Seclusion & Restraint III
Michael A. Gillette, Ph.D.

The last several Practical Ethics have dealt with issues surrounding seclusion and restraint. The conversation thus far has covered circumstances under which an individual might be restrained or secluded because he is involved in activity that is either directly or indirectly harmful to himself. We must now concern ourselves with cases in which the activities of one individual pose a risk of harm to others.

Of these types of cases, the class that seems relatively easy to resolve is that of direct harm to others. There are two analogues in this area that are intuitively clear. The first is our treatment of criminals, and the second is the use of quarantine.

Whenever one individual engages in activity that is directly harmful to another innocent party, it is immediately assumed that the subject of the harm has been ethically mistreated, and that the initiator of the harm is culpable. While there are obvious exceptions to this rule, there is a background assumption that innocent people have a right to be protected from harm.

An individual who engages in unjustified harmful activity is morally responsible for that harm, all other things being equal. Moral culpability is generally grounds for forcible restraint. We usually place those who intentionally harm others into prison.

A problem immediately arises, however, in the mental health and mental retardation settings, because it is often reasonable to assume that punitive restraint is inappropriate when a person is unable to control his actions. I noted in the last paragraph that those who cause harm to others are, "all other things being equal”, responsible for those harms. It must be made clear, however, that two of the conditions included in the "all other things being equal” clause are that the agent of the activity understands what it is that she is doing, and that she has the power to avoid doing it.

Our law and our ethics in this society support the view that punishing people for harms done under duress is not justifiable. A long tradition supporting forgiveness for harms done in self-defense, during times of war, while one is under severe psychological stress or while one satisfies the legal definition of insanity, shows that voluntary activity is necessary for moral culpability. Prison is the right place for restraining people who freely and intentionally harm innocent others. But what about the direct harms done to others by individuals in our Mental Health and Mental Retardation facilities? They do not seem to fall into the same category with the actions of criminals.

Fortunately, we have clear examples regarding inadvertent harm to others that help to resolve this issue. People who are unable safely to drive cars due to physical limitations are refused driver's licenses. People who are infections are quarantined. People who create an imminent threat of harm to others due to mental illness are subject to civil commitment. In all these cases, restrictions are applied to individuals in order to protect others, even though the offending individual is not believed to be responsible for the threatened harm.

As a society we understand that it may be reasonable to restrict the freedom of some morally innocent people because they are unavoidable threats to others unless restrained. There are at least two limits to this view, however. First, there must be no less restrictive alternative for avoiding the harm. Second, there must be a clear victim of the harm done by a specific actor. To put this another way, the mechanism of harm must be clear, and the cause of the harm must be easily traceable back to the person who is being restricted.

These two stipulations, which seem to be reasonable, are entirely consistent with our use of seclusion and restraint in the case of direct harm to others. Whenever a client or patient is clearly the cause of unreasonable harm to others, and whenever there is no less restrictive means of avoiding that harm, then the use of seclusion and restraint would seem to be in order.

While this helps in the direct harm case, it does not help in the indirect harm case. Both of the stipulations regarding activities like quarantine are difficult to make out in the indirect harm case. Is it true that the harm can be clearly traced back to the actions of a particular person? Since the harm is indirect, there are other people or events involved in the harm than merely the person for whom we are considering restraint. Also, since there may be other factors in the creation of the harm, it might be possible to alter some of those other factors in order to avoid the harm. Therefore, even if the harm can be traced back to the intended subject of restraint, it may be possible to engage in a less restrictive response and achieve the same end.

To make these points clear, recall the example used for indirect harm to others. The example involved one individual who, due to his severe case of Pica, required excessive staff support. This level of support could only be provided if staff were taken away from their normal activities on the unit, thus resulting in a decrease in the quality of care to other clients. Other clients are therefore harmed, and the source of the harm is the fact that the client with Pica is utilizing a greater amount of services for himself than is consumed by other clients in the unit.

The alternative to providing the Pica patient with one-on-one staff support is to move him to a more restricted and secluded environment. The ethical aspects of making that switch are what we are now discussing.

According to our analysis of this issue, restricting the client who has Pica would only be acceptable if we can trace the harm directly back to him, and if there is no other less restrictive means of alleviating that harm. If those conditions are met, then an argument could be made along the same lines of quarantine to justify the use of a more restrictive treatment plan for this client. Otherwise, increased restrictions would be difficult to justify.

I suggest, however, that the fact of the matter in this case is empirical and not ethical. Under certain circumstances, the use of a more restrictive living arrangement may be the least restrictive available option. In another scenario, this may not be the case. The list of available scenarios from which to choose will be based on facility budgets and resources. It will be a social choice as to how many resources will be allocated to our MH and MR settings, and therefore whether an option involving greater staff support is available. That is a question for health care reform, however, and is no longer an issue of seclusion and restraint.