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| The ethical implications and legal aspects of patient restraintDorothy Horsburgh, PhD, Napier University, Edinburgh |
约束病人的道德和法律问题多罗西·霍斯伯格：爱丁堡纳皮尔大学博士 |
| Defining restraintThe New Shorter Oxford English Dictionary defines restraint as 'deprivation or restriction of liberty or freedom of action or movement'. Restraint may occur in the following ways: |
定义《新牛津简明英语词典》对约束的定义是：“剥夺或限制行动或活动自由”。约束通常表现为： |
- In a physical manner as in the manual restraint of one individual by others;
- By the use of apparatus such as cot-sides to keep a person within a defined area;
- By means of medication that may reduce an individual's capacity for freedom of movement. |
n 身体约束：他人对个体的体力约束
n 器械约束：如采用床栏之类的设备将人限制在一定区域内
n 药物约束：通过使用药物减少个体的自由或活动能力 |
- In subtle ways, such as by reducing the heating in certain rooms within a care setting to discourage the use of these areas at specific times.
- Similarly, if a patient requires a walking aid in order to be mobile, removal of the appliance from the patient's reach would be form of restraint. |
n 技巧性约束：通过巧妙方法，如减少护理区内特定房间的暖气打消人们使用这些区域
n 当病人移动需要行走支撑时，故意拿走周围用品，这也是一种约束 |
| An attempt by an individual, or group of individuals, to restrain a person is legally justifiable in certain situations, for example to prevent someone committing a crime. In such instances the minimum means of restraint should be used. The restraint of an individual outside such extenuating circumstances, or the use of excessive force, is unjustifiable. Therefore, it is important, from a legal and moral perspective, to ensure that nursing practice does not involve the unjustifiable restraint of patients. |
个人或小组对约束某个个人在特定情况下是合法的，如防止犯罪等。在这些事件中，应使用最起码的约束手段。若个人约束超出这种范围，或国量过度使用，便都是不正当的。因此，从法律和道德角度看，重要的是要确保护理实践不涉及不正当的病人约束。 |
When might it be considered justifiable to restrain an adult within a health care setting? The right of individuals to freedom is based upon the principle of autonomy: people have the right to make their own decisions, which should be respected by others.
Autonomy is often described as a prima facie principle; this means that, at first sight, the principle appears to be one that should be respected by others. However, further examination may reveal other ethical principles that have an equal, or greater, case for recognition. |
那么，护理部门在什么情况下约束成年病人才是正当的呢？个人的自由权是以自主性原则为基础的：人们有自己作出决定的权利，这种权利应受他人的尊重。
自主性常常被描绘成是一个“当然原则”；也就是说，从第一眼人们就可以看出，这个准则就属于应该受到他人尊重的那一类。然而，通过进一步考察就会发现，加外还有一些道德准则，他们具有同等甚至更大的认同性。 |
| The ethics of restraint |
约束的道德性 |
The following example illustrates the application of ethical principles in practice.
Anne Martin （not her real name） is 87 years old and has senile dementia. She has been a resident in a care setting for older people for three years, after becoming unable to cope at home because of short-term memory loss and confusion. Her state of mind had resulted in potentially dangerous behaviour, such as wandering from her home and becoming lost, being unaware of traffic hazards when crossing roads and forgetting to eat or drink for several days at a time. In the residential care setting she has attempted to wander outside and, for this reason, a baffle lock is in place at the end of the corridor that leads from her living area to the exit. Although Ms Martin continues to wander, she is unable to leave the premises. |
下面例子阐述了道德准则在实践中的应用。
安尼·马丁，87岁，患有老年痴呆症。因短暂性失忆和意识混乱在老年护理院住了三年。她的精神状态已导致其作出了一些有潜在性危险的行为，如从家出走迷路、过马路时无交通危险意识、连续几天忘记吃喝等。在住家护理院时也试图外出，因为这个原因，在她起居室通往出口的走廊里设置了障碍板。虽然马丁女士继续漫游，但已经无法离开这一区域。 |
| While this situation may not be viewed as constituting restraint in the same way that a nurse physically holding on to Ms Martin might be, the arrangement of the environment nonetheless ensures Ms Martin's containment within a restricted area. We may question whether this is justifiable and the following discussion provides one example of how the situation might be examined. |
与护士抓住马丁女士身体相比，这种情形可能并不构成约束，但这种环境安排却促使马丁女士拘留在约束区内。那么，这样做是否正当，下面的讨论为如何审查这种情况提供了一个例子。 |
| The presence of a baffle lock appears to override Ms Martin's autonomy. However, it may be argued that while autonomy constitutes a prima facie ethical principle, in certain circumstances it may be superseded by other principles. It can be argued that in order for an individual to be autonomous, they must possess insight into the potential or actual consequences of their actions. Ms Martin's dementia interferes with her insight and it may be considered acceptable to override her autonomy by reference to the principle of non-maleficence - the requirement to prevent harm. If Ms Martin is allowed to wander out of the care setting she may encounter hazards such as traffic and suffer harm as a result. Interference with her autonomy may be seen as justifiable on this basis. |
设置障碍似乎践踏了马丁女士的自主性，不过，人们也可以说，当自主性构成了“当然的道德准则“时，在一定情况下，它是可以被其他原则超越的。可以这样说，一个人要获得自主权，他就必须具有洞察其行动的可能或实际后果的能力。马丁女士的痴呆证妨碍了她的洞察力，因此，根据无罪原则，践踏她的自主性可以认为是可取的，这是防止伤害的需要。如果允许马丁女士走出护理区，她就可能遭受危险，如交通事故，最终造成伤害。因此，干涉她的自主性可以说是正当的。 |
| Furthermore, it is arguable that in care settings, there is an ethical requirement not only to avoid harm, but also to create benefit for the client. This principle is beneficence and may also be used to justify restricting Ms Martin's freedom of movement. It may be considered beneficial for Ms Martin to remain within the care environment, in order to maintain both her physical safety and her psychological well-being, because unfamiliar surroundings may cause her distress. The ethical principles of non-maleficence and beneficence might be used as justifications for overriding her autonomy. |
再者，在护理机构中，从道德上讲，不仅有避免伤害的需要，而且有为病人带来好处的需要。这就是有利原则，它也可以用于说明限制马丁女士活动自由的正当性。马丁女士留在护理环境内姨了帐有好处，既是为了保证她的人身安全，也是为了保持她的精神健康，因为陌生环境可能给她带来痛苦。道德的无罪和有利原则可以用以证明践踏自主性的正当性。 |
| 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
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| - 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。
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| 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。 |
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