Posiion Statement on Restraints and Seclusion
The New Jersey Council on Developmental Disabilities (NJCDD) endorses the following statement:
People with intellectual and/or developmental disabilities have the same basic legal, civil and human rights as all citizens.
Position The use of physical restraints, seclusion and other aversive techniques have resulted in physical injury, psychological harm, trauma and even death to children and adults with I/DD. The NJCDD believes that the use of physical, mechanical and chemical restraints is inappropriate except in situations of imminent danger of serious physical harm to the individual or others. NJCDD strongly opposes the inappropriate and/or unnecessary use of restraints and other aversive interventions. Seclusion should not be used under any circumstances. It is the further position of the Council that the State, through its applicable agencies, is required to define and prohibit those practices that pose an unacceptable risk of physical, psychological or emotional harm to people with developmental disabilities who reside in State-funded or regulated facilities or who receive State services or public education. Background Information The use of physical restraints, seclusion, and other interventions is marked by inequality in power between the person delivering action and the recipient. Such interventions do not address the cause of the problematic behavior, and may create social isolation and trauma through the application of pain or fear. The use of such interventions should be replaced by the application of positive behavioral support within a trauma informed environment. This should include a framework of moral and ethical values that focus on: • Improving quality of life, • Ensuring individuals with I/DD have the opportunity to be self-determined, • Recognize behavior as a form of communication, • Implementing interventions that emphasize the development and use of positive skills for greater independence, and, • Making modifications to the context in which problem behavior occurs. Depending upon an individual’s age and state educational/service system, different factors apply: Students Students with I/DD are entitled to a free and appropriate public education within the least restrictive environment. These rights are guaranteed under the Individuals with Disabilities Education Act (IDEA). “Seclusion refers to involuntarily confining a student alone in a room or
area from which he or she cannot physically leave; it does not include a timeout – a behavior management technique that is part of an approved program, involves the monitored separation of (an individual) in a non-locked setting, and is implemented for the purpose of calming.”1 The overall use of restraints and seclusion has been reported to disproportionately affect students with disabilities.2 Adults “’Restraint Use’ refers to the restriction of an individual’s freedom of movement either partially or totally by physical contact imposed by staff (Personal Control Technique), the application of a physical device (Mechanical Restraint) or through the use of medication (Chemical Restraint).” Refer to Division Circular #20. Restraints are further defined as: 1. Approved: Restraints implemented with prior approval and written order, in accordance with the administrative regulations and policies of the appropriate division, or as part of an approved behavior treatment plan. 2. Unapproved: Restraints implemented without the prior approval/order or not in accordance with the administrative regulations of the Division, or not as part of an approved behavior treatment plan.”3 The NJCDD supports Trauma Informed practices, as well as Positive Behavior Interventions and Support (PBIS), an applied science that uses educational methods to expand an individual’s behavior repertoire and systems change methods to redesign an individual’s living environment to first, enhance the individual’s quality of life and second, to minimize his or her problem behavior. The proactive nature of PBS stands in sharp contrast to traditional approaches, which have emphasized the use of aversive procedures that address problem behaviors with reactive, crisis-driven strategies such as restraints4. NJCDD supports the proposed federal legislation “Keeping All Students Safe Act” (H.R. 7124, 115th Congress).
Approved May 23, 2019
May 24, 2019
The Arc Responds to Reports on the Widespread Use of Solitary Confinement for Immigrant Detainees, Including People with Disabilities
Washington, DC – This week, reports have surfaced documenting that thousands of immigrants have been trapped in solitary confinement in immigration detention centers, often based solely on their disability status or their gender identity.
“These atrocious reports of cruel confinement in isolation, without necessary services, in circumstances that are traumatizing and dangerous to the people involved, are unacceptable.
“Non-citizens with any type of disability should have a fair opportunity to enter and reside legally in the United States and to become citizens, without unnecessary or discriminatory restrictions based on their disability, gender identity or expression, or sexual orientation. We must also ensure that individuals with disabilities who are facing deportation or other legal action are provided with appropriate representation, due process protections, and reasonable accommodations and that they are not unnecessarily segregated in immigration facilities.
“We have already seen proposals like the public charge rule that would discriminate against immigrants with disabilities, making it harder to legally enter or remain in the country. We continue to condemn these policies and practices and call on Members of Congress, as they have done in the past, to stand up for people with intellectual and developmental disabilities and their families as they seek inclusion in America. We will continue to promote and protect equal rights of children and adults with disabilities in all parts of the world, and call on our government to ensure that, at minimum, people should not be subject to harm while they are held under the care and authority of this country,” said Peter Berns, CEO, The Arc.
The Arc advocates for and serves people wit¬¬h intellectual and developmental disabilities (I/DD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy and other diagnoses. The Arc has a network of over 600 chapters across the country promoting and protecting the human rights of people with I/DD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis.
The Disability Community and its Interaction with the Criminal Justice System
People with intellectual and developmental disabilities are considerably vulnerable to becoming involved in the criminal justice system (Perske, 1991). While there are a variety of reasons as to why this population is susceptible to interaction with law enforcement and courts, the New American Movement would like to briefly examine law enforcement’s difficulty in deciphering the responses of people with disabilities. In light of horrific news detailing instances where a person with a disability was severely injured and sometimes even killed due to the misjudgment of police officers, it is apparent that this is a serious issue facing the disability community.
Take the recent death of Robert Ethan Saylor, a man with Down syndrome, from Frederick, Maryland who died in the hands of police officers in response to an employee’s inability to deescalate his refusal to leave a movie theater. Saylor was subjected to verbal and physical restraint by police officers and as a result, suffered from positional asphyxiation. Despite the fact that a medical examiner ruled Saylor’s death as a homicide, a grand jury in Maryland counterclaimed that charges were unnecessary due to the police officers compliance with their training. Evidently, this has outraged the New American Movement and other disability advocacy groups across the nation.
The aforementioned story and others like it, calls upon the need to thoroughly educate and train personnel of the criminal justice system about intellectual and developmental disabilities. Additionally, this training should not be synonymous to training provided on individuals with mental illness as they are inherently different. States must also adopt a voluntary registry listing of disability in order to refine the tactics of law enforcement officials. Provider agencies and families may also find it useful to teach their consumer/loved one about the criminal justice system in order to spur an actualization of rights (Petersilia, 2000).
The New American Movement finds these initiatives essential to improving the outcomes of the disability community’s interaction with the criminal justice system. Furthermore, it can also mitigate some of the difficulties that the intellectual and developmental disability community may have in the following areas: 1) understanding the consequences of their actions or the temperament of a situation 2) unable to connect their actions to a crime 3) easily manipulated 4) unaware of personal rights 5) fear of the police 6) communication limitations, and 7) poor judgment/impulsivity (Kontura, 2013). With that in mind, we must make every effort to ensure that the disability community can receive access to equal justice when encountering the law.
References:
Kontura, M. (2013) Individuals with Developmental Disabilities in the Criminal Justice System. Powerpoint presentation. Cleveland, OH: Cuyahoga County Board of Developmental Disabilities.
Perske, R. (1991). Unequal justice? What can happen when persons with retardation or other developmental disabilities encounter the criminal justice system. Nashville: Abingdon Press.
Petersilia, J. Ph.D. n.d. When Justice Sleeps: Violence and Abuse Against the Developmentally Disabled. PowerPoint presentation. Irvine, CA: University of California, Irvine.