[Senate Hearing 106-93]
[From the U.S. Government Publishing Office]
S. Hrg. 106-93
DEATHS FROM RESTRAINTS IN
PSYCHIATRIC FACILITIES
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HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
SPECIAL HEARING
__________
Printed for the use of the Committee on Appropriations
Available via the World Wide Web: http://www.access.gpo.gov/congress/senate
______
U.S. GOVERNMENT PRINTING OFFICE
57-118cc WASHINGTON : 1999
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For sale by the U.S. Government Printing Office
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COMMITTEE ON APPROPRIATIONS
TED STEVENS, Alaska, Chairman
THAD COCHRAN, Mississippi ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico ERNEST F. HOLLINGS, South Carolina
CHRISTOPHER S. BOND, Missouri PATRICK J. LEAHY, Vermont
SLADE GORTON, Washington FRANK R. LAUTENBERG, New Jersey
MITCH McCONNELL, Kentucky TOM HARKIN, Iowa
CONRAD BURNS, Montana BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama HARRY REID, Nevada
JUDD GREGG, New Hampshire HERB KOHL, Wisconsin
ROBERT F. BENNETT, Utah PATTY MURRAY, Washington
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas RICHARD J. DURBIN, Illinois
JON KYL, Arizona
Steven J. Cortese, Staff Director
Lisa Sutherland, Deputy Staff Director
James H. English, Minority Staff Director
------
Subcommittee on Departments of Labor, Health and Human Services, and
Education, and Related Agencies
ARLEN SPECTER, Pennsylvania, Chairman
THAD COCHRAN, Mississippi TOM HARKIN, Iowa
SLADE GORTON, Washington ERNEST F. HOLLINGS, South Carolina
JUDD GREGG, New Hampshire DANIEL K. INOUYE, Hawaii
LARRY CRAIG, Idaho HARRY REID, Nevada
KAY BAILEY HUTCHISON, Texas HERB KOHL, Wisconsin
TED STEVENS, Alaska PATTY MURRAY, Washington
JON KYL, Arizona DIANNE FEINSTEIN, California
ROBERT C. BYRD, West Virginia
(ex officio)
Professional Staff
Bettilou Taylor
Mary Dietrich
Jim Sourwine
Aura Dunn
Ellen Murray (Minority)
Administrative Support
Kevin Johnson
Carole Geagley (Minority)
C O N T E N T S
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Page
Statement of Hon. Joseph I. Lieberman, U.S. Senator from
Connecticut.................................................... 1
Statement of Hon. Christopehr J. Dodd, U.S. Senator from
Connecticut.................................................... 1
Opening statement of Senator Specter............................. 1
Prepared Statement of Senator Joseph I. Lieberman................ 4
Prepared Statement of Senator Christopehr J. Dodd................ 8
Remarks of Senator Tom Harkin.................................... 9
Statement of Catherine Jean Allen, Ph.D., Greensboro, NC......... 11
Prepared statement........................................... 13
Statement of Wanda Mohr, Ph.D., assistant professor of nursing,
University of Pennsylvania..................................... 15
Prepared statement........................................... 16
Statement of Joseph Rogers, executive director, Mental Health
Association of Southeastern Pennsylvania, National Mental
Health Association............................................. 20
Prepared Statement........................................... 22
Statement of Dennis O'Leary, M.D., president, Joint Commission on
Accreditation of Health Care Organizations..................... 26
Prepared statement........................................... 27
Statement of Thomas Harmon, executive secretary, Medical Review
Board, New York State Commission on Quality Care............... 31
Prepared statement........................................... 33
Material Submitted Subsequent to Conclusion of Hearing
Prepared statement of the American Psychiatric Association....... 41
Prepared joint statement of general principles on seclusion and
restraint by the American Psychiatric Association and the
National Association of Psychiatric Health Systems............. 45
DEATHS FROM RESTRAINTS IN PSYCHIATRIC FACILITIES
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TUESDAY, APRIL 13, 1999
U.S. Senate,
Subcommittee on Labor, Health and Human
Services, and Education, and Related Agencies,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 9:30 a.m., in room SD-192, Dirksen
Senate Office Building, Hon. Arlen Specter (chairman)
presiding.
Present: Senators Specter and Harkin.
CONGRESSIONAL WITNESSES
STATEMENTS OF:
HON. JOSEPH I. LIEBERMAN, U.S. SENATOR FROM CONNECTICUT
HON. CHRISTOPEHR J. DODD, U.S. SENATOR FROM CONNECTICUT
opening statement of senator specter
Senator Specter. We come to order for this hearing of the
Appropriations Subcommittee on Labor, Health and Human Services
and Education, and Related Agencies. We will begin now that it
is 9:30 a.m., the convening time. After this hearing was
scheduled, the President set a briefing for members of
Congress, so we are going to have to conclude this hearing
promptly at 10:30 a.m.
While the openings have never been long at the allocation
of time at 5 minutes, we are going to try to do them in 4. I am
sorry about the time limitations, but I know you will
understand that there are so many issues and Kosovo takes
second place to nothing.
This hearing has been scheduled in response to grave
concern about an alarming number of deaths resulting from
physical restraints in psychiatric facilities. It is impossible
to say how many there are because there is no requirement for
reporting of deaths from physical restraints, in a field which
is largely left unregulated.
It is surprising, because patients in nursing homes are
protected by federal legislation from the 1987 Omnibus Budget
Reconciliation Act, but no similar provisions apply to people
in psychiatric institutions.
The federal government has a very vital role in this area,
considering that some $14 billion a year is provided by the
federal government for funding of psychiatric care. The kinds
of restraints which are used are chemical, physical. While they
are obviously necessary in some cases, there have been reports
that they have been used for convenience, coercion or
retaliation.
These issues have come to the public floor as the result of
an illuminating series in the Hartford Courant. So this hearing
is going to be focusing on just what kind of restraints are
used and to what extent HCFA from the Department of Health and
Human Services ought to be involved.
We are joined by two very distinguished members of the U.S.
Senate, the distinguished senior senator, Senator Dodd, elected
in 1980, a colleague of mine from that election. We have worked
very closely on juvenile matters and health matters over the
years. We welcome him here.
Senator Dodd. Thank you, sir.
Senator Specter. And his distinguished colleague, Senator
Joseph Lieberman, elected in 1988, ranking member of the
Governmental Affairs Committee.
We welcome you here, gentlemen. As I had said a moment ago,
because of the President's briefing, it will require us
terminating at 10:30 a.m. I am going to submit my longer
opening statement for the record. And to the extent we can
confine statements to 4 minutes, it would be appreciated. But
you men have presided at enough of these similar hearings to
know precisely what is involved.
Senator Specter. Senator Dodd, welcome, and the floor is
yours.
Senator Dodd. Thank you, Mr. Chairman. But I would like to
defer to my colleague, if I may, who is----
Senator Lieberman. No. You go ahead.
Senator Dodd. Are you sure? Joe has done a tremendous
amount of work on this, and I appreciate your--I try to remind
him all the time I am his senior senator, but he has done so
much work on this, I really wanted to give him a chance to go
ahead.
Why do you not do that?
Senator Specter. Senator Lieberman, the floor is yours. I
note that notwithstanding seniority and chronology, your bill
was introduced slightly ahead.
Senator Dodd. I want the record to show that.
Senator Lieberman. No; I am grateful to my colleague. And
it is true, he has reminded me so effectively that he is my
senior colleague, I automatically deferred to him. But I
appreciate his graciousness. I will try to respond by
abbreviating my statement and submitting a larger one for the
record.
Senator Specter. Thank you very much.
summary statement of senator lieberman
Senator Lieberman. Mr. Chairman, I want to thank you for
holding this hearing on the deadly use of restraints in mental
health facilities and giving Senator Dodd and me the
opportunity to testify.
As you referenced, last October all of us, and I mention
myself here, read with increasing horror and shame a
brilliantly investigating and written series in the Hartford
Courant, describing 142 deaths that were caused by restraint
and seclusion in mental health facilities in our country over
the last 10 years.
In many ways, it was a trip back into medieval times, to a
world that, except for this journalistic series, would, for me
at least, have been well beyond the limits of my knowledge, a
kind of venture into an existence that otherwise would have
been invisible to most of us. Although the federal government
funded much of the care of these patients, these victims
enjoyed almost no federal protections, certainly not relevant
to what was done to them. Even basic information about the
number and circumstances of their deaths was difficult for
their loved ones to obtain.
So I come to this hearing today with a sense of anger over
the treatment of some of the most vulnerable people in our
society and with a determination to work with you, Mr.
Chairman, with Senator Dodd and others, to prevent future
deaths and injuries from the improper, I may say so, at times
barbaric use of restraints.
I also come with a sense of urgency. Just last Friday I
learned of yet another young boy who died in a mental health
facility in Chesterfield, Virginia, after the apparently
improper use of restraints and seclusion. The facts certainly
seem to warrant the conclusion that restraints and seclusion
are cruelly over used in America's mental health institutions
today. They are used inhumanly, and they are too often used
with fatal results.
Let me briefly share some of the major conclusions of the
Hartford Courant articles. Deaths were reported in 30 states,
including, as you know, Mr. Chairman, Pennsylvania. Thirty-
three percent of the victims were suffocated. More than 26
percent of those killed were children under 17, a rate that is
nearly twice the proportion of that age category in mental
health institutions.
Of course, aggregate statistics do not adequately convey
the tragedies experienced by the families of these people
across this country. The victims' stories will and would better
describe the agonies of their loved ones deaths. Shortly you
will hear from Jean Allen, who will describe the parental
nightmare she experienced, the death by suffocation of her 16-
year-old son Tristan Sovern. As a parent, I extend my sympathy
to her and to other parents whose children have died merciless
deaths in restraints. As a senator, I express my commitment to
work with my colleagues to prevent further such tragedies.
Mr. Chairman, I applaud your efforts to make sure that the
mental health care funded by your committee does not result in
injury or death. You have acted more quickly than any other
committee of Congress to address this national shame.
Now the legislation that Senator Dodd and I have introduced
would extend existing nursing home standards on the use of
restraints to mental health patients and add a reporting
requirement for injuries and death. Our Connecticut colleague
representative, Rosa Deloro, and others have introduced
companion legislation in the House.
Our bill explicitly forbids the use of restraints unless
approved in writing by a physician, except under emergency
circumstances. In other words, restraints are not to be used
for discipline or for convenience. The same standard in effect
in nursing homes since 1987 has reduced the use of restraints
by over one-third.
Our bill also requires that facilities report deaths and
serious injuries to mental health patients under the care of
those facilities, so that the cause of death or injury can be
analyzed, preventive steps deployed, and the public alerted.
With mandatory requirements under a state law in your state,
Mr. Chairman, as you know, Pennsylvania is already producing
dramatic reductions in the use of restraints and seclusions in
mental health facilities.
I am encouraged by the response to the legislation. In my
printed statement, I will indicate the number of organizations
that I am proud to say are supporting it. Let me conclude by
going back to the beginning.
prepared statement
I personally, and those of us in Connecticut and around the
country, owe the Hartford Courant a debt for breaking the walls
of secrecy that concealed 142 deaths caused by the deadly use
of restraints. Your hearing today is the beginning of action by
Congress that will tear down that wall and erect in its place a
better system of protection for America's mental health
patients.
I thank you. And again, I thank my colleague for his
courtesy.
Senator Specter. Thank you very much, Senator Lieberman,
for your very insightful statement.
[The statement follows:]
Prepared Statement of Senator Joseph I. Lieberman
Mr. Chairman, Senator Harkin, members of the Committee. Thank you
for holding this hearing on deaths from restraints in mental health
facilities.
In October, I read with horror, a powerful, brilliantly
investigated and written series of stories in the Hartford Courant
detailing 142 deaths from restraint and seclusion in mental health
facilities. These deaths stretched over a decade, across the country,
and to patients of all ages.
Although their care was federally funded, few federal protections
were available to the victims and even basic information about the
number of victims and the circumstances of their death was difficult to
obtain.
I come to this hearing today, months later but still horrified,
still outraged, and determined to do what I can to prevent deaths and
injuries.
I also come with a sense of urgency having read just Friday that
another teenage boy has died in a mental health facility, this time in
Chesterfield, Virginia, after the use of restraints and seclusion.
I strongly urge this Subcommittee to protect mental health patients
from the deadly use of restraints.
Restraints and seclusion are being used too much, they are being
used inhumanely, brutally, and sometimes fatally. This practice is
medieval in its application.
Here are some of the findings of the Courant articles: deaths
reported in 30 states including both Pennsylvania and Iowa; 33 percent
of the victims were suffocated; and more then 26 percent of those
killed were children under 17.
But aggregate statistics can not convey the tragedy of restraints.
Let me read some of the names and circumstances of deaths of victims
that were killed during the months leading up to the death of 12-year
old Andrew McClain in Connecticut.
Robert Rollins, age 12, suffocated after a dispute over his missing
teddy bear.
Melissa Neyman, 19, suffocated when staffers strapped her to her
bed at 10 p.m. and didn't check on her until the next morning. By then
she had been dead 6 hours--entangled in her own restraints.
Edith Campos, 15, suffocated. Edith was looking at a family
photograph when a male aide instructed her to hand over the
``unauthorized'' personal item.
Dustin Phelps, 14. Dustin died when the owner of the home wrapped
him in a blanket and a mattress and tied it together with straps,
investigators said. He was left in the mattress for four hours.
You shortly will hear from Jean Allan who can describe the death by
suffocation of her 16-year old son, Tristan Sovern.
I am appalled by these deaths, as I am sure this Subcommittee is.
As a parent, I wish to extend my sympathy to Jean Allan and other
parents whose children died in restraints.
As a Senator, I am outraged and want to work with my colleagues to
prevent these deaths. One of the basic purposes of government is to
protect those who can't defend themselves.
Chairman Specter and Ranking Member Harkin, I applaud your efforts
to make sure that the mental health care funded by your Committee is
not deadly or injurious. Federal funding sources including Medicare,
Medicaid, and SAMHSA comprised almost 40 percent of the $36 billion
that flowed into mental health organizations in 1994. You have acted
more quickly than any other Committee of Congress to address this
national shame.
I have introduced legislation with Senator Dodd that would to
extend existing nursing home standards on the use of restraints to
mental health patients and add a reporting requirement for deaths and
serious injuries to mental health patients. Reps. Degette, Stark, and
DeLauro have introduced restraint legislation in the House.
Our bill forbids the use of restraints unless approved in writing
by a physician, except under emergency circumstances.
This same standard has reduced the use of restraints in nursing
homes by over a third this decade. Our bill would extend this success
to the entire nation's mental health community.
The reporting requirement in our bill mandates that facilities
report deaths and serious injuries to mental health patients under
their care so that the cause of the tragedy can be analyzed,
preventative steps developed, and the public alerted. With mandatory
reporting, Pennsylvania is producing dramatic reductions in the use of
restraints and seclusion in their state mental hospitals.
I am encouraged by the response to the legislation.
The bill is supported by the National Alliance for the Mentally
Ill--two of whose Connecticut affiliate presidents, Karen Hutchin of
Granby, CT and Jeanne Landry-Harpin of Woodbridge, CT--played a
critical role in helping the Hartford Courant investigate and organize
its series last year.
It also is supported by the Joint Commission on Accreditation of
Healthcare Organizations, the association which sets standards for the
health care industry. They ``support the mandatory reporting and
disclosure of deaths related to the use of restraints''.
Other supporters include the National Mental Health Association,
the National Association of Protection and Advocacy Systems, the
Bazelon Center for Mental Health Law.
The wall covering 142 deaths was broken by the Hartford Courant.
Your hearing today is the beginning of action by Congress that will
tear the wall down and build in its place a system of protection for
America's mental health patients.
I applaud your action and thank you for your time.
SUMMARY STATEMENT OF SENATOR DODD
Senator Specter. Senator Dodd.
Senator Dodd. Thank you very much, Mr. Chairman. And I am
very pleased to be sharing this witness table with my colleague
from Connecticut. We have introduced two bills and are co-
sponsoring each other's because they involve different
committees of jurisdiction, so avoiding the consequential
referrals. The bill that Joe has talked about I think goes to
finance, or at least part of it does anyway, because it touches
on HCFA, and the legislation that we both introduced that goes
specifically to the Labor Committee, where SAMSA legislation
has to be reauthorized this year.
And obviously, a critical piece of that obviously comes to
you, because we will be talking about resources that will be
needed if major parts of our legislation are going to be
funded. So I am deeply appreciative to you and to Senator
Harkin, with whom I have the pleasure of serving on the Labor
Committee.
And as you pointed out, Mr. Chairman, I have had the
pleasure for the past 18 years of working with you on countless
issues involving children. And it seems rather natural to be
appearing before you today on an issue, as Senator Lieberman
has pointed out, where 26 percent of these deaths that we are
talking about occurred to juveniles, a percentage vastly in
excess of the percentages in the population of mental health
patients.
I note here, just looking at some of the notes here
prepared by various groups and organizations, this one here, as
we talk about 142 deaths that the Hartford Courant included in
its series of articles, it has been pointed out that there have
been 5 additional deaths in the last 5 months. And just noting
the ages of 17, 15, 16 and 9, 4 out of the 5, one an adult of
36, just to dramatize the point that this is particularly an
issue that affects all people, but it seems particularly hard
to understand how a 9-year-old could die as a result of
excessive restraint.
It was on March 22, 1998, just about a year ago, Mr.
Chairman, that a 90-pound, 4 foot, 6 inch tall 11-year-old boy
in Portland, Connecticut, had his chest crushed as a result of
restraints in a mental health facility in the State of
Connecticut. Andrew McClain is really what provoked in many
ways the series of articles prepared and written by the
Hartford Courant.
And I would like to ask, and you may have already done this
before I walked in, but maybe as part of the record those
articles be included, since they were so important in causing
Senator Lieberman and I and you made note yourself and others
to really decide this is an issue we ought to look into. And
particular commendation, I think, should go to Eric Weiss, who
is the principal author of these articles, but were supported
by Dave Altimari, Dwight Blint and Kathleen Neegan, who all put
those articles together.
Senator Specter. Without objection, they will be made a
part of the record.
Senator Dodd. Thank you, Mr. Chairman.
As a result of that, those series of articles, your
interest and the interest of others, we have a wonderful chance
in this first session, I think, of this Congress to be able to
do something about this issue. We have, I said, Tom, before you
walked in, the SAMSA legislation up in our committee, the
Chairman's interest in this. We can bring these issues together
and the work with HCFA.
Let me just briefly, we do three things in our bill, Mr.
Chairman, as I am sure you are aware. First, we set standards
for restraint and seclusion use, as Senator Lieberman has
already pointed out here. Again, the only reason--no longer can
reasons be used of discipline, punishment or convenience be
tolerated in the area of physical restraints or seclusion.
We also require a physician's written order specifying the
length and circumstances under which restraints may be applied.
This is--again, we are applying the standards that have been
used in nursing homes, I think rather effectively, by modifying
the legislation that would allow for those standards now to be
used in mental health facilities.
Second, Mr. Chairman, we have discovered--and again, both
you and Senator Harkin, I am preaching to the choir on this
issue, but the least trained people in the entire health care
fields are people in mental health. The lowest paid, least well
trained are in mental health. It is just an amazing statistic,
but it happens to be the case.
And what we try to do with our legislation is to see if we
cannot help out here, because these are good people in places.
They need to be trained and understand what needs to be done.
And we do not want to be suggesting, I do not want to be, that
people who work in these facilities are criminals in some way.
This requires the kind of training and backing that is
necessary.
Only three States, California, Colorado, and Kansas,
license aides in psychiatric facilities. Out of 50 states, only
3 do. And while individual States or facilities may set their
own standards, and we respect that, there is no uniform minimum
training stated for mental health care workers. Our legislation
will help ensure that adequate staffing levels and appropriate
training for staff facilities will serve the mentally ill.
Specifically, the legislation requires the Secretary of
Health and Human Services to set regulations requiring mental
health providers to adequately train their staff in the correct
application of restraints and their alternatives to ensure that
appropriate staffing levels are maintained.
A staff person, I might point out, with 23 years of
experience, Mr. Chairman, was quoted in the Hartford Courant
series, she said, ``Every time we've had a downsize in staff,
we've had an increase in restraints and seclusion.'' So there
is a direct correlation.
Third and last, Mr. Chairman, we will ensure that providers
who violate the rights of the mentally ill will be held
accountable. And this underscores Senator Lieberman's comments
of the abhorrence with which we read these stories and find out
what happens to these people, particularly again on children.
My bill, this bill rather, will amend the protection in
advocacy for mental ill individuals, so that the state advocacy
systems are specifically granted the authority to investigate
and prosecute deaths and serious injuries resulting from
improper restraint and seclusion use. It will also require
mental health care providers to notify their state's protection
and advocacy organization of all the deaths that occur in their
facility, at their facilities. It is incredible to me in 1999
that that has not been required, that only three states have
any standards in this area at all.
And last, we grant the Secretary of Health and Human
Services the authority to end any federal funding for mental
health care providers that violate the protections that this
bill would establish. We think that alone may have the greatest
impact in getting the kind of compliance that is necessary.
Again, Mr. Chairman, we thank you immensely for your
interest in this, Senator Harkin's interest, confident in this
session of Congress we can get some good work down in any area
that cries out for attention.
prepared statement
Senator Specter. Thank you very much, Senator Dodd, for
that important statement. And thank the two of you gentlemen
for your leadership. This subcommittee will be picking it up,
and we will obviously have the important funding
responsibilities on this enormously important matter.
Thank you very much.
Senator Dodd. Thank you.
Senator Lieberman. Thank you.
[The statement follows:]
Prepared Statement of Senator Christopher J. Dodd
I want to begin this morning with a brief story that may illustrate
why we are here. On March 22, 1998, in Portland, Connecticut, 11 year
old Andrew McClain--4 feet 6 inches tall and weighing 90 pounds--was
held down by two staff members of a psychiatric hospital because of a
disagreement over where he would sit for breakfast. His chest was
crushed and he died as a result. The death of Andrew, like those of
more than 140 mental patients around the country cited in a Hartford
Courant series, was tragic and preventable.
That is why we are here today--to help make sure that no family
ever has to bury another Andrew McClain. Thank you Senators Specter and
Harkin for convening this morning's hearing and for examining the
national tragedy that these deaths represent. As Senator Lieberman
mentioned, the bills that we've introduced recently differ in various
respects. But, taken together, they share a common core: they create
tough new limits on the use of potentially lethal restraints--be they
physical or chemical in nature; they set rules for training mental
health workers; and they increase the likelihood that a wrongful death
of a mental health patient will be investigated and prosecuted--not
ignored.
The legislation I introduced contains these core provisions. Let me
go into them with a bit more detail.
First, we will set standards for restraint and seclusion use
Physical and chemical restraints may only be used when a patient
poses an imminent risk of physical harm to himself or others. We also
require a physician's written order specifying the length and
circumstances under which restraints may be applied. No longer will the
use of restraints for reasons of discipline, punishment, or convenience
be tolerated.
As Senator Lieberman mentioned, we will extend to the mental health
population an existing standard enacted as part of the 1997 Omnibus
Budget and Reconciliation Act that has already proven effective in
reducing the use of restraints in nursing homes.
Second, we will ensure adequate staff training and staff levels
Mental health aides are consistently the least-trained and lowest-
paid workers in the health care field. Only three States--California,
Colorado, and Kansas--license aides in psychiatric facilities. While
individual States or facilities may set their own standards, there are
no uniform or minimum training standards for mental health care
workers.
My bill will help ensure adequate staffing levels and appropriate
training for staff of facilities that serve the mentally ill.
Specifically, my bill requires the Secretary of Health and Human
Services to set regulations requiring mental health providers to
adequately train their staff in the correct application of restraints
and their alternatives and to ensure that appropriate staffing levels
are maintained.
As a staff person with 23 years of experience was quoted in the
Courant series, ``Every time we've had a downsizing of staff, we've had
an increase in restraints and seclusion.'' This provision will ensure
that restraint use is not as result of staff shortages or inadequate
training.
Third, we will ensure that providers who violate the rights of the
mentally ill will be held accountable
My bill will amend the Protection and Advocacy for Mentally Ill
Individuals Act (PAMII), so that State advocacy systems are
specifically granted the authority to investigate and prosecute deaths
and serious injuries resulting from improper restraint and seclusion
use.
My legislation will also require mental health care providers to
notify their State's Protection and Advocacy Organization of all deaths
that occur at their facilities.
My bill will also grant the Secretary of Health and Human Services
the authority to end any Federal funding for mental health care
providers that violate the protections the bill establishes.
As the Courant's series mentioned, we regulate the size of eggs,
how our pets may be groomed, how manicurists are trained, yet we have
not established a standard of care for some of our most vulnerable
citizens. The legislation Senator Lieberman and I have introduced
offers a significant step toward protecting those who may not be able
to protect themselves.
It is regrettable that it took the deaths of so many innocent
victims to stir Congress to act. I can think of no higher priority for
this Congress than the enactment of this important legislation. Such
legislation is an attempt to carve something of value and meaning out
of the tragedy of more than 100 restraint related deaths.
REMARKS OF SENATOR TOM HARKIN
Senator Specter. Before calling on the ranking member, may
I ask the next panels to come up?
Senator Harkin. I just want to thank both Senator Lieberman
and Senator Dodd. And please also take back our gratitude to
the Hartford Courant for doing a great series of articles. This
never would have come to light if they had not done an
extensive investigative reporting on it. They deserve some
prize for that. I do not know what they give out, but they
deserve a prize.
Senator Dodd. Well, the Hartford Courant won a Pulitzer
today but on another subject matter.
Senator Lieberman. We are going to give them the Harkin
prize.
Senator Harkin. Whatever it is. Something more meaningful
than that.
Senator Specter. Now before calling on our distinguished
ranking member, let me ask the two panels to come
simultaneously, Dr. Allen, Dr. Mohr, Mr. Rogers, Dr. O'Leary,
and Mr. Harmon, so we can expedite the hearing.
Now it is my pleasure to call on the distinguished ranking
member, Senator Harkin.
Senator Harkin. Thank you very much, Mr. Chairman. And
thank you for calling this most important hearing.
You know, as often as we are involved in these issues,
sometimes things just sort of slip by. You know, we have so
many things on our plate to pay attention to. And I just must
tell you, as the author of the Americans with Disabilities Act,
I take a particular interest in this issue. And I am amazed at
how much I am now learning that I did not know about it before.
And that is an indictment of myself for not being more
cognizant of this issue. And again, I am really grateful to the
Hartford Courant for the series that they have done on this.
When I think about this, I think of young Chris Campbell
from the State of Iowa, my home state, 13 years old, weighed 90
pounds. In the last 24 hours of his life, he was physically
restrained 4 times by staff. During the fourth time, he died.
Again, he is an example of one of the major findings by the
Hartford Courant that younger people with mental disabilities
are the group that is most vulnerable to abuse and death caused
by the inappropriate use of restraints.
I especially want to thank Jean Allen and Joseph Rogers for
coming forward today to tell their personal stories. Mrs.
Allen, I was sorry to learn that your adopted son, Tristan,
died while being restrained by staff. And Mr. Rogers, I know
that your past experience of being placed in restraints will be
enlightening to all of us. And I commend both of you for the
courage that you have to come forward.
So again, Mr. Chairman, this is an issue that, again,
sitting here, I do not know exactly what we have to do. But
when I found out that only three states have licensing and
standard requirements, something is wrong out there. And I
think we are going to have to take a really serious legislative
look at what we need to do in this area. And I hope through
this hearing, Mr. Chairman, that we will get a better idea of
exactly what we ought to be doing legislatively on this thing.
Again, I thank you for bringing us together for this very,
very important issue.
Senator Specter. Thank you very much, Senator Harkin.
NONDEPARTMENTAL WITNESSES
STATEMENT OF CATHERINE JEAN ALLEN, Ph.D., GREENSBORO,
NC
Senator Specter. We now turn to our first witness, Dr. Jean
Allen, who combines a professional standing with this issue. A
Ph.D., in human development, family studies from the University
of North Carolina, Greensboro, and tragically lost her 16-year-
old son, Tristan Sovern, last year when 7 staff members of a
private psychiatric facility restrained him face down, wrapped
a bed sheet around his head, resulting in his death, the
official cause ruled suffocation, and is a very poignant and
striking example of the excessive use of restraints resulting
in a death and a great tragedy.
Thank you for joining us, Dr. Allen, and we look forward to
your testimony.
Dr. Allen. Thank you, sir.
I speak with you as the mother of a 16-year-old who died
needlessly. His picture is up here. He is the child on the top
row, far right. A child who should have been finishing his
junior year in high school and looking forward to fulfilling
his dream of earning his diploma as part of the class of 2000.
Our son was hospitalized for a severe depressive episode.
On the morning of his sixth day, my husband and I attended his
discharge planning meeting. At 10:30 p.m. that night, he was
dead. In the days and weeks that followed, the gruesome
nightmare of his death began to unfold. There was a restraint
and a seclusion, the second one in 2 days. Mouth coverings were
used both times. In the second occasion, not one, but two, a
large towel plus a bedsheet.
Seven staffers took part in the take-down, meaning that
Tristan was brought down to the floor face down, arms crossed
across his chest, staffers at both of his sides, his feet, his
hips and at his head.
He went through a similar ordeal the night before when,
after becoming agitated, he asked to leave a therapy session.
And as he got up to leave and brushed by a staff person, he was
taken down right outside the door to the therapy room and
placed in seclusion in restraints. It is not clear exactly how
long he was in restraints that night. It may have been longer
than 3 hours. We were never notified of this intervention.
We learned from the staff that Tristan's body went limp
during that last restraint. When that happened, no one removed
the mouth coverings nor checked to see if his airway was
blocked. He was carried face down, down a long hallway to a
seclusion room, placed on a bed face down, and his feet were
strapped to the foot of the bed. No one removed the mouth
coverings. Still no one assessed his breathing status.
Someone finally thought to call his name. He did not
respond. The mouth coverings were still held in place. The
ankle straps were unbuckled, his body was turned over, and the
mouth coverings were finally removed. CPR was unsuccessful, and
Tristan was dead. The official cause of death, asphyxiation.
Hospital reps cited this death as an unfortunate incident.
They stood by their actions, stating the facilities policies
and procedures had been followed. In the multiple
investigations that ensued, several staffers stated that this
type of restraint with mouth coverings was used approximately
85 to 90 percent of the time, especially during interventions
with adolescents.
When asked to produce the manual that outlined the use of
mouth coverings, the facility could not. Later, facility reps
stated that the unwritten policy had ``just evolved over the
course of the last five years.'' Staffers reported that they
were never specifically trained when or how or how not to use
mouth coverings, nor were the risks of using such a procedure
covered during staff trainings. As a part of their damage
control, the facility bought several one-page newspaper
advertisements, one of which declared ``a lack of national
standards.'' And they capitalized on their JACHO accreditation
with commendation.
Something is very wrong with this picture. And children,
adolescents and adults are paying with their lives. It is
crystal clear that these tragedies have been allowed to occur
in part because there are no national standards preventing this
type of abusive restraint and seclusion. It is equally clear
that the current accreditation and monitoring process is
woefully inadequate. Requirements for staff training must be
established. Accountability must be mandatory. And enforcement
must have teeth.
Facilities must document the specific details of every
intervention. Data should be verified by patients, patients'
families, or other involved persons. All patient deaths and
serious injuries should be reported and thoroughly
investigated. We must have in place an independent, empowered
system of advocacy for these vulnerable patients.
Too many emotionally vulnerable and behaviorally disordered
children and adults have already died. But of those healthy,
normally developing children and adolescents who find the
circumstances of their lives too difficult to handle and who
begin to act out, who go into depressions, and whose families
seek out professional help? What of those who go through this
type of therapy and live through it?
As a last effort, when all other alternatives have failed,
proper, controlled restraint in certain emergency situations
may protect an individual, but being manhandled and treated
with disrespect and inhumanity leaves individuals scarred.
Internalized feelings of anger, rage, abandonment and
worthlessness are added to their already compromised coping
mechanisms, making them even more vulnerable and emotionally
broken. We must seriously examine the benefits of routine
physical intervention against the high cost that patients are
paying.
prepared statement
Today I urge the members of the 106th Congress to stand up
and let your voices be heard for the rights of those who have
no voice. Stand up and speak out for the children of the United
States and their families. The Patient Freedom from Restraint
Bills are a first step to making the United States a leader in
the human rights mission. How can we demand adherence to human
rights standards of other countries, if we do not take a stand
for human rights here in America? Our children are depending on
us.
Thank you.
Senator Specter. Thank you. Thank you very much, Dr. Allen,
for sharing with us this tragedy and for your very thoughtful
recommendations.
[The statement follows:]
Prepared Statement of Catherine Jean Allen
As I appear before you today, I speak with you first as a mother of
a child who died needlessly. A child who should have been finishing his
junior year at a local high school now and looking forward to
fulfilling his dream of earning his diploma as a part of the class of
2000. I also speak with you from a professional stance as I hold a
Ph.D., in Child Development and Family Studies.
On the morning of March 4, 1998, my husband and I attended a
discharge planning meeting at a private psychiatric facility where our
son, Tristan, had been for the previous 6 days. He was hospitalized for
a severe depressive episode and he, his therapist, and we felt he
needed constant, close supervision while his medications could be
assessed and changed if needed. At 10:30 that night, Tristan was dead.
Within 24 hours the coroner reported to us that there was no
physiological reason for our son's death. Our initial thoughts that
perhaps he had had some unexplainable heart attack or brain aneurism
were erased. Within the days and weeks that followed the gruesome
nightmare of the circumstances of our son's death began to unfold.
First, there had been a restraint and a seclusion, the second one
in two days. Mouth coverings had been used both times to prevent
biting. On the second occasion--not one, but two: a large towel, plus a
bed sheet. On the evening Tristan died, seven staffers had taken part
in the take-down, meaning that Tristan had been brought down to the
floor face down, with arms crossed across his chest; staffers at both
of his sides, his feet, his hips, and at his head.
None of us can really know how frightened and panicked he must have
been, because he had been through a similar ordeal the night before.
After becoming agitated, he had asked to leave a therapy session, and
as he got up to leave and brushed by a staff person, he was taken down
outside the door to the therapy room and placed in seclusion in
restraints. It is not clear exactly how long he was kept in restraints
that previous night. Nursing notes were vague indicating that he was
restrained and put in seclusion during evening group therapy which
usually occurred around 7:30 PM. The 11:00 PM nursing note indicated
that he was no longer pulling at the restraints around his wrists. This
was Tristan's ``therapy'' because he asked to leave a session. We were
never notified of this intervention. I ask you to consider what it
accomplished, other than instilling fear, anger, distrust, and rage?
We learned from the staff that Tristan went limp during the
restraint which took place in his hospital room on the evening of March
4. When that happened, no one removed the mouth coverings, nor checked
to see if his airway was blocked.
He was carried face-down, down a long hallway to a seclusion room,
placed on a bed face-down, and had his feet strapped to the foot of the
bed. No one removed the mouth coverings; still no one assessed his
breathing status.
Someone finally thought to call his name; he did not respond. The
mouth coverings were still held in place.
The ankle straps were unbuckled, his body was turned over, and the
mouth coverings were finally removed. CPR was unsuccessful. Tristan was
dead.
Official cause of death--asphyxiation.
The reason for the episode: another adolescent on the unit reported
to a staff member that Tristan had something with which he was going to
hurt himself. The small end of what appeared to be a key chain was
found on the top of his dresser later. It was not in his possession or
even near him at the time of the takedown.
Hospital representatives cited Tristan's death as an unfortunate
incident. They stood by their actions stating that the facility's
policies and procedures had been followed. In the investigations that
ensued by the state of North Carolina Facility Services Division, the
Joint Commission on Accreditation of Healthcare Organizations, the
Department of Health and Human Services Health Care Financing
Administration, and the police, some staffers stated that this type of
restraint with mouth coverings was used approximately 85-90 percent of
the time, especially with adolescents who were being placed in
therapeutic holds and/or transported to the seclusion/restraint room.
When asked to produce the portion of the Policies and Procedures
Manual, that outlined the use of mouth coverings during holds and
restraints the facility could not. Later facility spokespersons stated
that the procedure had ``just evolved over the course of the last 5
years.'' As a part of their damage control, the facility bought several
one-page advertisements in the local newspaper, one of which declared
that ``there are no national standards . . .'' The advertisement also
touted that the facility ``was accredited with commendation--the
highest award possible--virtually the entire decade.'' It further
stated that on their last JACHO evaluation, the hospital had received a
96 out of a possible 100 points. How could this be?
A procedure for using a mouth covering during holds and restraints
to alter a patient's behavior did not exist in a written policy manual.
Staffers reported that they were never specifically trained when or how
to use or not to use mouth coverings. This fact was corroborated by the
Director of Nurses who also stated that the risks of using such a
procedure were not covered during staff training. CPR certifications
were out of date. According to news reports, one staffer who was a part
of the restraint team, had twice been convicted of assault charges.
Something is very wrong with this picture; and children,
adolescents, and adults are paying with their lives. It is crystal
clear that these tragedies have been allowed to occur simply because
there are no national standards preventing this type of abusive
restraint and seclusion practice. It is equally clear that the current
accreditation and monitoring process is woefully inadequate.
Requirements for staff training must be established, accountability
must be mandatory, and enforcement must have teeth! We must have in
place an independent, empowered system of advocacy for these vulnerable
patients.
This system must be federally mandated to receive reports of deaths
and injuries occurring in all facilities so that appropriate
investigations and corrective action can be instituted. There also must
be adequate funds devoted to this effort to ensure that we eliminate
these practices. The current nationwide protection and advocacy system
is the appropriate vehicle for this task.
I believe that restraints should only be used as a last resort--
only to insure the immediate safety of the patient or others.
Restraints should be used only under a physician's written order, and
in the least restrictive manner possible. Facilities must document the
specific details of every intervention, but also be required to provide
evidence of treatment planning to reduce the need for the use of
restraint and seclusion in the future. These data should be verified by
patients, patients' families, or other involved persons. This
information should be made available to the protection and advocacy
agency in each state, so that the agency can investigate and correct
systemic abuses. Also, stricter, universal guidelines for the training
of staff must be established.
Finally, accountability must be mandatory. Evaluators must take an
active role in the assessment process which leads to accreditation of
facilities that care for people with mental illness, emotional and
behavioral disorders, chemical dependencies, and/or developmental
disabilities. Evaluations must be rigorous, frequent, thorough, and
unannounced.
Patients and their families should not have to be fearful of
neglect and abuse in the name of therapeutic intervention. Inhumane
treatment and disrespect for patients as human beings can no longer be
allowed to be masked under the guise of a facility's offer of
``compassionate, quality, state of the art care.''
Too many emotionally vulnerable and behaviorally disordered
children and adults have already died. But what of those healthy,
normally developing children and adolescents who find the circumstances
of their lives too difficult to handle and who begin to act out, who go
into depressions, who struggle with chemical dependencies and whose
families seek out professional help at some public or private facility,
clinic, hospital, or treatment center?
We have begun to identify those who have not survived restraint and
seclusion: Tristan Sovern, age 16; Andrew McClain, 11; Mark Draheim,
14; Edith Campos, 15; and Timithy Thomas, 9; and all the others
identified by the staff of the Hartford Courant in their investigative
probe of last October. But what of those who go through this type of
``therapy'' and live through it? As a last effort, proper, controlled
restraint in certain circumstances may protect individuals, but being
manhandled and treated with disrespect and inhumanity will leave these
people scarred. Internalized feelings of anger, rage, abandonment, and
worthlessness are added to their already compromised mechanisms making
them even more vulnerable and emotionally broken. We must seriously
examine the benefits of this type of routine physical intervention
against the high costs that patients are paying.
A young girl wrote to me after Tristan's death. She had been
hospitalized at the same facility as my son. She was 15, an A/B
student, an athlete, who found herself, even with the support of her
family, having severe difficulties navigating the road of adolescence.
She was involuntarily hospitalized after going in for a therapy
session. She was placed in the seclusion room and spent the night
huddled on the floor in the dark wondering if her parents still loved
her and if they would ever come to get her out of this place.
She told me that I must never give up on speaking out for the
rights of children like Tristan, and like herself, for all the
children. She wrote that I was the only voice some of them had, perhaps
their only hope.
Today I urge all of the members of the 106th Congress to stand up
and let their voices be heard for the rights of those who have no
voice. Stand up and speak out for the children of the United States and
their families. The Patient Freedom From Restraint Bills are a first
step to making the United States a leader in the human rights mission.
How we can demand adherence to human rights standards of other
countries if we do not take a stand for human rights here in America?
Our children are depending on us.
STATEMENT OF WANDA MOHR, Ph.D., ASSISTANT PROFESSOR OF
NURSING, UNIVERSITY OF PENNSYLVANIA
Senator Specter. We now turn to Dr. Wanda Mohr, professor
and course director of psychiatric mental health nursing at the
University of Pennsylvania School of Nursing. Dr. Mohr is
national co-chairperson for research and education for the
Association of Child and Adolescent Psychiatric Nursing.
Welcome, Dr. Mohr.
Dr. Mohr. Thank you.
Senator Specter. Thank you for joining us, and the floor is
yours.
Dr. Mohr. Thank you.
As a nurse, I am here to tell you that restraints and
seclusion are the most draconian methods of patient control. I
have seen them used, and I have broken up situations that could
have turned potentially tragic.
Imagine what it must be like to be 12 years old, alone,
frightened by voices in your head, not understanding what is
happening, and having 6 to 8 big people surround you, yell at
you to calm down.
When you try to run away or defend yourself against these
monsters gathered around you, they lunge at you and pin you to
the floor. You cannot breathe, and you tell them. But they pay
no attention. After all, you are crazy. They dismiss your
complaints by saying that you are being manipulative. And then
things begin to go black.
At worse, you die calling for your mommy and for help that
never comes. At best, they carry your little body to a bare
room, strap you to a bed spread-eagle, pull down your pants,
inject you with drugs, and leave you alone with the horror for
hours at a time. This scenario plays itself out repeatedly in
psychiatric hospitals across this country.
I am an active member of the National Alliance for the
Mentally Ill, the nation's largest grassroots voice on mental
illness. On March 25, NAMI released a summary of reports of
abuse received since the October Courant series. Over 5 months,
five new deaths have occurred, four were youths under the age
of 8. One was a 9-year-old boy. And those are only the ones
that we know about. Five deaths in 5 months.
As you consider this proposed legislation, please think
about how many more may die unless you act. I am someone who
has had a family member with severe and persistent mental
illness. I am a consumer myself, and I have years of clinical
and now academic nursing experience. From all of these
perspectives, I feel competent to talk about some reasons why
restraint situations go out of control and to give my opinion
as to what can be done.
No. 1, seclusion and restraints are psychiatric
conventions, rather than interventions that are based on
foundations of research. The use of any therapeutic
intervention, such as medication or surgery, in health care
should be based on solid scientific data. This does not happen
with restraints.
Lack of meaningful oversight. Hospital accreditation and
inspection is little more than a check of appropriate
paperwork. I have been through many such inspections. And
frankly, the representation of reality by an adequately
completed form is problematic. There is absolutely no evidence
that what was written actually happened.
Lack of staff education and training. The level of employee
dealing directly with the most vulnerable patients are the ones
with the least amount of education. There is a pervasive
attitude in this field that anyone can take care of psychiatric
patients, especially in the case of children. We have special
standards for staff members working in critical care or
emergency units, but not in psychiatric settings.
As much as critical care units, the acute care units of
psychiatric hospitals are equally complex and require special
training and education, especially today when the patients that
we are seeing are the sickest of the sick.
I have made a number of recommendations in my written
testimony. And in the interest of time, what I would like to do
is to ask you to enter them into the record.
Senator Specter. They will be fully made a part of the
record, without objection.
prepared statement
Dr. Mohr. OK. So in the interest of time, I will defer to
Mr. Rogers, because my recommendations are all those that are
in the legislation. And I thank you very much and offer myself
to any questions that you might have.
Senator Specter. Thank you. Thank you very much, Dr. Mohr.
[The statement follows:]
Prepared Statement of Wanda K. Mohr
As a nurse I am here today to tell you that restraint and seclusion
are the most draconian methods of patient control in mental health
settings. I've seen them used, and I've broken up situations that could
have turned into potential tragedies.
Imagine for a moment, if you will, what it must be like to be 12
years old, alone, frightened by voices in your head, not able to
understand what is happening, and having six to eight big people
surround you and yell at you to ``calm down.'' When you try to run away
or defend yourself against the monsters gathered around you, they lunge
at you and pin you to the floor.
In the worst-case scenario you can't breathe and you tell them. But
they pay no attention--after all, you're crazy. They dismiss your
complaints by telling each other that you're being manipulative. And
then things begin to go black.
In the worst-case scenario, you die, calling for your mommy and for
help that never comes. In the best-case scenario, they carry your
little body to a bare room, strap you to a bed, spread-eagle, pull down
your pants, inject you with drugs, and leave you alone with the
horror--for hours at a time. This scene is replayed over and over again
in psychiatric hospitals across this county.
I am an active member of the National Alliance for the Mentally
Ill, the nation's largest, grassroots voice on mental illness. As
someone who had a family member with severe and persistent mental
illness, and being a consumer myself as well as someone who has years
of clinical and now academic nursing experience, I feel uniquely
situated to speak to the issue of restraint.
Last year, NAMI members in Connecticut played a critical role in
getting the Hartford Courant to investigate the use of restraint in
psychiatric facilities--which led to publication of the series that
documented 142 actual deaths around the country over a decade and that
commissioned a Harvard University report that estimated between 50 and
150 deaths annually as a result of restraint.
On March 25th, NAMI released a summary of reports of abuse received
since the Hartford Courant series was published in October. Over 5
months, five new deaths occurred. Four were youths under the age of 18.
One was a 9-year-old boy. And those are only the ones we know about.
Five deaths in 5 months.
As you consider the issue, please think about how many more may
die.
Unless Congress acts.
I am here today to speak to how and why restraint situations go out
of control and to give my opinion about what can be done to alleviate
this problem. In the interest of brevity I have bulleted my list so
that it can be easily perused by this committee, and I will read some
of those. I do ask that my entire testimony as submitted be entered
into the congressional record.
seclusion and restraint are psychiatric conventions rather than
interventions based on a foundation of research
Therapeutic interventions should promote, maintain, or restore
health or at least prevent further illness from occurring. The use of
any therapeutic intervention in a clinical setting should be based on
solid scientific data. To date we have very scant research concerning
the effectiveness or the effects of restraint use on patients and no
research on the effectiveness of alternate ways of managing aggressive
or violent behavior (Walsh & Randell, 1995). Placing a patient in
restraints remains an unquestioned and accepted ritual of practice
despite recognition by the psychiatric community that it is governed by
consensus rather than research (Rubenstein, 1983; Goren, 1991; Goren &
Curtis, 1997).
lack of meaningful oversight
Based on my experience as a practitioner, hospital accreditation
and inspection is little more than a check of appropriate paperwork. I
have been through many such inspections and quite frankly the
representation of reality by an adequately completed form is
problematic in that there is no evidence that what was written actually
happened.
Visits are announced. Knowing weeks in advance of a JCAHO visit,
hospital administrators will often assign additional staff and arrange
for ``charting parties'' in which paper work is cleaned up and brought
into compliance with standards. This practice was reported and
documented repeatedly during the investigation of the abuses conducted
by the state of Texas and former Representative Patricia Schroeder's
investigation of those abuses (U.S. Government Printing Office, 1992).
Reports from my colleagues who still practice in clinical settings
raise serious doubt that much has changed with respect to this kind of
creative record-keeping.
There are no penalties for non-compliance. At worst, even in the
event that accreditation is denied, hospitals do not necessarily suffer
ill consequences.
Years ago, we in health care relied on paperwork and asking other
professionals about the efficacy of ``pain control.'' We finally woke
up to the fact that the patient is the one who should be asked. While
it seems commonsensical to ask the patients and families--the experts
in their own experiences--for their opinions, inspectors do not
independently meet with patients and families to ask about their
hospital experience. The mentally ill still have no credibility. This
puts the onus of ``proof'' on the very people who are in a position to
alter reality.
no procedural consistency
Procedures, standards and regulatory statements on restraint use
vary from document to document and from institution to institution.
Definitions of assault and violence are loose and articulated in the
vaguest of terms and subject to interpretation (Rice, Harris, Varney, &
Quinsey, 1989; National Research Council, 1993).
Standards and regulatory documents are based on a number of
unspoken assumptions that are not true, and I could be here for many
hours outlining and debunking them. But I will focus on a single
example--the assumption that staff members are adequately trained and
educated in the care of vulnerable individuals and that they can de-
escalate potentially explosive situations. In fact, research conducted
by nurses reveals that nurses' aides are not cognizant of available
alternative techniques to restraint (Neary, Kanski, Janelli, Scherer, &
North, 1991). Over 70 percent of these same aides had attended an
inservice on the subject one year prior to this study.
Moreover, so far as I know, procedures for seclusion and restraint
are developed for the most part without consumer input. Their
development is driven by external experts rather than the real
experts--the patients.
Standards and regulatory guidelines are written by persons who are
not involved in the decision to employ the restraints. Psychiatrists
issue guidelines and write orders for the use of seclusion and
restraint in the abstract. In general they are rarely involved in
observing the incidents that lead up to the necessity for such
intervention. They have little day-to-day experience with the cycle
leading to the intervention and therefore are not in a position to
monitor, nor help to prevent and reduce their use. Therefore, they
don't really see this issue as the problem that it is--it simply is not
part of their reality.
lack of staff education and training
The employees dealing directly with the most vulnerable patients
are the ones with the least education. This has been the case
throughout history, and there is ample documentary evidence that speaks
to this problem (Perrow, 1965; Goffman, 1961; Morrison, 1990).
There are fuzzy requirements for education and training, which seem
to be mostly voluntary. One of the first things to be jettisoned when
money gets tight are staff-development activities (Braxton, 1995).
Because training and on-going education are not universally required,
they are considered a luxury more than a necessity.
There is a pervasive attitude that anyone can take care of
psychiatric patients, especially in the case of children. We have
special standards for nursing staff who work in critical care or
emergency areas, but no such standards in psychiatric settings. As much
as critical care units, the acute care unit of a psychiatric hospital
is a complex milieu with a very difficult population whose brains can
feel as though they are ``on fire.'' This is a situation requiring
special training and education, especially today when the patients that
we are seeing are the sickest of the sick.
There is a lack of developmentally appropriate programming for
patients. This was another problem that was explored in the National
Medical Enterprises investigation of the early 1990's. Here I would
have to reference my own work because almost nothing has been written
or researched about this topic by any one else. Children of varying
ages are mixed with everyone else receiving the same ``interventions''
for the same periods of time. Four-year-olds do not have the same
capacity for attention as 14-year-olds, yet they go to 50-minute
groups. When they act in a developmentally appropriate way, by whining
or acting up, they are punished and a cycle of aggression is set up
(Goren, Singh, & Best, 1993).
There are too few nurses with too little education. Nurses are
costly; thus the actual number of registered nurses is cut to the bare
minimum in the interest of profits. Moreover, the education of nurses
is in and of itself a problem. The majority of nurses (64 percent) do
not have even a baccalaureate degree (U.S. Dept. of Health & Human
Services, 1996). Thus, a two-year, associate-degreed registered nurse
may have 7 to 10 days of exposure to psychiatric content. A four-year
baccalaureate-degreed nurse has considerably more, but even he/she is a
generalist. I teach an extremely bright cohort of young people in a
baccalaureate program, and believe that I do so quite competently. Yet
I do not believe that the time spent with me qualifies them to work
with such a complex population.
Staff turnover has been repeatedly correlated in the literature
with incidents of violence (Rice, Harris, Varney, Quinsey, 1989). Staff
turnover results from poor pay, poor working conditions, and high
levels of stress and frustration due to both a very challenging
population and the lack of skills needed to work with that population
(Braxton, 1995).
a psychiatric culture that is in serious need of self-reflection and
reform
Despite much progress in psychiatry and an insistence that
psychiatric illness is brain illness, many psychiatric professionals
still want to play under a different set of rules than their colleagues
in other specialties. A situation in which a restraint takes place is
an acute psychiatric emergency that is analogous to any other emergency
in medicine, and it should be handled by medical personnel as such. A
cardiologist would not dream of relegating the assessment of his/her
patient to a staff member after such an event. They would grumble and
roll themselves out of bed to do what they are responsible for doing--
assess the patient. Yet during this debate psychiatrists have resisted
our suggestions that they subscribe to the same standards of practice.
Resistance to advocacy groups is common. My experience has been
that with many nurses and psychiatrists there is a general attitude
that advocacy groups are a nuisance and that they make life more
difficult for both groups.
Resistance to shared decision-making and a participative model of
care is also common. Nurses and MD's resist consumer input and the
input of their families, even though the families are the repositories
of the best information about interventions that may help in treatment.
They are reluctant to give up any power to families and patients as the
ontological arbiters of what is ``normal.'' Patient's (and their
families') experiences are discounted and considered lacking in
credibility. Historically we have learned little from Rosenhan's (1973)
work in which he observed that psychiatric staff members ``keep to
themselves, almost as if the disorder that afflicts their charges is
somehow catching.'' (p. 254)
I've made a number of recommendations in my written testimony, but
I'd like to highlight just a few today.
--Identify, evaluate, and implement promising practices while we
conduct clinical research studies into theory and intervention.
--Back research agendas on this issue. Funds to specifically study
restraint use, misuse and best practices must be allocated to
agencies such as NIMH (National Institute of Mental Health),
NIJ (National Institute of Justice), and NINR (National
Institute for Nursing Research).
--Insist on greater physician accountability and involvement.
--Mandate unscheduled oversight by independent agencies/persons that
goes beyond exercises in paperwork that is not announced ahead
of time.
--Require systematic reporting of restraint/seclusion incidents to an
independent agency.
--Mandate reporting of sentinel events such as injury and death.
--Develop consistent standards for restraint use that are patient-
and not staff/physician-focused, and include consumers in the
development of these standards. Base such standards on the
concept that restraints may only be used for emergency safety
situations.
--Mandate staff orientation and ongoing education and training that
is fully documented. The literature provides considerable
support for the idea that significant reductions in
institutional violence could be achieved by a staff training
program aimed at teaching non-restrictive and non-authoritarian
ways of interacting with residents.
--Increase standards for those who can be hired to work with
psychiatric patients. For example, nurses should be certified
and have advanced training, and aides or mental health
technicians should have a high school education and special
training and education in the care of psychiatric populations.
--Insist that patients and their families are given free access to
members of advocacy groups and that the telephone numbers of
advocacy groups be prominently displayed in the living areas of
each facility and also given individually to each patient upon
admission.
--Provide protection from retaliation to staff members for their
advocacy efforts on behalf of patients.
references
Braxton, E.T. (1995). Angry children, frightened staff:
Implications from training and staff development. In D. Piazza (Ed.).
When love is not enough: The management of covert dynamics in
organizations that treat children and adolescents (pp. 13-28). New
York, N.Y.: The Hawthorne Press.
Goffman, E. (1961). Asylums: Essays on the social situation of
mental patients and other inmates. Garden City, N.Y.: Doubleday Anchor
Books.
Goren, S. (1991). What are the considerations for the use of
seclusion and restraints with children and adolescents. Journal of
Psychosocial Nursing and Mental Health Services, 29(2), 32-33.
Goren, S., Singh, N.N., & Best, A.M. (1993). The aggression-
coercion cycle: Use of seclusion and restraint in a child psychiatric
hospital. Journal of Child and Family Studies, 2(1), 61-73.
Goren, S. & Curtis, W.J. (1996). Staff members' beliefs about
seclusion and restraint in child psychiatric hospitals. Journal of
Child and Adolescent Psychiatric Nursing, 9(4), 7-11.
Morrison, E.F. (1990). The tradition of toughness: A study of
nonprofessional nursing care in psychiatric settings. Image: Journal of
Nursing Scholarship, 22(1) 32-38.
National Research Council (1993). Understanding and preventing
violence. Washington, D.C.: Author.
Neary, M.A., Kanski, G.W., Janelli, L.M., Scherer, Y.K., North,
N.E. (1991). Restraints as nurse's aides see them. Geriatric Nursing,
July/August, 191-192.
Perrow, C. (1965). Hospitals: Technology, structure, and goals. In
J.G. Marsh (Ed.), Handbook of organizations (pp.47-60). Chicago, IL:
Rand-McNally.
Rice, M.E., Harris, G.T., Varney, G.W., Quinsey, V. (1989).
Violence in institutions: Understanding, prevention and control.
London, U.K.: Hans Huber Publishing.
Rosenhan, D. (1973). On being sane in insane places. Science, 179,
250-258.
Rubenstein, H. (1983). Standards of medical care based on consensus
rather than evidence: The case of routine bedrale use for the elderly.
Law Medicine and Health Care, 11, 271-276.
U.S. Government Printing Office (1992). Profits of misery: How
inpatient psychiatric treatment bilks the system and betrays our trust.
Washington, D.C.
U.S. Dept. of Health & Human Services. (1996). National advisory
council on nurse education and practice: Report to the Secretary of the
Dept. of Health and Human Services on the basic registered nurse work
force. Washington, D.C.
Welsh, E. & Randell, B. (1995). Seclusion and restraint: What we
need to know. Journal of Child and Adolescent Psychiatric Nursing, 8
(1), 28-40.
STATEMENT OF JOSEPH ROGERS, EXECUTIVE DIRECTOR, MENTAL
HEALTH ASSOCIATION OF SOUTHEASTERN
PENNSYLVANIA, NATIONAL MENTAL HEALTH
ASSOCIATION
Senator Specter. Thank you for observing the time limit.
We now turn to Mr. Joseph Rogers, executive director of the
Mental Health Association of Southeastern Pennsylvania and of
the National Mental Health Consumer Self-Help Clearing House.
Mr. Rogers brings both professional and personal insights into
this issue, having first-hand experience with restraints during
his own hospitalization for mental illness.
We appreciate your sharing with us your own private
experiences, Mr. Rogers. Thank you for joining us, and the
floor is yours.
Mr. Rogers. Thank you, Senator Specter and Senator Harkin.
On behalf of the Mental Health Association, the National Mental
Health Association, I really want to congratulate you on having
this hearing.
I, too, have extensive remarks that I hope can be entered
in the record.
Senator Specter. They will be made a part of the record in
full.
Mr. Rogers. But briefly, as an advocate, as well as someone
who has survived being put in seclusion in restraints, I am
deeply concerned about this deplorable practice. My knowledge
of the subject was gained first hand. One of my worst
experiences was in a private hospital in Florida. I had been
brought into the emergency room from a halfway house on a
Friday evening. Although I was fairly subdued, I was taken to a
room with thick, opaque glass doors and strapped to a platform
in five-point restraints.
These are the kinds of restraints that they use in
restraining someone. You get two across the arms around the
restraints on the platform, two across on the legs and----
Senator Specter. That one is not quite big enough for you,
though, is it?
Mr. Rogers. They get them bigger. They have them big.
There were two each on my wrists and ankles and around and
across my chest. No sound penetrated the room, which contained
nothing but the platform to which I was strapped. Over the next
2\1/2\ days, I was psychotic and hallucinating and in and out
of consciousness. I was left alone to lie in my urine and
excrement until someone came to clean me up once.
When the regular staff replaced the weekend staff on
Monday, they found me filthy and dehydrated. They were shocked
and kept saying that I must have done something to warrant such
treatment. But I did not know what I had done.
This may sound extreme, but I have heard many similar
stories. What can be done to stop the abuses we see every day
in the use of restraints? One, we must move away from
institutions toward community-based treatment. We must
safeguard the rights of people in institutions. The effort to
protect people's rights is central to Pennsylvania's move
toward the elimination of seclusion and restraints in its state
and private mental hospitals.
I would also like to point out that people with
developmental disabilities are also put at risk by the use and
abuse of restraints.
I understand that the American Psychiatric Association is
claiming that the proposed legislation will have a chilling
effect on treatment options and safety issues.
Well, there is nothing more chilling than death. And people
are dying as a result of this so-called treatment, which in
reality indicates a treatment failure. We must document that
failure so that we can make needed changes in our system.
Information on the use of restraints is key. One mechanism
for disseminating such information might be under the State
Mental Health Planning Act, which requires that every state
submit a mental health plan to the Federal Substance Abuse and
Mental Health Services Administration. That plan could require
information on the use of restraints broken down by state and
local hospitals, so that a pattern of usage can emerge.
We must involve consumers and family members and the
community in helping develop policies and procedures. We are
advocating for a national program of self-advocacy training for
consumers of mental health services, because we find that
consumers make the best advocates on such issues as the abuse
of restraints. This program would be implemented through the
protection and advocacy agencies with the assistance of the
National Mental Health Association.
prepared statement
As I mentioned, we must move away from institution toward
community treatment. In the meantime, people who find
themselves hospitalized must be assured of a safe place. Toward
this end, we would like to see the days when the last available
set of restraints is placed under plexiglass saying ``obsolete
equipment.'' We hope proposed legislation takes one step
towards that day.
Thank you for your attention.
Senator Specter. Thank you very much, Mr. Rogers.
[The statement follows:]
Prepared Statement of Joseph A. Rogers
Senator Specter, on behalf of the National Mental Health
Association as well as the Mental Health Association of Southeastern
Pennsylvania, of which I am executive director, I want to thank you for
holding this hearing on seclusion and restraints.
I'm here today because I have survived the experience of being put
in seclusion and restraints. As an advocate as well as someone who may
need acute psychiatric services in the future, I am deeply concerned
about this deplorable practice, which has been responsible for numerous
deaths as well as many more instances of trauma in those who have
experienced it.
I'm here to testify that massive changes in the system are needed
in order to protect the lives of people with mental illness.
--First, we must move away from institutions toward community-based
treatment. It has been repeatedly demonstrated that people do
better in the community, and that the behaviors that get them
in trouble, and into restraints, are a product of conditions in
the institution. I've been there, and no one should have to be
subjected to those kinds of conditions, where people are
crammed into a small room to spend their days with little to
engage them. This kind of stress definitely has an impact on
behavior. So we need to get people out of the institutions.
--Second, we must safeguard the rights of people in institutions. The
effort to protect people's rights is central to Pennsylvania's
move toward the elimination of seclusion and restraint in its
state hospitals, about which I will provide details later in my
testimony. It is my understanding that the American Psychiatric
Association is opposing the proposed legislation and is
claiming that it will have a chilling effect on ``treatment
options'' and ``safety issues.'' Well, there is nothing more
chilling than death, and people are dying as a result of this
so-called treatment, which in reality indicates a treatment
failure. And we must document that failure so that we can make
the needed changes in our system.
--Third, we need to involve consumers, family members and the
community in helping develop policies and procedures, and in
monitoring this situation. And we need your help: we need
federal legislation that mandates that information be gathered
and disseminated. And we need to make that information public.
Then we must ensure that consumer-run self-help organizations,
family organizations, and advocacy organizations such as Mental
Health Associations and Protection and Advocacy agencies get
the information they need and have the necessary access to
monitor this very dangerous practice.
That being said, I am testifying in support of the legislation
proposed by Senators Joseph Lieberman and Christopher Dodd and by
representatives Pete Stark, Diana DeGette and Rosa DeLauro. We consider
this legislation a good first step in regulating the use of seclusion
and restraints.
At the same time, it is important to note that the legislation does
not go far enough. ``Far enough'' would mean instituting regulations
that would either outlaw the use of seclusion and restraints, or make
it nearly impossible to employ them.
In Pennsylvania, our top mental health official, Charles G. Curie,
has made it a goal to eliminate the use of seclusion and restraints in
state mental hospitals. This goal has already been achieved in one
state hospital: for the six months before it closed, as part of
Pennsylvania's progressive shift toward community-based services,
Haverford State Hospital did not employ seclusion and restraints.
My testimony will cover the Pennsylvania model, as well as my own
personal experience with seclusion and restraints. I will also suggest
ways that the proposed legislation could be made more effective.
My knowledge of this subject was gained firsthand; I have been
repeatedly hospitalized for mental illness and have experienced
seclusion and restraints a number of times.
One of my worst experiences was in a private hospital in Florida. I
had been brought to the emergency room by ambulance from a halfway
house on Friday evening. Although I was fairly subdued, I was
immediately taken to a room with thick, opaque glass doors and strapped
to a sort of platform in five-point restraints: two each on my wrists
and ankles and one across my chest. No sound penetrated the room and,
since it contained nothing but the platform to which I was strapped,
there was a nearly complete sense of sensory deprivation.
Over the next two-and-a-half days I was psychotic and
hallucinating, and passed in and out of consciousness. I remember being
given some shots. I don't remember getting anything to eat or drink,
although I suppose I must have. I was left alone to lie in my own urine
and excrement, until someone came to clean me up, once. Most of the
time, I was ignored.
When the regular staff replaced the weekend staff on Monday
morning, they found me filthy and dehydrated. They were shocked, and
kept asking, ``What did you do? You must have done something.'' I had
no answer; I did not know what I had done.
This may sound extreme, but I have heard many similar stories.
Obviously, no one's definition of ``best practices'' would include
my experience in Florida. But, unless restraints are outlawed, there
will always be the possibility that inexperienced staff will over-react
and violate procedures.
For example, a couple of years ago, when I was left in restraints
overnight at a respected private psychiatric hospital in Philadelphia,
I was told later that this was ``against hospital procedures.''
Unfortunately, because of chronic staff shortages and other
administrative shortfalls, not to mention staff who are punitive or
frightened, it seems to be a given that procedures will be violated on
a regular basis. ``Best practices'' may dictate the use of restraints
only in extreme cases of risk to the patient or others; but this is not
what happens.
In fact, many consumers of mental health services steer clear of
going to emergency rooms to seek psychiatric help because of the risk
that, if they seem agitated, they may wind up in seclusion and
restraints.
Unless any policy statement outlaws restraints or at least makes it
nearly impossible to employ them, there is going to be abuse. If you
have an inexperienced nurse at midnight who is terrified of the
patients, policies tend to go right out the window. By the same token,
if you don't have a room equipped with a table to strap people onto,
that's the best guarantee that people won't be restrained against
policy.
It's also vital to make sure that chemical restraints are not
substituted for tables and straps. When I have been heavily medicated
to make me ``calm down,'' I have found that the effects can last for
weeks.
Educating staff in the use of alternatives to restraints is more
important than creating policy to govern the use of restraints, since
policy is so often violated.
For the reasons described above and the ones that follow, I fully
support the decision of Pennsylvania's top mental health official,
Charles G. Curie, to establish the goal of eliminating seclusion and
restraints in state hospitals.
First, seclusion and restraint are not treatments; they are
treatment failures.
Second, seclusion and restraint are high-risk techniques that may
result--and have resulted--in injury or death to the patient, both
while the patient is being subdued and afterward. In addition, staff
injuries decline in frequency and severity when the need for physical
interventions with patients is eliminated.
Third, a high percentage of state hospital patients are trauma
survivors, and seclusion and restraint are themselves traumatic, for
both patients and staff. Hospitals cannot cause trauma and effectively
care for people.
Fourth, the use of seclusion and restraint fosters an atmosphere of
staff control over patients rather than the desired treatment
partnership.
In 1995, when Mr. Curie assumed his duties as Deputy Secretary for
Mental Health in Pennsylvania, he found that there was a relatively
high usage of seclusion and restraint in some state hospitals.
With the support of others in the department, he took the first
step of redefining the use of seclusion and restraint as a treatment
failure, only to be used as a safety measure of last resort, when all
other types of intervention have failed. This resulted in clinicians
using alternative interventions, and led to a significant reduction in
seclusion and restraint in most state hospitals.
The Office of Mental Health thus created an environment in which
all staff expect to see a reduction in the use of seclusion and
restraint and the risks associated with their use.
This shift in attitude has been accompanied by dramatic changes in
policy and procedure, Mr. Curie has reported. For example, the
department's Bureau of Hospital Operations has developed a system-wide
monitoring tool that measures and compares the incidence and duration
of seclusion and restraint in all hospitals. Increased emphasis has
also been put on staff training on clinical alternatives to the use of
seclusion and restraint, as well as ongoing reinforcement by management
of reducing usage at each hospital. Consequently, Pennsylvania has
continued to see a substantial reduction in the incidence and duration
of use of these techniques.
As Mr. Curie recently said:
``Pennsylvania's experience proves that the use of seclusion and
restraint can be eliminated or greatly reduced when there is a
treatment environment that focuses on the strengths of the individuals
being served; that protects patients' dignity, comfort, and privacy;
that promotes constructive interaction and partnership between staff
and patients; that eliminates arbitrary ward rules developed for staff
convenience; that fosters patients' ability to make choices and have a
greater understanding of their own behavior; and that involves
management and staff in planning how to reduce the incidence of
seclusion and restraint.
``The options available today make the elimination of seclusion and
restraint an extremely realistic goal. One such option is use of a new
generation of antipsychotic medications, which are more effective in
reducing the symptoms that lead to aggressive behavior. Clearly,
medication should be administered only in the context of a treatment
plan in order to relieve symptoms, and not as a chemical restraint.
``Clinicians also have a better understanding of the use of verbal
de-escalation techniques to avert physical confrontation. In addition,
providing more hours of active treatment and more structure and
activity for patients during the day would leave less time for
conflicts to erupt between patients and staff.''
The Pennsylvania Office of Mental Health and Substance Abuse
Services has instituted a standardized, universal risk assessment
procedure to help identify people who may exhibit behaviors that could
put them at risk of seclusion and restraints, and to target those risks
through treatment planning. The objective is to help people learn to
manage their anger instead of waiting until a crisis erupts.
After any sort of seclusion or restraint is used--and that is only
in the most extreme cases--Pennsylvania policy requires a debriefing so
that patients and staff can talk about the incident, figure out what
may be learned from it, and use those lessons in the treatment planning
process in order to avoid similar incidents. This also allows both
staff and patients an opportunity to deal with the trauma associated
with their use.
The Office of Mental Health and Substance Abuse Services is
establishing a baseline and using that to measure the incidence of
seclusion and restraint periodically in each state hospital. And the
state plans to share that and other such information publicly. Any
licensed entity that provides mental health care--especially those that
are publicly funded--must be accountable to the public. That includes
accountability about seclusion and restraint.
The legislation that has been proposed in the Senate would keep
confidential any investigations and analyses developed in the wake of a
death, whereas the legislation proposed in the House would make this
information public. In this regard, the House legislation is superior.
The only way things can change is if there accountability to the
public, and if state Protection and Advocacy agencies as well as
citizen advocacy organizations know and can comment on policies, on how
those policies are being implemented or are not being implemented, and
on whether the incidence of restraint use is reported on a regular
basis.
One mechanism might be under Public Law 99-660, the State Mental
Health Planning Act, which requires that every state submit a mental
health plan to the Substance Abuse and Mental Health Services
Administration. The plan could require information on the utilization
of restraints. This information should be broken down by state
hospital, so that a pattern of utilization can emerge. The advocacy
community can then focus their attention in particular on institutions
with a high usage of restraints.
As I mentioned above, the effort to eliminate seclusion and
restraints has already been successful in at least one state hospital:
for six months before Haverford State Hospital closed, there was no use
of seclusion and restraints and there was a decrease in the use of
medication.
Aidan Altenor initiated the effort to end seclusion and restraints
when he was Haverford's superintendent; he credits Deputy Secretary
Curie with providing the impetus. He has since been working toward the
same goal at Norristown State Hospital, where he now serves as
superintendent.
Mr. Altenor described methods, which were successful at Haverford,
that can lead to eliminating restraints.
First, as mentioned above, the use of restraints must be re-defined
as a treatment failure. As Dr. Altenor said, ``This is not a clinical
intervention; this is tying you to a bed.''
Second, a one-hour limit must be set on the period for which a
physician can write a restraint order; the patient must then be
reassessed. In Haverford's past, there was no such time limit. Dr.
Altenor noted that, at Norristown State Hospital, the nursing staff
plays a critical role in determining whether someone needs to remain in
restraints for the full time period for which the order was written.
That is, a nurse may determine that someone may be released from
restraints in 10 or 15 minutes, although the order was for an hour.
Third, when someone exhibits behavior that the staff may consider
cause for using seclusion and restraints, staff must attempt to
determine what someone is trying to communicate and must ask how the
person's treatment plan can be revised to be more responsive to that
person's needs.
Fourth, the staff must review with the patient any incident that
has led to seclusion and restraints, and must ask what to do if there
is a similar incident in the future. This is common sense, it involves
listening to the consumer and saying, `Oh, that's what you want us to
do; we can do that.' Often, this is something as simple as going for a
walk. Dr. Altenor said that this approach has played a significant role
in eliminating the use of restraints for many people.
Dr. Altenor added that when clinicians suspend judgment about what
they believe to be the most appropriate clinical intervention and go
with what the consumer wants, everyone ends up winning. With patients
who are not able to provide straightforward feedback, clinicians must
apply critical acumen to translate their messages so that they can
respond with more supportive interventions.
It is also extremely important to hold training sessions where all
points of view are represented.
At Haverford State Hospital, panel discussions among consumers,
family members and professionals were presented. Besides personal
testimony, the sessions also included data on what happens when people
are in restraints, such as the increased risk of injury to both staff
and patients. Prevention was also stressed.
Dr. Altenor said that the most compelling aspect of the sessions
was the consumers' stories about how it felt to be in restraints. Many
people said that they felt violated, and at the mercy of whoever was
walking around in the room. They felt they were being punished for
aspects of their illness over which they had no control, adding insult
to injury. He said that hearing the consumers' perspective was an eye-
opener.
Clearly, the consumer perspective is the most important one. We are
advocating for a national program of self-advocacy training for
consumers of mental health services, because we find that consumers
make the best advocates on such issues as the abuse of restraints. This
program would be implemented through Protection and Advocacy agencies
with the assistance of the National Mental Health Association.
We would also like to see a requirement for the establishment of
consumer/family/volunteer monitoring teams at psychiatric facilities.
These teams would serve as a vital ombudsman when situations arise in
which restraints may be applied. In Pennsylvania as in many other
states, we already have peer advocates working in state hospitals, as
well as peer-run drop-in centers in hospitals.
And, as I mentioned at the beginning of my testimony, we must move
away from institutions toward community-based treatment.
I would like to talk about two of the individuals whose stories are
told in an amici curiae brief filed with the U.S. Supreme Court by the
National Mental Health Consumers' Self-Help Clearinghouse, of which I
am also executive director, and other consumers and consumer
organizations. The brief was filed in the Olmstead case, which is a
challenge to the community integration mandate of the Americans with
Disabilities Act.
Both of these individuals--Margaret Donahue and James Price--spent
a lot of time in seclusion and restraints when they were residing in
state hospitals. As James Price described the conditions: ``It was hard
living there. I had to stay in a day room and wasn't able to get out.
We had a dormitory with eight to ten people. I got in trouble there a
lot. They would put me in seclusion and restraints and give me
needles.''
For the last eight years, however, he has lived in his own
apartment in Philadelphia, and he enjoys his freedom. He does volunteer
work, goes to the movies, and has his eight-year-old niece over to
stay.
Margaret Donahue also spent most of her life in institutions. She
now lives in Willow Grove, Pennsylvania, in a house she shares with two
other women, both of whom were also patients at the state hospital. The
house is a ``supported living'' residence, with round-the-clock
staffing.
In the hospital, she reported, she spent a lot of her time in
restraints because of fighting and banging her head. In the community,
she has none of those problems. She entertains visitors, and sometimes
goes to church. She also does her own housework, and has a part-time
job cleaning houses. In her words, ``It's better living in my house
[than in the hospital]. You can't live in the hospital all your life.''
No, you can't. But those people who do find themselves hospitalized
must be assured of a safe place. Toward this end, we would like to see
the day when the last available set of restraints is displayed in a
Plexiglas case, under a sign saying ``obsolete equipment.'' We hope the
proposed legislation takes us one step closer to that day.
Thank you for your attention.
STATEMENT OF DENNIS O'LEARY, M.D., PRESIDENT, JOINT
COMMISSION ON ACCREDITATION OF HEALTH CARE
ORGANIZATIONS
Senator Specter. We now turn to Dr. Dennis O'Leary,
President of the Joint Commission on Accreditation of Health
Care Organizations. Dr. O'Leary has served as dean of the
Clinical Affairs Unit at George Washington University Medical
Center and Vice President of the George Washington University
Health Plan.
Thank you for joining us, Dr. O'Leary. We look forward
hearing from you.
Dr. O'Leary. Thank you, Senator Specter.
On behalf of the Joint Commission on Accreditation of
Health Care Organizations, I would like to thank you and the
other members of the subcommittee for holding these hearings to
address the very serious problem surrounding the improper use
of physical restraints on patients in psychiatric facilities.
We appear here today as a very committed part of the solution
to eliminating the occurrence of these tragic events.
Over the past half century, the Joint Commission has made
significant contributions to protecting patient rights,
enhancing patient safety and reducing restraint use in the
nearly 20,000 health care organizations it accredits. Long-
standing Joint Commission accreditation standards cover the
full range of issues relating to the use of restraints.
These include clinical justification for use, staff
training and strategies for limiting the use of restraints.
Application of these standards has reduced the use of
restraints in accredited organizations.
In 1995, patient safety became a pivotal focus of the Joint
Commission's oversight efforts. During that year, we began an
intense effort to evaluate restraint-related deaths in
accredited organizations as part of a broader initiative to
gain knowledge about serious adverse occurrences in the care of
patients. This initiative took its origins in the midst of an
apparent outbreak of widely publicized, unanticipated serious
injuries and deaths.
The existence of these serious occurrences, which we call
sentinel events, was a clarion call to the Joint Commission and
others that far greater efforts needed to be made to improve
the safety and quality of health care.
In this process, the Joint Commission has become the
nation's leader in facilitating the identification of sentinel
events and working with organizations to reduce the risk of
future occurrences and in sharing lessons learned. Today the
Joint Commission requires accredited organizations to identify
all sentinel events and address their underlying causes.
Failure to do so places the organization for risk of loss of
its accreditation.
The Joint Commission believes that asking organizations to
identify and report unexpected deaths and injuries is the first
step in the process of reducing in the incidences of sentinel
events. No entity charged with oversight responsibilities can
take appropriate action without this kind of information. That
reporting responsibility for restraint-related deaths must lie
on the organizations where care is being provided.
But if mandatory reporting of restraint-related deaths is a
necessity, we must recognize that it will not, by itself, be
sufficient in reaching the goal of eliminating these tragic
events.
The Joint Commission's board of commissioners has taken the
position that the most effective way to reach this goal is to
mandate the reporting of restraint-related deaths as part of an
oversight framework that also facilitates a no-holds-barred
internal self-evaluation process. However, to achieve this
objective, these root cause analyses must be protected from
public disclosure by federal legislation.
We must emphasize that the creation and sharing of these
highly sensitive documents with monitoring agencies will be
resisted unless they are afforded a peer review-like protection
similar to what the states now have in place for hospital
internal quality review.
Early this year, our board of commissioners appointed a new
high-level restraint use task force, which will conduct a
thorough reevaluation of the Joint Commission's current
restraint standards, on-site evaluation process and other means
for accessing information about restraint use. That task force
is expected to make its final recommendations to the board by
the end of this year.
The task force has launched its efforts by initiating a
series of public hearings across the country. These hearings
are designed to elicit input from the public and other
interested parties regarding the current oversight process and
what can be done to make it more searching and meaningful.
We are also seeking dialogue with the health professional
communities, because we believe that more than just the
accreditation process must change. There must also be a
significant reevaluation of what are considered acceptable
practices and behaviors in providing psychiatric and
psychological care.
The reduction of restraint-related deaths and other
sentinel events is one of the most important issues facing us
today. Again, we applaud the subcommittee's leadership on this
issue.
prepared statement
We support and welcome the opportunity to bring together
the strength of the public and private sectors to address these
issues. And we look forward to working with you in doing
whatever is necessary to prevent other deaths from occurring.
Thank you.
Senator Specter. Thank you very much, Dr. O'Leary.
[The statement follows:]
Prepared Statement of Dennis O'Leary
On behalf of the Joint Commission on Accreditation of Healthcare
Organizations, I would like to thank Chairman Specter and the other
members of the Subcommittee for holding these hearings to address the
very serious problems surrounding the improper use of physical
restraints on patients undergoing psychiatric or psychological
treatment, and I am very pleased to provide our recommendations for
appropriate action. We appear here today as a very committed part of
the solution to eliminating the occurrence of these tragic events.
There should be zero tolerance for the types of deaths we have all
read about in the Hartford Courant series. Many of the 142 patients who
died in relation to the use of restraints were children and
adolescents. Ms. Allen's testimony about her son is especially heart
wrenching and is nothing less than a call to action for all in the
health care system who have not already taken serious steps to change
the status quo.
The Joint Commission views this hearing as a major opportunity to
begin to build consensus on effective safeguards for reducing the
likelihood of restraint-related deaths. This will be a daunting task,
for there are few things in health care as challenging as the
appropriate management of restraint use. The issues to be dealt with go
to the very heart of patient rights, patient safety, and the safety of
health care workers. Significant opportunities exist in improving staff
training, identifying and sharing best practices, and developing and
using effective alternatives to restraints. But the most immediate need
is the design of an oversight framework which establishes clear
accountabilities, and facilitates learning from each tragedy that
occurs without driving the reporting of such incidents underground.
Over the course of its long history, the Joint Commission has made
significant contributions to protecting patient rights, enhancing
patient safety, and reducing restraint use in the nearly 20,000 health
care organizations it accredits. We have had extensive patient rights
standards for many years that set clear expectations regarding personal
interactions with patients, specify the information patients must be
given about their rights, and describe the physical, social, and
cultural environments necessary to the effective support of patient
care. Joint Commission standards have, as well, delineated requirements
for patient safety, while protecting the dignity with which patients
are being treated. Professionals in the behavioral health care field
can attest to the Joint Commission's pioneering efforts in these areas
over the past several decades.
Joint Commission accreditation standards have also had a positive
effect on identifying and addressing inappropriate use of restraints.
While the organizations we accredit have long evidenced difficulty in
fully meeting these standards, their performance has progressively
improved in recent years and most behavioral health care professionals
would be quick to acknowledge their impact in reducing inappropriate
restraint use.
Because of their high visibility and importance, the restraint
standards are frequently reviewed and updated in collaboration with
expert professionals, advocacy groups and other stakeholders. These
standards cover a range of important issues, including clinical
justification for use of restraints, staff orientation, and education,
and strategies for limiting the use of restraints--and are more
comprehensive than comparable standards used by other accreditors, the
states or the Health Care Financing Administration (HCFA).
In 1995, patient safety assumed an increasingly prominent role in
the Joint Commission's agenda. During that year, we began an intense
effort to evaluate and monitor restraint-related deaths in accredited
health care organizations as apart of a broader initiative to gain
awareness and knowledge about and resolve serious adverse occurrences
in the care of patients. This initiative took its origins in the midst
of an apparent ``outbreak'' of widely publicized unanticipated serious
injuries and deaths. The importance of this effort to the Joint
Commission lay, and continues to lie, in the fact that our
accreditation process is fundamentally designed to reduce risk to
patients. The existence of these serious occurrences--which we call
``sentinel events''--was a clarion call to the Joint Commission and
others that more needs to be done to improve the safety and quality of
health care.
Since 1995, the Joint Commission has become the nation's leader in
facilitating the identification of sentinel events, in working with
specific organizations to reduce the risk of future occurrences and in
sharing ``lessons learned'' with other accredited organizations. This
has been both an enlightening and sobering experience. The risk of
errors is high--an inevitable correlate of the intense human effort
involved in patient care, the growing complexity of care, the
expectation that care be provided with fewer resources, and other risk
enhancing factors--and it appears that a significant number of errors
and even sentinel events, are not reported within organizations. There
is much to be done.
Today the Joint Commission requires accredited organizations to
identify all sentinel events and address their underlying causes.
Current policy also encourages the voluntary reporting of sentinel
events to the Joint Commission, and where the Joint Commission becomes
aware of a sentinel event--either self-reported (80 percent) or through
other sources such as the media (20 percent)--the organization is
required to perform and make available to the Joint Commission an in-
depth analysis of the underlying causes and an appropriate action plan.
Failure to do so places the organization at risk for loss of its
accreditation. It is the Joint Commission's experience with the
sentinel event reporting program that provides us with the unique
perspective we wish to share with you today, toward the end of
eliminating the types of tragedies that bring us here today.
The most immediate and obvious issue is that the litigious
atmosphere in which health care is provided in this country constrains
the willingness of accredited organizations to self-report sentinel
events and, in a very real sense, to run the risk of self-indictment
through sharing their sentinel event analysis with a private sector
accrediting body. With these concerns in mind, the Joint Commission
sought federal legislation last year to protect these analyses. We were
particularly pleased to have our legislative initiative supported by
the Leadership of the House of Representives and subsequently passed by
the House in last year's Patient Protection Act.
But even stronger medicine is needed to bring these tragic
occurrences to the surface and deal with them. Our understanding of the
complexities and sensitivities attending effective reporting programs
leads us to be very supportive of the mandatory reporting provisions
for restraint-related deaths contained in Senators Lieberman and Dodd's
Freedom from Restrain Act of 1999 (S.736) which incorporates and
expands upon the important strategic concepts in the Patient Protection
Act respecting sentinel event reporting. We believe S. 736 would
provide the groundwork for a public/private sector partnership that
could strengthen the value of voluntary accreditation in promoting
patient safety and extend the most successful aspects of the sentinel
event program to non-accredited health care organizations participating
in Medicare and Medicaid.
reporting
Reporting unexpected deaths and injuries is the first step in the
process of reducing the incidence of sentinel events. Obviously, no
entity charged with oversight responsibilities can act without
information. Reporting should be the responsibility of the
organizations experiencing the sentinel events, and reporting should be
encouraged and rewarded. Creating inventories of serious medical events
should not fall by default to investigative reporters. The Hartford
Courant series shocked us all by describing the magnitude of restraint-
related death over a decade long period. These deaths occurred in a
multitude of facilities being overseen by a number of different
bodies--the states, through Medicaid or licensure programs; HCFA for
all Medicare facilities; local government programs; the Joint
Commission, and others. Yet none of us had an accurate compilation of
all the restraint-related deaths that occurred under our respective
auspices.
Seventeen states have instituted mandatory reporting programs for
serious events, but even health officials in Massachusetts--one of the
states with the strongest reporting laws in this country--have
acknowledged that they rely on the press for most of their information.
This is an unacceptable way to get information about the least
tolerable outcomes in our health care system. As noted, the Joint
Commission's sentinel event reporting system is voluntary rather than
mandatory, and restraint-related deaths are the fifth most commonly
reported type of sentinel event. With over 400 sentinel event cases now
in our database, we are proud of the willingness of so many health care
organizations to report and act upon their serious events. Yet
regrettably, even our program did not have a record of all of the
deaths detailed in the Hartford Courant series that occurred in
accredited organizations since 1995.
If we cannot fully rely upon the completeness of reporting systems
where they do exist, how do we improve upon the reporting and
resolution of these tragic events which have now become a significant
public policy concern in health care? The Joint Commission's Board of
Commissioners has taken the position that the most effective way to
address this need is to mandate the reporting of restraints-related
deaths as part of an oversight framework that also facilitates--through
protection from disclosure--the collection and review of ``root cause''
analysis information, from the responsible health care provider
organizations, by accountable oversight bodies. These conditions are a
sine que non for gaining a true understanding of underlying causes and
developing appropriate preventive measures for the future.
root cause analysis information
Requiring the conduct of substantive, in-depth analyses for each
sentinel event--root cause analyses--is the next critical step to
reduce the incidence of restraint-related deaths. This step introduces
the critical goal of risk reduction--that is, reducing the likelihood
that a similar death will occur for similar reasons in the same
institution. Without this key step, reporting becomes the end game, and
there is little evidence that mandatory or voluntary reporting of
health care sentinel events, by itself, has led to improved patient
safety or quality of care. The opportunity for improvements can only be
created by a thorough, careful analysis of what went wrong. As noted,
Joint Commission accredited organizations are required to perform a
root cause analysis after the occurrence of each sentinel event.
``Root cause analysis'' is a concept borrowed from the field of
engineering. It involves a systematic evaluation of what processes
failed and led to an unexpected outcome. In a given case, a root cause
analysis would elucidate all factors contributing to a restraint-
related death. It helps identify any system changes--such as review of
staff competencies or training--that must take place to remedy any
system failures that led to one of these tragedies. Coupling mandatory
reporting with a requirement to learn and act would create powerful
leverage toward reducing or eliminating restraints-related deaths. And
for the vast majority of health care organizations which want to do the
right thing, this approach would provide tangible guidance toward
making changes in their organizational processes to prevent future
occurrences of restraint-related deaths.
Therefore, we support federal legislation that will recognize root
cause analyses as an essential risk reduction activity which must be
sufficiently protected from public disclosure to permit a completely
honest, `no-hold-barred' approach to internal, self-evaluation. These
analyses, once put on paper, become highly sensitive documents, and
their creation and sharing with monitoring agencies will be resisted
unless they are afforded a peer review-like protection, similar to what
states now have in place for hospital internal quality review. We
cannot emphasize strongly enough that any federal legislation aimed at
increasing reporting of restraint incidents must include provisions to
protect these specific documents. Otherwise, root cause analyses will
not be adequately done--or done at all--and we will not make the
essential progress toward preventing human tragedies.
performance measurement
Restraints oversight also lends itself to preventive monitoring as
a part of the emerging new quality measurement initiatives. The Joint
Commission has also been a leader in this area, and is proud of its
ORYX initiative that requires accredited organizations to submit
quarterly performance data as part of a new continuous monitoring and
evaluation process. We believe that ORYX holds significant promise for
assisting organizations in monitoring and if appropriate altering their
restraint use. There are currently 26 performance measures related to
the use of restraints or seclusion that are now available for use by
hospitals under ORYX. Six of these measures have been selected for
quarterly reporting to the Joint Commission by individual accredited
hospitals. They range in nature from measuring the prevalence of daily
restraint use to reporting the actual percentage of restraint hours.
Accredited nursing homes are also using some of the ORYX restraint-
related measures for long term care. We have already received some
feedback from accredited organizations that the use of ORYX measures
has helped them improve their restraint use.
public accountability
Public accountability through public reporting of restraint-related
deaths provides a final strong lever to the reduction of future
occurrences. The occurrence of a restraint-related death should not be
kept either from the public or from those with quality oversight
responsibility. These occurrences--in the most vulnerable of
individuals--require immediate attention and, almost always
intervention. Organizations can underscore their own commitment to
change by publicizing the interventions taken following a restraint-
related death.
The public should also expect that the oversight bodies responsible
for monitoring restraint-related deaths will, through their own
mechanisms, use their measurement information to identify and disclose
``poor performers'' to the public. Bad things happen, even in health
care organizations otherwise providing good health care. However, a
pattern of poor performance or a documented resistance to resolving
quality or safety problems that place patients at risk for further
serious occurrences should not be kept from the public. The Joint
Commission has taken an aggressive approach to public disclosure for
some time, and makes performance reports on individual accredited
organizations available to the public at no charge.
best practices
There is another type of information-sharing that must be an
essential part of any strategy to eliminate restraint-related events.
When root cause analysis information is shared with oversight bodies, a
powerful source of information on appropriate, and even best, practices
is continually being created and expanded. The Joint Commission is
already credited with saved lives by alerting health care organizations
about dangerous practices that have come to light under our sentinel
event program, and suggesting ways to prevent future sentinel events. A
case in point is our experience in guiding hospitals in the appropriate
storage of potassium chloride. After identifying a pattern of deaths
across the country resulting from the inadvertent administration of
concentrated potassium chloride as a result of packaging and labeling
confusion, we alerted all accredited facilities to limit access to this
potentially lethal solution. We also have issued a sentinel event alert
on the issue of restraints, advising providers about effective
alternatives to the use of physical restraints and the importance of
seeking less restrictive measures to achieve treatment and safety
goals.
joint commission commitment
This testimony began with a statement about the Joint Commission's
commitment to reducing the number of restraint-related deaths in this
country. That commitment is backed by a long-standing and continuing
role in setting standards for patient rights and for the use and
monitoring of restraints, and more recently, by the Joint Commission's
leadership role in facilitating the identification of sentinel events,
working with organizations to reduce the risk of future occurrences,
and sharing ``lessons learned'' with all accredited organizations. But
the Joint Commission does not intend to end its commitment there.
Early this year, our Board of Commissioners appointed a new high-
level Restraint Use Task Force which will conduct a thorough re-
evaluation of the Joint Commission's current restraints standards, on-
site evaluation process, and other means for accessing information
about restraints use. That Task Force is expected to make its final
recommendations to the Board of Commissioners by the end of this year.
The Task Force launched its efforts last month by initiating a
series of public hearings across the country. These hearings are
designed to elicit input, both oral and written, from the public and
other interested parties on their perspectives on the current oversight
process and what can be done to make it more searching and meaningful.
We are also seeking the input from the health professional communities,
both separately and at these hearings, because we believe that more
than just the accreditation process must change--there must be a
significant change in what is considered acceptable practices and
behavior by the entire community involved in providing psychiatric and
psychological care. The first two hearings--in San Francisco and
Atlanta--were extremely well attended and rich in the input provided.
Interest in the third hearing, which is taking place in Alexandria
today, is so great that we have had to divide it into two separate
sessions. We should take great heart in the evident broad commitment of
all of the parties at interest to close down one of the most sordid
chapters on health care in this century.
conclusion
The reduction of restraint-related deaths and other sentinel events
is one of the most important issues facing us today. Again, we applaud
the Subcommittee's leadership on the issue. We support and welcome the
opportunity to bring together the strength of public and private
sectors to address these issues, and we look forward to working with
you.
STATEMENT OF THOMAS HARMON, EXECUTIVE SECRETARY,
MEDICAL REVIEW BOARD, NEW YORK STATE
COMMISSION ON QUALITY CARE
Senator Specter. We turn now to Mr. Thomas Harmon,
Executive Director of the Medical Review Board of the New York
State Commission on Quality Care.
Thank you very much for joining us, Mr. Harmon. We note
your 20 years' work on supervising investigations of over 4,000
cases of abuse and deaths in mental health facilities. The
floor is yours.
Mr. Harmon. Chairman Specter, Senator Harkin and others,
thank you for this opportunity to speak on the matter of
independent investigations into deaths in mental hygiene
facilities, particularly deaths in which restraint or seclusion
was a factor.
As noted, I work for the New York State Commission on
Quality of Care, which is New York State's protection and
advocacy agency. The commission has often been cited as a model
for independent investigations. Most recently, the Hartford
Courant series on deadly restraint lauded New York State as
being one of the few states requiring the reporting of all
mental hygiene consumer deaths to an independent body for
review and investigation.
I want to share with you my perspectives on what makes New
York State unique and the value of the independent death
investigations we conduct. The commission was created in 1977
by state law in New York to oversee programs serving the
mentally disabled. Among other things, the law in New York
required that all deaths and allegations of abuse be reported
to our commission so that we can review and conduct
investigations where necessary.
It was subsequent to that that we became New York State's
federally designated protection and advocacy agency. However,
in certain respects, New York State law confers upon the
commission greater authority than most P&As are afforded under
the federal laws.
For example, whereas New York State law requires that all
deaths and allegations of abuse be reported to the commission,
and we can then commence an investigation, most other P&A
agencies do to receive that notification and can only commence
an investigation when they receive a complaint or they have
suspicion of abuse.
Let me cite two values of independent death investigations.
The first is impartiality. All facilities, either by law,
regulation or the mandates of their accrediting bodies, are
required to conduct internal investigations of untoward events
for the purpose of protecting their patients and consumers from
future harm. And a lot of facilities endeavor to do that.
However, there are a number of factors which erode
facilities' ability to do that faithfully, or erode the
public's confidence in their ability to do it. Facilities in
their investigative zeal may be quick to find and remedy the
obvious smoking gun, like an employee error, for example, but
not take the time to look at the underlying issues which set
the employee up for that error. In facilities where serious
events happen, very infrequently the facility may lack the
requisite skills to investigate the matter as much as they
desperately want to get to the bottom of what went on.
And sometimes it may be perceived that the facility's
investigation is self-serving, and confidence in its results is
reduced. The primary value brought by independent
investigations is their impartiality. We have no self-interest
to serve.
And as often as the commission has found problems in cases
we have investigated and deaths that we have investigated, we
found an equal number of cases, if not greater, where a death,
as unexpected as it was, did not suggest problems in care. And
we were able at that point in time to give the family and the
facility alike some peace of mind in an otherwise discomforting
time.
Finally, let me just say another value. And that is,
independent investigations can go and bring lessons to beyond
the walls of the facility where you are investigating. I have
in my written testimony an example of where we investigated a
death on Long Island, where towels were used to protect staff
from biting and spitting. And the facility terminated that
practice after we brought the hazards of that practice to its
attention.
But when we learned that it was happening at other
facilities in the state, we brought it to our state office of
mental health, which in February issued an alert to all
hospitals across the state to terminate the practice.
In closing, I wanted to bring to you the commission's
experience in conducting death investigations with the hope
that it can be a model for other states, as you deal with this
problem of restraint and seclusion deaths.
Thank you.
Senator Specter. Thank you very much, Mr. Harmon.
[The statement follows:]
Prepared Statement of Thomas Harmon
Chairman Specter, Senator Harkin and other Senators, thank you for
this opportunity to provide testimony on the matter of independent
investigations into deaths of individuals who are residents or patients
of mental hygiene facilities, particularly deaths in which restraint or
seclusion was a factor.
My name is Tom Harmon and I work for the New York State Commission
on Quality of Care, New York State's designated agency within the
federal Protection and Advocacy system. For over 20 years, the
Commission on Quality of Care has conducted investigations into deaths,
and other matters, within mental hygiene facilities. The Commission has
often been cited as a model for independent investigations and most
recently, in the Hartford Courant's October 1998 series Deadly
Restraint, New York State was lauded as one of the few states requiring
the reporting of all mental hygiene consumers' deaths to an independent
agency for review and investigation. Having spent the majority of my
twenty years with the Commission coordinating its death investigation
activities, I want to share with you my perspectives on what makes New
York State unique, the value of independent death investigations, and
some of the key ingredients for a successful death investigation
process. To supplement my testimony, I am also submitting written
materials which amplify or further illustrate points I raise including
the Commission's enabling legislation (Article 45 Mental Hygiene Law)
and several reports published by the Commission which I believe you
will find helpful.
new york's unique situation
Among the nation's P&A's, New York State's is unique. In the mid-
1970's, New York State recognized the need for independent oversight of
facilities serving its most vulnerable citizens--individuals with
mental disabilities. And, with the enactment of Chapter 655 of the Laws
of 1977, the Commission on Quality of Care was created. Among other
things, the law required that all deaths and allegations of abuse
occurring in mental hygiene facilities be reported to the Commission
for its independent review and investigation. In subsequent years, the
Commission was designated as New York State's P&A agency; however, in
certain respects, New York State law confers upon the Commission
greater authority than most P&A agencies are afforded under federal
law.
For example, whereas NYS law requires that all deaths be reported
to the Commission in a manner and form prescribed by the Commission and
allows the Commission to commence an investigation where deemed
indicated, other P&A's do not receive such notification and can only
commence an investigation when they receive a complaint or have
reasonable cause to suspect abuse.
the value of independent death investigations
Time constraints prohibit me from extolling all the values of
independent death investigations. But allow me to propose two chief
ones. The first, in my opinion, is impartiality. All facilities, by
mandates of law, regulation or accrediting bodies, are expected to
engage in a process of risk management, critical self- examination or
quality assurance, around untoward events in order to protect the
individuals they serve from future harm. A great many facilities
endeavor to fulfill this obligation faithfully. However, there are a
number of factors which may erode even the best facilities' abilities
to exercise this duty or may erode the public's confidence that it has
been fulfilled, particularly with regard to the most serious of
untoward events: an unexpected, sudden death or deaths related to
restraint. Facilities in their investigatory zeal may be quick to find
and remedy the obvious smoking gun, an employee who erred, for example,
without taking the time to examine underlying systemic issues such as
staff training, supervisory policies, and staffing allocations. In
facilities where serious events happen infrequently, the facility may
lack the requisite skills to conduct an effective investigation, no
matter how desperately it wants to.
The primary value brought by independent investigations into the
most serious of untoward events is their impartiality; independent
investigators have no self-interest to serve by their investigations.
As often as the Commission has found that certain deaths suggested
problems in care, we have found, in an equal or greater number of
cases, that the death, perhaps as unexpected as it was, did not suggest
problems; the Commission's impartial investigations found care was
appropriate, thereby offering families and facilities alike some peace
of mind in an otherwise discomforting time.
A second value of independent investigations, particularly those
done by a single agency, is the opportunity for systemic reform or
system-wide protection and prevention. During a recent investigation
into a death on Long Island, the Commission found that facility staff
would routinely hold a towel snugly over the mouths of patients they
restrained. When advised by the Commission of the inherently dangerous
nature of this intervention, the facility terminated the practice.
However, the Commission learned that this practice was employed at
other hospitals and brought the matter to the attention of our State
Office of Mental Health which recently issued a statewide alert banning
the technique. Additionally, the Commission put OMH in contact with the
New York State Office of Mental Retardation and Developmental
Disabilities to further explore a safer device employed by an OMRDD
facility for preventing spitting or biting hazards during restraints.
The above example illustrates the value brought by an independent
investigating body working collaboratively with regulatory agencies to
bring about systemic reform, each propelling the other into finer and
finer consumer service and protection practices. Other examples of
these collaborative efforts include:
--In the early-1990's, our Office of Mental Health conducted an
extensive review of restraint and seclusion practices in New
York State and issued new policies on this subject, resulting
in a reduction of the utilization of these interventions;
--Our Office of Mental Retardation and Developmental Disabilities has
developed a rigorous protocol for approving and routinely
monitoring the use of certain restrictive interventions; and
--Both regulatory agencies have developed training programs on the
use of restraint, seclusion and physical interventions which
emphasize alternatives to such interventions and tools to de-
escalate situations to thereby reduce the need for their use.
While not all cases may suggest the need for system-wide reforms,
many cases present opportunities to revisit staff training programs or
reexamine and refine policies or procedures at individual facilities
across the state. In this vein, the Commission has had much success
with a series of case studies it produces for all facilities in New
York State entitled, Could This Happen In Your Program? The series
presents actual cases investigated by the Commission and invites
readers to reflect on their own agencies' operations and whether
lessons learned elsewhere have applicability in their programs. These
training materials provide managers and direct care staff an
opportunity to examine their own operations to prevent similar
tragedies from occurring in their facility.
key ingredients
Realizing the benefits of independent investigations requires that
the investigating body has all the needed tools. I'd like to briefly
list some of the tools which have enabled the Commission to establish a
noteworthy investigation process in New York State.
Understanding why a person died and whether the death suggests ways
in which care can be improved is like putting together a puzzle. First,
you need to have all the pieces; including not just information from
the mental hygiene facility, but records and other information from,
among others, coroners, medical examiners, general hospitals where the
individual may have died or been treated, law enforcement personnel and
Emergency Medical Services crews. Accessing this information in a
timely fashion is important and, in New York State, the Commission's
right of access is spelled out in State statute.
Once all the pieces have been amassed, one also needs individuals
sufficiently expert in putting the pieces together and interpreting the
picture which emerges. The Commission has nurses on staff who review
the medical cases we investigate. But sometimes situations arise which
require more detailed clinical analysis. The legislation establishing
the Commission also provided for a Medical Review Board consisting of
volunteer physicians, appointed by the Governor, to assist the
Commission on a volunteer basis on matters it investigates. The
physicians have specialties in Forensic Pathology, Psychiatry, Surgery,
Internal Medicine, and Pharmacology. Over the years their expertise has
been of great value to the Commission, and the people we serve, in
helping to assemble the pieces of the puzzles we are called on to solve
and offer meaningful recommendations to protect the living.
In closing, I believe the Commission's independent investigations
into unusual deaths and incidents of abuse, in collaboration with the
efforts of our State's Office of Mental Health and Office of Mental
Retardation and Developmental Disabilities, have led to important
improvements in the quality of care afforded individuals with
disabilities and could serve as a model for other states in their
efforts to protect and best serve their most vulnerable citizens.
Once again, I wish to thank you for the opportunity to testify
before you today.
[Clerk's note.--The written materials referred to in Mr.
Harmon's statement do not appear in the hearing record but are
available for review in the subcommittee files.]
Senator Specter. Mr. Rogers, would you bring those devices
up so Senator Harkin and I can take a closer look at them?
Mr. Rogers. It is a straightjacket.
Senator Specter. Straightjacket? Bring that up. Let us take
a look at that.
Senator Harkin. I have never seen a straightjacket in my
life.
Senator Specter. Senator Harkin says he has never seen a
straightjacket. How do you put this on?
Mr. Rogers. Well, you put it on so usually your arms go
back in the back. This one----
Senator Specter. The arms in the back?
Mr. Rogers. Yes; I have not practiced this one. This one,
your arms would just be inside, and the whole thing would be
strapped around you so you could not make any moves at all.
Senator Harkin. Oh, I see.
Senator Specter. Let us see how the others work. These are
for hands and----
Mr. Rogers. Right. These would restrain you by strapping
your arms down to a gurney or to a chair, wherever they want.
Senator Specter. Come around here and show us how this
would be applied.
Mr. Rogers. All the way over there?
Senator Specter. Right here is fine.
Mr. Rogers. Well, you take the individual, and you strap
them, you work the strap through.
Senator Harkin. What is all this stuff over here?
Mr. Rogers. This is an interesting thing. This is a net
they use.
Senator Specter. Before you do that, show us how these
work.
Mr. Rogers. And then you pull them down, and they strap to
a chair or to a bench or whatever. Unfortunately, sometimes
they strap you to a gurney, and that is actually a very
dangerous practice. Because if the person gets violent, throws
themselves around, the gurney can flip over. And if they are
not being observed, the gurney lands on top of them, they can
literally break their neck.
Mr. Rogers. This they use by really throwing it over a
person. And they can strap them down.
Mr. Harkin. You have got to be kidding me.
Mr. Rogers. This is used to, again, put the arms through.
And then you can--this can hold the person totally down on
whatever you set them down on, a gurney or onto a bed. And the
idea is to hold them. Unfortunately, what happens in a lot of
cases is the person is really upset and disturbed, obviously.
You put them in the restraints. They are sometimes put in way
too tight. Their ability to breath, their ability to aspirate,
is affected. And that is what causes a lot of the deaths.
Senator Specter. OK. Thank you very much, Mr. Rogers.
Senator Harkin. It is like some kind of a torture movie,
you know, like movies you see in wartime when they torture
people. That is what it looks like.
Mr. Rogers. Well, when the movies want to make a dramatic
situation, they use these restraints. And it is pretty dramatic
what it does to a person.
In my case, I came into the hospital for help, was not
really that agitated. For some reason, the staff decided that I
needed to be restrained. I can tell you, it took me a long time
to go back to the hospital for help after having had that done.
Senator Harkin. I can believe that.
Mr. Rogers. Thank you, Senator.
Senator Harkin. Well, thank you very much.
Senator Specter. Dr. O'Leary.
Dr. O'Leary. Yes, sir.
Senator Specter. Beginning the questioning--and Senator
Harkin and I will each take five-minute rounds and go to
10:30--is it realistic to have a requirement that there not be
any restraint except on a doctor's order? That is one of the
suggestions made in the legislation which is pending. And that
seems like a very good way to limit these kinds of restraints
which are so brutal to issues of absolute necessity. There is
an exception in emergency situations where then a doctor would
be called in with as prompt as possible review of it. But is it
realistic to impose that kind of requirement on the use of
these restraints?
Dr. O'Leary. I think that it is a realistic requirement
and, more than that, a necessary requirement.
Senator Specter. So you would endorse that.
Dr. O'Leary. Yes; I really would. And I think the issue
that actually is being begged is whether restraints should be
used in any situations other than in an emergency situation. I
think that is one of the issues that we all need to be looking
at very seriously.
Senator Specter. Well, that would be quite a remedy, to
require a doctor to authorize it. And maybe there could even be
some provision on an emergency basis to require a doctor to
review it, if that could be set up. We would have to examine
that.
Mr. Harmon, you have in your resume stated that you have
dealt with some 4,000 cases of abuse and deaths. How many of
those are deaths?
Mr. Harmon. Oh, in the past 10 years, working for a medical
review board, I probably have looked at 2,000 to 3,000 deaths
in New York State.
Senator Specter. I join my colleagues in the compliment for
the Hartford Courant. It is a phenomenal series. And it is in
the great tradition of American investigative journalism to
make a disclosure of this sort, which focuses congressional
attention. Once we are acquainted with the problem, then we can
move ahead to try to fashion an answer to it.
The estimates are about 150 deaths a year. But given the
statistics of what you have worked on in New York State alone,
it seems to me that that kind of an estimate is very, very
understated.
Would you have--I see nods from Dr. Allen and Dr. Mohr.
Would you have an estimate as to the number of deaths which
result from excessive restraints in this country on an annual
basis?
Mr. Harmon. Not nationally. I can say in New York State
last year, in 1998, we received at our commission approximately
170 allegations of abuse or neglect involving restraints. And--
--
Senator Specter. Did those result in deaths?
Mr. Harmon. In four cases, there were deaths. So we had
four deaths in 1998. In two of those cases, I think, I know,
that upon investigation, we could find no problems in care. In
the other two cases, there were problems.
Senator Specter. And the speculation is there would be a
great many more unreported.
Mr. Harmon. No. I do not believe in New York State----
Senator Specter. You think they do report them there.
Mr. Harmon. By law, they have to. And we also require them
to fill out forms that indicate whether or not restraint was
used within a 24-hour period of----
Senator Specter. Well, I suspect that notwithstanding tight
reporting requirements, that a lot are unreported. People have
a tendency not to report when the information might lead to
liability on their part. I do not want to impugn your report as
in New York State, but my experience would suggest that.
Dr. Allen, listening to the case of your son, absolutely
horrible, and we all sympathize with you. Having had 16-year-
old sons myself, I can understand and appreciate your anguish.
As you have related the circumstance, there was more than
carelessness.
There was a degree of recklessness, which really crosses
the homicide line. What you have stated goes to involuntary
manslaughter. And perhaps recklessness in the extreme can
constitute malice for murder in the second degree.
You may not want to answer this question now, but I would
like you to give some consideration, and the other panelists as
well, as to whether legislation ought to have criminal
sanctions attached to it, as well as licensing and reporting. I
see a lot of nods in the audience. If you get a little tougher,
you may find a little more deterrence. But the case you
describe really shrieks out for a degree of recklessness, which
is homicide.
What do you think, Dr. Allen?
Dr. Allen. Certainly I think there has to be a degree of
accountability. And we can have national standards, and we can
have better training. But I agree with you, sir, that perhaps
there needs to be a deterrent.
Senator Specter. Dr. Mohr, one final question. My red light
is on. I am very much impressed with your comment that it is a
psychiatric convention contrasted with a psychiatric necessity.
On a broader educational picture, how do we tell the people of
America, who are in this field, the workers, those who are
there, what the appropriate standards are beyond doing what is
conventional and so damaging? What can be done to educate us to
what really is medically necessary?
Dr. Mohr. I think there is two parts to your question.
Number one, we do not really have a good research foundation.
So we have no good programs to teach people. We have promising
practices. And what I would recommend is to teach people what
our promising promises are, people in the profession and in our
schools, what our promising practices are, and then to continue
to do research to see whether we can just simply do better.
Senator Specter. Thank you very much, Dr. Mohr.
Senator Harkin.
Senator Harkin. Again, I want to thank all of you for being
here and for your excellent testimony. I especially want to
commend for the record, Mr. Rogers, your quotes from, if I can
find it here, your home state, Mr. Chairman, a Mr. Curie.
Mr. Rogers. Yes; from Pennsylvania, Deputy Secretary Curie.
Senator Harkin. I do not know his position. What is his
position?
Mr. Rogers. He is the Deputy Secretary for Mental Health in
the Department of Public Welfare.
Senator Harkin. You said that Pennsylvania's experience
proves that the use of seclusion and restraint can be
eliminated or greatly reduced when there is a treatment
environment that focuses on the strengths of the individuals
being served, that protect patients' dignity, comfort and
privacy, et cetera. You said the options available today make
the elimination of seclusion and restraint an extremely
realistic goal.
Anyway, I----
Mr. Rogers. Yes; Secretary Curie, who is the Deputy
Secretary, Department of Public Welfare, has made it almost a
personal campaign of his to really review what the state is
doing when it uses restraints in their state hospitals. And in
one case, in Haverford State Hospital, which is just outside of
Philadelphia, they eliminated, six months prior to the closing
of the hospital, they eliminated all use of restraints.
It is really possible, if you really look at how people are
using it, what the practices are, why they are using it, and to
put some real standards in and to have leadership, you know,
being held accountable to move to the point where you have tons
of incidences of restraints to nearly zero incidents.
Senator Harkin. Dr. Allen, again, you talked about the
importance of staff training, certification, that type of
thing. And it has pointed out that only three states have
licensing and training standards. Just a little bit more
elaboration for me. What do you think ought to be included in
something like that? And could we address that at the national
level?
Dr. Allen. Truly, I do not know if training can be
addressed at the national level. I think that needs to be
addressed at the individual state levels. But I think we need
to look at the need for restraints, or the use of restraint, as
being viewed as a system failure and not a patient failure. And
staffers have to be trained, and they have to understand. I
mean, I think they have to be trained on deescalation
techniques other than manhandling and wrestling a child or an
individual down to the floor.
But I think staff also must understand not just what to do,
but why they are doing it and how that can be effective. And I
think that staffers have to be taught that. And they must see
their job as facilitating the patients regaining their own
self-control while maintaining a sense of dignity, and not
punishing them for being out of control.
Senator Harkin. Right. That is what Mr. Curie was saying.
He is talking about deescalation techniques and that type of
thing, which I am not all that familiar with.
Mr. Rogers. What we find is that if you have an institution
where treatment is the primary thing, not just custodial care,
where people are really evaluating what the individual needs,
you do not end up using restraints. Restraint happens because,
in a lot of situations, all they are doing is providing sort of
a custodial care. It is like a jail.
So people get into trouble. Staff gets into trouble. And
people get hurt. And what we need to do is create a different
standard and a different method of treatment for people.
And restraints, if we eliminate restraints or eliminate
that option, it actually has the impact of people having to
find other options to deal with people. Deescalation is a
technique of, when I am confronting somebody and they are
coming back at me, if I come back at them harder, then we get
into a fight. If I find ways to step back, talk slower,
quieter, I can usually bring the situation down.
Senator Harkin. I just have to believe, just looking at
these macabre devices that you showed us here, that just coming
at someone with something like that is enough to instill fright
and apprehension and can lead to all kinds of reactions in an
individual. I mean, how would you feel, how would anyone in
this audience feel, if someone came at you with one of those
and was going to put you in one of those? I mean, man, you have
to have some kind of drastic emotional reaction to that.
Mr. Rogers. Especially since a lot of people that are
psychiatric patients have histories of abuse in their
childhood.
Senator Harkin. Sure.
Mr. Rogers. And what happens is that just triggers in
them--you are talking about people that are veterans, that have
faced abusive situations and have trauma, post-traumatic
syndrome. They are going to react. You come at them like that,
they are going to fight back. And unfortunately, people get
hurt.
Senator Harkin. One thing I would like to clear up, though,
I think, Dr. Mohr, you kind of touched on that, is that there
is a general perception that restraints and these kinds of
devices are used only for people with mental disabilities. But
you have pointed out that they are used often with people with
other types of disabilities. Would you elaborate on that a
little bit, please?
Dr. Mohr. What I can elaborate on is to reiterate what I
have said, that restraints are a convention. They are a
psychiatric convention, and they are a way of maintaining
patient and milieu control. They are not by any stretch of the
imagination in my mind therapeutic. They are used in
psychiatric facilities, and they are used with the
developmentally disabled and frequently used inappropriately.
Senator Harkin. I see my time is up. Just one last thing.
We are looking at what we can do here legislatively. And, Dr.
O'Leary, what will the Joint Committee on Accreditation of
Hospitals--now you are going to start looking at this and what
you could start doing, right?
Dr. O'Leary. Yes; now we think there are real opportunities
for improvement here. I think the Pennsylvania model is an
excellent example of the things that can be done to really
reduce restraint use. Pennsylvania has actually been using the
Joint Commission standards and some of the new measurement
techniques to focus attention on restraint use.
So we are going to do, I think, some major things to
improve the oversight process.
Senator Harkin. Would you keep us advised of that?
Dr. O'Leary. We certainly will do that.
Senator Harkin. Thank you.
Senator Specter. Thank you very much, Senator Harkin.
Thank you very much, all. Again, I commend the Courant for
the investigative reporting which has focused on the issue.
And we are going to be taking a very close look at the
requirement that a doctor would have to authorize the
restraints and some checks and balances as to the types of
restraints and the duration, and perhaps even a closer look at
whether there ought to be some criminal sanctions applied in
the egregious cases which really move from negligence to
recklessness, which could be a manslaughter charge or even
more. But I think this has been a very informative session.
And I thank my colleague, Senator Harkin, for his work and
Senators Dodd and Lieberman for their leadership on this
important field.
CONCLUSION OF HEARING
Senator Specter. Thank you all very much for being here,
that concludes our hearing. The subcommittee will stand in
recess subject to the call of the Chair.
[Whereupon, at 10:35 a.m., Tuesday, April 13, the hearing
was concluded, and the subcommittee was recessed, to reconvene
subject to the call of the Chair.]
MATERIAL SUBMITTED SUBSEQUENT TO CONCLUSION OF HEARING
[Clerk's note.--The following material was not presented at
the hearing, but was submitted to the subcommittee for
inclusion in the record subsequent to the hearing:]
NONDEPARTMENTAL WITNESSES
Prepared Statement of the American Psychiatric Association
This statement is submitted for the record by the American
Psychiatric Association. The APA is the national medical specialty
association representing more than 41,000 psychiatric physicians
nationwide. Our members work and practice in all settings, including
public and private hospitals, private practice, group practice,
research programs, and academia.
First and foremost, APA commends the Subcommittee for holding this
hearing on the use of seclusion and restraint. We deeply regret,
however, that we were in effect ``uninvited'' from public testimony and
were thus not allowed to testify in person. While we understand the
severe time constraints that limited the hearing time to one hour, we
must note that the public hearing on this volatile, complex, and highly
emotional issue was clearly unbalanced, particularly given the fact
that not a single psychiatrist--the physicians on the front line of
treatment--was allowed to testify.
It is absolutely vital that public hearings provide an opportunity
for clinicians, Members of Congress, patient advocates, and patients/
consumers to sit down together and discuss vital patient care issues.
It is our hope that a dispassionate examination of restraint (and of
seclusion), including deaths and serious injury caused by restraint (or
seclusion), will further APA's overarching objective of ensuring the
provision of all medically necessary treatment of psychiatric patients
in an environment that is safe and humane for patients and for staff.
congress should fix the problem with restraint use when it understands
the cause
The spate of recent news stories (e.g., Hartford Courant, Fox
Files) has focused public attention on the care of psychiatric patients
in the inpatient or residential setting. As a matter of general
principle, APA, of course, believes that seclusion or restraint should
not cause patient deaths.
The stories in the press are lamentable, and we reiterate that
seclusion or restraint should not cause deaths. Efforts to increase the
safety of seclusion and restraint and to decrease deaths caused by
these interventions must be based on a clear understanding of the
causes of deaths and serious injury. Precipitous action (for example,
regulatory changes) prior to a full examination of the factors leading
to safety problems may have unintended negative consequences without
any improvement in safety.
For example, it is not clear at this time:
--How many psychiatric patients were in inpatient or residential
treatment settings?
--How many of those patients were secluded or restrained?
--For how long were patients secluded or restrained? Were the
facilities JCAHO accredited? State licensed?
--What post-event root cause analyses took place?
--What were the results of those analyses?
--What is the incidence of patient-to-patient assaults during this
period? Patient-to-staff assaults?
These are but a few of the questions that we believe must be
answered in order to determine what shortcomings now exist in the
federal regulatory and JCAHO processes as well as in current clinical
standards of care.
problems with restraint and seclusion must be seen in the context of
the patient population and the facilities in which they are treated
It is vital to note that the incidence of use of seclusion and
restraint, and particularly deaths or serious injuries caused by such
use, cannot be viewed in the abstract but must be seen in the clinical
context in which treatment occurs.
Psychiatric facilities today face unprecedented challenges. Whether
by managed care or by more traditional health insurance, there is great
pressure not to admit patients to the more expensive inpatient setting
unless there is simply no alternative. That means that the patients we
see in these settings are more seriously ill than ever before. Many--
perhaps most--are in the acute stages of their illness, and their
underlying illnesses are more likely to be severe.
At the same time, psychiatric facilities and the physicians and
other health professionals who work in them are under greater budgetary
pressure than ever. For example, the Balanced Budget Act of 1997
reduced payments to so-called ``TEFRA'' hospitals (i.e., those
hospitals--including psychiatric hospitals--that are exempt from the
Prospective Payment System) by $5 billion.
So disadvantageous was this reduction that representatives of the
psychiatric hospital industry have decided to pursue PPS coverage.
Likewise, payments to psychiatrists and other health staff are
constantly being squeezed by insurers, whether Medicare or private.
Bluntly, psychiatrists and other health professionals and the
facilities in which we work are being asked to do more than ever for
patients who are more acutely ill than ever before with less resources.
It is particularly disturbing to APA that discussion of resource
commitment has, thus far, been entirely absent from the public
discourse.
there is more agreement than disagreement between psychiatrists and
patient advocates on the appropriate use of seclusion and restraint
APA has a long-standing record of involvement with the development
of general guidelines and principles for the use of seclusion and
restraint. For example, the Report of the Task Force on Seclusion and
Restraint (1984, amended 1992) provides a very thorough overview of the
practices in seclusion and restraint as they are used in the treatment
and management of violent and disruptive behaviors in the treatment
setting. The report also reviewed alternatives to the use of physical
controls, and it includes a very helpful discussion of indications,
contraindications, and emergency use of seclusion and restraint. We are
attaching a copy of the Task Force Report as a submission for the
record.
In response to APA's concern about the patient care implications of
the Courant series, APA Medical Director Steven M. Mirin, M.D. directed
that APA convene a panel of experts first to develop a statement of
general principles on seclusion and restraint and, second, to develop
clinical best practices standards.
The Joint Statement of General Principles on Seclusion and
Restraint by the American Psychiatric Association and the National
Association of Psychiatric Health Systems is also attached to this
written testimony. We must note for the record that the Joint Statement
is to be viewed at the present time as a ``work in progress,'' having
not yet been formally reviewed and approved by the governing bodies of
our two associations.
We believe a careful review of these documents shows that there is
more agreement than disagreement on general principles governing the
use of seclusion and restraint between physicians and most patient
advocates.
Here is a brief summary of the key points of our General
Principles.
--Seclusion and restraint are interventions that carry a degree of
risk. They may be used where, in the clinical judgement of
medical staff, less restrictive interventions are inadequate.
--Seclusion and restraint may be indicated (a) to prevent harm to the
patient or other persons including other patients, family
members, and staff, and (b) to ensure a safe treatment
environment.
--A physician should write seclusion and restraint orders.
--The physician should examine the patient and ensure appropriate
monitoring and care throughout the episode.
--Staff should be thoroughly trained and have demonstrated competence
in the application of safe and effective techniques for
implementing seclusion and restraint.
--Patients should be removed from seclusion or restraint when, in the
physician's judgement, the patient no longer poses a threat to
himself/herself, other patients, family members, or staff.
--Use of seclusion and restraint should be minimized to the extent
that is consistent with safe and effective psychiatric care and
the specific clinical needs of the patient. Likewise, staff
should be trained in the use of alternative interventions that
may reduce the need for seclusion and restraint. Facilities
should engage in a continuous quality improvement program that
seeks to minimize the use of seclusion and restraint consistent
with good standards of clinical practice and the needs of
individual patients.
--Death and serious injury from interventions involving seclusion and
restraint must be reviewed internally. In addition to internal
review, external review by, or subject to, an accrediting
organization may also be required, with appropriate legal and
confidentiality protections.
the current jcaho process is educative and offers a useful model for
congress
Let us now turn to a brief review of the JCAHO process. As you
know, the standards for seclusion and restraint were significantly
modified approximately 24 months ago. These modifications are
consistent with and support the key points in our statement of general
principles. Before additional changes are made, it is our judgement
that the effect of the new standards on practice should be assessed.
The sentinel event policy and procedures is discussed in detail in
the JCAHO ``Special Report on Sentinel Events'' published in the
Perspectives of November/December, 1998. Under standards set by the
JCAHO and effective in January, 1999, and laid out in the Accreditation
Manual, a ``sentinel event'' is ``an unexpected occurrence involving
death or serious physical or psychological injury, or the risk
thereof.'' Serious injury is defined to specifically include ``loss of
limb or function.'' It is useful to think of these as catastrophic
events involving death or severe permanent injury.
Sentinel events are divided into two basic categories: reviewable
and non-reviewable. Reviewable events include those that have
``resulted in death or major permanent loss of function, not related to
the natural course of the patient's illness or underlying condition,''
and a series of specifically iterated events including suicide, rape,
and surgery on the wrong patient or body part. ``Major permanent loss
of function'' is defined as ``sensory, motor, physiologic, or
intellectual impairment . . . requiring continued treatment or life-
style change.''
JCAHO-accredited facilities are encouraged to report reviewable
sentinel events voluntarily as they occur. Facilities are required to
prepare a root cause analysis and action plan and to submit both to
JCAHO. Sentinel events reported to JCAHO are included in the Joint
Commission's Sentinel Event Database. Information covered includes
sentinel event data, root cause data, and risk reduction data; non-
identifiable aggregate data are released.
The core, then, of the current JCAHO process is, in the words of
the Commission, ``to increase the general knowledge about sentinel
events, their causes, and strategies for prevention.'' As a practical
matter, this aspect of JCAHO activities is educative. That is a
critical component of efforts to minimize the general use of seclusion
and restraint and to eliminate deaths caused by seclusion and
restraint.
As you know, hospital staff will typically hold after-the-fact
debriefings when patients are restrained or secluded, and certainly
when death is caused by seclusion or restraint.
Any change in these standards must be carefully weighed against the
impact it will have on reporting of sentinel events and on its
consequences for the best possible patient care.
We acknowledge and are sensitive to these concerns, and we also
believe there may be complex issues related to liability and discovery
that the Congress and the Joint Commission must also consider if they
decide to change the standards for reporting of sentinel events
involving seclusion and restraint.
the jcaho process can be strengthened
Nevertheless, APA supports the strengthening of current sentinel
event policy to require the reporting of deaths caused by seclusion or
restraint, as well as application of the strengthened policy to serious
injuries that meet the JCAHO definitions.
We stress here that we speak strictly for psychiatry, and not for
the purposes of our Joint Statement of General Principles. It follows
that any shift in policy must also carefully consider the information
that may be required to be reported, especially in light of the need
for confidentiality of data included in the reports. Even greater care
must also be taken to preserve the confidentiality of records if
Congress considers directing the JCAHO to amend its disclosure policy
to report information to other bodies.
surveyor training and education are critical components of effective
oversight
Another area of potentially useful discussion is surveyor training.
We believe that the new survey process that requires the surveyor to
interview patients in restraint or seclusion, as well as the nursing
and other staff responsible for their day-to-day care, is a marked
improvement. This ``hands on'' surveying process gives a better picture
of actual restraint issues than interviewing senior medical staff or
simply reviewing records.
We also emphasize the critical need for the surveyors to determine
a facility's compliance with the standards requiring staff training.
The literature clearly indicates a correlation between staff training
and a reduction in the use of seclusion and restraint.
current federal legislation to restrict the use of seclusion and
restraint is fraught with problems
As you know, in addition to current JCAHO activities, legislation
has been introduced in the House and Senate to require reporting and
review of deaths and injuries of psychiatric patients.
It is not our purpose to review the bills in this testimony,
although we would be pleased to provide a detailed analysis for your
review. We note, however, that there are serious technical problems
with all of the bills, including the following:
--Inappropriate restrictions on the use of seclusion and restraint
(i.e., for the safety of patients only, not for staff or
others; no consideration of the treatment environment);
--Potentially problematic external (beyond JCAHO) data disclosure
with inadequate confidentiality protections;
--Duplicative and adversarial involvement of the protection and
advocacy systems in reviewing and investigating deaths and
serious injuries of psychiatric patients;
--Imprecise definitions; and,
--Failure to provide resources to meet the requirements established
by the bills.
As clinicians, we believe that the ultimate responsibility for the
decision to seclude or restrain the individual psychiatric patient must
rest with the treating psychiatrist. Well-intentioned law and
regulation are at best a crude instrument that cannot be a substitute
for individual clinical expertise and judgement in which the treating
physician and the rest of the staff work as a team to make informed
decisions about optimum treatment for the individual patients in their
care.
The fact remains that we are treating sicker patients in shorter
time and in more acute stages of their illness. This population is one
in which--regardless of what one may feel about restraints or
seclusion--we simply cannot allow our distaste for the intervention to
take the place of clinical judgement and the safety of patients, staff,
and others.
apa strongly supports research on the use of seclusion and restraint as
an integral part of ensuring the safe and effective use of these
interventions
We must be careful not to vest unexamined anecdotal information
about restraint elimination with the status of ``best practice'' when
we truly do not know if that is the case, or whether such practice is
applicable to all patient populations in all treatment settings. The
APA strongly supports the need for more research on these issues.
any solution to the current problems with seclusion and restraint must
include the commitment of resources for staffing and staff training
Finally, we believe that the current JCAHO emphasis on education
offers useful lessons to Congress about staffing and patient care. We
absolutely agree that staff must be trained in the appropriate and safe
use of seclusion and restraint and that competency should be regularly
demonstrated. Staffing levels are also a vital issue.
We underscore, therefore, our continuing concern about legislative
or regulatory efforts that will materially increase the costs of care
without concomitantly providing the resources to deliver such care.
This is a major failing of each of the three bills now pending in the
Congress and should be a matter of concern to the Subcommittee as it
considers changes to current standards on restraint in behavioral
health care and on sentinel event policies.
Thank you for this opportunity to submit a statement for the
record. It is our hope that the Congressional interest in this vital
patient care issue will provide for a thoughtful review of the clinical
issues associated with the use of restraint and seclusion and will lead
to changes that truly ensure the provision of all medically necessary
treatment to psychiatric patients in an environment that is safe and
humane for patients and staff. To achieve this balance it is vital that
psychiatrists be allowed to participate in these discussions.
______
Prepared Joint Statement of General Principles on Seclusion and
Restraint by the American Psychiatric Association and the National
Association of Psychiatric Health Systems
This is a statement of general principles on the use of seclusion
and restraint in psychiatric treatment facilities and in psychiatric
units of general hospitals. ``Seclusion'' is defined for this statement
as ``locked door seclusion.'' ``Restraint'' is defined for this
statement as ``physical or mechanical restraint.'' ``Serious injury''
is used as defined by JCAHO as of April 1999.
general principles
1. Our general goal is to ensure the provision of medically
necessary psychiatric treatment in an environment that is safe for
patients and staff.
2. Seclusion and restraint are interventions that carry a degree of
risk. They may be used when, in the clinical judgement of medical
staff, less restrictive interventions are inadequate or are not
appropriate, and when the risks of these interventions are outweighed
by the risks associated with all other alternatives.
3. Psychiatric treatment facilities and psychiatric units of
general hospitals should have established procedures for the use of
seclusion and restraint that conform to federal, state, or local
regulations and standards of practice.
use of seclusion and restraint
4. Seclusion and Restraint may be indicated: a. To prevent harm to
the patient or other persons, including other patients, family members
and staff, when other interventions are not effective or appropriate.
b. To ensure a safe treatment environment when other interventions are
not effective or appropriate.
5. Use of seclusion and restraint is a matter of clinical judgement
that should include a thorough understanding of the clinical needs of
the individual patient and the context in which the use of seclusion or
restraint is being considered.
6. Special care should be taken in assessing the clinical need for
the use of restraint in special populations. Examples of special
populations are children and adolescents, the elderly, and the
developmentally disabled.
preventing the need for seclusion and restraint
7. The use of seclusion and restraint should be minimized to the
extent that is consistent with safe and effective psychiatric care and
the specific clinical needs of individual patients.
8. The provision of optimal psychiatric treatment, including
appropriate use of psychosocial and pharmaco-therapeutic interventions,
is an important component of a strategy to reduce the use of seclusion
and restraint.
9. Another component of optimal psychiatric care is staff education
and training. Treatment facilities must have appropriate numbers of
trained staff who are familiar with the care of the specific patient
population in the unit or facility.
10. Staff should be trained in the use of alternative interventions
that may reduce the need for the use of seclusion and restraint.
ordering and implementing seclusion and restraint
11. Seclusion and restraint are medical interventions that require
a physician's order.
12. The physician should examine the patient and ensure appropriate
monitoring and care of the patient throughout the episode.
13. Staff should be thoroughly trained and have demonstrated
competence in the application of safe and effective techniques for
implementing seclusion and restraint for the patient populations under
their care. The techniques used should be approved by the medical
staff.
14. Restraint should be applied with sufficient numbers of staff to
ensure safety of the patient and staff.
15. Patients in seclusion or restraint should be carefully
monitored and observed at intervals frequent enough to ensure their
continued safety and the provision of humane care.
16. The decision to continue seclusion or restraint should not be
viewed as ``routine.'' Patients should be removed from seclusion or
restraint when, in the physician's judgement, the patient no longer
poses a threat to himself/herself, other patients, or staff.
17. The use of seclusion and restraint may be traumatic for some
patients. The treatment team should consider post-intervention
counseling whenever clinically indicated.
treatment plan review
18. A staff debriefing should follow each episode of seclusion or
restraint. The debriefing should include an assessment of the factors
leading to the use of seclusion or restraint, steps to reduce the
potential future need for the seclusion or restraint of the patient,
and the clinical impact of the intervention on the patient.
19. Use of seclusion and restraint, particularly when a pattern
exists with an individual patient, should prompt a review of the
patient's treatment plan.
20. Psychiatric treatment facilities and psychiatric units of
general hospitals should engage in a continuous quality improvement
process that seeks to minimize the use of seclusion and restraint
consistent with good standards of clinical practice and the needs of
individual patients.
internal and external oversight
21. Quality assurance measures for seclusion and restraint should
provide for the appropriate involvement of family members or other
public parties. These measures must protect patient confidentiality and
the clinical integrity of the treatment program.
22. The decision to order seclusion or restraint requires the
clinical judgement of the treating physician, therefore policies
governing seclusion and restraint are best dealt with through flexible
and easily amendable mechanisms such as hospital policies and
procedures and administrative regulations.
23. Each psychiatric treatment facility or psychiatric unit of a
general hospital should have, in place, a system to review the
frequency and use of seclusion and restraint by each of its clinical
units or groups with the intent of sharing best practices across units
and facilities.
24. Death or serious injury resulting from interventions involving
seclusion and restraint must be reviewed internally. In addition to
internal review, external review by or subject to an accrediting
organization may also be required, with appropriate legal and
confidentiality protections.
[Clerk's note.--The Report of the Task Force on Seclusion and
Restraint does not appear in the hearing record but is available for
review in the subcommittee files.]