Book Review: Restrictive Practices in Health Care and Disability Settings (Bernadette McSherry and Yvette Maker, eds., Routledge, 2021)

Restrictive Practices in Health Care and Disability Settings (Bernadette McSherry and Yvette Maker, eds., Routledge, 2021, hardback £120, ebook, c. £25)

This edited volume arises from a Discovery project funded by the Australian Research Council. It brings together authors from diverse backgrounds and disciplinary perspectives, including consumers (the term favoured in Australia), policymakers, public servants, clinicians and academics with expertise in law, social work, nursing, consumer perspectives, psychiatry, psychology and pharmacy.  It discusses different models of regulating the use of restrictive practices, including legislation, policies and guidelines, as well as inspection, enforcement accreditation, and explores the importance of factors such as staff training, availability of resources, data quality and organisational culture in relation to the effective implementation of regulatory regimes.  The jurisdictions examined (some at a very narrow, micro-level, and some at a much broader level) are Australia, New Zealand, England, the Netherlands and Germany.

After a short but stimulating introduction, the book is divided into three key parts, the first dealing with regulation through legislation, policy or other means; the second with implementing and monitoring regulatory change, and the third with changing culture and practice. A final, concluding chapter reviews the volume’s major themes and identifies further research and practices that may support reform endeavours.

As ever in edited volumes, different chapters (or, in reality, essays) will speak more to one reader than to another, and indeed, some will speak more to the same reader at different times than they will for another (an example being Lisa Waddington’s detailed chapter on the recent reforms to mental health legislation in the Netherlands which I fell on as shedding further light on reforms held up as an example of how CTOs might be reconsidered in England & Wales).  Not all the chapters are nearly as detailed, and some serve as much as – stimulating – provocations as much anything else, but they are all uniformly thoughtful, and the book as a whole challenges in all the right ways.

A particular virtue of this book is that the editors do not seek to smooth out a real tension between those who would wish to ban restraint altogether, and those who accept it as a ‘necessary evil’ but wish to limit it.

A further virtue is that that the editors deliberately bring to the fore the fact that the terms “restrictive practices,” and “restraint” are ones which have a multiplicity of meanings – Grant Sara’s chapter is, here, particularly interesting in showing how this then impacts upon the uses and limitations of data in supporting restraint reduction.   An interesting irony that this book does not explore, but is being worked out as a natural experiment in England & Wales as a result of the decision in Cheshire West, is that the wider the definition of restraint, the more difficult it is to imagine a world in which anyone with complex care needs is not to be seen as being subject to some form of restraint.

Reading the book cover to cover, I was left with three overriding impressions – which I should emphasise are not necessarily the impressions that the editors would wish to convey.

The first impression is that where you stand on whether elimination of restraint is possible in part depends on whether you consider that it is possible truly to eliminate mental distress.  The chapter “Ending restraint: an insider view” by Cath Roper, Mary O’Hagan, Hamilton Kennedy and Helena Roennfeldt concludes with a ‘flash-forward’ to an article from the Australian and New Zealand Chronicle for 1 June 2050, which starts with the following:

This year, we are celebrating a ground-breaking book chapter written 30 years ago by people with lived experience of mental distress that called for an end to restraint in mental health services. These authors expanded the definition of restraint beyond physical, environmental and chemical restraint to include restraint to self-hood imposed by dominant societal and psychiatric beliefs, such as restraint on meaning-making, self-expression, hope and trust in oneself. The establishment’s response at the time ranged from patronising scepticism to angry derision. However, several forces were gathering for the end of restraint; it turns out these authors were on the right side of history. Our investigators take a historical look, to trace the momentum for coercion and restraint-free mental health services.

The seeds of coercion and restraint-free mental health services were planted in the modern democratic principles of equality and freedom. Initially reserved for property-owning white men, these rights lay dormant for people with mental distress for over 200 years. They were eventually fertilised by a combination of social justice movements, system transformation, power shifts, more supportive communities and legal reforms.

In New Zealand, the end of restraint was formalised by a suite of legislative changes dubbed as the ‘care without coercion’ laws that were passed by Parliament in 2040. Other jurisdictions have started to follow New Zealand’s lead. In many countries, alongside the repeal of Mental Health Acts and insanity defence laws, new supported decision-making laws are being passed. These changes have been described as the biggest transformation in governments’ responses to people who use mental health services in over 200 years, ensuring for the first time that they have equal rights to freedom as other citizens. Mental health services could no longer rely on special coercive powers to physically, mechanically, environmentally or chemically restrain people.

The authors then set out a series of ‘historical’ developments leading to this point, which, in effect, represents a fleshed-out version of the ‘abolitionist’ interpretation of the CRPD.  So as not to steal their thunder, I will not set them out in detail here, but note that they focus in large part upon issues ‘upstream’ of restraint, including to ensure that those with mental distress had access to cultural support, education and employment support, housing, income support and community crisis responses, as well as upon a programme of reducing prejudice and discrimination against those with mental distress.

The (more than million dollar) question, the answer to which will underpin your reaction to the ‘abolitionist’ interpretation of the CRPD, is whether, if all these steps are taken, there will remain such a thing as mental distress, or whether it will fall away.

The second impression is that the (equally more than million dollar) question is whether and how this approach takes account of those with cognitive impairments.   I do not anticipate that Cath Roper and her fellow authors would assert that they speak on behalf (for instance) of those with dementia, or those with impairments which cannot – in truth – be characterised as ‘mental distress.’   But the approach laid out so clearly in this chapter again gives rise to the question of how the ‘abolitionist’ interpretation of the CRPD is intended to apply to those with such impairments.

This question is posed, tantalisingly, but then (to me at least) frustratingly not entirely answered in Kim Chandler’s chapter on the regulation of restrictive practices on people with intellectual impairment.  The chapter – with an Australian focus, but raising issues equally applicable in England & Wales – poses hard-hitting questions, and rightly challenges an approach solely based upon authorisation of restrictive practices, as opposed to seeking to enforce positive obligations on those seeking to use such practices.  One of the scenarios Chandler gives at the outset is that of:

Alfred, aged 75 years, lives in an aged care facility. He has early stage dementia. He would prefer to live at home, but he lives on his own and following a number of admissions to hospital both his family and the hospital social worker thought it best he lived somewhere he could have 24 hours a day care and support. Some days he becomes distressed and asks to go home, but he eventually calms down. There is a keypad entrance to the facility and Alfred does not know the combination so he cannot exit or enter without the supervision of staff. Staff are concerned that he would wander off and become lost or be hit by a car if he was allowed to come and go as he pleased. On occasion, medication that has a sedative effect is administered when Alfred becomes distressed.

Chandler’s chapter rigorously examines the shortcomings of ‘proceduralism’ in response to a situation such as Alfred’s, but – for me at least – does not entirely satisfactorily address the operation of the State’s positive obligation to secure life under Article 10 CRPD in relation to the situation where a person such as Alfred has later stage dementia (see also here).

The third impression is that the book provides a substantial body of evidence that progress towards reducing restraint is most effectively achieved by a combination of (a) legal frameworks that (1) make it more difficult but (2) provide other ways in which to enable professionals to respond to what they perceive to be risk to or from the person (as to which, this literature review is very helpful); and (b) the creation of alliances between all concerned to implement those frameworks.  For my part, it seems to me that the more that the focus can be placed upon ensuring that the state is not solely offering (or overseeing) the response to serious crisis, the easier – it seems to me – that it is possible to secure alliances.   Put another way, please keep banging the drum for Article 19 CRPD, as it means the dilemmas posed by Articles 12 and 14 CRPD become less challenging across the piece.

[Full disclosure, I was provided with an inspection copy of this book by the publishers.  I am always happy to review books in the field of mental capacity and mental health law (broadly defined).]

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