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Legal ramifications of restraint use in nursing homes

Across Australia, residents of nursing homes and aged care facilities are routinely physically or chemically restrained, violating their rights in what is a hot-button ethical issue. If you believe a loved one or family member is being abused, you should reach out to the nursing home negligence attorneys at Gerard Malouf & Partners for help.

We can help you parse through legal ramifications of restraint in nursing homes and help determine if you have a compensation claim for negligence, or if an elder abuse report needs to be made to authorities.

What does wrongful use of restraint mean?

There is a lot of murkiness surrounding the use of restraint in nursing homes and aged care facilities. The laws in Australia have not yet caught up to practices that are barbaric and outdated, and which have allowed patients to be physically restrained or chemically treated with medications to make them compliant.

However, there are laws on the books that give you room to bring a claim for negligence if a provider is violating what standards do exist. Wrongful restraint intervention can be assumed if a provider does not follow the Quality Care Principles regarding the responsibilities of an approved provider in relation to the quality of the aged care being provided, whether it is long-term residential care, or short‑term restorative care in a residential care setting.

These rules state that physical restraint should only be used as a last resort, noting that an approved provider must not use a physical restraint in relation to a consumer unless the following applies to the person ordering restraint:

  • They must be an approved health practitioner with day‑to‑day knowledge of the patient
  • They must have assessed the patient as posing a risk of harm to themselves or any other(s), and as requiring the restraint
  • They must have documented the assessment prior to its use (unless the use of the restraint is necessary in an emergency, in which case documentation should be done as soon as is practicable afterwards)
  • They must confirm that alternatives to restraint have been used for the patient to the extent possible, and that the type and use has been documented

 

Additionally, it must be shown that the restraint being used is the least restrictive form of restraint possible, and that the approved provider has the informed consent of the patient or the patient’s representative in regard to the use of the restraint.

What is the restraint policy in an emergency?

If the use of the restraint was necessary in an emergency, in which case the informing of the representative must be done and consent for future restraint should be obtained as soon as possible.

The care and services plan documented for the patient must be in with Aged Care Quality Standards, and must clearly identify the following in a restraint clause:

  • The patient’s behaviours that are/were relevant to the need for the restraint
  • Any alternatives to restraint that have been used
  • The reasons the restraint procedure is/was necessary
  • What care will be provided to the patient in relation to their behaviour going forward

Providers must ensure that they use the restraint for the minimum time necessary. While the patient is subject to the restraint, the provider must regularly monitor them for signs of distress or harm as well as regularly monitoring and reviewing the necessity for the restraint.

If these guidelines are not followed, the restraint may be used as a form of negligence, and a way to subdue patients with the least concern to the provider, rather than with the best interests of the patient at heart.

More and more reports in the media reveal that aged patients are far too often subjected to physical restraints such as a chair with the arms and legs tied downs. This shows the severity of the issue, and how important it is that nursing homes be held liable for the proper care of their patients.

What is chemical restraint, and is it legal?

Possibly even more horrifying than physical restraints are chemical restraints. According to the same Quality Care Principles, chemical restraint should be used only as a last resort, and an approved provider must not use a chemical restraint on a patient unless:

  • A medical practitioner or nurse practitioner has assessed the patient, determined that they require the restraint and prescribed the medication used for chemical restraint
  • The practitioner’s decision to use the restraint and its subsequent use have both been fully recorded in the care and services plan documented for the patient (as required by theAged Care Quality Standards)
  • The patient’s representative is informed before the restraint is used (if possible; if not, as soon as is practicable afterwards)
Informed consent

It’s important to understand your loved one’s rights in regard to informed consent. If they have legal capacity to give consent, then it must be obtained. This is the case unless there is agreement that there is an emergency and that the patient poses a danger to themselves or others. This must be documented and a plan should be created for future care that minimises restraint and upholds the rights of the patient.

If your loved one cannot give informed consent to the prescribing of medication by healthcare workers because of any physical or mental incapacity, and an approved provider uses a chemical restraint, they must:

  • Inform as soon as practicable after the restraint starts to be used
  • Ensure the care and services plan documented for your loved one meets the Aged Care Quality Standards as outlined above
Dementia patients

If your loved one has a mental health disability such as dementia, you need to prepare yourself for the possibility that a provider may attempt to use physical or chemical restraint. Be vigilant to ensure this is an absolute last resort, and that your family member is not being subjected to medications simply to make them docile. Behavioral strategies should always be the first resource for dementia patients.

Even if you consent for your loved one to have chemical restraint (often prescribed as benzodiazepines), the provider still has a duty of care to continue trying alternative strategies that can minimise the restraint needed.

You may have been informed that your loved one was subjected to chemical restraint, or are asked to consent on their behalf to such restraint. If you think this is or was unnecessary, ask the following questions and request all documentation be handed over to you.

  • What medicine is being suggested for prescription?
  • What happened to prompt this move?
  • Why are you suggesting chemical restraint?
  • What person-centred behavioural strategies have been tried?
  • How effective is the medicine, and what are the risks and side effects?
  • What are other options and their corresponding benefits, risks and side effects?
  • What would happen if I don’t consent on their behalf?
  • When use of the medication be reviewed, and who will review it?

 

Remember that restraint by physical or chemical means is only for use as a last resort, so pay attention and try to determine if the provider is truly using it as lawful and appropriate.

Is restraint physical abuse?

Restraint can be physical abuse if it is applied incorrectly or illegally. In such cases, this would fall under the purview of appropriate authorities, and should be reported as elder abuse. The care your loved one recieved would be investigated and a determination made as to whether a crime had been committed.

Nursing home abuse is unfortunately all too common and vigilance is required to protect your ageing family members. The last thing you want to find out is that they have been restrained for no good reason, or as “punishment” for any behaviors or accidents, such as wetting themselves, exhibiting signs of dementia or disturbing nursing home staff.

Should restraints ever be used in care facilities?

There are cases in which restraint is necessary, such as to keep your loved one and those around them safe. This could be because they are having dementia effects that cause them to become violent, or depression that could cause suicidal actions, or confusion that causes them to try to escape the facility or wander off.

However, in all of these cases, restraint should be a last resort or used in a dire emergency to contain the situation, and restraint should be ceased as soon as possible. Every effort should be made to avoid physical and chemical restraints.

What are the legal ramifications of using restraints?

If it can be proven that restraint was unnecessary, and used for the purposes of making the provider’s job easier rather than for a clear safety need. The legal ramifications of restraint should be claims of medical negligence successfully brought against the provider and the facility on behalf of your loved one.

If your loved one has suffered injury or death due to illegal restraint, you may have an even more pressing need to lodge a claim. The experienced attorneys at Gerard Malouf & Partners can help you determine if there is a case of nursing home negligence in regard to restraint.

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