Free Custom «Legal Considerations of Patient Physical and Chemical Restraint» Essay Sample
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Patient restraints are implements or drugs used to restrict the movement of patients. There are several types of patient restraints. Physical restraint is usually a device or intervention that prevents the free movement of a patient. Physical restraints can also be used to restrict the access and control the patient has to his/her own body. For example, the use of vests restricting patients to their beds or chairs can be called physical restraint. Chemical restraint, on the other hand, involves the use of chemicals or drugs to control the movement of a patient or his/her behavior when the drug used is not a part of the normal medication of the patient’s condition. Physical and chemical restraints are among the most used by physicians and nurses. While the restraints are usually necessary for ensuring safety of the patients, their use has been considered controversial, as they can be risky and may lead to the patients’ injury or even death. When used wrongly, they are not only risky, but may violate the rights and dignity of the patients. A situation when a nurse places a physical restraint on a patient may also provoke arguments, as a patient could feel that the medical staff has curtailed their personal freedom. While the use of restraints in hospitals is well-meant and widespread, the misuse of the restraints, both physical and chemical, can have serious ramifications for the patient. Thus, both federal and state governments have created a legal framework to regulate this issue.
Legal Controversy around the Use of Physical and Chemical Restraints
There has always been a controversy around the issue of the use of restraints of all types as a way to control the movement or behavior of the patients. For instance, Bridgeman (2000) explains that it is illegal to restrain an adult beyond what the statute or common law allows and could be considered a crime. With such a background, the nurse is placed in a quandary between his/her legal obligations and the law. Furthermore, it is unclear if in a medical facility with enough medical and support staff the use of physical and chemical restraints would be necessary at all. Thus, to some people, it seems that the restraints are a way for the medical facilities to cover their lack of personnel such as nurses and support staff. By extension, this can be taken to be a mild dereliction of the common law duty which medical facilities have towards their patients. With enough support personnel, normally uncomfortable and sometimes humiliating physical restraints would not be needed in the hospital as the support personnel would be able to restrain the patients who might cause harm to others or themselves.
Secondly, as the use of restraints can be intensely uncomfortable and most of the patients find them objectionable, only the patient’s current behavior should be used to determine the necessity of restraint. For instance, the patient should not be physically restrained if he/she has had a history of violence but do not manifest it in the present time. The decision to use a restraint must have a basis in a current medical and psychosocial assessment. Other than this, there will be a violation of the rights of the patient. This places the concerned health care professional at a professional quandary. It is significant to understand whether the health care professionals have to wait for the patient to become violent so that they can restrain him/her while the said patient continues posing a potential risk to the patient himself/herself, other patients and the staff. Furthermore, even after making a decision to use the restraint, the risks must be weighed by the concerned nurses or physicians. The risks of using a restraint include psychological trauma and sometimes the risk of injury or even death in case of a fall. Chemical restraint can also result in patients being over-drugged to the point of being unable ever to make decisions for themselves. On the other hand, the patient might harm themselves if the clinicians do not use the restraint. Thus, clinicians must weigh these considerations against the risks of not using the restraint.
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Thirdly, the person applying the physical restraint limits the ability of the patient to move or, in case of chemical restraint, to think. For instance, if a patient is restrained in a room, personnel have to make sure the patient is regularly checked. The same will be applied if a person is placed in a restraint chair or bed using a straightjacket for his/her safety. In the same way, a person whom the clinician places in a chemical restraint through the use of drugs should be monitored at regular intervals by a person who is well-trained. Thus, before taking a decision whether to restrain the person, the person responsible for this has to ensure that there is enough qualified personnel to monitor the patients and ensure their well-being. If there is inadequate or no monitoring, there could be a civil suit or even criminal prosecution against the medical facility, physician, or nurse who did the restraint or authorized it. The case of Jonathan Carey, an autistic person restrained by two employees in a van as they were running errands could serve as an example. The boy fainted and died while the staff was trying to revive him. The two were charged with neglect.
Furthermore, the use of drugs that the relevant authorities have not authorized for a particular condition raises questions about misuse of the drugs. While the use of drugs can be a valuable adjunct in maximizing the function and well-being of patients, especially those suffering from mental disorders, when they are used by medical personnel inappropriately they can lead to abuse, medical malpractice, and medical negligence. For instance, the use of the drugs for chemical restraint when used without adequate acknowledgment and monitoring of the side effects can have severe side effects. These severe side effects such as the death of a patient can lead to suits against the hospital and the medical personnel involved. This is not only potentially illegal but also unethical especially when the overriding aim of the restraint is the convenience of the medical staff rather than medical assistance. Also, the use of several drugs at once (polypharmacy) in order to treat the condition the patient and restrain him/her at the same time raises the likelihood of interactions between various drugs, which may lead to toxicity. This is of concern for the doctor or nurse involved as it can result in potential suit on medical malpractice or medical negligence grounds.
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Besides, it is apparent that drugs may completely erode a patient’s autonomy. For instance, a long-term chemical restraint can lead to over-drugged patients. The patients may lack the ability to think or speak in a clear manner and have less interest in personal care as the drugs interfere with cognitive functions of the individual. This is a side effect that is avoidable if the use of drugs for chemical restraint is restricted to the most extreme of cases. The over drugged patients also have a higher risk of falling as their gait becomes affected by the administration of such drugs. In patients that are older or suffering from mental illness, such falls may lead to further decline in health.
Furthermore, it has been recently argued if the use of restraints, especially physical restraints, is not a case of false imprisonment. The restriction of any adult against his/her will is illegal, and the restrained person can resort to legal actions against the hospital. Thus, if the restraint confronts the agreements or fails to adhere to the regulations, the health professional can be sued by patients whom they restrain even though this decision may be medically justified. Furthermore, some people consider the application of physical restraints for the patient’s own safety to be humiliating. It is said to affront the dignity of the patients who are compelled to ask for basic things.
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Legal Mechanism for Physical and Chemical Restraints
To deal with the issues mentioned above, there are several federal and state laws that have been passed in the U.S. to deal with the use of restraints in hospitals. Thus, in their everyday work, nurses and physicians must strike a balance between the relevant laws and regulations and the legitimate demands for the restraint of patients using either physical or chemical means. According to Kleen (2004), one of the most common legal concerns for nurses is litigation that results from unlawful or inappropriate restraint. The main focus of the laws is safety of the patients. In addition to the federal laws, there are several federal bodies such as the Joint Commission on the Accreditation of Health Organizations (JCOHO) that deal with the issue. The federal law and the mentioned bodies lay down the legal basis for the use of restraints in the hospitals (Braun & Frolik, 2000). The laws and regulations that deal with the issue have the following features. Firstly, the restraint has to be approved in writing by a physician. Secondly, it has to be used for a specified period and not be applied indefinitely. Thirdly, it has to be applied by a physician, nurse or other qualified personnel under the supervision of the nurse.
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The laws include the Omnibus Budget Reconciliation Act of 1987, which contains what has come to be termed the Nursing Bill of Rights. This law mainly applies to the residents in facilities approved for Medicare and Medicaid programs. In the Nursing Home Bill of Rights, there is a provision for Freedom from Chemical Restraint. A body known as the Health Care Financing and Administration (HCFA) is responsible for the oversight of nursing homes that fall under the Medicare and Medicaid programs. Among others, the HCFA evaluates the appropriateness of chemical restraint. The Nursing Home Bill of Rights states that residents should be free from physical or mental abuse, including the use of physical or chemical restraints the main purpose of which is disciplining the resident or the convenience of the staff. The law provides that the physical or chemical restraints can only be used to enquire the safety of residents. Although this law does not explicitly mention hospitals but only nursing homes, it can be extrapolated into the hospitals as its provisions apply to all the areas where medical restraints may be used.
Consent is an important legal consideration while taking a decision on whether or not to apply chemical or physical restraints. The consent can be obtained from the residents or patients themselves or those people responsible for their health care decisions, such as the next of kin. This could be applied for certain groups of patients, for instance, for those who suffer from dementia. The nurse or other concerned personnel has to make sure the decision that is made is an informed one. This is done by ensuring that the nurse or physician explains the risks, benefits, and alternatives for the restraint. The resident can choose to refuse the chemical restraint even if the physician recommends otherwise. Even in case the facility claims that without the chemical restraint the resident is too difficult to maintain, the resident can still refuse the chemical restraint. However, this has to be weighed against the duty of the facility to give the resident the highest possible physical, mental, and psychosocial care. Thus, in some cases, there can be a coercive administration of such drugs if they help the patient in the recovery process. In case an informed decision is not possible, a legal surrogate can make the decision on behalf of the resident after a thorough analysis of the information that is provided to the resident. However, it should be clear that the law does not allow the surrogate to give consent to the use of chemical restraints solely for disciplining the resident or for the convenience of the staff. After one gets informed consent, the written order from the physician is necessary for the restraint to be used. Failure to do this exposes the person who is applying the restraint and the institution to legal recourse. According to Lejman, Westerbotn, Poder, & Wadensten (2013), informed consent is important as the law protects the right of every adult to make his/her own decisions, unless there is a law that prohibits the person from doing so.
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Furthermore, in the specific case of chemical restraint, federal law has as a prohibition on unnecessary drugs. Several state laws supplement this provision. For instance, Arkansas law prohibits chemical restraint unless the doctor is of the opinion that it is necessary and authorizes it. In Arkansas, resident of the facility injured by the violation of this rule can sue to recover actual and punitive damages. In Colorado, chemical restraint can only be used in cases where there is an emergency, and only if there are no less confining options (Braun & Frolik, 2000). In New York, the law is more unequivocal. Firstly, psychotropic drugs may not be used for discipline or convenience. Secondly, the physician ordering them must state the condition for which they are prescribed. In addition, they can only be used as a part of the comprehensive care plan. In addition, they can be applied if the doctors have already tried to use other methods to treat the condition unsuccessfully. In a case where they have started being used, an effort has to be made to reduce gradually the dosage of the drugs and behavioral interventions. Lastly, in New York, the law further stipulates that doctors must stop the administration of the psychotropic drug if it becomes apparent that the use of the drugs is more harmful than beneficial (Braun & Frolik, 2000). Further, Kozub & Skidmore (2001) explain that HCFA stipulates that there must be a qualified independent practitioner for a face-to-face interview with the patient within one hour of the restraints being applied. However, the JCAHO simply states that the use of chemical restraints is inappropriate.
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Cases of patients in physical restraint dying of asphyxiation are not uncommon (Kleen, 2004). Furthermore, physical restraint can lead to the nurses being accused of battery. In both cases, the nurses can end up being sued for the common law and statutory crimes of homicide and battery if their professional choices backfire.
These laws and regulations place the nurse in a dilemma. He/she has to weigh the laws and regulations, the possibility of a suit against him/her if the restraint goes against the regulations, and his/her professional training and conscience. This is exacerbated by the fact that nurses can also be sued and be found negligent for failing to initiate measures to shield patients who are aged, unstable or who otherwise might need restraint as they pose a danger to themselves or others. For instance, in the case of a patient who has the potential for self-harm, the nurse will be left in a quandary whether to follow the letter of the law by waiting for a written order from the patient’s doctor or to act according to his/her training and the information he/she owns. In both cases, if the worst happens, the nurse could have a long-drawn legal battle ahead of him/her. If the patient inflicts self-harm, the nurse could be indicted for will lead to the lack of supervision and negligence. On the other hand, physical restraint will lead to the accusations in false imprisonment in case nurse does not follow the regulations, while a chemical restraint is severely regulated in such states as New York.
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It is thus of utmost importance for hospitals to have a policy on the matter in addition to the federal and state law regulating the same to help the hospital and the concerned nurse reduce liability in case of restraints. The policy while modeled on the federal legislation and regulations should ensure that it takes into consideration both the state law on restraints and professional considerations.
In conclusion, the use of physical and chemical restraints is widespread in health facilities. However, due to the potential ramifications of their misuse, governments have passed laws to regulate the use of restraints at the federal and state level. In some states such as New York, the use of restraints of a chemical nature is severely restricted because of their effect on the mental faculties of an individual. Physical restraints raise questions of false imprisonment if used for the wrong purpose such as the discipline of the patient or the convenience of the staff. In some instances, restraints are necessary for the regulation of patients who may be unruly, delirious or pose a threat to themselves, other patients, or staff of the medical facility. However, since they restrict the movement or cognitive abilities of the patient, the nurse who uses the restraint paves the patient well-being at his/her hands. Because of this reason for the restraint to be administered, the patients, their next of kin or a legal surrogate have to give informed consent. In addition to the consent, there has to be a written order from the patient's doctor. Such rules place the nurse in a situation where his/her professional conviction and the law might conflict. Nevertheless, the actions contrary to the law might lead to the nurse being sued even in a case where the patient needs restraint unless it is an emergency. Thus, for the hospitals to avoid legal problems arising out of physical or chemical restraint of patients, they should ensure that they educate their personnel on the issue. Furthermore, health care facilities should enact policies on the use of restraints modeled by federal and state law and professional consideration of health care professionals.
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