by Jack Lee
A Chico Nursing facility was caring for a severely brain damaged patient who often threw herself out of bed. During one episode she tossed herself out of bed and started flailing on the floor. The charge nurse ordered soft restraints be placed on the patient until the she quieted down. The supervising nurse intervened and said, “You could lose your license for that and we could be sued! You take those restraints off immediately and put the patient back in bed.”
Elder care homes and other nursing facilities are required by law to provide the highest possible standard of care to maintain the mental and physical well being of the patients. Under 42 C.F.R. Part 483 an omnibus patients bill of rights passed in 1987, this comprehensive law resulted in the system going from a large number of patient abuses wherein chemical (drugs) and physical restraints were used to keep the person quiet and confined to almost no restrains even when necessary. This law made it highly risky for the nurses or owners of nursing homes to use restraints for fear of running into legal trouble. Now patients are being hurt by the good intentions of a law designed to protect people from abuse.
The 1987 law is now seeing some unintended consequences. Case in point is the lack of restraints to care for a patient that could easily harm herself. The attending nurse and 2 CNA’s who were present wanted to use the restraints on the brain damaged patient. The Supervisor handled it like this and said, “Patients have rights just like you, even brain damaged patients have rights and they have a right to be not restrained just as they have a right to injure themselves.” This of course made no sense to the staff, but this is how they interpretted the law and they were powerless to do anything about it, so they complied with the order.
The patient was placed back in bed just as directed. They also were told they could not even raise the bed rails because this too would be a form of restraint. Minutes after the last staff member left the room the patient did indeed throw herself out of bed and suffered an injury, although it was not serious…this time.
These sort of events happen many times every day in California because of a poorly worded law and over zealous litigation attorneys that have caused care facilities to move to an extreme position away from restraints for fear of a lawsuit. It now becomes another case of your damned if you do and damned if you don’t.
It would be very responsible if our local Congressional Representative, our State Assemblyman or our local Senator to draft legislation that would allow some reasonable sensible balance when it comes to the use of restraints and put in clear language so there would be no confusion! In Canada the patient Health Care Act of 1997 addresses this problem and sets forth a list of guidelines for the correct use of restraints and also provides protection from frivolous lawsuits when the guidelines are followed:
( 1) A hospital or facility may restrain or confine a patient or use a monitoring device on him or her,
(a) if it is necessary to prevent serious bodily harm to him or her or to another person;
(b) if such other criteria as may be prescribed by regulation for restraining or confining a patient or for using a monitoring device on him or her are met;
(c) if it gives him or her greater freedom or greater enjoyment of life; and
(d) if placing him or her under restraint, confining him or her or using a monitoring device on him or her, as the case may be, is authorized by a plan of treatment to which the patient (or his or her substitute decision-maker) has consented.
We should try this and in the event the patient is incapable of making this decision or a relative is not available, an independent ombudsman is used to determine if the restraints are necessary for the best interests of the patient. It’s very simple and straight forward response to a problem that is hurting people every day in care homes from coast to coast.