The use of force is a way of life in any correctional setting. Force comes in varying degrees of constraint and crosses professional disciplines in its application. Examples of its application can run the scale from OC (pepper spray) deployment by an officer, to the clinical order of four-point restraints by a physician.
Force comes with a negative connotation, as it often involves physical power or violence to accomplish its goal. If not done correctly, force often extracts a high price from those involved through costly litigation, guilt and shame in the court of public opinion. As a result, law enforcement agencies and health care professionals have developed mandatory standards for its use. While the two disciplines' philosophies are opposite, they share common ground in its justification to "protect."
Oath of Office
The term "sworn staff" comes from the oath law enforcement officers take when they become public servants pledging to "serve and protect" the public. For those staff who work in a correctional institution, that includes the safety and security of the institution and it is implied that, when necessary, force will be used to fulfill that duty. (1)
Likewise, the mission statement of health care is seen as taking its roots from Hippocrates and the oath physicians take upon graduation, vowing to keep their patients from harm, injustice and to follow the best treatment plan for them. It is implied that force will not be used in rendering that care in respect to the patients' rights.
Although these may seem divergent and contradictory mission statements, they are very similar in the way each discipline establishes policies and practices, and the outcomes are likewise similar in the attainment of the mission.
Each discipline has governing provisions that are used to establish the key elements in the development of its respective practices. When developing professional standards, many things play a role in determining their constitution. The driving factors consist primarily of a code of ethics, case law and regulatory agencies.
Each state regulates law enforcement through a governing body known as POST--Peace Officer Standards and Training. It acts to certify that members of the law enforcement community are competent in their knowledge and application of law enforcement for public safety.
When establishing policy and procedure on the use of force for law enforcement, the U.S. Supreme Court decision in Graham v. Conner is viewed as the seminal case that defines constraint and is where the application of "reasonable force" originates. (2)
Likewise in health care, each state has a body known as the Division of Occupational and Professional Licensure. It acts to license health care professionals and set competency levels to practice in each respective field. The driving factors of standards in health care are similarly drawn from a code of ethics, case law and regulatory agencies.
When establishing the policies and practices for the health care version of force or restraints, hospitals and health care professionals write their policies and practices to comply with regulatory agencies and third-party reimbursement. This results in the standard of "community practice," which is the common level of care given throughout the jurisdiction of the governing agency. The largest national source and influence of community practice comes from the Centers for Medicare and Medicaid Services in the Code of Federal Regulations, the governing body for Medicaid and Medicare reimbursement.(3) As its use and acceptance is uniform across state lines, it becomes the standard for negligence and the definition for the least restrictive level of care.
Reasonable Force Or Least-Restrictive Intervention
When an officer is confronted by a situation where force will be required to protect public safety or the safety of the institution, attempts to restore order should begin through a continuum of force that includes verbal commands, use of hands, chemical agents, baton or other impact weapon, canine, less-than-lethal projectiles and finally, if necessary, deadly force. The primary objective in the application of force in law enforcement is to apply restraint in its use. The act of force is to be in proportion to the seriousness of the offense. The application of this results in the adage of "reasonable necessity is equal to force plus one." For example, it would not be reasonable to use less-than-lethal projectiles after a failure to obey a first-time directive on a minimum-security inmate.(4)
This approach is also to be applied to the standards for health care, as the objective is to use the therapeutic intervention that is least restrictive. When a health care provider is dealing with a patient who is a threat of harm to him- or herself, or someone else, the clinician should start with traditional interventions such as distraction techniques, change in environment, safety contracts and medications. The intervention should correlate to the expression and acuity of the illness. Similarly, it would not be least restrictive to start intervention by putting an inmate who voices suicidal ideation into four-point restraints.
Minimize Damage And Respect Human Life
Next, law enforcement is tasked with minimizing damage and injury, and to respect and preserve human life. When learning force techniques, officers are trained to use a cascade of less-than-lethal force. For example, when an impact munition is used, it is aimed away from the torso and face to minimize injury. Furthermore, once the inmate has been controlled, the application of force stops. It is unacceptable to continue to exercise force beyond the point when safety and security has returned. When the need for increased violent force is determined, a member of command staff must be consulted before deployment in order to put less-than-lethal force in use. This acts as a system of balance to ensure that its use is not being deployed in a punitive fashion.
For medical restraints, the control to ensure that injury is minimized and human dignity is preserved occurs by creating an algorithm of requirement that must be met prior to the use of restraints. First, a health care professional must assess the inmate to determine if restraints are necessary and ascertain that less restrictive means have been ineffective in protecting the inmate or others from harm. Next, a licensed independent practitioner who is authorized by the governing board of the state in which the facility is located must write or give the order for the restraints. This traditionally would be a physician or perhaps a mid-level provider such as a nurse practitioner or physician assistant. This order should be given prior to restraints or soon after as is reasonably possible. It should be clear that standing orders for restraints are not allowable and, in each case, a licensed practitioner must be personally involved at the time of the orders.
Finally, the total length of time an inmate may remain in restraints should not exceed 24 hours cumulative, and each individual order given should not exceed four hours. If safety concerns exceed the initial four-hour order, the requirement of a face-to-face evaluation allows the clinician personally to evaluate the crisis. As the use of force is expected to cease when an officer has regained safety and security, it is extremely important that all involved with the use of clinical restraints understand that they, too, must be terminated at the earliest possible opportunity. It is not reasonable, for example, to keep a person restrained who is sleeping. The criteria used for release will demonstrate that the precipitating danger is no longer present, and should be proved by asking the inmate to demonstrate control of his or her actions by successfully allowing the release of an extremity without physically acting out.
Medical Aid to Be Rendered As Early as Possible
The next element for law enforcement in the use of force is to ensure that assistance and medical and are rendered to any injured or affected person at the earliest moment. Most institutions have implemented this by requiring a nursing staff member be present at the time of any use of force within the institution, such as forced cell extractions.
The medical practice views the most difficult, yet cardinal aspects of restraints to be the requirement that the ordering clinician come evaluate the inmate face to face. This should be done while the inmate is still restrained. If the ordering clinician is not the primary-care clinician, then the primary-care provider should be consulted in order to obtain a clear understanding of the inmate's history and current treatment goals.
Administrative Review of Force
Because each situation is unique, and the goal of the institution is to ensure good judgment is being executed in the enactment of policy, reviews of each use-of-force incident will act to analyze and offer reformulation of policies or practices of staff.
For correctional deployment of force, a review should occur on all nondeadly or deadly uses. The review should occur promptly and begin with a first-line supervisor to determine if the use was reasonable and necessary and if not, what type of discipline is to be recommended. If the force resulted in a fatality, internal investigations should run a concurrent review and to the extent possible, the review should be conducted by someone outside the officer's chain of command or possibly a sister law enforcement agency. The review should result in recommendations for any needs of additional training or the revising of agency strategy, tactics or policies.
Similarly, in the event restraints are used clinically, an administrative review should occur. It should begin with a debriefing with staff involved after the restraints have ended and continue when an administrative panel can convene representing each discipline. The panel should review the use to determine if less-restrictive means had been used and failed, policies were followed, documentation is complete and if a fatality occurred, initiate a morbidity and mortality review.
The use of force is an issue that will always carry with it a high level of responsibility. Each organization is responsible for ensuring that it is applied with dignity and respect for human life. Its application should always be applied in a fashion that is reasonable and least restrictive. Institutions that focus their efforts on ensuring that practices and polices comply with the mission statements of their oaths will find that unlawful use of force and medical indifference are easily overcome.
(1) See www.police.ucr.edu/code.html.
(2)Graham v. Conner, 490 U.S. 386 (1989).
(3)42 C.F.R. 482.13 Ch. IV (10-1-04 Edition).
(4)Hall, J.C. 1997. Police use of force to arrest. Available at www.fbi.gov/publications/leb/1997/oct975.htm.
Mark Ellsworth is the health authority at the Salt Lake County Sheriff Jails in Salt Lake City.…