Academic journal article Health Law Review

"To Become Old Is to Become Institutionalized and Imprisoned": Comparing Regulatory Frameworks for the Use of Restraints in Long-Term Care Facilities

Academic journal article Health Law Review

"To Become Old Is to Become Institutionalized and Imprisoned": Comparing Regulatory Frameworks for the Use of Restraints in Long-Term Care Facilities

Article excerpt

"One of the essential functions of human-rights legislation is to protect human beings from the therapeutic good intentions of others. ... To give these human beings [patients] the benefit of informed consent, the rule of law, and such autonomy as they can exercise without harm to others is the proof that we actually believe in human rights." (2) (Michael Ignatieff)

Introduction

Our commitment to human rights is tested when we enact laws and create policies that affect the elderly. As Kazin writes: "We are often sentimental about the old in the abstract but contemptuous of them in practice." (3) She continues that "many of us simply expect that to become old is to become institutionalized and imprisoned." (4) One form of imprisonment that is experienced by the elderly is restraint; (5) indeed, some elderly persons regard the imposition of restraints as a routine part of care as they grow older. (6)

Restraint is a technique used to control and restrict a person's freedom of movement, and as such it is vulnerable to being misused and/or abused. Regulation can serve as a framework to ensure that the human rights of the elderly are enabled and respected, serves to minimize the potential abuse and misuse of restraints, and may reduce the potential harm to the person who is restrained. Accordingly, in this paper I examine how we, as a society, should regulate the use of restraints to ensure that they are not a routine part of the lives of the elderly. (7) I compare and contrast two regulatory frameworks for the use of restraints in long-term care facilities and conclude by suggesting a new regulatory framework.

The Incidence of the Use of Restraints

International research suggests that nine percent of residents of long-term care facilities are restrained in countries such as Iceland, Denmark and Japan, 13.5-17 percent in the United States, 15-17 in France, Italy and Sweden, 15-26 percent in Australia and 40 percent in Spain. (8) The most common justification for restraint use is that it is necessary to restrain an elderly person to prevent serious self-harm or serious harm to others. But these rationales do not completely explain the high levels of restraint use. Research from the US suggests that restraints are used by health providers for a number of other reasons including: adhering to policies; the health provider's sense of security and comfort; and fear of legal liability. (9) Other, more clinical rationales are said to include: behavioral control; confusion; poor judgment; and controlling agitated behavior or wandering. (10)

Certainty, Autonomy, Effectiveness and Abuse--Issues Pointing to the Need for A Regulatory Framework

In most jurisdictions in Canada, and in many international jurisdictions, the use of restraints in health facilities generally is not regulated. (11) It is left to the common-law, professional bodies, and individual institutions to create standards for restraint use.

There are four key arguments that suggest that to continue not to regulate restraints in long-term care facilities does not accord sufficient priority to the rights and needs of the elderly and to the interests of health care providers and society as a whole.

First, lack of regulation creates uncertain law and therefore uncertainty in practice. Under the common-law it is not clear when, why, how and in what circumstances restraints may be legitimately used. It is also not clear what impact the Charter (12) could have on this area. Regulation may create a degree of certainty as to the legality of restraint use and set out in detail the circumstances in which it may be used. It also may create standards for the application and monitoring of restraint use.

Second, an individual's right to autonomy needs to be accorded greater protection, which may be achieved through legislation specific to the issues in this area. When health providers argue that they need to restrain an elderly person to protect him/her from self-harm, such as the possibility of falling, they are acting out of a desire to protect that person. …

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