A Prolegomenon on Restraint of Children: Implicating Constitutional Rights

News media have brought to public attention a disturbing number of deaths proximal to the use of physical restraints in the past year. Use of these procedures has been shown to be dangerous and lethal to patients. In this discussion we explore restraints as an intervention and argue that their use may not only be unethical as a therapeutic intervention, but that their use may have constitutional implications…

A Prolegomenon on Restraint of Children: Implicating Constitutional Rights

Sheila S. Kennedy J.D.
Assistant Professor
Law and Public Policy
Indiana University School of  Public and Environmental Affairs

Wanda K. Mohr Ph.D., R.N., F.A.A.N.

Associate Professor
Psychiatric Mental Health Nursing
School of Nursing

Indiana University
Purdue University
Indianapolis, IN

*  Authors wish to thank Professor Barbara Bennett Woodhouse of the University of Pennsylvania School of Law for her thoughtful review of this article.
** Each author contributed equally to the production of this manuscript.


A Prolegomenon on Restraint of Children: Implicating Constitutional Rights

            The complex relationship of children to the mental health system is rooted in three underlying and competing interests. The first of these is the parental interest in preserving family autonomy from state interference, in providing for the best interests of their children, and in transmitting the particular personal and cultural values of the family.  The second is the state’s interest in protecting the child, preventing or controlling antisocial behavior, and, in furtherance of those goals, providing a system of mental-health care.  Finally, there are the child’s own interests in “being cared for, loved, and helped to become an autonomous individual with the rights and privileges of an adult” (Hopcroft, 1995).
Laws and rules governing the psychiatric hospitalization of minors vary considerably from state to state.  The courts have uniformly held that children do not enjoy the same degree of constitutional protection as do adults.  In Parham v. J.R. (1979), the United States Supreme Court explicitly held that the involuntary hospitalization of a minor without judicial review will not run afoul of the Constitution if the child’s legal custodian consents, the treating clinicians concur, and the clinicians periodically review the need for continued inpatient treatment. Individual states are free to grant their own citizens rights additional to those ensured under the federal constitution, however, so this disenfranchisement of children plays itself out differently in different states.  A substantial majority of states do apply a “least restrictive alternative” mandate to their civil commitments, requiring that any infringement on a patient’s liberty be the minimum necessary to achieve the purpose for which the person was committed, but the scope of the protection offered—particularly to minors– is a matter of considerable dispute (Saks, 1986).  In most states, the avenues for relief available to juveniles are considerably fewer than those available to adults. Without adequate provisions for judicial review, children can languish in psychiatric or residential treatment facilities for unspecified lengths of time and suffer the most basic deprivations of their rights as human beings.
Children are not voluntary patients in the commonly accepted meaning of the term.  Forced hospitalization encroaches on their liberty by limiting their human right to freedom from unwanted bodily intrusion by way of physical restraint. Thus, children’s placement in an acute or residential psychiatric facility represents a severe curtailment of such liberties as they retain in their status as dependent minors. To the extent that at least some of the more intrusive treatment techniques in psychiatric settings are experienced as painful and distressing, they may be experienced as “punishments” by their recipients.  This is particularly true when the recipient is a child institutionalized for treatment of a mental illness whose capacity to understand what is happening in the moment might be impaired.  While the Supreme Court has declined to extend Eighth Amendment protections to residents of hospitals and psychiatric facilities, it has ruled that even  minors retain Fourteenth Amendment liberty interests in freedom of  movement and in personal security,  interests which can only be outweighed by an “overriding, non-punitive” state interest ( Youngberg v. Romeo, 1982).
The few research studies available indicate that approximately thirty percent of the children on some psychiatric units have been secluded or restrained in some manner (Garrison, Ecker, Friedman, Davidoff, Haeberle, & Wagner, 1990).  Seclusion and restraint are among the most coercive interventions available to psychiatric staff members (Miller, 1997).  Seclusion (also called “isolation”) is the removal of a patient from the general milieu on a ward into a single room, with or without a locked door.  Restraint is physical restriction of movement; its most common form is to restrain limbs on a specially designed bed (“four-point” or “five-point” restraint), but restraints can also be used to tie a child to a chair, or to limit movement of arms or legs (“ambulatory restraint”).  Given the higher levels of acuity posited by the American Academy of Child and Adolescent Psychiatry in a recent website posting, the actual incidence of restraint use may be higher than available studies indicate.  The fact is that the incidence and prevalence of restraint use is not monitored, nor are these statistics collected. 
The use of restraints puts a child at great risk for injury and even death.  Within the past 10 years, 37 deaths of children were connected to the use of physical restraint in psychiatric facilities. (Weiss, Hartford Courant, 1998).  Appalling events in the history of psychiatric care are not a new phenomenon and abuses can be traced throughout the existence of the discipline of  psychiatry (Mohr, 1998).  The above deaths are the latest in a long pattern, and may constitute the most public disclosure since Deutch’s (1948; 1949) exposés of conditions in New York state hospitals during the first half of the twentieth century.  The Courant article reported that deaths occurred in all 50 states; the numbers represent only those that were reported and documented.  Indeed, in recent testimony before the U.S. Congress, Laurie Flynn, executive director of the National Alliance for the Mentally Ill (NAMI), reported that since the beginning of 2000 that seven more deaths had occurred.  The youngest of these was 9 years old. (H.R. 1313; H.R. 3010: Restraint Safety Act House Briefing, March 21, 2000).
One would expect legal and health professionals to exhibit moral outrage that children are dying in institutions whose function is to heal.  Yet for years, mental health professionals have for the most part exhibited a collective dissociation with respect to this important topic. Indeed, with the exception of geriatric psychiatry, discussion of the ramifications and dangers of seclusion and restraint use is exceedingly scant in the psychiatric literature.  In fact despite the considerable controversy generated by the restraint issue in recent years, the issue did not appear on the program for the year 2000 American Psychiatric Association conference (
http: www.psych.org). In this paper, we will discuss the issues surrounding the use of restraints in institutions and argue that the use of restraints is not only an unethical practice, but may also constitute a violation of constitutional rights.

Restraints:  An Intervention in Search of a Research Foundation
The use of restraints is an assumed part of the repertoire of interventions available to the members of a psychiatric staff in the day-to-day management of an institutional milieu. For purposes of this discussion, restraints are defined as human or mechanical constraints restricting freedom of movement or normal access to one’s body (H.C.F.A., Dec. 19, 1997).  The ostensible reasons given for the use of restraints on children in a treatment facility are for the safety of the child or for the safety of other patients in the case of severe aggression.  Most often, health professionals justify their use of restraints as a matter of patient protection (Kapp, 1998).  However, the National Alliance for the Mentally Ill, in its recent proposed position statement (1999), asserted that restraints are often imposed for convenience (actions taken by facilities to curtail individual behavior without having to use adequate staffing or clinical interventions), coercion (designed solely to force the patient to comply with the staff’s wishes), or retaliation (actions taken by staff to punish or penalize patients).  The application of these coercive interventions for reasons of staff convenience or punishment are expressly prohibited by applicable standards and regulations (U.S. Congress Office of Technology Assessment, 1994; U.S. Department of Health and Human Services, 2000), yet the very existence of these prohibitions is evidence that patients are secluded and restrained for these reasons.
 Rubenstein (1983) has observed that psychiatric standards governing the use of seclusion and restraint are standards that are driven by consensus rather than research.  Underscoring this observation, Goren and Curtis (1996) have posited that the persistent use of seclusion and restraint as interventions on child and adolescent units reflects the influence of traditions, as well as coercive patterns of behavior by staff members. Moreover, the use of restraints is based in part on the unsubstantiated notion that the use of coercive interventions reduce a person’s aggression through external control, thereby leading to internalization of control and subsequent more socially acceptable behavior (Cotton, 1989; Rich, 1997; Troutman, Meyers, Borchardt, Kowalski, & Bubrick, 1998).
Yet the immediate or long term psychological or other sequelae of using such techniques are hypothesized to be similar to post traumatic stress disorder (Masters, 1998).  However, this possibility has neither been systematically studied, nor widely discussed in the literature (Persi & Pasquali, 1999; American Academy of Child and Adolescent Psychiatry, 2000).  What research does exist indicates that the majority of all patients who have been secluded and/or restrained found that it was not beneficial and in fact was a noxious experience (Wadeson, & Carpenter, 1976; Binder & McCoy, 1983; Soliday, 1985; Miller, 1986;  Heyman, 1987; Norris & Kennedy, 1992; Mohr, Mahon, & Noone, 1998; Le Gris, Walters, & Browne, 1999; Martinez, Grimm, & Adamson, 1999; Gallop, McCay, Guha, & Kahn, 1999).
Several other issues emerge when one studies the literature carefully.  First, the empirical literature that addresses the issues of coercive interventions such as restraints with children is exceedingly sparse. There are no well-designed studies that compare interventions using equivalent groups of children, or studies that control for differences in staff knowledge.  There are no studies that compare the use of less restrictive techniques with more restrictive ones, nor research that explores the long-term effects of coercive interventions. Most studies that do exist are flawed in that they rely solely on staff reports of patient and their own behavior. There are no studies that compare staff members versus patients’ reports of what has transpired in a situation necessitating a restrictive intervention.  Also, reported outcome measures related to their use consist of short – term compliance behaviors that are not generalizable to non – institutional environments (Mohr, Mahon, & Noone, 1998).
Treatment of the issue of restraint use in professional texts and journal articles  dealing with interventions for undesirable behavior is characterized by a failure to infuse the discussion with sound theory.  For example, with few exceptions (Singh, Singh, Davis, Latham, & Ayers, 1999) rarely does discussion include functional analysis of behaviors, nor does it include the examination of milieus for the presence of possible inadvertent reinforcers or antecedents to aggressive outbursts. Most articles in the professional literature deal with contingency management of aggressive behaviors, which are “after the fact” rather than anticipatory interventions, despite the fact that predictors and precipitants of aggressive behavior have been researched and documented  (Joy, 1981; Millstein, K.H.& Cotton, N.S., 1989; Way & Banks, 1990; Betemps, Somoza, & Buncher, 1993). When prevention is mentioned, preventive steps are listed, but they are very rarely operationalized in careful and unambiguous behavioral terms. For example, AACAP’s latest proposed practice parameters on prevention and management of aggressive behavior in child and adolescent psychiatric institutions discuss the use of “prompts” to forestall aggressive behavior, but fail to describe what they mean by prompts in a way that will assure that the intervention is understood the same way by everyone concerned.  One person’s prompt can very well be another’s provocative remark.
 Room programs and open door seclusion are discussed as alternatives to restraints, but again there is no theory underpinning most discussion and no empirical research upon which to base such practices. Practices are described in textbooks and referenced with articles that are reviews of literature that are reviews of literature– in infinite regress, with authors citing one another’s expository articles which constitute reviews of literature. One example of this occurs in the best-selling psychiatric nursing text edited by Stuart and Sundeen (1998). The chapter that discusses the use of restraints in children references two nursing articles, neither of which is a research article (Barlow, 1990; Wong, Martinez-Diaz, Thorne-Henderson, 1990), and an article by Fassler & Cotton (1992) that describes a survey on the use of seclusion and restraint as justification for their use.  In fact, were the authors of many of these chapters and articles to survey the majority of the literature that they are citing, they would find that there is little evidence for the effectiveness of most presently used acute management techniques in containing aggressive behavior in children over the long term (Measham, 1995).

The Context of Restraints as Intervention

            Understanding a number of contextual issues can help in understanding the topic of restraints use in institutional facilities.  The first issue is the vague sets of guidelines or rules adopted with respect to the use of mechanical or physical restraints by the various regulatory and professional organizations.  The second is the organization and staffing of a typical institution housing emotionally disturbed children. 
In 1997, the Health Care Financing Administration (HCFA), which finances and regulates Medicare and Medicaid, issued proposed rules for hospitals participating in these programs.  These were known as “conditions of participation.”  HCFA declared that its “expectation is that a hospital would impose restraints or seclusion only when absolutely necessary to prevent immediate injury to the patient or others and when no alternative means are sufficient to accomplish the purpose.”  However, the rules contained no details, and HCFA has neither a monitoring plan nor clear enforcement provisions directly targeted to restraints and seclusion.  HCFA asked for comments from a number of organizations and received a great many from members of the National Alliance for the Mentally Ill, but in the final analysis gave no details related to physician authorization, procedures for issuing orders, time limits on the use of restraints, or requirements for checking on patients.
            Likewise, the Joint Commission on Accreditation of Health care Organizations (JCAHO) standards contains vague provisions related to restraints.  JCAHO requires that “special treatment procedures” which include “restraint or seclusion” be documented in the medical record.  A physician’s verbal or written order is required, it must be time-limited, and there must be periodic observation.  But none of these provisions is defined, elaborated upon, or operationalized.
            The American Academy of Child and Adolescent Psychiatry (AACAP) is equally vague, stating that restraints should be used “when a patient poses an immediate threat of harm to self or others…imminent threatening disruptions to the milieu or destruction of property.”  Although we argue that the former is clear and appropriate, the destruction of property or disruption of milieu condition is imprecise.  While we agree that the destruction of property can lead to a serious and dangerous situation, without specificity, these conditions leave the decision open to the interpretation of staff members who may not have the judgement or experience to assess the difference between danger and inconvenience.
Despite the National Association of State Hospital Program Directors’ (NASHPD, 1999) position that restraints are not treatment interventions but security measures, and despite  a lack of empirical data, the AACAP also states that restraints and seclusion are educational and acceptable components of treatment with emotionally disturbed children. It must be underscored, however, that the Academy is in the process of issuing a set of rather extensive parameters on the use of seclusion and restraint.  To their credit they have included the advocacy community as well as former patients and their families in their deliberations.
            In the majority of psychiatric institutions or residential treatment facilities, the “hands on” staff who have the greatest interaction with patients are mental health aides or technicians.  Although psychiatrists are the “captains of the ship,” on in-patient units they rarely see their patients for more than a few minutes a day and often rely on the reports of staff members’ reports of patients’ progress.  These hospitals employ professional nursing staff, usually one per 8 hour shift per unit.  In the best of circumstances these are registered nurses with college degrees, but the best of basic nursing programs provide only a semester-long overview of psychiatric content, and even less content on the complexities of child psychiatric disturbances.  Since over 70% of staff nurses do not possess a baccalaureate degree, (Bureau of Labor Statistics, 1998-1999) very often the nurse in charge is one with only an associate degree, awarded after a two-year program during which discussion of psychiatric issues is cursory indeed (Stillwell, 1991; Marushock, 1996).  Even in the case of baccalaureate education research has shown that  fewer than 10% of nurses were aware that death was a possible sequelae of restraint use (Stillwell, 1991). Even more alarming are findings that staff members most responsible for treatment programming frequently do not have the level of training and competence in behavioral principles that is necessary to develop, implement and supervise therapeutic treatment plans, especially of individuals with complex clinical problems (Niemeier, 1983; Burdett & Milne, 1985; Gardner & Cole, 1978; Donat & McKeegan, 1990). The staff member with the most education (nurse) traditionally spends much of his/her time charting in the medical record and administering medications (Rosenhan, 1973; Aragon & Holmes, 1991).  Moreover, the overall competence of staff members to address the physical needs of their charges is in question.  While JCAHO requires staffing by registered nurse in hospitals, there is no such requirement for residential treatment facilities which house even more severely disturbed youngsters with even more potential for “acting out”.
            Moreover, Braxton (1995) suggests that a major problem in this field is finding appropriate staff. Due to funding policies, limited resources, and lack of regulations or regulatory oversight, virtually anyone can get a position as a mental health technician taking care of these vulnerable children.  This has been the case for many years despite the fact that federal courts have recognized the need for staff engaged in the care of mentally ill and interventions germane to their care to have specific skills and knowledge (Wyatt v. King, 1992, 793 F. Supp. 1058, 1077-79).  This includes specific knowledge of  psychopharmacology, psychopatholgy, psychotherapeutic interventions, and interviewing and assessment of mental status. 
In the Handbook of Organizations (Perrow, 1965), mental health technicians are described as the “carriers of the culture.”  These staff members are generally are the least educated members of the caregiving unit, and often hold negative attitudes toward their charges.  They are also those charged in assessing patients and intervening in potentially or actually violent situations, as well as assessing these vulnerable individuals during the time that they are in restraint or seclusion.  Yet there are no uniform and mandatory requirements for education of these individuals, nor even requirements for background or criminal checks, and  staff coverage often takes precedence over training, particularly in residential treatment facilities. Thus, in Florida a recent investigation revealed that the state has no oversight of hiring of employees of residential treatment centers and that turnover rates were as high as 70%, making it difficult to check qualifications (Kestin, 1999).  About one third of the 200 staff investigated who dealt with children had a high school diploma, and only 20% had any previous experience dealing with emotionally disturbed children.  Similar findings were published about the system of mental health services for children in North Carolina (Cenziper, 2000)
Furthermore, children in these facilities are exceedingly trying and difficult individuals.  They are wounded and mistrustful and their main mode of coping is to lash out in attack. This behavior can be frightening to inadequately prepared staff and if staff members do not have a ready arsenal of understanding, verbal skills, and self-awareness they can construe a verbal assault by a child in a personal way, thereby losing all boundary between their own issues and those of the child.  This is the essence of negative counter-transference reactions and their effects often result in fear and paralysis leading staff members to resort to survival and control tactics.  In turn, these reactions then become part of an aggression-coercion cycle described by Goren, Singh, & Best (1993) in which staff members and patients provoke each other in a game of one-upmanship.  Staff members seeking control over a frightening or uncertain situation engage in a power play that places the child in a no-win situation and may escalate into a take-down, restraint and possible abuse and injury.

Restraints as Punishment

From a strictly theoretical standpoint, if not for purposes of constitutional analysis, the use of restraints and other coercive methods of controlling children is punishment.  Dictionary, educational and psychological definitions describe physical punishment as consisting of infliction of pain on the human body as well as painful confinement of a person as a penalty for an offense (Hyman, 1995, 1996, Hyman, Barrish, & Kaplan, 1997).  Legally, a particular action may be considered either treatment or punishment, depending upon the institutional motivation involved. Unwanted behavior in children can be reduced in frequency by any one of three basic punishment procedures: the presentation of an aversive event, the removal of the person from a situation where he would otherwise be able to earn reinforcers (i.e., time out), and the deduction of a certain amount from a person’s collection of reinforcers (i.e., response cost).  The involuntary overpowering, seclusion, application, and subsequent maintenance of a child in mechanical restraint is an aversive event, both from the standpoint of logic and the standpoint of the child (Miller, 1986; Mohr, Mahon, & Noone, 1998). Although it could be argued that restraint or seclusion are interventions that are implemented putatively for safety, they are also interventions designed to reduce the occurrence of certain aggressive behaviors.  Evidence of this is found in the AACAP’s assertion that restraint and seclusion have an educational, as well as a therapeutic effect.  Moreover, it is an aversive intervention involving a physical assault on the child’s body.  As such, it clearly meets the medical, and may under certain circumstances meet the legal, criteria for punishment.
The literature on physical punishment is clear from both a theoretical and a research standpoint. The preponderance of data favors the use of non-physical techniques, such as time-out, overcorrection, and response cost (Axelrod & Apsche, 1984). Straus and his colleagues (1997) demonstrated that corporal punishment puts a child at risk of serious injury, both psychological and physical.  The most that can be said for punishment, or any other aversive intervention, is that it usually stops a child’s misbehavior temporarily (Krumbolz & Krumbolz, 1972).  As a momentary cessation or suppression of unwanted conduct, behavior theorists have maintained that such interventions fail to teach children appropriate behaviors.  (Bandura, 1969; Skinner, 1953).

Conduct Disordered Children as Disabled Persons
In 1999, the United States Supreme Court applied the protections of Title II of the Americans with Disability Act to mentally disabled people in government custody (Olmstead, 1999), and held that keeping such patients in an overly isolated treatment environment amounted to discrimination under the terms of that Act.  The implications of the Olmstead decision will undoubtedly be clarified in future cases fleshing out the scope of the state’s duty; however, it seems inevitable that the Court will eventually be asked to determine the propriety of specific psychiatric interventions in the context of the ADA.
Placing a child in restraints by way of a temporary therapeutic hold or in leather five-point restraints strapped to a bed for hours is a highly aversive experience, as intuition might suggest.  But it is also not a rational option given what we know about children who exhibit aggressive tendencies.  Children who are placed in restraints most often suffer from some disruptive behavior disorder. The most common label given to these children is “conduct disorder” which is generally recognized as the most common form of childhood pathology, accounting for up to 50% of consultations in psychiatric clinics  (Steiner, 1997; Fergusson, Horwood, & Lynskey, 1994). It is a diagnosis that is given most often to boys. Conduct disorder is typified by a “repetitive and persistent pattern of behavior in which the basic rights of others and major age appropriate societal norms or rules are violated.”  (American Psychiatric Association, 1994).   Conduct disordered children share similar risk factors, one of which is a history of trauma or physical abuse or neglect.
Consider what is hypothesized to happen in the case of children who experience abuse.  Increasing evidence suggests that in children who experience chronic abuse, the cortisol system goes awry, causing an imbalance of the substance in the brain (Perry, 1991; 1994; Perry & Pollard, 1998). Researchers believe that excess cortisol leads to damage in the hippocampus, causing memory lapses, anxiety, and an inability to control emotional outbursts.  Cortisol can also alter brain centers that regulate attention and affect a child’s capacity to attend to meaningful stimuli. 

Abused children show a variety of disturbances in physiology, thinking and behavior.  Many have elevated resting heart rates, temperature and blood pressure. After repeated exposures to trauma, the same systems in the brain will be reactivated when the child is merely exposed to reminders of the traumatic event. For example, a child may react physiologically to a playful scream heard on a playground, in the same way that she/he may have reacted to a scream heard by them during a violent altercation at home. They may also be reactivated in response to a child’s thoughts or dreams about the traumatic event.  Such stimulus reminders may generalize, leading to the repeated activation of the stress-response apparatus despite the child’s being temporally and geographically distanced from any apparent threat. Researchers have hypothesized that this response occurs along a continuum from one characterized by hyperarousal to a dissociative response. The helpless and frightened child begins to view the world through the lens (or template) of the original trauma and will respond accordingly..  This eventual template is created by high levels of adrenergic and cortisone derivative substances that remain after the original trauma and which are responsible for permanently altering the neurosynaptic junctions in a way that fixates memories and impulse response.  Perry and his colleagues (1991) refer to this as an acute state that becomes a permanent trait.   In essence, without intervention, the children have a disarming of the down-regulating circuit that would return them to more normal functioning.

Cumulative Trauma

 Hypervigilance is a common phenomenon with children in arousal states continually scanning their environments for danger.  They have difficulty taking in cognitive information and they tend to over-interpret and distort the actions of others – often seeing innocuous actions as threatening.  Research shows that these children suffer from language deficits, both receptive (Wolff, Waber, Bauermeister, Cohen, & Ferber, 1982) and expressive (Moffitt & Silva, 1988), and cognitive impairments that include distorting the intent of others.  These contribute to a present-oriented cognitive style and limit their response options in threatening or ambiguous social situations. Moreover, verbal deficits are not the only neuro-psychological source of children’s difficult behavior.  Several studies indicate that this misbehavior may be associated with deficiencies in the brain’s self-control functions, commonly referred to as “executive functions” (Moffit & Henry, 1991; Newman, 1987; Newman & Howland, 1989). These functions include sustaining attention and concentration; abstract reasoning and concept formation; formulating goals; anticipating and planning; programming and initiating purposive sequences of behavior; self-monitoring and self-awareness; inhibiting unsuccessful, inappropriate or impulsive behaviors; and interrupting ongoing behavior patterns in order to shift to a more adaptive alternative behavior.
Because of these cognitive handicaps, children who are conduct disordered are at a significant disadvantage in situations of high stress where demands are put on them to make “appropriate” decisions and remain rational.  They already invariably feel powerless and angry, and are slow to trust any adult, despite their status as a dependent child. These damaged children view the world through a “template” that is highly inflexible because their experience with adults has too often been characterized by disappointment, abandonment, or violation.  Anger is frequently their galvanizing emotion and that anger can be manifested in aggression and hostile assaults on the environment, or turned inward in immobilizing depression, withdrawal or assaults upon the self.  Depending on whether the manifestation of their anger is judged by a staff member to be a significant threat to themselves or to other people, they are “taken down” and put into some form of restraint.
A “take down” on a psychiatric unit is analogous to a cardiac arrest in a critical care unit.  It is an acute psychiatric emergency, and as such it is a highly emotional and volatile situation. Although it is not designed to be a punishment, it is often perceived as punishment by the children who experience it (Miller, 1986; Mohr, Mahon, & Noone, 1998).  A child exhibits threatening behavior.  This behavior may be truly aggressive, or it may involve refusing to stay in group therapy, or calling the staff member a particularly rude name followed by an equally  rude gesture.  Some verbal repartee ensues with threats being made by the patient, and requests for appropriate behavior being made and consequences of aggressive actions being elucidated by the staff members.  A team of staff members converge on the child with the intent of subduing him and placing him in leather restraints and/or medicating him.  Although some further discussion may ensue between the patient and staff members, at the time of the actual take down it is more often than not disorganized and purposeless, with staff members urging the child to “calm down” and the child urging the staff members in rather crude terms to engage in anatomically impossible acts.  It follows that in such a situation the predominate emotions would be even more anger and fear.  Faced with the threat of being taken down by five or more persons larger than he is, the child’s body initiates a cascade of physiological reactions. The child experiences dramatically increased activity in the brain regions that are involved in the hyperarousal response induced by the threat (locus coeruleus and ventral tegmental nucleus activity).  These regions play a critical role in regulating the stress response, arousal, vigilance, affect, attention, sleep, and the startle response.  In addition, a corresponding increase in the release of norepinephrine regulates the total body response to the threat. Adrenalin surges, setting the heart pounding and the blood pressure soaring and readying the muscles for action. At the same time, cortisol is released in response to the perceived danger.  This is the well-known “fight or flight” response. The child’s perceptual field is narrowed significantly and the ability to process information decreases (this in a child who already has difficulties in verbal receptive skills). 
This situation repeats the abuse cycle. As the cumulative effect of these high cortisol levels has been documented to result in certain brain changes, the act of restraint may in fact constitute an event that appears to the child very much like an instance of abuse. Given the child’s diminished judgement, as a result of the mental illness and as a result of the high intensity stress of the take-down situation, and given the child’s impaired verbal competence, staff actions that lead to being physically and forcefully restrained are analogous to punishing a paraplegics for being unable to walk. To the extent that caring for children in an institutional setting should assure their progression along the developmental pathways toward healthy adulthood, any act that distorts or impedes that progression is arguably abusive.

Restraints as Unethical Acts

            The use of restraints poses several risks to child patients.  The first is concerned with the hypothesized cumulative re-traumatization of an already traumatized child who has limited competence to understand and few acceptable coping tools in his repertoire of behaviors.  The second is that restraints can cause suffering through physical discomfort from enforced inactivity and feelings of isolation, anxiety, and humiliation.  Third is the potential of significant physical injury that has been documented in the medical literature, including unexpected deaths and asphyxia (Howard & Reay, 1998; Pollanen, Chiasson, Cairns, &Young, 1998).           
Moreover, as previously noted, the use of restraints is an intervention that has little in the way of either theory or research to argue for its efficacy.  Theory predicts reinforcement of the idea that violence and force is an acceptable means of problem solving and only short-term compliance as outcomes.  What little research is available argues that there is little value in using seclusion and restraint as they do not demonstrate any therapeutic effects (Garrison, Ecker, Freidman, Davidoff, Haeberle, & Wagner, 1989; Singh et.al., 1999) and that they can have serious deleterious psychological effects on patients (Fisher, 1994). Empirical evidence suggests that strategies such as confinement and restraint did not yield any demonstrable therapeutic effects on a group of 99 patients age 5-15 in a study conducted by Garrison and his colleagues (1990). Furthermore, staff punitive behaviors and staffs use of isolating behaviors tended to be associated with a significant increase in the likelihood of subsequent child negative behavior and with significant decreases in child positive behaviors (Natta et al., 1990).
            The fiduciary ethic, the principle of beneficence, and the obligation to do no harm require that professionals minimize any unintended adverse consequences of any intervention. Despite the substantial evidence of restraints’ deleterious effects, their continued use in circumstances where less-restrictive or intrusive alternatives are reasonably available to accomplish the legitimate goal of child safety or the safety of others violates the principles of beneficence and non-maleficence. Given the risks, the dubious benefits and the lack of a research foundation validating the effectiveness of this intervention, professionals must seriously question the ethics of continuing this practice under the present loose guidelines.
            To be sure, there are situations in which there will be no choice other than to use restraints. When a child suffering from Lesch-Nyhan engages in autocannibalism, an autistic child persists in severe head banging, or an adolescent under the influence of PCP is in a homicidal rage, there may be no other choices.  But as a routine intervention, as an assumed part of the repertoire of responses by staff members, restraints should be considered in the same way as any other non-validated therapy and be subject to the dicta that define informed consent.

Restraints as Eighth Amendment Cruel and Unusual Punishment

            To the extent that therapy approaches are carefully designed to be serious attempts to extinguish maladaptive behavior patterns, they may legitimately be deemed treatment as opposed to punishment.  On the other hand, logic suggests that inappropriately designed behavioral programs that constitute punishment disguised as treatment should be subject to analysis under Eighth Amendment standards. Some courts have so ruled. (Converse v. Nelson, No 95-16776 Mass Superior Ct., July 1995). However, more recently the Supreme Court has expressly held that the Eighth Amendment standard is inapplicable in a mental institution setting (Youngberg, 1982).  Interestingly, such methods have freqently been held to trigger Eighth Amendment analysis.  The disparity occurs because the courts distinguish between prisons, as punitive institutions, and hospitals, where the object is to provide treatment (Ingraham v Wright, 1977). Persons who have not been convicted of a crime have a constitutionally recognized right to be free of state- imposed punishment (Bell v Wolfish, XXX). Restraints  have frequently been held to violate the prohibition against cruel and unusual punishment when used in a penal institution; prison officials have a duty under the Eighth Amendment to provide “humane conditions of confinement” and can be held liable for acting with “deliberate indifference” to the health and/or safety of an inmate.(Farmer v. Brennan, 1994). In the non-criminal, non-punitive context of a residential treatment facility, the Court has explicitly found Eighth Amendment analysis inappropriate. (Youngberg, 1982)   Innocent persons have a right to be free from punishment (Bell v. Wolfish, 19–) and schools and hospitals are not penal institutions; therefore, Eighth Amendment standards governing the nature of punishment do not apply. (Ingraham, 1977).
Instead, the Court has held that interventions which are not professionally indicated and which are unnecessarily restrictive may violate a patient’s Fourteenth Amendment liberty interest.  Despite the legal distinction drawn by the courts between a :punitive” involuntary confinement triggering Eighth Amendment protections and a prophylactic one implicating Fourteenth Amendment interest, use of restraints seems factually to be little different from the corporal punishment that has been held to be cruel and unusual punishment in prison and juvenile cases (see, e.g., Jackson v. Bishop 404 F. 2d, 571, 579-80 8th Cir, 1968). It is difficult to defend the professional appropriateness of medical interventions that are considered too inhumane to be constitutionally applied to criminals in a penal facility.

Restraint Use as a Violation of the Fourteenth Amendment
            The leading case on the issue of restraints is Youngberg v. Romeo, decided by the United States Supreme Court in 1982. The case involved a profoundly retarded youngster who was involuntarily committed to a Pennsylvania state institution, where he suffered injuries due to the conditions of his confinement.  His mother brought suit, alleging that he had the right to safe conditions of confinement, freedom from bodily restraint, and appropriate training or “habitation.” The trial court had applied the Eighth Amendment standard, and had found the institution guilty of violating it. The Court of Appeals had reversed and remanded the case for a new trial, holding that a Fourteenth Amendment standard was the appropriate one.  The Supreme Court agreed with the Appeals Court, but went further, holding that persons involuntarily committed to state institutions have a constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment to “reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and such minimally adequate training as reasonably may be required by these interests.”  The Court explicitly adopted that portion of the Appeals Court decision holding that persons involuntarily committed “retain liberty interests in freedom of movement and in personal security. These are ‘fundamental liberties’ that can be limited only by an ‘overriding, non-punitive’ state interest.”
In determining whether the State has protected a patient’s right to freedom from “unreasonable restraint” a court must decide what is “reasonable.” In its opinion in Youngberg, the Supreme Court highlighted its concern that courts not invade the province of those whose job it is to make medical and custodial decisions. The test to determine whether the use of restraints was reasonable under the circumstances of a particular case is whether professional judgment was in fact exercised.  Such professional judgment, the Court ruled, was to be considered “presumptively valid.”  A presumption operates to shift the burden of proof to those alleging that the imposition of restraints was unreasonable.
The Court signaled its deference to the political realities of confinement, expressly noting that there are occasions in which it is necessary for the state to restrain institutional residents. This being the case, the proper inquiry for constitutional purposes will be not whether the patient’s liberty interest has been infringed, but “whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process.”  In short, the courts are to weigh an individual’s interest in liberty against the state’s asserted need to restrain. The standard to be used in making that determination is professional judgment.  While the Court explicitly states that it is inappropriate for courts to specify which of several “professionally acceptable” choices should have been made, the emphasis on professional judgment highlights the central contention of this article: the paucity of  rigorous, clinically adequate research on restraints that can inform the necessary professional judgment, and the substantial existing evidence that restraints are rarely useful and frequently harmful.  It is interesting to note that in Britain, psychiatrists have successfully done without the major forms of mechanical restraint for many years, and the British Mental Health Act Commission has even proposed forbidding their use (Saks, 1986). The British experience casts further doubt on the legal adequacy of American professionals’ reliance on restraints, and will undoubtedly be cited in some future challenge to the professional basis of a decision to use restraints.
The test enunciated by the Supreme Court in Youngberg is a highly deferential one; nevertheless, deferential is not non-existent. Providers will risk legal liability when a decision to employ restraints is so substantial a departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.  Given the limited evidence of efficacy, the self-referential nature of such research as is available, and the clear contraindications for imposition of restraints outlined above, even that seemingly simple test may be impossible to meet.  It would seem to be high time to revisit the issue of restraints. The profession should produce standards governing their use that can be supported by sound theory and methodologically credible research, and can be justified under appropriate ethical and legal standards.

            American Academy of Child and Adolescent Psychiatry (2000).  Practice parameters on the prevention and management of aggressive behavior in child and adolescent psychiatric institutions with special reference to seclusion and restraint, Draft 7, Washington, D.C.:  Author.
            American Psychiatric Association. (1994). Diagnostic & Statistical Manual of Mental Disorders IV.  Washington, D.C.:  Author.
            American Psychiatric Association (1989).  Concepts and definitions in psychiatric quality assurance and utilization review.  Washington, D.C.:  Author.
Aragon, A. & Holmes, P.A. (1990).  Engagement of patients and staff on a psychiatric hospital ward.  Journal of Organizational Behavior Management, 11(2), 171-188.
            Axelrod, S. & Apsche, J.  (1984).  The effects of punishment on human behavior.  New York:  Academic Press.
            Bandura, A. (1969).  Principles of behavior modification.  New York, N.Y.:  Holt, Rinehart & Winston.
            Barlow, D. (1989).  Therapeutic holding:  Effective intervention with the aggressive child. Journal of Psychosocial Nursing and Mental Health Services, 27(1), 10-14, 37-38.
Bell v. Wolfish, 441 U.S. 520 (1979)
Betemps, E.J., Somoza, E. Buncher, R.C. (1993) Hospital characteristics, diagnoses and staff reasons associated with use of seclusion and restraint.  Hospital & Community Psychiatry, 44, 367-371.
Binder, R. & McCoy, S. (1983).  A study of patients’ attitudes toward placement in seclusion. Hospital & Community Psychiatry, 34(11), 1053-1054.
            Braxton, E.T. (1995)  Angry children, frightened staff:  Implications for training and staff development:  Residential Treatment for Children and Youth, 13(1), 13-38.
            Burdett, C. & Milne, D. (1985).  Setting events as determinants of staff behavior:  An exploratory study.  Behavioral Psychotherapy, 13, 300-308.
            Cenziper, D. (2000)  North Carolina’s troubled mental health system.  Charlotte News Jan, 22 & 23.
            Converse v. Nelson, No. 95-16776 (Mass. Superior Ct. July 1995)
            Cotton, N. (1989).  The development-clinical rationale for the use of seclusion in the psychiatric treatment of children. American Journal of Orthopsychiatry, 59, 442-450.
Deutsch, A.(1948). The shame of the states.  New York, N.Y.:  Harcourt, Brace Inc.
Deutsch, A. (1949).  The mentally ill in America.  New York:  Columbia University Press.
Dodge, K.A., Price, J.M., Bachorowski, J., & Newman, J.P. (1990).  Hostile attributional biases in severely aggressive adolescents.  Journal of Abnormal Psychology, 99, 385-392.
Donat, D.C. & McKeegan, G.F. (1990).  Behavioral knowledge among direct care staff in an inpatient psychiatric setting.  Behavioral Residential Treatment 5(2), 95-103.
Farmer v. Brennan, 511 U.S. 825 (1994)
Fassler, D. & Cotton, N.S. (1992).  A national survey on the use of seclusion in the psychiatric treatment of children.  Hospital and Community Psychiatry, 43, 370-374
Fergusson, D. Horwood, L., Lynskey, M. (1994)  Prevalence and comorbidity of DSM III-R diagnosis in a birth cohort of 15 year olds.  Journal of the American Academy of Child and Adolescent Psychiatry, 32(6), 989-993.
Fisher, W.A. (1994).  Restraint and seclusion: A review of the literature.  American Journal of Psychiatry, 151(11). 1584-1591.
Gardner, W.I. & Cole, C.L. (1987).  Behavior treatment, behavior management, and behavior control:  Needed distinctions.  Behavioral Residential Treatment, 2, 37-53.
Garrison, W.T., Ecker, M.A., Friedman, M.D., Davidoff, M.D., Haeberle, K, & Wagner, M. (1990.  Aggression and counteraggression during child psychiatric hospitalization.  Journal of the American Academy of Child and Adolescent Psychiatry, 29(2), 242-250.
            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 restrain in child psychiatric hospitals.  Journal of Child and Adolescent Psychiatric Nursing, 9(4), 7-11.
            Goren, S., Abraham, I, Doyle, N. (1996).  Reducing violence in a child psychiatric hospital through planned organizational change.  Journal of Child and Adolescent Psychiatric Nursing, 9 (2), 27-36.
            Hammill, K. , McEvoy, J.P, Koral, H., & Schneider, N.  (1989).  Hospitalized schizophrenic patient views about seclusion.  Journal of Clinical Psychiatry, 50(5), 174-177.
Health Care Financing Administration (1992).  Interpretive Guidelines:  State Operations Manual Transmittal 250.  Washington, D.C.:  Author.
Health Care Financing Administration (1999).  Hospital Condition of Participation in Medicare and Medicaid, Federal Register, 64, 127, Friday, July 2, 36089.
Hopcroft, T.E.(1995).  Civil commitment of minors to mental institutions in the Commonwealth of Massachusetts.  New England Journal on Criminal and Civil Confinment, Summer
            Howard, J.D. & Reay, D.T. (1997).  Positional asphyxia.  Annals of Emergency Medicine, 32(1), 116-118.

Hyman, I. A. (1995).  Corporal punishment, psychological maltreatment, violence, and punitivenes in America.  Research, advocacy, and public policy.  Applied & Preventive Psychology, 4, 113-130.
Hyman, I. A. (1996).  Corporal punishment.  In T. Fagan & P. Wardon (Eds.), Historical encyclopedia of school psychology (pp. 92-93).  Westport, CT.:  Greenwood Publishing Group.
Hyman, I. A.  (1997).  Corporal punishment.  In G. Bear, K. Minke, & A. Thomas (Eds.).  Children’s Needs:  Development, Problems, and Alternatives (pp. 235-243). Bethesda, MD:  National Association of School Psychologists.
Ingraham v. Wright, 430 U.S. 651 (1977)
Jackson v. Bishop, 404 F.2d 571, 579-80 (8th Circuit 1968) (Blackmun, J.).
Joy, D.S. (1981).  The maintenance of order on an adolescent inpatient unit: An analysis of working on the evening shift.  Psychiatry, 144, 253-262.
Kapp, M.B. (1998).  Our hands are tied:  Legal tensions and medical ethics.  Westport, CT.:  Auburn House.
Krumboltz, J.D. & Kurmboltz, H.B. (1972).  Changing children’s behavior.  Englewood Cliffs, N.J.:  Prentice-Hall Inc.
Masters, K. (1998).  Droperidol in hospitalized children (letter).  Journal of the American Academy of Child and Adolescent Psychiatry, 37(8), 802-803.
Maruschock, R. (1996).  Evaluation of a hospital staff’s knowledge regarding the use of physical restraints.  Journal of Nursing Staff Development, 12(3), 144-148.
Measham, T.J. (1995).  The acute management of aggressive behaviour in hospitalized children and adolescents.  Canadian Journal of Psychiatry, 40, 330-336.
Miller, D. (1986).  The management of misbehavior by seclusion.  Residential Treatment for Children and Youth, 4(1), 63-73.
Millstein, K.H. & Cotton, N.S. (1989).  Predictors of the use of seclusion on an inpatient child psychiatric unit. Journal of the American Academy of Child and Adolescent Psychiatry, 29 (2), 256-264.
Mohr,W.K., Mahon, M.M, & Noone, M.J. (1998).  A restraint on restraints:  The need to reconsider restrictive interventions.  Archives of Psychiatric Nursing, 12(2), 95-106.
            Moss, R.J. & LaPuma, J. (1991)  The ethics of mechanical restraints.  Hastings Center Report, 21(1), 22-25.
            Moffit, T.E. & Silva, P.A. (1988).  Self-reported delinquency, neuropsychological deficit, and history of attention deficit disorder. Journal of Abnormal Child Psychology, 16, 553-569.
Moffitt, T.E. & Henry, B. (1991).  Neuropsychological studies of juvenile delinquency and violence:  A review.  In J.Milner, (Ed.),   The Neruopsychology of Aggression (pp. 67-91).  Norwell, MA:  Kluwer Academic Publishers.

            Newman, J.P. (1987)  Reaction to punishment in extroverts and psychopaths:  Implications for the impulsive behavior of disinhibited individuals.  Journal of Research in Personality, 21, 464-480.
            Newman, J.P.  & Kosson, D.S. (1986). Passive avoidance learning in psychopathic and nonpsychopathic offenders.  Journal of Abnormal Psychology, 95, 257-263.
            Niemeir, W.F. (1983).  A behavioral analysis of staff-patient interactions in a psychiatric setting.  Western Journal of Nursing Research, 5, 269-281.
Obholzer, A. (1995). The residential setting in psychotherapeutic work with adolescents.  Residential Treatment for Children and Youth, 13(1), 5-12.
Olmstead v. L.C. ex rel. Zimring, 119 S.Ct. 2176 (1999)
Parham v. J.R., 442 U.S. 584; (1979).
Perrow, C. (1965).  Hospitals: Technology, structure, and goals. In J. G. Marsh (Ed.), Handbook of organizations (pp.47-60).  Chicago, IL:  Rand-McNally.
Perry, B.D. (1997).  Incubated in terror:  Neurodevelopmental factors in the “cycle of violence.”  In J. Osofsky (Ed). Children in a Violent Society, (pp. 124-149).  N.Y.:  The Guilford Press.
Perry, B.D. & Pollard, R. (1998).  Homeostasis, stress, trauma, and adaptation:  A neruodevelopmental view of childhood trauma.  Child and Adolscent Psychiatric Clinics of North America, 7(1), 33-51.

Perry, B.D., Pollard, R.A., Blakley, T.L., Baker, W.L, & Vigilante, D.  (1995).
Childhood trauma, the neurobiology of adaptation, and "Use-dependent"  development of the brain:  How "states" become "traits."  Infant Mental Health Journal, 16 (4), 271-289.
            Persi, J. & Pasquali, B. (1999). The use of seclusions and physical restraints:  Just how consistent are we?  Child and Youth Care Forum, 28(2), 87-103.
            Plutchik, R. , Karasu, T.B., Conte, H. R., Siegel, B., Jerrett, T.  (1978).  Toward a rationale for the seclusion process.  Journal of Nervous & Mental Disease, 166(8), 571-579.
Pollanen, M.S., Chiasson, D.A., Cairns, J.T., & Young, J.G. (1998).  Unexpected death related to restraint for excited delerium:  a retrospective study of deaths in police custody and in the community. CMAJ, 158(12), 1611-1612.
Restaint Safety Act of 1999 briefing House Commerce Subcommittee on Health and Environment; House Ways and Means Subcommittee on Health.  Cong., March 21, 2000.
Rich, C. (1997).  The use of physical restraint in residential treatment:  An ego psychology perspective.  Residential Treatment for Children and Youth, 14(3), 1-12.
            Rubenstein, H.(1983)  Standards of medical care based on consensus rather than evidence:  The case of routine bedrail use for the elderly.  Law Medicine and Health Care, 11, 271-276.
Saks, Elyn R. (1986) “The Use of Mechanical Restraints in Psychiatric Hospitals”  Yale Law Journal

Schwartz, E.D. & Perry, B.D. (1994).  The post-traumatic response in children and adolescents.  Psychiatric Clinics of North America, 17(2), 311-326.
Singh, N.N., Singh, S.D., Davis, C.M., Latham, L.L., & Ayers, J.G. (1999).  Reconsidering the use of seclusion and restraints in inpatient child and adult psychiatry.  Journal of Child and Family Studies, 8(3), 243-253.
            Skinner, B.F. (1953).  Science and human behavior.  New York, N.Y.:  Macmillan
            Soliday, S. (1985).  A comparison of patient and staff attitudes toward seclusion.  Journal of Nervous & Mental Disease, 173(5), 282-291.
Steiner, H. (1997).  Practice parameters for the assessment of children and adolescents with conduct disorder.  Journal of the American Academy of Child and Adolescent Psychiatry, 36 (Supplement), 10.
Stilwell, E.M. (1991).  Are nurses educated on the use of restraints?  Journal of Gerontological Nursing, 17(2), 23-26.
Straus, M. A., Sugarman, D.B., Giles-Sims, J. (1997).  Spanking by parents and subsequent antisocial behavior of children.  Archives of Pediatrics and Adolescent Medicine, 8(151), 761-767.
            Stuart, G. & Sundeen, G. (1995).  Principles and practice of psychiatric nursing (5th Ed).  St. Louis:  Mosby.
            Troutman, B., Myers, K, Borchardt, C.M., Kowalski, R, & Bubrick, J. (1998).  Case study:  When restraints are the least restrictive alternative for managing aggression. Journal of the American Academy of Child & Adolescent Psychiatry, 37(5), 554-558.
            U.S. Department of Health & Human Services. (Dec., 19, 1997).  Health Care Financing Administration Conditions of Participation.  Washington, D.C.:  Author.
            Wadeson, H. & Carpenter, W. (1976).  Impact of the seclusion room experience.  Journal of Nervous & Mental Disease.163(5), 318-328.
Way, B.B. & Banks, (1990).  Use of seclusion and restraint in public psychiatric hosptiatls:  patient characteristics and facility effects.  Hospital and Community Psychiatry, 41, 75-81
Weiss, E.M.(October 11-15, 1998) Deadly restraint:  A nationwide pattern of death.  Hartford Courant.
Wolff, P.H., Waber, D., Bauermeister, M., Cohern, C., & Ferber, R. (1982). The neuropsychological status of adolescent delinquent boys.  Journal of Child Psychology and Psychiatry, 23, 267-279.
Wong, S. Martinez-Diaz, J., Thorne-Henderson, M. (1990).  How therapeutic is therapeutic holding?  Journal of Psychosocial Nursing and Mental Health Services, 28(11), 24-28, 39-40.
Wyatt v. King, 1992, 793 F. Supp. 1058, 1077-79.
Youngberg v. Romeo, 457 U.S. 307 (1982)

3 thoughts on “A Prolegomenon on Restraint of Children: Implicating Constitutional Rights

  1. Pingback: Relajacion Mental
  2. Pingback: Freeeeeee Freebies

Comments are closed.