Restrictive practices and patients with impaired decision-making: Balancing duties and rights

Abstract

There is a legislative lacuna in South Australian laws governing patients who present to hospitals with a medically impaired decision-making capacity where restrictive practices are warranted to facilitate assessment, treatment or mitigate the risk of harm. In this article, the author employs Charmaz’s constructivist grounded theory methodology to analyse how clinicians navigated this gap. A proposal is made to develop legal reforms balancing clinician duties with patients’ human rights, through standardised legislative frameworks with accessible avenues for redress for vulnerable patients.

Clinicians in Emergency Departments (EDs), in acute care hospital settings, are under increasing pressure to assess and manage patients presenting with a medical and impaired decision-making capacity (medical-IDMC) where restrictive practices are required to facilitate patient assessment, treatment, or to mitigate harm to patients, property and staff. A legislative lacuna (gap) in the legal framework governing medical-IDMC in South Australia (SA) challenges clinicians' decision-making practices in legal and ethical ways.

A research project was conducted to examine clinicians' responses to how they managed their decision-making in the context of the legislative gap. Specifically, this qualitative research investigated how clinicians navigated this gap and the ways that it impacted their decision-making in managing aggression associated with medical-IDMC patient presentations. Exploring clinicians' experiences supports legal reform recommendations because what clinicians think about the law contributes to the ongoing discussion to facilitate high-quality healthcare delivery. ¹ Pivotally, engaging with clinicians personally and developing rapport and listening, rather than the more usual approach of written surveys with this ‘challenging cohort’ ² can provide valuable insights that may otherwise lay dormant because of clinicians' legal and ethical obligations to maintain confidentiality and the recognised culture of healthcare silence ‘to get the job done'. ³

Legal and ethical problems

The gap identified in this qualitative research falls across those patients with a medical-IDMC, who may require restrictive practices to facilitate their healthcare management. These presentation categories, cited by participants during the research interviews, include acquired brain injury, concussion or temporary memory impairment, delirium, dementia, head injury, hepatic encephalopathy, postictal states, poisoning, substance and alcohol intoxication, and trauma requiring urgent care. ⁴ For most clinicians, the gap is associated with the lack of explicit authorisation for the use of reasonable force while using restrictive practices to manage aggression with medical-IDMC patient presentations.

The coercive nature of restrictive practices

Restrictive practices include several methods that impinge upon a person's bodily integrity ⁵ and independent control over the freedom of their physical movement and decision-making. ⁶ While there is variation in how these practices are defined across jurisdictions, there is a generalisable consistency in what the methods include. ⁷ The most detailed legislative description of these methods in SA is defined in Part 6A of the Disability Inclusion Act 2018 (SA). Common examples include seclusion to an area such as a room where their voluntary exit is prevented, chemical restraint (pharmacological therapy), mechanical and physical restraint that restrict physical movement, environmental restraint that restricts a person's access to items or locations, ⁸ and detention that restricts movement from a particular location. ⁹ Additionally, mechanical restraint may employ belts, harnesses, manacles, sheets and straps to immobilise physical movement. ¹⁰ In contrast, physical restraint incorporates a ‘hands-on' approach by staff to restrict a patient's physical movement, to minimise harm to the patient or the endangerment of others. ¹¹

Clinicians in the research identified that aggressive medical-IDMC patient presentations in the ED often required physical, mechanical and chemical restraint to facilitate healthcare assessment and treatment. ¹² Many clinicians raised concerns for using restrictive practices outside of explicit legislative authorisation, prompting them to ‘fit' the presentation within a known legislative framework to legitimise their actions. ¹³ Clinicians raised concerns ¹⁴ that using restrictive practices without lawful authorisation may open themselves to civil (primarily trespass to the person) ¹⁵ and criminal liability. ¹⁶ It is contended that common law authorisations, also acting as defences for using restrictive practices are inadequate as long-term options, given the impact on a person's human rights and the difficulties for patients and families accessing equitable legal redress. ¹⁷ Additionally, the consequences of restrictive practices on patients include the cumulative effects on a vulnerable person's physical, psychiatric or psychological well-being through forced restrictions on their autonomy, self-determination, liberty and security. ¹⁸

This research project describes medical-IDMC as described by participants ¹⁹ as distinct from mental health-IDMC, regulated under the Mental Health Act 2009 (SA) (‘MH Act 2009') associated with ‘any illness or disorder of the mind'. ²⁰ The nature of the aggression discussed in this article regarding medical-IDMC is a consequence of illness. Despite sharing similar characteristics, this type of aggression is distinguished from the indefensible use of violence against healthcare workers with intent or recklessness, normatively governed through criminal sanctions. ²¹

This qualitative research examined the clinicians' understanding of the gap and how their decision-making was affected by it when managing patients presenting with a medical-IDMC who required restrictive practices to facilitate healthcare delivery or mitigate risk.

Research design

The research design integrates qualitative research following Charmaz's constructivist grounded theory methodology (CGTM) ²² and a legal reform methodology endorsed by Hutchinson. ²³ Hutchinson suggests that ‘legal scholars are increasingly infusing methods from other disciplines into their reasoning to bolster their reform recommendations', especially in legal research. ²⁴ Therefore, integrating significant and robust qualitative research analyses capable of generating independent theory can ‘provide additional ballast to recommendation[s] for reform. ²⁵ The legal reform analyses build upon the interpretative analysis of clinicians' experiences to establish practicable reforms with theoretical merit.

Research methodology

This research was approved under the National Health and Medical Research Council’s National Statement on Ethical Conduct in Human Research. ²⁶

Constructivist grounded theory

The choice to incorporate CGTM was three-fold. First, it is a robust and valid empirical method well-established in healthcare settings. ²⁷ Secondly, CGTM is underpinned by a paradigm recognising that 'meanings are varied and multiple, leading the researcher to look for complexity of views rather than narrow the meanings into a few categories or ideas'. ²⁸ Thirdly, the explorative nature of the constructivist interviewing technique fosters an active and analytical stance between researcher and participant, which enhances dialogue for communicating with participants and interpreting their experiences. The qualitative methodology summary is described below.

Participants

All participants in this multi-centred research study were employees in the SA public health system associated with two tertiary-based hospitals. Senior clinicians were recruited through the support of the Network Directors of each hospital in the Local Health Network and an onsite Education Consultant who advertised the research internally. Research overview, consent and confidentiality documents were emailed to prospective participants, who then contacted the researcher to indicate their willingness to participate. Participants included 16 senior ED clinicians, including 13 Consultants (six female, seven male) and three Senior Registrars (one female, two male) in the later stages of Consultant training. Only senior staff were interviewed as they are usually involved in decision-making with complex patient presentations.

Sample Size

Saturation is a guiding principle in determining sample sizes in qualitative research. Theoretical saturation is achieved when gathering further data ‘no longer sparks new theoretical insights, nor reveals new properties of core theoretical categories'. ²⁹ Saturation was achieved across this sample size of 16 participants.

Data collection

Structured interviews were used in this research. They are the leading type of qualitative interview ³⁰ and allow the researcher the opportunity ‘for understanding complex, nuanced situations where interpersonal ambiguity and multiple interpretations exist'. ³¹ All participants consented to having their interviews recorded, which ranged in duration from 60 to 90 minutes. Interviews occurred over a 30-day timeframe with one interviewer (author); 15 participated in person and one Consultant by telephone. Following the detailed coding process, follow-up re-interviews (theoretical sampling) were conducted on four participants (three Consultants, one Senior Registrar). Theoretical sampling requires the researcher to return to the research field to re-interview participants to clarify meaning and refine their analytical interpretations. ³² Charmaz reinforces this step because theoretical sampling strengthens the rigour and refinement of the data. ³³

Analysis

All interviews were professionally transcribed to facilitate the coding process and were de-identified to reinforce anonymity and confidentiality. One coder (author) undertook all the analyses using coding techniques described by Charmaz's CGTM. All grounded theory methodology, of which CGTM is a type, includes these techniques:

• begins with inductive data collection,

• includes multi-layered line-by-line coding (initial and focused),

• incorporates iterative comparative strategies of moving between the data,

• memo-writing (researcher's reflections during interviews, coding, analysis), and

• theoretical sampling (re-interviewing for clarity and theory construction).

These culminate in a grounded theory which emerges from within the data. ³⁴ The professionally transcribed interviews ranged from 12 to 27 pages of single-line data (average, 17 pages). Confidentiality is further reinforced by the very nature of the de-identified, line-by-line coding that reduces detailed commentary to words or phrases of theoretical merit.

Results

CGTM, like all grounded theory methodologies, culminates in theory construction as the summit of the research inquiry through the rigorous application of the procedural techniques just described. The grounded theory is the final theoretical product, in the form of an emergent and abductive theory, which provides the most plausible and meaningful theoretical explanation of what is happening in the data. ³⁵ These results reveal that, despite the legislative gap in the laws authorising restrictive practices for medical-IDMC patients exhibiting aggression, clinicians adopted the most ‘appropriate' and ‘best fit' alternative legislative framework that authorises restrictive practices. The legislation mainly used was s 56 of the MH Act 2009. This constructivist grounded theory discovered that clinicians were managing medicine through a legislative lens of law.

Discussion

Two primary concerns identified by clinicians in adopting legislation to justify their use of restrictive practices are as follows. First, the challenges in undertaking capacity testing adequately where aggression and time-critical decision-making are features of urgent presentations. Secondly, concerns raised in applying the legislation when the symptomology does not align with the MH Act 2009 criteria. The following comments reflect the position held by many clinicians:

The frustration from the impracticable nature of seeking authorisation where violence is an issue is simply not a practical response to, ‘What do I do with this person who currently is requiring four policemen in the room, two ambulance officers, [and] whose chemical restraint is wearing off?’ ³⁶

I do get very angry with getting legal advice that is completely inapplicable to the situation … [T]o be there at 2 AM on a Sunday morning dealing with somebody who is head injured, intoxicated, and they're trying to get up off the trolley and walk out. I would like somebody to see the difficulty in that and acknowledge the uncertainty and provide some sort of protection. ³⁷

Capacity evaluation

The common law has been the mechanism for developing the law of consent and refusal of medical treatment in Australia. ³⁸ Principally ‘the legal requirement of consent to bodily interference protects the autonomy and dignity of the individual and limits the power of others to interfere with that person's body'. ³⁹ Succinctly, ‘[f]or consent to be valid, it must be informed, voluntary and made with appropriate decision-making capacity [and], the patient should be provided with sufficient information relevant to the decision at hand'. ⁴⁰ Likewise, with the refusal of treatment, common law reiterates that ‘an individual of full capacity is not obliged to give consent to medical treatment, even if the failure to treat will result in the loss of the patient's life'. ⁴¹ While each consent criterion is essential for ensuring valid consent/refusal of treatment, capacity usually drives the exercise of the patient's autonomous rights to consent/refuse provided the capacity is ‘commensurate with the gravity of the decision'. ⁴² Patient autonomy exists, therefore, in a symbiotic relationship with capacity where ‘the law has relied on the requirement for capacity to act as a gatekeeper for the application of the right'. ⁴³

Capacity test controversy

Underlying Australian legislation, the test to determine legal capacity specifies that a patient has capacity if they can understand, retain and use the information and communicate it in any manner whatsoever. ⁴⁴ The critical nature of capacity assessment and clinician decision-making is heightened where aggression is a factor during urgent ED patient presentations because there is less time to assess the patient's capacity adequately. ⁴⁵ Normatively, adult patients are presumed to have capacity unless rebutted. ⁴⁶ Therefore, ‘the doctor is placed in an invidious position by being prevented from gaining evidence to rebut this presumption', and the consequences of being unable to assess or treat are ‘particularly dire'. ⁴⁷ The difficulties identified by clinicians in this research indicated that patient aggression impacted their clinical ability to accurately assess the patient to determine appropriate management plans ⁴⁸ or to establish differential diagnoses promptly ⁴⁹ because ‘I might not even have five minutes. I may have a minute to make that decision and there are another four resus[citation] rooms going'. ⁵⁰ The circumstances also raise questions about what approach to capacity assessment is ethically and legally reasonable for clinicians to use where a patient presenting with a medical-IDMC exhibits aggression.

Questions surrounding the nature and suitability of capacity testing have formed the basis of much interest in academia. Factors raised by academics include the ad hoc approach to capacity testing, ⁵¹ defining capacity tests (including functional/objective, sliding scale, statutory), ⁵² language standardisation including legal capacity/mental capacity ⁵³ and capacity/competency, ⁵⁴ impacts of capacity testing on the human rights of persons with mental illness, ⁵⁵ disability, and those residing in aged care facilities ⁵⁶ along with the way capacity is defined and assessed through human rights instruments, particularly those aligned with Australia's obligations. ⁵⁷ Mendelson and Saunders caution that ‘unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients'. ⁵⁸

As Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD), there are legal and moral obligations to align those principles with domestic laws around matters of capacity, capacity testing and the use of restrictive practices, ⁵⁹ especially in healthcare settings where disability is a feature. ⁶⁰

Legislative frameworks, restrictive practices and a solution

Currently, in SA, only two pieces of legislation provide explicit authorisation to use restrictive practices to manage aggression with patient presentations involving impaired decision-making – the MH Act 2009 and the Guardianship and Administration Act 1993 (Guardianship Act 1993). The SA Parliament has drafted the Consent to Medical Treatment and Palliative Care (Restrictive Practices) Amendment Bill 2020 (Amendment Bill 2020) to remedy the gap. The proposed changes provide authorisation permitting clinicians to use restrictive practices where medical-IDMC patient presentations exhibit aggression.

The mental health legislation

Outlining the current legislative framework provides insights into clinicians' challenges and a basis for reasons why legislation authorising constraints on patient liberty was preferred, as reflected in the research. The first piece of legislation authorising restrictive practices using force is associated with patients presenting with mental illness. The primary sections for authorising restrictive practices, including the use of force, are ss 21 and 56 of the MH Act 2009. While s 21 (Inpatient Treatment Order, ITO) provides express authority for using restrictive practices for assessment and treatment, s 56 (Care and Control) provides express authority for using these methods for patient assessment only.

Sections 21 and 56 of the MH Act 2009 share similarities and, in summary, include that a person appears to have or has a mental illness, has impaired decision-making related to the mental illness, management is necessary to prevent harm to patient and property, ⁶¹ and the choice to use the treatment is assessed as the least restrictive approach under the clinical circumstances.

A prevalent finding in the research identified that clinicians opted to use s 56 of the MH Act 2009 where it was challenging to assess capacity effectively and aggression was a feature in the medical-IDMC patient presentation. Clinicians chose to ‘bridge the gap' by using s 56 of the MH Act 2009 for several reasons. First, s 56 of the MH Act 2009 authorises the express use of restrictive practices and, unlike an ITO, does not require written notification to the Office of the Chief Psychiatrist when it is used on patients. ⁶² Secondly, this section authorises the express use of restrictive practices applying force. ⁶³ Thirdly, the broad definition of mental illness under s 3 of the MH Act 2009, ⁶⁴ and the time-critical nature of ED decision-making, made s 56 an ideal and efficient authorisation for clinicians using restrictive practices where aggression was a feature of urgent medical-IDMC patient presentations. Noteworthy in the research was the consensus expressed by many participants that ‘we're using section 56 a bit too liberally' ⁶⁵ and ‘therefore undertake the easier option, which is to find some way of calling it a mental illness and, unfortunately, using the MHA'. ⁶⁶ This decision-making is preferred in EDs because ‘section 56 gives us very broad boundaries', ⁶⁷ ‘allows us time to gather information and assess the patient', ⁶⁸ [and] ‘it’ s much easier because we can make our own decisions'. ⁶⁹

While the convenience of using the MH Act 2009 in EDs is efficient and logical in urgent clinical contexts where aggression is a factor – and one can readily sympathise with clinicians working under challenging circumstances to undertake this option – it is neither ethically nor legally justifiable as a long-term solution. Principally, such action is contrary to the intent of the MH Act 2009 for the care and management of those with mental illness. Section 6 of the MH Act 2009 describes a range of ethical principles underpinning the legislation that includes ‘respect for a patient's freedom, rights, dignity and self-respect as consistent with their protection frameworks'. ⁷⁰ Furthermore, improperly applying laws, even when well-intentioned, ⁷¹ impacts patients' human rights, including respect, dignity, autonomy, self-determination, liberty and security. ⁷²

The guardianship legislation

The second legislative instrument authorising restrictive practices using force, the Guardianship Act 1993 is associated with enduring incapacity. Persons to whom the Guardianship Act 1993 applies include those unable to look after their health, safety or welfare arising from illness, delayed development or impairment of the mind or brain. ⁷³ Under this Act, restrictive practices, including the use of force, can only be used where a written application for Special Powers is approved and associated with an existing Guardianship Order. ⁷⁴ This application is lodged with, and determined by, the South Australian Civil and Administrative Council (SACAT, or Tribunal). Even Special Powers sought urgently by phone call to the Tribunal will only relate to the patient being directed to reside in a specified place and to detain them from leaving the specified place. ⁷⁵ The use of force is only sanctioned through a Tribunal hearing which may take several weeks to complete and, even under urgent situations, may take several days. Therefore, using Special Powers has limited utility for urgent medical-IDMC patient presentations unless the person presenting with a medical-IDMC is already under an existing Guardianship Order. Many clinicians cited these legal realities as the reason not to use them in medical-IDMC patient presentations in urgent ED contexts. ⁷⁶

Proposed legislative changes to ‘bridge the gap'

In SA, no legislation governs the express use of restrictive practices to facilitate assessment or treatment with patients presenting with a medical-IDMC in acute care hospital settings, including ED. The Amendment Bill 2020 will form part of the Consent Act 1995. ⁷⁷ The implications of the finalised Amendment Bill 2020 and its passage through Parliament as formal legislation will regulate the scope of a clinician's power to authorise restrictive practices of patients presenting with medical-IDMC without immediate oversight from external regulators. Accepting these legal reforms in the Amendment Bill 2020 expands the authority for clinicians to authorise the most extreme forms of restrictive practices. ⁷⁸ The Bill expands the range of legislative frameworks governing restrictive practices to three major types of impaired decision-making: medical-IDMC, enduring impaired decision-making, and those with impaired decision-making arising from mental illness.

Balancing duties and rights: Which framework is preferable?

Legislative legal framework

The argument for initiating infringements on liberty as requiring clear, equitable and workable legislative guidelines has several advantages. Using legislation over common law defences regulates and standardises medical management, reduces clinician subjectivity, establishes consistency and transparency in practices, and enhances access to avenues of redress for vulnerable or disadvantaged patients. ⁷⁹ Moreover, and foundational to any question of legislative change impacting on human rights, especially in the context of patients presenting with medical-IDMC, is the question of the reasonableness of restrictive practices and respect for a patient's human rights in the construction of those legal reforms. ⁸⁰ As noted by Chandler, regulating these practices is usually legislatively driven, so the onus should be on legislators to ensure that these extreme practices, and the rights they seek to safeguard, are undertaken lawfully and ethically. ⁸¹ It is contended therefore, that regulated legislative frameworks supporting human rights offer more patient protections and provide standardisation and certainty for clinicians. ⁸² The Amendment Bill 2020 endorses a legislative legal reform approach.

Common law legal framework

Common law principles play an essential role where legislation does not provide guidance or when the matter before the Court is novel. ⁸³ The primary common law examples to defend clinicians' practices include self-defence, ⁸⁴ emergency, necessity, ⁸⁵ and duty of care. In SA, both self-defence ⁸⁶ and duty of care ⁸⁷ have statutory defences that may protect clinicians' actions under certain circumstances. However, it is argued that where common law defences such as duty of care are used to authorise restrictive practices, even where statutory provisions may defend their use, the legitimacy of such use based upon clinician subjectivity raises important ethical and legal questions. ⁸⁸ As outlined previously, they include for the vulnerable patient the inequitable access to legal redress ⁸⁹ and the cumulative effects of encroachments on basic human rights. ⁹⁰ Throughout the research, clinicians raised concerns on their own knowledge and application of the common law, ⁹¹ along with their unease and uncertainty for using restrictive practices without legislative authorisation. ⁹²

The following judicial statements reinforce the limited utility of common law when it impacts on a patient's human rights reinforcing the contention for the value of legislative oversight where human rights are impacted, and restrictive practices are utilised.

Judicial statements have indicated that common law use is inadequate where their application has impacts on a person's human rights. Brennan J reinforced the dangers for using common law in certain contexts as ‘an unexaminable discretion in the repository of the power’ which sets up ‘an insubstantial protection of the human dignity’ and ‘wraps no cloak of protective principle’ on a patient’s rights. ⁹³ Kourakis CJ states that healthcare practices impacting on liberty ‘merit the attention of the Parliament'. ⁹⁴ Likewise, Hinton J observed that,

if there is a residual field of common law power to detain a person of unsound mind in emergency situations until such time as confirmation by order of this Court or the Tribunal can be obtained, it may be appropriate for the legislature to make as much plain. ⁹⁵

Finally, High Court jurisprudence emphasises ‘the right to personal liberty is … ‘‘the most elementary and important of all common law rights''’ and that ‘[o]f great importance to the public is the preservation of this personal liberty'. ⁹⁶

Judicial statements, therefore, reinforce the value of human rights and endorse the protection of these rights through legislative avenues where there are infringements on those rights, including a person's liberty, security, and dignity.

Conclusion

In acute care hospital ED settings in SA, a legislative gap governing the express use of restrictive practices where urgent medical-IDMC patient presentations include an element of aggression has ramifications for clinicians' decision-making and patients' human rights. Qualitative research identified clinicians using the best-fit legislative authority to facilitate their assessment and treatment without recourse to third-party sources. Specifically, the MH Act 2009, normatively used in managing those with mental illness, is used to ‘bridge the gap’, to mitigate risk and facilitate safe healthcare management. These practices place clinicians in an invidious position to balance their legal and ethical duties while minimising the impact on patients' human rights, including their autonomy, dignity, liberty, security and self-determination.

The draft of the Amendment Bill 2020 is a productive start, and any finalised reforms must standardise decision-making regulations, establish consistency in procedural methods across statutes, reduce clinician subjectivity, and incorporate avenues of redress to ensure that the patient's and the State's interests are respected and balanced. Human rights are the foundations for legal reforms endorsing a patient-centred approach to care; they are not optional extras.