A Human Rights Perspective on Reducing Restrictive Practices in Intellectual Disability and Autism

Citation

Peter Baker (2016), "A Human Rights Perspective on Reducing Restrictive Practices in Intellectual Disability and Autism", Tizard Learning Disability Review, Vol. 21 No. 1, pp. 50-51. https://doi.org/10.1108/TLDR-07-2015-0026

This book was published by the British Institute of Learning Disabilities in 2014 and attempts to explore the importance of human rights legalisation and ethical decision making for reducing the use of restrictive practices when supporting people with an intellectual disability and people with autism. This is achieved by detailed examples of legislation, case law and guidance in England, Wales, Australia and North America. The book consists of five stand alone chapters, along with a final chapter attempting a synthesis of the preceding offerings.

The first chapter is an intensive examination by Sam Karim and Mathieu Culverhouse of the legislative context in which restrictive interventions occur in England and Wales. Part 1 is concerned with more general issues of capacity and the requirements of those providing care that might be considered restrictive to individuals who lack capacity. Some brief attention is given to the ethical justification of restraint, the criteria for judging capacity, best interests and the role of the Court of Protection. Part 2 is a more extensive analysis of the issues within human rights jurisprudence including a timely commentary on the relationship between the 1998 Human Rights Act and the European Convention on Human Rights (ECHR) and the role of the Supreme Court (whose judicial authority formerly rested with the House of Lords). In particular, it describes/refers to/comments on the extent to which it would be possible for domestic courts to take a different view from the European Court of Human Rights. Detailed summaries of case law frequently used in judicial review claims are provided in relation to each of the articles of the ECHR. In particular, considerable attention is given to what would amount to deprivation of liberty in respect of Article 5. In total, 14 separate judgements are presented with regard to deprivation of liberty, providing a fascinating insight into the way in which case law is shaped. The level of detail provided helps the reader to understand why authoritative predictions regarding the likely judgements of courts are at best naive. A cautious attempt is made to extract and summarise relevant guiding principles from this case law.

In Chapter 2, Chan, Webber and French describe the legislative framework in three Australian states. They focus especially on Victoria, the first state to enact specific legislation to provide for the protection of the rights of people with a disability subject to restrictive interventions and compulsory treatment orders. This legislation, enacted in 2006, reaffirmed the rights and responsibilities of people with a disability and created the role of Senior Practitioner with authority to protect these rights. Key provisions were made to regulate and monitor the use of restrictive practices. These included service providers having to apply for authorisation along with mandatory reporting of the use of restrictive practices and a transparent and accessible reviewing process. The authors report that, within the first four years of implementation, this initiative had a modest but nevertheless real impact, with an 8 per cent reduction in the use of such practices. They conclude that legislative compliance is important and necessary but not a sufficient response to the problem of restrictive practice.

In the next chapter Sharon Paley discusses the practical dilemmas facing carers in their everyday management of individuals with intellectual disabilities who present challenging behaviour. A model of decision making is presented which has a number of prompts to enable a comprehensive exploration of the critical variables that would be likely to lead to more ethical decision making in what can be quite complex situations.

In Chapter 4, Bowen and Kemp describe their experiences in North America of attempting to reduce restrictive practices. The chapter uses the structure of primary, secondary and tertiary intervention – summarising strategies to prevent challenging behaviour, de-escalate and intervene in crisis situations. The authors highlight the extent to which leadership is important in all service settings, and at all levels of the organisation, in order for restraint reduction to be successful.

Webber, Chan and French return in Chapter 5 to the restraint reduction initiative in the State of Victoria, Australia. They describe again the broad-based structural response to this issue, including supportive legislation, national and state level policy regarding the human rights of people with a disability, government funding for the education of disability support workers, and the establishment of research projects to examine the potential factors leading to and preventing restraint and seclusion. In spite of some encouraging data regarding the reduction in restrictive practices, there remain areas of concern. These include, in particular, the specific vulnerability of people who have been diagnosed as on the autistic spectrum, the continued high rates of usage of mechanical restraint and inappropriate use of routine chemical restraint.

The final chapter by Karim attempts to describe good practice in terms of the legal underpinning, guidance and operational detail. Substantial reference is made to the UK Department of Health and Department for Education and Skills 2002 guidance along with the Mental Health Act Code of Practice and the Guidance on Restraint and Seclusion in Health and Personal Social Services produced by the Human Rights Working Group on Restraint and Seclusion in Northern Ireland in 2005.

A human rights focus on the issues raised in relation to the use of restrictive practices is welcome and timely, given the stated intent of the newly elected Conservative government to replace the Human Rights Act with a British bill of rights. For those who require a more detailed knowledge of legislation and legal decision making this book is a valuable resource. The five chapters are separate and different, where the book is less impressive in bringing together the themes from the different chapters. In addition, somewhat inevitably, time moves on and it would appear that the references to more recent pronouncements of UK governmental bodies is rather last minute. Reading the book reinforces the difficulties and complexities of moving forward in this highly important area. The Australian experience provides a ray of light, showing what can be achieved when substantial legislative changes are backed by financial investment in evidence-based strategies. Clearly this is not the time for light touch government intervention or watering down the human rights bedrock of legalisation.