Prof. Michael L. Perlin
New York Law School
57 Worth St.
New York, NY 10013
The past two decades have seen the development of a robust and contentious body of caselaw in the area of the right of institutionalized persons to refuse antipsychotic medication, an area of the law that has been the subject of intense judicial and academic scrutiny. On the other hand, there has been virtually no attention paid to the constitutional dimensions of the potential right to refuse other modalities of treatment -- such as seclusion and restraint -- that are frequently used in public psychiatric hospitals. Although the use of these methods of control diminished markedly with the advent of the "psychotropic drug era," they remain in regular use in virtually all large psychiatric hospital facilities.
Only once has the Supreme Court decided a case that presented a question of seclusion and restraint. And while that case -- Youngberg v. Romeo -- is perhaps the Court's most important decision on the overarching question of how professional liability is to be assessed in all institutional rights litigation, it has had (as I'll discuss later) remarkably little impact on subsequent developments in this specific subject-matter area.
On the other hand, a substantial body of case law has developed in the more traditional area of tort law as it applies to both the regulation of seclusion and restraint, and to claims alleging negligence in the failure to restrain. These cases are based mostly on standard legal principles that have developed over the centuries: principles involving standards of care, proximate cause, duty, and other factors familiar to anyone who has ever read a survey article about medical malpractice. And what is especially interesting here is that the constitutional principles that I've been discussing are virtually never mentioned in any of this litigation.
In fact, if you read all the reported seclusion and restraint cases decided in the past 15 years, you'll see that cases quickly cluster into categories that appear to have little in common with each other (save the fact that litigation was initiated when someone complained about a seclusion and restraint practice). Some are constitutional. Some are based on tort principles. Yet others are statutory (based on so-called state "Patients' Bills of Rights," legislation enacted to comport with a series of court cases that established a broad constitutional right to treatment for psychiatric inpatients). Some are individual; some are class-based. Some complain about the fact of seclusion or restraint; some about the way seclusion or restraint was carried out; at least two about how staff taunted a secluded patient; yet others complain about the failure to restrain (either by the non-restrained patient but, rather or by an individual who alleges that she was injured because of the failure to restrain). And the decisions in each "category" of these cases rarely allude to decisions in other "categories." And I haven't yet mentioned the Americans with Disabilities Act and its potential impact on all of this.
What I am going to do here is try to offer you a structure through which seclusion and restraint cases can be analyzed, and to suggest to you some overarching principles that apply to the different categories.
But that's not all I'm planning to do, because I believe that this explanation would only be half of an answer. I also want to try to shed some light on the more difficult (and, to me, at least), more interesting question of why has the law developed as it has? To answer this latter question, I need to look at other more difficult questions: What factors really matter to the fact-finders hearing seclusion and restraint cases? What really happens when a facility seeks to involuntarily seclude or restrain certain kinds of patients? What bundle of social attitudes really dominates the landscape upon which most of this litigation is brought? And, mostly, why do we really feel the way that we do about these issues?
In the remainder of my time, then, I will do the following: first, I will offer a brief history of the development of seclusion and restraint law, looking at the sources of the law, and the way that courts often weigh rights and remedies in right-to-refuse treatment cases of all sorts by considering a "continuum of intrusivity," and then locating seclusion and restraint on that continuum. Next, I will discuss the different major categories of cases that have been litigated (both those seeking to stop unwanted seclusion and/or restraint and those claiming that a failure to seclude or restrain caused the injury in question). Then, I will apply the concepts of sanism and pretextuality to this area of the law (and I will explain what these terms mean in a few minutes) , and will reconsider it by an application of therapeutic jurisprudence principles. I will end by offering some modest conclusions.
II. Sources of regulation
The authority to regulate seclusion and restraint practice derives from a cluster of sources: the constitution, statutory law, and common law. This is, of course, not unique to this area of the law. but, given the disparate categories into which seclusion and restraint cases can be "slotted," it probably makes sense to spend just a few minutes discussing these sources to seek to clarify this significance.
First, seclusion and restraint practices in public psychiatric hospitals implicate the constitution. And, once implicated, the Constitution is relevant to a potential variety of different claims. It may be argued that as an aspect of a patient's substantive right to treatment, a facility must establish seclusion and restraint policies that limit the use of these methods to "prevent a patient from physically injuring himself/herself or others." It may be argued that, as a part of a patient's substantive right to refuse treatment, that a patient cannot be restrained or secluded unnecessarily or punitively or for the convenience of staff or where a less restrictive alternative is available, or "in a manner that causes undue physical discomfort, harm or pain to the patient." It may also be argued that as an aspect of a patient's procedural right to due process, that the patient has a right to some sort of notice or hearing prior to the imposition of seclusion and restraint, save, perhaps in emergency situations. And when the United States Supreme Court articulates a substantive or procedural constitutional right, a potentially aggrieved patient can seek redress (for what are generally called "constitutional torts") by filing suit under the federal Civil Rights Act (known to court buffs as "section 1983 actions").
Seclusion and restraint may also be governed or regulated by statutory provisions. In the wake of the first generation of Constitutional decisions in the early 1970's, most states enacted Patients' Bills of Rights so as to provide institutionalized individuals with basically the same panoply of civil and constitutional rights mandated by federal courts in such cases as Wyatt v. Stickney, the Alabama case that transformed institutional care,and had a "dramatic influence" on constitutional and case law developments in other jurisdictions." More recently, Congressional enactment of the Americans with Disabilities Act -- banning discrimination against persons with mental disabilities in virtually every aspect of public and private life -- provides yet another potential source of legislative regulation (though one that remains practically dormant to this day).
But the most significant regulation of seclusion and restraint practice comes from the common law source of tort law. To reduce this whole body of law to an index card, there are five basic elements in a negligence case: an act, a duty of care, a breach of duty, causation, and damages. To prevail, a plaintiff must thus show that the defendant's action -- or inaction -- breached a present of duty to care, exposing him to an unreasonable risk of harm, and that that breach was the proximate cause of the harm that he suffered. These principles are millennia old, and can obviously be used in cases involving both improper seclusion or, conversely, claims arising from a failure to seclude.
In short, there are a variety of potential legal sources of legal authority for "seclusion and restraint actions," and it is important to keep that 'in memory" as I discuss the various decisions. It is also important to turn our attention to a "sidebar" issue that may provide some clues to how we assess legal standards in seclusion and restraint cases, and to the ultimate case outcomes: the vexing question of where this modality falls on a spectrum of psychiatric hospital treatments. How intrusive is it? Is it more intrusive than the administration of antipsychotic drugs? Less? The same? Is there a difference between the use of seclusion and the use of restraint (they are discussed virtually interchangeably in the legal literature)?
As you might expect, experts, bureaucrats and clinicians differ. Professor Dix assumes that forced medication is more intrusive than seclusion or restraint. Arizona state policies categorize emergency medication as less restrictive than seclusion; Dr. Soloff agrees. New Hampshire guidelines rate seclusion as less restrictive than physical restraints which are, in turn, less restrictive than drugs. A survey of California hospital staff revealed that medication was felt to be less restrictive than seclusion or restraint.
Making this problem even more difficult is the literature on staff and patient preference. A survey of doctors at the same hospital revealed a nearly 2-1 preference for medications rather than seclusion or restraint; these numbers were nearly identical to percentages in a poll of patients at a different California hospital. And nearly 3/4 of patients found restraints more restrictive than seclusion. Generally, staff and patients who rated seclusion or restraint as more intrusive found medications to be less physically intrusive, and to allow patients to remain in common hospital living areas and to participate in other treatment modalities. Those who found it less intrusive found it to be less intrusive and "more apt to lead to immediate control of violent behaviors."
Interestingly, as to the choice between seclusion and restraint, 38% of staff polled felt seclusion would be more effective and 62% rated restraints as more effective. Those who favored seclusion made that choice largely because it allowed patients to "release more energy than restraints," was less physically restrictive, and less "demeaning"; those who preferred restraints focused on the likelihood that restrain would better prevent physical injury and would prevent "escalation"more effectively than would seclusion.
And making it all even more complicated are the rate variances that have been found. Rates of usage at state hospitals range from 1.9% to 51%, at university hospitals from 4% to 36.6%, and at other facilities from 3.6% at a military hospital to 66% at the research unit of an NIMH facility. In addition, persons with diagnoses of mental retardation are more likely to be secluded or restrained than those without such a diagnosis. On the other hand, no differences were found in one study of usage rates between civil and forensic hospitals, although restraints were used more often in forensic cases while seclusion was more often used in civil cases.
Seclusion and restraint are ordered for a wide range of behaviors. The most important finding here is that violence is not cited as the most frequent precipitant of physical control. Three out of five uses of seclusion or restraint follow "violations of community of administrative limits" (e.g., "inappropriate" behavior, "uncoooperativeness") . This, of course, flies in the face of those cases and statutes (that I will be discussing in a moment) limiting its use to "prevent[ing] a patient from physically injuring himself/herself or others."
In short, this is a very complicated area of psychiatric practice. It should be no wonder that it is just as complicated an area of law.
III. Categories of cases
Contemporaneous seclusion and restraint law has developed (or can potentially develop) from at least six different sources:
1. Class action or "law reform cases" seeking to mandate certain constitutional standards in litigation seeking a declaration of a constitutional right to treatment and/or adequate care and/or safe conditions of confinement (usually litigated in federal court settings),
2. Class action or "law reform cases" seeking to mandate certain constitutional standards in litigation seeking a declaration of a constitutional right to refuse treatment (also usually litigated in federal court settings),
3. Individual cases brought under the federal Civil Rights Act (§1983) seeking redress (usually in damages) for violations of previously-articulated constitutional rights,
4. State statutes (generally called "Patients' Bills of Rights") that regulate and control the way that treatment is provided at public psychiatric hospitals, and individual cases seeking to enforce, limit, or interpret such state statutes,
5. Federal statutes (e.g., the Americans with Disabilities Act) that prohibit discrimination against persons with mental disability,
6. Individual tort cases seeking monetary damages from allegedly improper use of seclusion and/or restraint, or failure to use seclusion and/or restraint (usually litigated in state court settings).
What I'm going to do now is to look at each of these categories separately, highlighting some of the important decisions in each one, with an eye toward discovering points in common that might be of help to us in understanding what the law is and how we can expect the law to reasonably develop.
First, as I've already noted, the constitutionally-driven Wyatt standards established limits on seclusion and restraint as part of the right to treatment: seclusion could not be used for punishment or staff convenience, and could only be used "to prevent a patient from physically injuring himself/herself or others," after alternative treatment interventions were unsuccessful or after determining alternative treatment interventions would not be practicable, and when authorized by a written order of a qualified physician who is physically present and has examined the patient," in all cases seclusion/restraint orders being limited to eight hours. Other courts quickly followed in the wake of Wyatt,and as recently as two years ago, federal courts continued to find that a state hospital's failure to "take adequate action to investigate and curb harm, abuse and undue use of seclusion and restraint" violated Constitutional guarantees of a right treatment."
Other constitutional cases have considered seclusion and restraint issues in the context of the patient's right to refuse treatment. The most important decision here is Rogers v. Okin, the trial court opinion that eventually led to the Mills decision in the Supreme Court that I mentioned earlier in this talk. There, the plaintiffs had argued that seclusion was routinely used by defendants in non-emergency situations for the purposes [both] of treatment and punishment," and the federal district court agreed. It found that "the indiscriminate use of seclusion PRNs, the failure to properly fill out seclusion order and observation forms, and the failure to review incidents of seclusion within eight hours [as required by state law]," resulted in a violation of plaintiffs' liberty interest under the due process clause, and, to remedy this violation, enjoined seclusion use, "except in emergency situations where there is an occurrence of serious threat of extreme violence, personal injury or attempted suicide." In a much more recent case, a federal court rejected an (insanity acquittee) plaintiff's argument that a mental health facility must use restraints prior to the administration of antipsychotic medication in light of the parties' failure to develop the record on the question of "how effective alternative restraints will be and what risks, if any, their use poses to the staff."
Next to consider are the constitutional dimensions of cases seeking primarily (or at least, significantly) money damages. Here I start with the Youngberg case, as it is, as I've said, the only Supreme Court case to consider any of the underlying issues, and because its holding has had, and will continue to have, a major impact on all subsequent constitutional litigation in this area. Youngberg began as a damages action on behalf of a profoundly retarded resident of a Pennsylvania state institution, alleging that the plaintiff had suffered a series of over 70 significant injuries (some self-inflicted, some inflicted by other residents, some by staff), and that the defendants' failure to protect him from such injuries violated the Constitution. He subsequently amended his complaint to enjoin the defendants' use of physical restraints "for prolonged periods on a routine basis." In the course of its opinion, the Supreme Court found that patients have a constitutionally protected liberty interest in "conditions of reasonable care and safety," "freedom from bodily restraint" and such minimally adequate or reasonable training [as is needed] to ensure safety and freedom from undue restraint." In determining whether there has been a violation of these rights, the Court imposed a "professional judgment" test: "liability may only be imposed when the decision by the professional is such a substantial 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." There is no subsequent mention in the opinion of the question of the restraints that were used in the case.
Many constitutional cases have since considered seclusion and restraint issues, using the Youngberg standard as their guidepost, and the range of decisions in such cases appear to seek to take that standard seriously. Where professional judgment was apparently used, cases are dismissed; where it was apparently lacking, cases are allowed to proceed to a jury trial. In other cases, courts have allowed plaintiffs to proceed against certain defendants (usually those in line-level positions) but not against others (generally the supervisors).
Yet another set of cases are statutory. Again, as I've noted, in the wake of Wyatt and its progeny, most states adopted "Patients' Bills of Rights" that generally tracked the substantive rights provisions in the initial Wyatt decisions, and at least eight specifically adopted the language that seclusion could never be used as punishment or for staff convenience. What is not clear is what sort of prophylactic effect the presence of these statutes has had on patient treatment and staff attitude. At the least, though, these laws provide some support for the notion that some state legislatures have given some thought to Wyatt's constitutional admonitions.
The bulk of litigation that has taken place, however, has flowed from traditional tort principles. And, as can be expected, decisions in these cases have been intensely fact-dependent. The paradigm successful (from a plaintiff;s perspective, that is) case is Pisel v. Stamford Hospital, a case where an agitated and psychotic patient (who had been locked in a seclusion room) was later found unconscious and without a pulse, her head wedged between her bed's mattress and steel railing. There, the Connecticut Supreme Court affirmed a $3.6 million jury verdict, finding that the plaintiff had offered competent expert testimony indicating that the treatment violated the appropriate standard of care. The mirror opposite "successful" case is Clark v. Ohio Dep't of Mental Health. There, the court held that the plaintiff was entitled to nominal damages in the amount of one dollar for the improper use of restraints and seclusion by defendant's staff. In Clark, the plaintiff had been placed in restraints or in seclusion on numerous occasions due to her smoking habits, and her propensity for starting fires; however, the court found that restraining the plaintiff was a punitive response to her behavior, and less restrictive alternatives could have been utilized. But because the plaintiff had not shown any substantial damages, the court found nominal damages (in the amount of $1) to be appropriate.
In other cases, recovery has been denied, usually where plaintiffs failed to sustain the burden of proof that they were improperly restrained or that defendant's actions were responsible for their injuries. Coltraine v. Pitt County Memorial Hospital is illustrative of this category of cases. In Coltraine, the decedent was admitted to the hospital for "acute bronchitis and acute alcoholism." After he "became confused," the treating doctor ordered him to be placed in restraints, and ordered registered, private duty nurses around the clock. As none were available, a nursing student placed the restraints on Coltraine. About 15 minutes later, Coltraine was seen without his restraints standing on the ledge of the second floor and holding the bottom of the third floor. He subsequently fell and died.
The state Court of Appeals affirmed the trial court's directed verdict on behalf of defendants, finding there was no evidence that the hospital breached a duty of care, and that there was no evidence that the hospital personnel negligently applied the restraints, and that the hospital fulfilled its duty to the patient when it informed the doctor that there was no registered nurses available. In addition, it found the plaintiff had failed to prove that the death was foreseeably related to the use of restraints, as he had not been considered suicidal at the time restraints were ordered.
Other restraint cases present the inverse question: should there be liability when hospitals and/or mental health professionals fail to restrain? There is no question that it is fear over this sort of suit that often impels the use of restraints (at least in acute care hospitals), and, anecdotally, when I've discussed this topic with psychiatrist friends, this is the only category of case that seems to be of much interest (I leave any deconstruction of that to my more-analytical friends). Again, here, the responses are mixed and intensely-fact dependent. In one case, an unrestrained patient (in the neurological unit of a general hospital) was successful in suing for damages resulting from injuries he sustained in a fall, but generally such suits are unsuccessful (often because of immunity principles) unless the negligence is so profound as to not raise much of a debatable question, such as cases in which unsupervised patients jumped into vats of boiling soap in hospital laundries, or jumped through unlocked laundry chute doors. Professor Elyn Saks has thus suggested that doctors should not be held liable for injuries resulting from a failure to restrain patients, unless "a person of the most common understanding would have foreseen serious injuries."
The vast majority of failure-to-protect cases are decided in favor of defendants; as I will discuss subsequently, the extent to which the fear of this sort of litigation has captured the mental health professional community -- in Stanley Brodsky's wonderful neologism, "litigaphobia"On litigaphobia in this context, see Timothy Gammon & John Hulston, The Duty of Mental Health Care Providers to Restrain Their Patients or Warn Third Parties, 60 Mo. L. Rev. 749, 780-81 (1995).-- is perhaps the overarching issue for us to ponder.
IV. Sanism and pretextuality
"Sanism" is an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia and ethnic bigotry. It infects both our jurisprudence and our lawyering practices. Sanism is largely invisible and largely socially acceptable. It is based predominantly upon stereotype, myth, superstition and deindividualization, and is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process. Judges are not immune from sanism. "[E]mbedded in the cultural presuppositions that engulf us all," they express discomfort with social science (or any other system that may appear to challenge law's hegemony over society) and skepticism about new thinking; this discomfort and skepticism allows them to take deeper refuge in heuristic thinking and flawed, non-reflective OCS, both of which continue the myths and stereotypes of sanism.
2. Sanism and the court process in mental disability law cases
Judges reflect and project the conventional morality of the community, and judicial decisions in all areas of civil and criminal mental disability law continue to reflect and perpetuate sanist stereotypes.
1. In general
The entire relationship between the legal process and mentally disabled litigants is often pretextual. By this, I mean simply that courts accept (either implicitly or explicitly) testimonial dishonesty and engage similarly in dishonest (frequently meretricious) decisionmaking, specifically where witnesses, especially expert witnesses, show a "high propensity to purposely distort their testimony in order to achieve desired ends." This pretextuality is poisonous; it infects all participants in the judicial system, breeds cynicism and disrespect for the law, demeans participants, and reinforces shoddy lawyering, blasé judging, and, at times, perjurious and/or corrupt testifying.
The pretexts of the forensic mental health system are reflected both in the testimony of forensic experts and in the decisions of legislators and fact-finders. Experts frequently testify in accordance with their own self-referential concepts of "morality" and openly subvert statutory and caselaw criteria that impose rigorous behavioral standards as predicates for commitment or that articulate functional standards as prerequisites for an incompetency to stand trial finding. Often this testimony is further warped by a heuristic bias. Expert witnesses -- like the rest of us -- succumb to the seductive allure of simplifying cognitive devices in their thinking, and employ such heuristic gambits as the vividness effect or attribution theory in their testimony.
D. Sanism, pretextuality, seclusion and restraint
It is clear that seclusion and restraint are often used for sanist and pretextual reasons. Kirk Heilbrun's research demonstrates that, in three out of five instances, it is used to control patients who are "uncooperative" or have engaged in "inappropriate behavior" (rather than patients whose violence makes them a danger to self or others). Reported cases reflect this: patients are restrained because they are "rude" and disrespectful," because they are "disruptive" or a "thorn in everybody's side" (thus fostering staff resentment), because they shouted obscenities, or where administrators expressed fear of being sued if they failed to restrain. As I have already noted, patients in restraints are taunted by staff. Others have been forced to urinate in their clothes because of staff policies that patients in seclusion could only use bathroom facilities for 15 minutes during every hour, and then subject to "brutal beatings" for refusing to clean up their urine. And cases have been reported where patients have been restrained for years.
The case of Alt v. John Umstead Hospital is instructive. There, the North Carolina Court of Appeals upheld an award under the State Tort Claims Act to a patient who had been placed in seclusion and restraints for shouting obscenities and throwing his dinner tray against a wall of the hospital ward. Said the court:
The decision of Dr. Parker and Nurse DeBerry to place plaintiff into seclusion and restraints at about 5:25 p.m. on February 22nd, 1990 was not in keeping with community standards of medical practice and was not justified by plaintiff's behavior, the state rules, or hospital policies. Throwing a tray and shouting obscenities do not constitute imminent danger to others or to a patient so as to justify the use of seclusion and restraint under psychiatric and medical standards of practice in February 1990. The behavior of Nurse DeBerry, smarting from being called names by her patient and unable to get her patient to be compliant, was one of punishment rather than treatment. Dr. Parker aided and abetted in this punishment. Irrational actions by a psychiatric patient are to be expected, and what might call for punishment in a mentally stable patient does not justify punishment of a mental deficient patient.
Where the use of restraints is motivated by fear of litigation it is clearly pretextual. Writing about the use of restraints in nursing homes, Professor Marshall Kapp is clear on this point:
One of the major impediments slowing down progress toward [the] goal [of bringing about a greatly reduced reliance on the use of nursing homes] is a widespread anxiety among many long-term care providers about potential legal liability resulting from injuries associated with the non-restraint of a resident. Apprehension of liability, or at least of being caught as an involuntary party in litigation, is frequently cited as a pretext for actions actually based more on a professional bias toward paternalism on behalf of older disabled persons, staff convenience, and desire for resident behavior control.
In short, the use of seclusion and restraints in psychiatric hospitals is often sanist and it is often pretextual. It is absolutely essential that we integrate these findings in any consideration of the issues that are before us today.
V. Therapeutic jurisprudence
One potential solution is to turn to therapeutic jurisprudence (TJ) for some answers. TJ studies the role of the law as a therapeutic agent, recognizing that substantive rules, legal procedures and lawyers' roles may have either therapeutic or antitherapeutic consequences, and questioning whether such rules, procedures and roles can or should be reshaped so as to enhance their therapeutic potential, while not subordinating due process principles. Therapeutic jurisprudence looks at a variety of mental disability law issues in an effort to both shed new light on past developments and to offer new insights for future developments. Until now, however, there has been no consideration of the TJ implications of seclusion and restraint policies.
B. TJ and seclusion and restraint
I can identify at least five clusters questions to be considered if we look at seclusion and restraint from a TJ perspective.
First, are seclusion and restraint being used therapeutically? Certainly, there is a robust psychiatric literature that has expressed concern that seclusion and restraint techniques are often used punitively rather than for legitimate treatment purposes, that they are used more frequently on understaffed shifts or in poorly staffed facilities, and that there are potential psychological and physical risks associated with their use. The case law that I have discussed certainly demonstrates that these fears are not limited to a dark and distant past. This is not to say that there is no room for seclusion and restraint in a psychiatric hospital; indeed, there is impressive empirical support for the proposition that both can serve to effectively manage violent behavior in a way accompanied by few side-effects. But it is to say that -- apparently, as it is employed in a significant number of psychiatric hospitals -- it is not being used therapeutically.
Next, are constitutional decisions and Patients' Bills of Rights statutes therapeutic? If they are not, is this, nonetheless, an area where civil liberties/civil rights should still "trump" therapeutic ends? There is no research with which I am familiar that has looked at this precise question. On the other hand, studies of both the important right to treatment and right to refuse treatment law reform litigation suggests that both have had important therapeutic effects. Certainly, there is no research that suggests that these statutes have had the opposite effect.
Also, it is necessary to consider the role that lawyers play in this area of the law. I have written extensively about the "myth of advocacy" in related contexts; bluntly stated, most lawyers who represent persons with mental disabilities perform a sub-standard job, and fail to measure up to even the most minimal standards of adequacy. Indeed, in the taunting case to which I have already referred, the patient's lawyer -- inexplicably -- failed to specify to the court the section of the Patients' Bill of Rights under which he was bringing his claim, a blunder that led the trial judge to initially dismiss the complaint. Yet, a recent computer LISTSERV posting (on FORENSIC-PSYCH) by the medical director of a mental health facility in the same state blames patients' rights lawyers for the increased use of restraints (arguing that this increase is directly related to court decisions seeking to enforce the right to refuse antipsychotic medications). This is a fertile area for additional therapeutic jurisprudence analysis.
The legal literature about seclusion and restraints is negligible. I have found no articles on any of the related questions by law professors since Professor Wexler focused on this question some 15 years ago. The legal academy is generally disinterested in many important questions of mental disability law, but this inattention is truly glaring. A TJ inquiry into the relationship between this lack of interest and the seemingly-random way that seclusion and restraint cases have developed would be valuable to us all.
Finally, we are faced with the reality that seclusion and restraint are often used not because they are clinically indicated, but because of fear of litigation. We are just beginning to understand the role of "litigaphobia" in all mental disability law, and I expect that it is areas like this -- areas that are generally of disinterest to the legal practitioner and scholar -- that its impact is the most pernicious.
Mental disability law has always been a poor stepchild of the law,and seclusion and restraint law is a poor stepchild of mental disability law. Although it is of major significance to patients and providers alike, it remains "off the screen" to most academics and members of the bar. Because it arises from so many different sources (and these sources appear, on the surface, to bear little interrelationship), it is virtually impossible to create a unitary standard or methodology through which all seclusion and restraint cases can be read, analyzed and deconstructed.
At least partially for these reasons, I believe that it is impossible for us to make any true sense of the ways that the law regulates seclusion and restraint unless we look at the issues that i have been discussing through the filters of sanism and pretextuality, and under the filter of therapeutic jurisprudence. If we do this, then, and only then, will we be able to begin our understanding of this area of the law.
Link to Michael L. Perlin, Hospitalized Patients and the Right to Sexual Interaction: Beyond the Last Frontier? 20 NYU Rev. L. & Soc'l Change 302 (1993-94)