The Evolution of Disability Rights Litigation (and some stories)
David Ferleger, Esq.
Use of Human Services Restraint: Reduce, Replace or Relinquish?
Doctor John Connolly, in 1839 was appointed superintendent of an institution in England called Hanwell. At the time he was appointed, dozens of the patients, 40 out of 800, were being mechanically restrained. Within three months, he had eliminated all use of restraints at that mental health institution. It was then 1839 and he was successful. He said at the time in explaining what he did that in a properly constructed building, with enough attendants, restraint is never necessary, justifiable and always injurious.
That kind of a position and the anti-no restraint position is still a debate today. Many institutions today for the mentally ill, and for people with intellectual disabilities continue to use physical and mechanical restraints. The United States imported those ideas back in the 1700s, 1800s, and there developed in the U.S. also an anti-restraint movement and the British continued to look at what was happening here, we looked at what was happening there and at some point when the association of superintendents of institutions was visited in 1875, by a former superintendent of a British institution, he wrote: The American superintendents will look back to their defense of restraint with the same wonderment that has been said in defense of domestic slavery. So there was a great movement and debate also about the use of restraint.
So, I want to try to summarize a little bit of what we know now from the literature, from the research and from experience. Now everyone can tell anecdotes. I'm not going to tell them in detail here at all, but the individual cases where people were harmed in restraints and died in restraints are worth looking at because they represent the worst-case scenario in a way. If the use of restraints results in the death of people who are committed to treatment and to good care, then there's something wrong with what we're doing. If I have bad psychiatric treatment, I don't die. If I am in an institution for people with intellectual disabilities and don't get the right food or the right habilitation training, don't learn how to read, I'm still alive. But if restraint which is intended to be therapeutic results in the death of multiple people, which it has, then there's something wrong here, and there's something worth questioning.
So the research actually shows that restraint is not therapeutic, doesn't work, doesn't help people with their behavior issues and is simply used for the purpose of control of behavior. With regard to behavior control, the experts in the field, can tell you that a properly constructed behavior plan can help people with behavioral issues, regardless of the person's intellectual capacity. One does what's called a functional assessment to try to understand the antecedents and the environmental variables that affect people's behavior, and then try to determine means in order to help support and elicit the positive behavior that one wants, to try to minimize or discourage the negative behavior and that works. And there's no doubt about that and the use of that kind of planning and treatment of people can eliminate the need for the use of restraints.
So, I think that what we've seen is number one, a debate. Number two, discussion of the kinds of awful, worst case injuries that can result, and then a realization in the literature that restraint is not a therapeutic alternative, but rather a behavior control mechanism, and that there is, to use the phrase from commitment cases, a less restrictive means in order to deal with those issues for which restraint is prescribed.