When you have to enter into Due Process or Litigation, whether you win or lose, you have already lost
“My staff had to be deposed and they were so upset after their deposition they said that they felt like they had been on trial.”
“My staff are constantly worried about being sued personally for using restraint during what is clearly an emergency.”
How does Due Process and Litigation affect an organization?
Whether you win or lose, any litigation is still a losing proposition. Your organization loses time, resources and perhaps even it’s reputation. All too often the time and money spent defending against litigation could have gone into providing better services for the individual in need.
If the litigation involves due process, sometimes schools end up locked into an Individualized Educational Plan that is unreasonable and unachievable.
All too often litigation happens AFTER relationships between parents and organizations become difficult.
Even with the best organizations, there are times when parents/guardians may
- Feel that the organization does not have their family member’s interest at heart “They don’t like my child.” and
- Disagree with the team’s chosen treatment/educational plan “This team doesn’t know what they’re doing!”
The Solution to the problem of Due Process and Litigation
The solution to this problem is much like any other crisis management, starting with preventive measures that will reduce the risk of litigation. One such measure is ensuring increased parent/guardian education about the need for crisis intervention procedures.
PCMA focuses organizations on reducing misperceptions of malice and incompetence. PCMA helps with this by focusing on the sources of mistrust such as not understanding the reasons for restraining and what is being done by the organization to prevent the use of restraint.
Another measure that goes a long way to reduce the chances of litigation is using a crisis management system that is actually effective because it is based in the science of behavior analysis.
Legal Case File Study
Complaint: Trauma Caused by restraint
In this case the parents sued the agency charging that their child was traumatized by repeated restraints due to severe behavior problems (the child was held lying prone on a mat). Evidence their attorney offered of the trauma was an avoidance of leaving the family car to go into the school and a worsening of behavior problems.
As there are many reasons why any child might not want to go into school, and there are just as many reasons why a behavior problem may worsen, their case for trauma was quite weak. Key issues to the case were the child’s level of functioning, independence, socialization, etc. prior to ever being restrained.
It’s not that someone cannot be traumatized during a restraint, it’s that this individual did not meet the criteria for PTSD and there was no specific qualifying event (they cited no specific restraint in which something horrible happened) only “too many restraints.”
Furthermore upon interview with staff it was determined that the individual had absolutely no fearful reaction to the unmistakable big blue mat that was always used when the child had to be restrained. If a qualifying traumatic event (arm break for example) happened during a procedure, then we would fully expect the child to show a highly fearful reaction to the mat and this was never the case.
The individual had numerous behavior problems for many years and numerous skill deficits including language. Another complaint in the case is that the restraints were numerous, in fact they were deemed to be “too many” or a “very high number.”
The individual did in fact have many restraints that some would likely consider too many. It was approximately 150 horizontal procedures in a 6-month period. The number of interventions matches the number of behavioral crises.
All of us would expect no more than 1 restraint per year for an individual who goes into crisis once per year. What would we expect in the case of an individual who goes into crisis several times per day?
The point made in the case is that the most telling restraint numbers are not the maximum or the minimum or the rate or even the total number, as these require both a context and good judgment to interpret properly.
The most telling restraint numbers are those that remain unchanged for weeks and months and yes sometimes even years. It is these unchanging numbers that indicate a lack of progress.
Twenty restraints in a month seems like a lot. Until you realize it was 100 per month two months ago. In this case we call twenty restraints per month tremendous progress.
What are the takeaways from this case?
- Trauma is real, it has clear agreed upon criteria and is NOT simple avoidance of any person place or thing (this would be more like a specific phobia).
- Unchanging rates of restraint (or steadily worsening of course) are FAR more telling than any other measure of restraint. They tell a story of a poor understanding of the problems the client is facing.
- Rates of restraint (typically) match the rate of crisis behaviors. When they do NOT, this may mean poor/absent criteria for the use of restraint. That is, sometimes rates of restraint are inflated because staff have been restraining for all the wrong reasons. In places with well-trained staff and good criteria for restraint use, it typically matches crisis exactly. However, unchanging crisis will still cause unchanging restraint rates.