Legal aspects of restraint |
约束的法律问题 |
The another relevant ethical principle is that of justice. The purpose of justice is to ensure that individuals receive that to which they are entitled or deemed to deserve. It may be argued that the restriction of Ms Martin's freedom is unjust. Older adults with senile dementia present problems that are not addressed fully by the UK mental health legislation. Unless Ms Martin is held as an involuntary patient under a section of the relevant act, she is legally entitled to leave the care setting if she so desires. Any attempt to impede her constitutes an illegal restriction of her liberty. |
另一个相关的道德原则是公正原则。公正的目的是要确保个人得到有权得到的或被认为是值得的东西。也许有人会说,限制马丁女士的自由是不公正的,患有老年痴呆证的老年人,他们的问题在英国精神健康法中并没有充分的解释。如果不把马丁女士归入相关条款的无意识病人分类中,从法律上讲,如果她愿意,她就有权离开护理区。任何阻碍都构成了对她自由权的非法约束。 |
In England, the Bournewood judgement (named after the hospital where the issue arose) by the Court of Appeal in 1998 ruled that patients who lacked the capacity to consent to admission could not be detained within a care setting unless sectioned under the Mental Health Act. |
1998年,上诉法庭伯恩伍德审判栽定,缺乏入院同意能力的病人不能被收留在护理机构内,除非将她归入 精神健康条例中。 |
Before the Court of Appeal decision it was assumed that people lacking the mental capacity to make an informed choice (people with severe learning difficulties or dementia, for example) could be considered to be content with their admission - as long as they did not show signs of wanting to 'opt out' of treatment. If they were not actively opting out, then it was acceptable for them to be detained in hospital and be treated without a formal detention under a section of the Mental Health Act. |
在上诉法庭判决前,人们都认为,缺乏作出知情选择的心理能力的人(如患有严重学习困难或痴呆的人),只要他们没有明显的“决定不参加”治疗的表示,就可以被认为是同意住院。如果他们没有主动决定不参加,那么,根据精神健康条例,将他们留在医院进行治疗,即使没有正式收留,都是可以的。 |
The Law Lords looked at two main questions: was the person involved actually detained and, if he or she was detained, was the detention lawful? |
高级法官考察了两大问题:患者是否被实际收留;如果是,这种收留是否合法? |
However, this judgment was subsequently overturned by the House of Lords, on the basis of the common law principle of 'necessity', by which health care staff are able to act in the best interest of an individual who would otherwise experience significant pain and suffering. |
不过,这种审判随后就被上议院根据不成文法的“必要”原则推翻了,根据这一原则,在个人可能遭受重大危险和痛苦的情况下,保健护理人员能够采取行动保护个人的最大利益。 |
There is a problem for the care team because, while restraint of Ms Martin may constitute an infringement of her legal right to freedom of movement, permitting her to wander - in the knowledge that she may come to harm - could constitute negligence. In order for a charge of negligence to be upheld in law, the following three conditions must prevail: |
护理小组却会面临一个问题,限制马丁女士的自由可能构成对行动自由这一合法权利的侵犯,允许她出走—在明智其可能受到伤害的情况下—也可能构成过失。但是,要使过失指控在法律上成立,就必须满足下列三个条件: |
- A duty of care must exist. Within an officially designated care setting staff do owe a legal duty of care to patients/residents; - The duty of care must have been breached. It is arguable that, since staff are aware that Ms Martin has a diminished sense of danger, they should ensure that she does not wander unattended. In the event of her coming to any harm the staff would be viewed as having neglected their duty of care to Ms Martin; - Significant harm must have been sustained as a direct consequence of the neglect of the duty of care. |
n 必须有护理职责。在正式指定的护理机构内,护理人员对病人/居住者拥有合法的护理职责; n 护理职责必须受到违反。既然护理人员知道马丁女士危险意识下降,他们应该保障她不会在没有陪同的情况下外出。如果她受到伤害,就可以认为护理人员忽略了对马丁女士的护理职责。 n 重大伤害必须是由护理职责失职所直接造成的。 |
For the care team Ms Martin's situation presents a dilemma. On the one hand she is legally entitled to leave the premises and any effort to physically restrain her may be regarded as assault, while on the other hand if she leaves the premises and comes to any harm the staff may be guilty of negligence. |
马丁女士的情况使护理人员处于两难境地。一方面,马丁女士有离开上述区域的合法权利,对马丁女士的任何人身约束都可以被看作是侵犯;另一方面,如果她离开上述区域受到伤害,便是护理小组的失职。 |
The best option is probably to justify the restriction of Ms Martin's autonomy in the light of her diminished insight into the potential consequences of her actions. The care team may argue that the purpose of the baffle lock is to prevent harm and that they are acting in what they perceive to be Ms Martin's best interests. |
最好的办法是,鉴于马丁女士对其行动潜在后果认识能力的下降,对其自主性的约束应合法化。护理小组可以表明,障碍的目的是要防止伤害,最大限度地保护马丁女士的利益。 |
Further issues |
几点思考 |
There are other aspects of the situation which have to be taken into account: |
还有几个方面应该加以考虑“ |
- The use of a baffle lock may be acceptable in order to ensure Ms Martin's safety, but not if the purpose of its installation is to allow management to reduce staffing levels; - Optimum staff-to-resident ratios would permit a member of staff to accompany Ms Martin in order to ensure that she does not come to any harm when she wishes to leave the premises; |
n 为保障马丁女士的安全,可以使用障碍,如果只是为了减少护理人手便于管理,就不得设置这种障碍; n 最佳护-患比允许一位护理人员陪伴马丁女士,以确保她想要离开上述区域时不受伤害; |
- Another consideration is that Ms Martin is not the only resident whose freedom may be restricted by the presence of the baffle lock. The needs of other residents should also be taken into account before using this measure. Such an assessment may be carried out using the same ethical principles that helped to determine whether the restraint of Ms Martin was justifiable; |
n 另外也要考虑到,马丁女士并不是唯一的自由受限患者,在采用这一手段时,也应考虑其他患者的需要,可以应用相同的道德准则进行评估,这些道德准则有助于确定约束是否公正 |
- In areas where baffle locks are justifiable, a written policy and procedure should be formulated by management to explain to staff, residents and their visitors the rationale for the use of the locks. This should also clearly identify the measures that should be taken to ensure that residents who do not need this form of protection are able to leave and enter the area as they please. |
n 在障碍合法的区域,应由管理部门制订正式规章和程序,向护理人员、患者及访问者说明使用障碍的原因,同时明确应采取的措施,确保无需这种保护的患者能自由离开和进入。 |
Conclusion |
结论 |
This case study demonstrates that restricting a person's movements may not concur with commonly held perceptions of restraint as comprising dangerous behaviour on the part of the individual being restrained or those who are in a position to restrain. It should also have highlighted the complex situations in which restraint may be required and the ethical principles that may be applied to support or discourage its use. |
本案例研究表明,对受约束个人或作出限制者来说,限制一个人的活动不可能与大众的对约束的认识一致。 同时也应强调需要约束的情况的复杂性,强调可以适用于支持或反对使用约束的道德准则。 |