Legal and Ethical Issues in Restraint and Seclusion

Legal and Ethical Issues in Restraint and Seclusion

Cedric B. Stewart

Sam Houston State University

Legal and Ethical Issues in Restraint and Seclusion

The use of seclusion and restraint is a complex and ethical issue for it involves the restriction of an individual’s basic human rights (Kontio et al., 2010). However, there are situations in which an individual must be controlled and treated regardless of their will. Aggressive and self-injurious behaviors (SIB) have been widely accepted as thresholds for which more serious restrictions have been deemed appropriate (Kontio et al., 2010). Nonetheless, seclusion and restraints are the most restrictive techniques based on a continuum of choices. The use of such techniques, however, are usually governed by a variety of legal statutes, are often conducted using recommended procedures, and yet often results in those having to administer such therapeutic techniques as having to navigate an ethical quagmire (Kontio et al., 2010).

As an ethical dilemma, if we accept the notion that restraints and seclusion are necessary, then we must reject or suspend, at least on some level, the key principles of universal liberty and autonomy (Slowther, 2007). I would argue that yes given the appropriate set of circumstances upon which a set of criteria was established and followed their use would not only be appropriate, but necessary. Although each of these characteristics alone could be expounded upon to create a full treatise, for brevity I would postulate that conditions under which such techniques would be suitable  include: avoidance of harm, best interest of all involved, proportionality, maintenance of respect for the person, transparency, and accountability (Slowther, 2007). These characteristics when conducted systematically, honestly, and properly, t should provide the mechanisms for ethical and humanitarian relief of consciousness when considering the use of such evasive techniques.

Currently, there are no federal oversights for educational settings that govern the use of restraints and seclusion. There are however, federal laws that govern these practices in hospitals and settings that receive federal funding through Medicare and Medicaid (General Accounting Office [GAO], 1999). These requirements are listed as “Condition of Participation” (COPs) and must be complied with by organizations hoping to maintain their Medicaid and Medicare status. Participating agencies are hospitals, which include short-term psychiatric, rehabilitation, long-term, children’s and alcohol-drug treatment facilities. Nonetheless, this same report acknowledges that there are far too few mechanisms at the state level for monitoring and reporting which makes it virtually impossible to accurately monitor the annual rates of injury or deaths as a result of improper or the misuse of such techniques.

Due to the controversial nature of restraints and seclusion, federal oversight committees have begun conducting hearings on the topic to consider if national standards should be adopted for public educational setting (Kittredge, 2009). However, at this time, the oversight is only limited to individual state agencies. In Texas, restraint and seclusions are governed by two statutes: Title 2 Texas Education Code § 37.0021, Use of Confinement, Restraint, seclusion, and Time out; and Title 19, Texas Administrative Code § 89.1053, Procedures for Use of Restraint and Time-out. These laws govern a myriad of topics that are related to restraint and seclusion to include prohibiting the the use of locked rooms and boxes. In addition, the statutes are explicit about the training for staff, under what conditions restraints may be used, and the notification process for parents regarding the use of restraints and confinement.

Even under such conditions, the Government Accounting Office in 2009 reported that in the previous year in California and Texas alone over 33,095 students were restrained or secluded (H.R. 4247, 2010). Clearly such rates of incidences are far too high and due the potential nature for the misuse of these techniques federal oversight should be enacted in order to protect children. While Texas does have fairly stringent laws that detail the proper use of restraints and seclusion, there still are a number of documented cases of abuse by undertrained or overzealous staff members who view these techniques as punishment and not as part of a holistic therapeutic plan.

The use of restraints and seclusion are covered in the Individual Educational Plans often as part of the Behavioral Intervention Plans (Crone & Horner, 2003). Positive behavioral interventions, or Behavioral Intervention Plans (BIP), are required under federal regulations if a student’s behavior interferes with their learning or the learning of others  or the student has missed more than 10 days within a school year (“BIP“, 2009; Crone & Horner, 2003). The goal of such a plan is to address possible interventions and strategies that can be designed to make the student successful. By employing a Functional Behavioral Analysis (FBA) as part of the overall process to develop a BIP, the FBA attempts to determine what function a student’s unacceptable behavior serves (Umbreit, Ferro, Liaupsin, & Lane, 2007). It also tries to determine what the student “gets” or “avoids” through the unacceptable behavior. An FBA does not simply describe a behavior, it identifies the biological, social, affective, and environmental factors that initiate, sustain, or end the behavior in question (Umbreit et al., 2007).

In Texas, all disciplined related matters concerning students with disabilities are governed under the Texas Education Code Section 37.004., Placement of Students with Disabilities (Texas Education Code- Placement of Students with Disabilities, 2007). This statute specifically details functional behavioral analysis, positive behavioral intervention strategies and support, behavioral intervention plans, as well as manifestation determination review guidelines (Texas Education Code- Placement of Students with Disabilities, 2007). Although the language of the law does provide for some specifics that are related to the when and how Behavioral Intervention Plans are to be completed in Texas, the statues underscores two assumptions about behaviors. First, that behavior problems are best addressed when the cause of the behavior is known and cause can be determined best when a functional assessment of the student's behavior is conducted (Buck, Polloway, Kirkpatrick, Patton, & Fad, 2000). Finally, behavior interventions based on positive intervention strategies are more effective in changing maladaptive behavior than are punitive strategies (e.g., suspension). Such intervention strategies should be well thought out, implemented in a systematic fashion, and evaluated periodically so that changes can be made when needed (Buck et al., 2000).

Although IDEA requires the completion of an FBA, it does not provide the specific guidelines regarding the process for conducting the FBA (Umbreit et al., 2007). As such, many FBAs are conducted improperly or haphazardly by staff members who are improperly trained or that do not have the necessary resources (Crone & Horner, 2003). Another commonly associated problem with conducting FBAs and BIPs is the expertise needed to both synthesize the assessment information gathered and selecting an appropriate treatment alternative (Miller, Tansy, & Hughes, 1999). Addressing students’ behavioral programs is a team effort that goes beyond the special education personnel. Often in schools, there is a divide between the general education and the regular education staff related to the context, scope, and understanding of the procedures. Only through appropriate staff development and training will all school staff come to understand the principles and effectiveness of such tools as conducting a Functional Behavioral Analysis and the subsequent creation of a Behavioral Intervention Plan (Gable et al., 2006). Finally, the Virginia Department of Education (Gable et al., 2006) suggested that that there are 10 common Obstacles to Effective Functional Behavioral Assessment and Behavioral Intervention Plans and supports:  (a) A definition of the behavior(s) of concern that is too vague; (b) Incomplete measurement/data collection regarding the behavior(s) of concern and the interventions selected; (c) Incorrect interpretation of the functional assessment data collected by the IEP team or others; (d)  Inappropriate intervention (e.g., too weak to deal with the complexity or magnitude of the behavior problem; not aligned with the assessment data);  (e)  Inconsistent or incorrect application of one or more parts of the intervention plan; (f) Failure to adequately monitor the implementation of the intervention plan or to adjust the intervention plan over time, as needed, based on ongoing monitoring and evaluation, and to adequately evaluate the impact of the intervention plan; (g)  Inadequate system-wide support to avoid future episodes of the behavior problem (e.g., too many initiatives or competing building-level priorities that may interfere with the time and commitment it takes to develop and implement behavioral intervention plans); (h) Targeting behavior that is an issue of tolerance rather than being something that distracts the student or others (e.g., a specific minor behavior, such as doodling) ; (i)  Lack of teacher skills and support necessary to teach behavioral skill; and (j)  Failure to consider environmental issues, cultural norms, or psychiatric issues/mental illness outside of the school/classroom environment that is impacting the student’s behavior.

References

Behavior intervention Plan. (2009). Retrieved from http://www.partnerstx.org/PDF/PRN_BehaviorInterventionPlan.pdf

Buck, G. H., Polloway, E. A., Kirkpatrick, M. A., Patton, J. R., & Fad, K. M. (2000). Developing behavioral intervention plans: A sequential approach. Intervention in School and Clinic, 36(1), 3-9.

Crone, D. A., & Horner, R. H. (2003). ''Building positive behavior support systems in schools''. New York, NY: The Guilford Press.

Gable, R. A., Quinn, M. M., Rutherford, R. B., Howell, K. W., Hoffman, C. C., & Butler, C. J. (2006). ''Functional behavioral assessment, behavioral intervention plans, and positive intervention and supports: An essential part of effective school-wide discipline in Virginia'' (Policy Brief). Richmond, VA: Virginia Department of Education.

General Accounting Office. (1999). ''U.S. General Accounting Office (GAO) Report on Restraint and Seclusion ''(HEHS-99-176). Washington, DC: U.S. Government Printing Office.

Kittredge, B. M. (2009, May 18). This week: Hearings on restraint and seclusion in schools, Obama’s education agenda, and reforming student aid [Newsgroup comment]. Retrieved from http://edlabor.house.gov/blog/2009/05/this-week-hearings-on-seclusio.shtml

Kontio, R., Valimaki, M., Putkonen, H., Kuosmanen, L., Scott, A., & Joffe, G. (2010). Patient restriction: Are there ethical alternative to restraint and seclusion. Nursing Ethics, 17(1), 65-76. doi: 10.1177/0969733009350140

Miller, J. A., Tansy, M., & Hughes, T. L. (1999). Functional behavioral assessment: The link between problem behavior and effective intervention in schools. ''Current Issues in Education'', 1, 237-246.

Preventing Harmful Restraint and Seclusion in Schools Act, H.R. H.R. 4247, 111th Cong. (2010).

Slowther, A. M. (2007). Restraints of patients in health care. ''Clinical Ethics'', 2, 71-73. doi: 10.1258/147775007781029519

Texas Education Code- Placement Of Students With Disabilities. Texas Education Code §§ Section 37.004 (2007).

Umbreit, J., Ferro, J., Liaupsin, C. J., & Lane, K. L. (2007). ''Functional behavioral assessment and function-based interventions: An effective, practical approach''. Upper Saddle River, NJ: Pearson Merrill Prentice Hall.