Reducing the use of restrictive practices by applying a human rights-based approach
Intended for healthcare professionals
CPD    

Reducing the use of restrictive practices by applying a human rights-based approach

James Ridley Senior lecturer (learning disabilities), Faculty of Health, Social Care & Medicine, Edge Hill University, Ormskirk, England
Paula Hopes Head of learning disability nursing, Swansea Bay University Health Board, Swansea, Wales

Why you should read this article:
  • To enhance your understanding of the need to reduce the use of restrictive practices

  • To increase your knowledge of applying a human rights-based approach to the use of restrictive practices

  • To contribute towards revalidation as part of your 35 hours of CPD (UK readers)

  • To contribute towards your professional development and local registration renewal requirements (non-UK readers)

In 2021 the Welsh Government launched a new framework for reducing the use of restrictive practices in childcare, education, health and social care settings. A series of reports and guidelines have stressed the importance of ensuring that restrictive practices, if used at all, respect people’s human rights. Human rights that are particularly relevant in this context include the right to not be subjected to inhuman or degrading treatment, the right to have one’s autonomy and physical and psychological integrity respected, and the right to not be discriminated against in the application of the Human Rights Act 1998. This article explores how applying a human rights-based approach can support learning disability nurses to consider the legal and ethical aspects of restrictive practices, use a person-centred approach that respects service users’ dignity and autonomy, and recognise their role in reducing the use of restrictive practices.

Learning Disability Practice. doi: 10.7748/ldp.2022.e2171

Peer review

This article has been subject to external double-blind peer review and checked for plagiarism using automated software

@jimmyjimrid

Correspondence

ridleyj@edgehill.ac.uk

Conflict of interest

None declared

Ridley J, Hopes P (2022) Reducing the use of restrictive practices by applying a human rights-based approach. Learning Disability Practice. doi: 10.7748/ldp.2022.e2171

Published online: 25 May 2022

Aims and intended learning outcomes

The aim of this article is to support nurses to apply a human rights-based approach to reduce the use of restrictive practices. After reading this article and completing the time out activities you should be able to:

  • Explain what restrictive practices are and what parameters delimit their use.

  • Discuss the legal and ethical aspects of the use of restrictive practices.

  • Recognise the challenges in reconciling the need to protect people’s rights and the need to prevent harm or deliver necessary therapeutic interventions.

  • Describe what a human rights-based approach to the use of restrictive practices involves

Key points

  • Restrictive practices are sometimes considered to protect people from harm or to perform necessary therapeutic interventions

  • If used at all, restrictive practice interventions must be legally and ethically justified with due consideration given to the person’s human rights

  • Restrictive practices must always be the least restrictive intervention, be proportionate and be accompanied by a plan to reduce their use

  • Person-centred approaches and positive behaviour support can help reduce the use of restrictive practices with people with learning disabilities

Introduction

The use of restrictive practices is often discussed in the context of how healthcare professionals should or should not address behaviour that challenges. However, their use is sometimes considered in the context of delivering a necessary therapeutic intervention, such as taking a blood sample or administering a vaccine. Whatever the situation is, restrictive practices should never be used without a clear focus on preserving the person’s human rights, balancing risks and benefits, and preventing injury and harm for all involved (Health Information and Quality Authority 2017).

The Transforming Care report into the abuse of people with learning disabilities at Winterbourne View hospital identified a significant use of restrictive physical interventions in that setting (Department of Health (DH) 2012). Restrictive practices can and do have adverse effects on all involved, and the short- and long-term physical and psychological harm they can cause – from bruising to post-traumatic stress disorder (Mind 2013) – cannot be overestimated.

In 2021 a new framework for reducing restrictive practices in childcare, education, health and social care settings was launched in Wales (Welsh Government 2021). Several reports and guidelines, as well as people with learning disabilities and their families and carers, have stressed the importance of ensuring that restrictive practices, if used at all, are considered from a legal and ethical perspective and respect the human rights of the person (Ofsted 2013, 2018, Care Quality Commission (CQC) 2019, 2020, Positive and Active Behaviour Support Scotland and Challenging Behaviour Foundation 2019, Equality and Human Rights Commission 2021).

Applying a human rights-based approach to the use of restrictive practices supports learning disability nurses and other health and social care professionals to consider the legal and ethical aspects involved and encourages them to avoid using restrictive practices whenever possible. It also enables them to anticipate situations in which a service user may be deemed to require some form of restraint, prompting discussions around anticipatory care, and stresses the need for compassion in critical situations.

TIME OUT 1

In your experience of supporting people with learning disabilities, have you ever found it challenging to reconcile the need to protect someone from harm by using some form of restrictive practice and the need to respect their autonomy and agency? How did you manage that situation? Did you take the person’s human rights into account?

Defining and delimiting restrictive practices

Restrictive practices include different types of interventions referred to by terms such as restraint, seclusion, segregation, enforced isolation, coercion, rapid tranquilisation, clinical holding, therapeutic holding and so on. They are sometimes characterised according to type, for example chemical, mechanical or physical. Which type of restrictive practice and/or term are used is often influenced by the practice environment. For example, the Royal College of Nursing (RCN) (2019) guidance about children and young people uses the terms ‘restrictive physical interventions’ and ‘clinical holding’.

The Mental Health Act 1983 Code of Practice (DH 2015) defines restrictive interventions as ‘deliberate acts on the part of other person(s) that restrict a patient’s movement, liberty and/or freedom to act independently in order to take immediate control of a dangerous situation where there is a real possibility of harm to the person or others if no action is undertaken, and end or reduce significantly the danger to the patient or others’. The Mental Health Act 1983 Code of Practice (DH 2015) specifies that when a person restricts a patient’s movement or uses (or threatens to use) force, this should:

  • Be used for no longer than necessary to prevent harm to the person or to others.

  • Be a proportionate response to that harm.

  • Be the least restrictive option.

The Mental Capacity Act 2005 Code of Practice (Department for Constitutional Affairs 2013) explains that someone is using restraint if they ‘use force – or threaten to use force – to make someone do something that they are resisting, or restrict a person’s freedom of movement, whether they are resisting or not’. It states that two conditions must be met to lawfully use restraint in a person who lacks mental capacity:

  • The person taking action must reasonably believe that restraint is necessary to prevent harm to the person.

  • The amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of harm.

Another definition of restrictive practices is that of the Care Council for Wales (2016), which described them as ‘a wide range of activities that stop individuals from doing things that they want to do or encourages them to do things that they don’t want to do’, specifying that these practices can be ‘very obvious or very subtle’.

Further definitions and descriptions can be found in the Restraint Reduction Network Training Standards (Ridley and Leitch 2019). Connolly et al (2019) have acknowledged the confusion that may be caused by the varying terminology seen across education, health and social care settings.

TIME OUT 2

Does your local policy on the use of restrictive practices make direct reference to legislation? If so, is it the most appropriate legislation for your area of practice? Consult the list of statutes and statutory instruments in the Restraint Reduction Network Training Standards (Ridley and Leitch 2019) (Further resources) and identify which pieces of legislation are most relevant to your area of practice

Legal framework of a human rights-based approach

Ensuring that people’s human rights are protected is a crucial consideration for health and social care professionals. When applying a human rights-based approach to the use of restrictive practices, the foundation should be the Human Rights Act 1998 (Ridley and Leitch 2019). For health and social care professionals, this means that the laws relevant to their practice should be implemented in a way that respects, protects and fulfils the person’s human rights (British Institute of Human Rights 2016).

Figure 1 shows the hierarchy of legislation, guidance and practice that applies to a human rights-based approach to restrictive practices. Placing the Human Rights Act 1998 at the base of the hierarchy emphasises the legal duty of public services to protect people’s human rights, including when considering or using restrictive practices (Curtice and Exworthy 2010, Porsdam Mann et al 2016).

Figure 1.

Hierarchy of legislation, guidance and practice

ldp.2022.e2171_0001.jpg

Three articles of the Human Rights Act 1998 in particular are relevant in relation to restrictive practices:

  • Article 3, which prohibits torture and inhuman or degrading treatment or punishment.

  • Article 8, which protects people’s right to respect for their private and family life; as determined by case law, this includes respect for people’s autonomy and physical and psychological integrity.

  • Article 14, which prohibits discrimination in the application of the Human Rights Act 1998.

These three articles form the basis of the Human Rights Framework for Restraint published by the Equality and Human Rights Commission (2019). At every step, the use of restrictive practices should take into account the human rights of the person, which must be considered broadly and not in isolation from other aspects of the person’s life.

Beyond the Human Rights Act 1998, the legal framework for the use of restrictive practices commonly includes legislation such as:

  • The Mental Health Act 1983.

  • The Mental Capacity Act 2005.

  • The Children and Families Act 2014.

  • The Equality Act 2010.

  • The Mental Health Units (Use of Force) Act 2018.

In Scotland and Northern Ireland, the legislative framework includes the Adults with Incapacity (Scotland) Act 2000 and Mental Health (Care and Treatment) (Scotland) Act 2003, and the Mental Capacity Act (Northern Ireland) 2016, respectively.

International components of the legal framework include the Convention on the Rights of the Child (United Nations 1989) and the Convention on the Rights of Persons with Disabilities (United Nations 2006).

Ethical decision-making

Ethical decision-making in nursing has been described as the active process of linking practice to ethical theories, ethical approaches and professional standards of practice (Butts and Rich 2019). Professionals who support people with learning disabilities are more likely to face decisions about restrictive practices when people present with distress or behaviour that challenges (NHS Protect 2013). However, the use of restrictive practices may also be considered proactively as part of planned therapeutic interventions – for example, when discussing advance directives or a best-interest decision.

A planned therapeutic intervention may encompass elements of restrictive practices, but this is likely to be ethically challenging. In a planned therapeutic intervention that involves the use of a restrictive practice, it is imperative to consider alternative approaches and to plan the intervention with people who know the person well, making best-interest decisions on behalf of the person if necessary.

The complexity and changeability of situations in which the use of restrictive practices may be required can prompt questions that are challenging to answer from a legal and ethical perspective (Griffith and Tengnah 2017). The use of restrictive practices may be justifiable when there is a significant risk of injury to self or others, but in such cases the post-incident review must consider the ethics of the future use of restrictive practices.

Although the use of restrictive practices may be justified, the negative effects on the person and/or on those around them may still be significant. Furthermore, situations where the use of restrictive practices may be needed can affect professionals’ views and feelings (Hughes and Lane 2016) and contradict the Code: Professional Standards of Practice and Behaviour for Nurses, Midwives and Nursing Associates (Nursing and Midwifery Council (NMC) 2018).

Making ethically informed decisions about the use of restrictive practices involves identifying and addressing the needs of the person and recognising the individuality of each decision (Paley 2014). An ethical model such as that offered by Beauchamp and Childress (2012) can be used to support professionals to scrutinise restrictive practices that are planned, in use or in need of review.

Applying a human rights-based approach

As discussed, the use of restrictive practices should be considered in relation to the person’s human rights. However, as Curtice and Exworthy (2010) point out, applying a human rights-based approach in clinical practice does not necessitate an in-depth technical knowledge of the Human Rights Act 1998 and its associated case law. In everyday practice, professionals can apply a bottom-up human rights-based approach by adhering to five core values – fairness, respect, equality, dignity and autonomy (Curtice and Exworthy 2010). These five core values can be used to frame decision-making and are encapsulated in the acronym FREDA (Curtice and Exworthy 2010), which stands for:

  • Fairness – there is a clear, unbiased decision-making process and the person is given the opportunity to express their views, which are listened to and weighed alongside other relevant factors.

  • Respect – the person is treated in a way that makes them feel valued, including through courteous communication and getting to know them as individuals, and their views and values are fully considered.

  • Equality – arbitrariness and discrimination are removed from the decision-making process.

  • Dignity – the person is treated as a human being with due consideration given to their circumstances; self-respect is supported and compassionate care is offered.

  • Autonomy – opportunities for the person to make their own choices about what happens to them are explored; the person is given clear, sufficient and relevant information as well as opportunities to participate in the decision-making process.

Greenhill and Whitehead (2011) and Whitehead et al (2011) suggest that using a human rights-based approach to supporting people with learning disabilities highlights professionals’ responsibility to think about the proportionality of interventions and to balance the rights of the individual against the risk of harm.

Several policy and guidance documents explain how to use a rights-based approach in healthcare settings. The RCN (2017) published guidance on a rights-based approach when considering and reviewing the use of restrictive interventions. Chapter 26 of the Mental Health Act 1983 Code of Practice (DH 2015) provides guidance on how to manage people receiving treatment for a mental health condition who present with behavioural disturbance which may present a risk to themselves or others, making it clear that restrictive interventions should only be used in a way that respects human rights. The British Institute of Human Rights (2016) has published a range of practitioners’ guides on human rights in health and social care settings, including one on learning disability and human rights.

The two case studies in this article illustrate how a human rights-based approach can be used in the care of two persons with a learning disability, one in whom restrictive practices have been used to prevent self-harm (Sara) and one for whom restrictive practices are being considered to deliver a necessary therapeutic intervention (James). The two persons have been given pseudonyms.

TIME OUT 3

Reflecting on Sara’s case:

How would you balance the need to protect Sara’s human rights with the need to protect her from harming herself?

What steps would you take to ensure that Sara’s rights are protected?

What support would you give Sara to assist her in exercising her rights?

How would you ensure that you are using the least restrictive approach?

TIME OUT 4

The values of fairness, respect, equality, dignity and autonomy – FREDA – can be used to frame decision-making when applying a human rights-based approach to practice (Curtice and Exworthy 2010). In James’ case, how would you ensure that your decision-making reflects each of these values?

Monitoring the use of restrictive practices

In NHS services in England, restrictive practices are monitored by NHS Digital using the Mental Health Services Data Set (MHSDS) (Further resources). A recent analysis of MHSDS figures by Hatton (2021) showed that in January 2021, 13.1% of people with learning disabilities and autistic people in inpatient units had been subjected to some form of restrictive practice, compared with 11.5% in January 2020. One possible reason for this increase could be restrictions related to the coronavirus disease 2019 (COVID-19) pandemic. In social care and education there is no obligation to record the use of restrictive practices centrally. The Equality and Human Rights Commission (2021) found that 17% of schools in England and Wales were not recording them.

An undercover investigation by journalists at Whorlton Hall hospital (Plomin 2019) showed that staff had colluded to make inaccurate records of the circumstances that had led to incidents. Learning disability nurses are expected to act as role models for the professional standards laid out in the NMC Code (NMC 2018), including in terms of record keeping and monitoring, and scrutinising the use of restrictive practices is part of their role. Reliable records of restrictive practices are crucial for scrutinising the circumstances that lead to their use, considering whether alternative interventions could have been used instead and anticipating what may be the best approach in the future.

Every use of any restrictive practice needs to be documented and the record must state the rationale for using it and demonstrate that its use was proportionate. The context and circumstances need to be described clearly, accurately and objectively. If a restrictive practice is used for the first time in an unplanned way there must be a post-incident review, which will enable meaningful debriefing, learning and planning. The post-incident review must produce clear evidence of the decision-making process that has led to the use of the restrictive practice and explore less restrictive alternatives.

Reducing the use of restrictive practices

There may be a perception that restrictive practices only occur as a reactive strategy ‘in the moment’, notably in response to behaviour that challenges, but they can also be part of a planned approach, written into the person’s risk assessment, care and treatment plan, positive behaviour support (PBS) plan or any such document. Professionals supporting people with learning disabilities have a duty to ensure that, if used at all, planned restrictive practices are:

  • Evidence-based.

  • Planned in a decision-making process that involves the person and those who know them well.

  • Based on a person-centred assessment that includes determining how the person expresses discomfort, distress or pain and how they react when faced with new situations.

  • Reviewed regularly.

  • Only implemented as a last resort.

Learning disability professionals also have a duty to ensure that they look at all the options for less restrictive alternatives, that the use of restrictive practices prompts learning for recurring events, and that there is a reduction plan in place for the individual and/or across the clinical setting. Decision-making about and review of, any form of restrictive practice should be informed by an understanding of the person’s health and well-being, life story, previous experiences of pain, trauma history, communication skills and needs (Ridley and Jones 2012).

A shared vision and shared values across professions are essential in reducing the use of restrictive practices in people with learning disabilities and thereby improve their quality of life (Patterson 2016). There is evidence that person-centred approaches, such as that offered by PBS, can support people who present with behaviour that challenges (National Institute for Health and Care Excellence 2015, Positive Behavioural Support Coalition UK 2015, Deveau and Leitch 2018). PBS focuses on the individual and on how their abilities and autonomy can be enhanced. PBS can support a reduction in the use of restrictive practices for people with learning disabilities across their lifespan (Welsh Government 2021). Box 1 lists some of the existing guidelines, strategies and programmes supporting the reduction of restrictive practices.

Box 1. Guidelines, strategies and programmes supporting the reduction of restrictive practices

  • A framework for reducing restrictive practices in childcare, education, health and social care settings in Wales (Welsh Government 2021)

  • Guidance on reducing the need for restrictive interventions (Department of Health 2014, Department for Education and Department of Health and Social Care 2019)

  • Guidance from the British Institute of Learning Disabilities on developing individual restrictive practice reduction plans (Deveau and Leitch 2018)

  • The Six Core Strategies for Reducing Seclusion and Restraint Use published in the US by the National Association of State Mental Health Program Directors (2008)

  • The REsTRAIN YOURSELF programme (Duxbury et al 2019), which is an adaptation of the Six Core Strategies in acute mental health services

  • Safewards (Bowers et al 2014), which considers how the use of restrictive practices is affected by the relationships between service users, staff and the care environment

Conclusion

Restrictive practices are sometimes considered to protect people from harm or to perform a necessary therapeutic intervention. They include a wide range of interventions that, if used at all, must be legally and ethically justified with due consideration given to the person’s human rights. These rights include not being subjected to inhuman or degrading treatment, having one’s autonomy and physical and psychological integrity respected, and not being discriminated against in the application of the Human Rights Act 1998.

All restrictive practices have the potential to cause serious harm, so they must always be the least restrictive possible, proportionate to the risks incurred and accompanied by a plan to reduce their use. Person-centred approaches, such as PBS, can support a reduction in the use of restrictive practices for people with learning disabilities across their lifespan.

TIME OUT 5

Identify how using a human rights-based approach to reducing the use of restrictive practices applies to your practice and the requirements of your regulatory body

TIME OUT 6

Now that you have completed the article, reflect on your practice in this area and consider writing a reflective account: rcni.com/reflective-account

Further resources

British Institute of Human Rights: Get Our Resources

bihr.org.uk/Pages/Category/get-our-resources

NHS Digital (2022) Mental Health Services Data Set (MHSDS)

digital.nhs.uk/data-and-information/data-collections-and-data-sets/data-sets/mental-health-services-data-set

Restraint Reduction Network.

restraintreductionnetwork.org

Restraint Reduction Network (2019) Training

Standards

www.bild.org.uk/wp-content/uploads/2020/01/RRN_Standards_1.2_Jan_2020.pdf

Further resources

Restraint Reduction Network

restraintreductionnetwork.org

Case study 1. Sara

Sara (a pseudonym) is 21 years old, autistic and has a learning disability. She was admitted ten days ago to an assessment and treatment unit after her placement broke down. Since her admission, Sara has shown high levels of distress and self-harming behaviours and has attended the emergency department (ED) on three occasions. In one instance, Sara banged the back of her head on the corner of a piece of furniture, which caused broken skin, blood loss and damage to her skull. If staff attempt to intervene physically to prevent Sara from injuring herself she becomes highly distressed, screams, resists and bites.

The senior ED nurse has raised concerns about the number of Sara’s admissions and the severity of her injuries and has suggested that a safeguarding referral may need to be made.

The team is anxious to determine how best to support Sara and reduce or avoid the use of restrictive practices. The team undertakes behavioural assessments and works with Sara’s family, her previous care provider and the wider multidisciplinary team to develop a positive behaviour support (PBS) plan for her.

It is deemed important to determine whether Sara’s self-harming behaviours are an expression of trauma. She has experienced an adverse life event – that is, losing her home – and will have her own narrative about it.

It is important to explore how she feels about that event and what effects it has had on her so that her needs can be addressed. This will hopefully reduce her distress and remove the need for restrictive practices.

Case study 2. James

James (a pseudonym) is a 50-year-old man with a learning disability. He has underlying health conditions which increase his vulnerability to coronavirus disease 2019 (COVID-19) and is due to receive his first COVID-19 vaccine.

James is extremely fearful of needles. He has had poor experiences of vaccination, dental care and other healthcare interventions in the past. James is known to express his anxiety and distress by running away, and he has previously knocked over people who were in his way. In the past he has been assessed as not having the mental capacity to give informed consent to healthcare interventions and it is likely that he will not be able to give informed consent for this one.

If James’ movements are not restricted while he receives his COVID-19 vaccine, there are concerns that he will attempt to leave, potentially causing harm to himself and/or others. James has never experienced any form of restrictive practice and there are concerns about the effects that a restrictive practice, such as physical hold, would have on him.

It is deemed to be in James’ best interests to receive the vaccine, but it is essential that the procedure takes place in a way that minimises the risk of distress and trauma and maintains his confidence in health and social care professionals.

It is important to determine what James understands about the procedure and prepare him for it. This involves discussing the procedure with James and people who know him well, and providing him with accessible information. Reasonable adjustments to the equipment and/or environment may be possible. Less restrictive approaches than physical hold could be considered, for example giving James a medicine preventively to reduce his anxiety and distress.

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