Measures involving deprivation of liberty in patient care facilities

Table of contents

1. Introduction and problems

2. Forms of deprivation of liberty

3. Legal aspects

4. Empirical studies on freedom-restricting measures

5. Ethical aspects

6. Possibilities of ethical decision-making

7. Conclusion

8. Bibliography

1. Introduction and problems

In nursing, nursing staff are repeatedly confronted with ethical questions and problems. Very often they are faced with situations that require a decision based on the right action and make it necessary to weigh up different values and interests. One such case is the deprivation of liberty measures.

In everyday nursing life, deprivation of liberty measures by nursing home residents are among the regularly used methods. Extrapolated to the FRG, it can be assumed that approximately 400,000 measures restricting and depriving freedom must be expected every day. It should be borne in mind that fixation measures restrict fundamental rights and affect human dignity. On the other hand, the nursing staff is obliged to take the necessary safety measures to avert the risk of injury and to protect the physical integrity. This is especially true for residents with cognitive impairments. Confused residents are limited in their decision-making ability and often act "unreasonable". They are often unable to assess or assess the consequences of their actions. Attempts at explanation, which serve to avoid danger, often fail. Nursing staff are then often forced to carry out measures that deprivation of liberty from the point of view of security.

Thus, the nursing staff is repeatedly in the field of tension between their (own) protective ideas and the freedom claim of the residents. Of course, according to the law, there are requirements according to which the nursing staff must act, but these are often not sufficient for a concrete decision for or against a deprivation of liberty measure. In spite of everything, nursing staff are obliged to weigh up the two legal interests: the duty of care to preserve physical integrity and the fundamental right to personal freedom. This problem can lead to an ethical conflict among the nurses, whereby there can be no general solution but the respective interests must be negotiated in the concrete situation, but also the respective advantages and disadvantages must be taken into account. Deprivation of liberty measures thus represent a balancing act of the nursing staff between protection obligations and the right of self-determination of the residents.

in second chapter I would like to show what is meant by freedom-restricting measures and what forms they can take.

that third chapter deals with the legal basis of freedom-restricting measures. I will first deal with the concept of measures restricting freedom and their legal distinction between deprivation, deprivation of liberty and restriction. Furthermore, I explain the rights of the residents and the duties of the nursing staff and try to contrast them.

To illustrate the extent and the problem, I present in the chapter four various empirical studies on this topic.

that fifth chapter includes ethical aspects. First, I explain conflict situations and moral dilemmas in nursing in general and then go into various ethical theories that can play a role, especially in the care sector.

in sixth chapter I would like to show what possibilities there are for ethical decision-making and can also be applied in everyday care.

in seventh chapter I would like to draw a conclusion in summary.

2. Forms of deprivation of liberty

One speaks of deprivation of liberty measures, if a resident against his natural will by mechanical devices or in other way in his freedom of movement is impaired and he can not overcome this impairment without outside help (cf. HSK 2002, p. 5).

Deprivation of liberty measures are distinguished into (cf. HSK 2002, p. 5ff):

Fixing the affected person by mechanical devices

- Setting up bed grids
- Application of seat belts, body belts or belly belts
- Creation of protective blankets, bed sheets or sleeping bags
- Strengthening of plug-ins on the (roll) chair
- Putting on handcuffs, shackles or body shackles

Incarceration of the affected person

- Locking off the station or room
- Locking of the exits known to the resident and usable
- complicated locking mechanisms on doors
- high-mounted door handles
- secured elevators

Sedative drugs: Sleeping pills, psychotropic drugs, tranquilizers, when given

- to prevent the cared for from moving around the home or from leaving the home
- to facilitate care
- to establish peace on the ward or in the home

Other arrangements

- Retention at the house entrance by staff
- Removal of clothing and footwear
- Taking away visual aids
- Removal of means of transport (wheelchair, walking cart)
- Electronic measures (attached transmitters)

In summary, all measures that prevent the person concerned from changing his place of residence are, in principle, deprivation of liberty measures.

3. Legal aspects

3.1. Definitions

In general, according to constitutional law, GG is referred to as restricting freedom Measure defines any interference with freedom of movement (Art. 2 II GG).

In the context of measures restricting freedom, however, a distinction must still be made between three (legal) concepts: the restriction, deprivation and deprivation of liberty.

Both a deprivation of liberty Accommodation as well as deprivation of liberty measure exists if the accommodation or measure is carried out against the will of the person concerned and reaches a certain intensity and / or duration. Deprivation of liberty is also possible by medication (cf. Hoffmann/Klie 2004, p. 13).

Deprivation of liberty on the other hand, is a criminal offence. § 239 StGB defines the deprivation of liberty as follows: "Anyone who unlawfully imprisons a person or otherwise deprives him of the use of personal freedom will be punished with custodial sentences of up to 5 years or with a fine" (cf. Hoffmann/Klie 2004, p. 84).

Short-term measures which are not taken regularly are not to be regarded as deprivation of liberty, they are regarded as: restricting freedom measures. Thus, these measures designate the interference with the freedom of movement of low intensity and / or duration. However, these can certainly be deprivations of liberty i.S.d. §239 StGB represent and require the prerequisites of the justifying state of emergency in a concrete situation in order to legitimize them (cf. Hoffmann/Klie 2004, p. 85).

In my term paper, I use the general concept of measures restricting freedom under which all deprivations of liberty, deprivations and restrictions are summarized for the sake of clarity. Only with the legal foundations it is important to distinguish the individual terms, as they contain different and requirements consequences.

In the following table I have summarized the different terms for a better overview.

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