophy to adapt.

Conclusion

In this blogpost I discussed care ethics and how it differs from traditional philosophical conceptions of ethics. The traditional conception of philosophy was contrasted with care-ethics with its focus on dependency, context and the body. To illustrate the importance of care ethics for the social care field the author discussed care ethics and restrictive practices. It was demonstrated that absolutist ethical positions written into policies cannot cope with the ambiguities of the real world while Care Ethics is much better equipped to deal with these ambiguities. However, given the current economic order we all live in Care Ethics is unlikely to make it into social care policies any time soon.

Bibliography

Gilligan, C. (1982) In a Different Voice: Psychological Theory and Women’s Development. Cambridge, Mass. Harvard University Press.

Holland, S. (2010) “Looking After Children and the Ethic of Care”. The British Journal of Social Work. 40. No6 pp 1664-1680.

Kittay, E. (2019) Learning From My Daughter: The Value and Core of Disabled Minds. Oxford. Oxford University Press.

Nussbaum, M (2011) Creating Capabilities. Cambridge MA: Belknap Harvard.

Nussbaum, M (2006) Frontiers of Justice. Cambridge MA: Belknap Harvard.

Nussbaum, M (2013) Political Emotions. Cambridge MA: Belknap Harvard.

Rawls, J (1971) A Theory of Justice. Cambridge MA: Harvard University Press.

Steckley, L. (2015). “Care ethics and physical restraint in residential childcare”. In M. Barnes, Brannelly, T., Ward, L. & Ward, N. (Ed.), Ethics of care: Critical advances in international perspective (pp.195 – 206). Bristol: Policy Press.

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[1] Kittay (2019) notes that reflection on care wasn’t entirely absent from the western philosophical cannon some philosophers such as Plato, and Heidegger did consider the concept of care however their abstract reflections don’t touch on the concrete responsibilities in relation to care that recent feminist philosophers in the care ethics tradition have been concerned with.

[2] See Nussbaum (2006, 2011, 2013)