Bills Would Limit Use Of Seclusion, Restraint

State P&As Would Monitor Serious Injuries and Deaths

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April 6, 1999—Three bills announced at a joint House and Senate press conference on March 25 address the use of seclusion and physical and chemical restraints, which has led to trauma, injury and death for patients in mental health facilities across the country.

Senators Christopher Dodd (D-CT) and Joseph Lieberman (D-CT) and Representatives Diana DeGette (D-CO), Pete Stark (D-CA) and Rosa DeLauro (D-CT) introduced the legislation after an exposé of the practice by Hartford Courant reporter Eric Weiss described multiple deaths from theuse of restraints.

Less spectacular but of serious concern is the trauma caused by aggressive use of seclusion and restraint in many facilities. Yet some psychiatric hospitals—particularly in the public sector—have instituted more humane and preventative approaches that allow them to be virtually restraint-free. The Bazelon Center has promoted such policies.

Currently no federal laws regulate the use of restraints or mandate reporting of injury or death in institutions for people with mental disabilities; only nursing homes and facilities for the elderly are protected.

Although the three proposals vary in the protections they offer, all are positive steps toward long-overdue national standards governing the use of restraints and seclusion.

House Bill Has Stronger Enforcement, Training and Reporting Requirements

In the House, the DeGette/Stark/DeLauro bill (H.R. 1313, The Patient Freedom from Restraint Act of 1999), extends protections to children and adults with mental illness or developmental disabilities in facilities that receive Medicaid and/or Medicare funds. Like both Senate bills, H.R. 1313 would ensure that seclusion and restraints shall not be considered treatment and may not be imposed for purposes of discipline or convenience. The use of restraints and seclusion would only be allowed in emergency situations for the immediate physical safety of the patient or others, and only upon the written order of a physician, as an emergency response to dangerous situations.

H.R. 1313 is the most comprehensive of the three bills for the scope of the populations covered and its provisions for enforcement, staff training and detailed reporting. It would require:

• annual training of mental health staff;
• loss of federal funds (Medicaid and Medicare) when facilities do not comply with the law;
• monetary fees for failure to file reports;
• maintenance in the individual's medical record of the use, type and duration of restraint and seclusion, with this information made available to the state protection and advocacy (P&A) system;
• mandatory reporting to the state P&A and the Department of Health and Human Services (HHS) of all deaths and severe injuries, and periodic reports on the frequency of the facility's use of seclusion and restraint;
• annual reports to Congress by HHS on the frequency of use of seclusion and restraint and the number of resulting deaths and injuries.

H.R. 1313 has been referred to the House Commerce and Ways and Means Committees.

Connecticut Senators Take the Lead

Senator Lieberman's Patient Freedom from Restraint Act of 1999 (S. 736) and Senator Dodd's Compassionate Care Act (S. 750) would also create important new rights by establishing procedural safeguards, though only for mental health patients, not people with developmental disabilities. As in the House bill, physical and chemical restraints could only be used in true emergencies, to ensure patients' or others' physical safety. A physician's written order must specify the duration.

The Lieberman bill also requires:

• reporting of all serious injuries and deaths to the P&A, HHS and any national accrediting body;
• creation of a database of reported deaths, to be made available to the public through the Internet;
• inclusion in the data base of the name and address of any facility with a poor pattern of performance under the law.

Dodd's bill would amend the Protection and Advocacy for Mentally Ill Individuals Act (PAMII) by strengthening P&As' role to investigate and prosecute death resulting from seclusion and restraint.

S. 736 has been referred to the Senate Finance Committee and S. 750 to the Senate Health, Education, Labor and Pensions Committee.

Advance Directives May Be Useful

Although the bills themselves do not mention advance directives, such documents can be an important tool to minimize the use of seclusion and restraints and involve consumers in the development of their own treatment plans.

A model advance directive for mental health treatment is available on the Bazelon Center's web site, at http://www.bazelon.org/advdir.html. The document enables users to plan for future decisionmaking and includes a section to express a consumer's preferences as to emergency intervention.

What You Can Do Right Now

Strong bipartisan support in both houses of Congress is needed to pass these proposals out of their respective committees and, eventually, into law. Contact your Representative and both of your Senators.

• Explain that seclusion and restraint are NOT treatment but traumatic actions that should be used only in true emergencies, if ever,to prevent harm to a patient and others.
• Urge them to co-sponsor the bills restricting restraint and seclusion (H.R. 1313, S. 736, S. 750).

Write:

The Honorable _____________________
United States House of Representatives
Washington, D.C. 20515

The Honorable _____________________
United States Senate
Washington, D.C. 20510

Phone or Fax: call the U.S. Capitol switchboard, 202-224-3121, and ask for your Representative's or Senator's office.

Email: (use as a last resort, it gets much less attention) forms at http://congress.org/elecmail.html.