Restraint Use in Care Homes: The Law and What to Try First

What counts as restraint, in the Code's own words

Hong Kong law does not leave the meaning of restraint to common sense or to the habits of a home. The Code of Practice for Residential Care Homes (Elderly Persons) defines it at paragraph 12.7.1 as a means of limiting a resident's movement so as to minimise harm to the resident or to other residents, and it states that this includes the use of purposely made devices.

The practical consequence of that wording is that a home has to look past the equipment cupboard. A door that a resident cannot open, a chair that a resident cannot get out of, and a tray fixed across a chair all limit a resident's movement, as does a device bought for the purpose. The definition is about the effect on the resident, not about the object.

Chemical restraint is a recognised form of restraint as well, and it is the one least often named in a home's own paperwork. The World Health Organization's dementia fact sheet records that in many countries physical and chemical restraints are used extensively in care homes for older people and in acute-care settings, even when regulations are in place to uphold the rights of people to freedom and choice. A reference in an international fact sheet to rules that exist and are not followed is worth reading against a home's own file.

Paragraph 12.7.2 lists the reasons for which a home may consider restraint at all: to prevent residents from injuring themselves or others, to prevent residents from falling, and to prevent residents from removing medical equipment, urinary bags, urinary catheters, feeding tubes, diapers or clothes. A reason on that list is not a permission. It is the start of an assessment, and the assessment is what the rest of this article is about.

One thing this article does not do. It describes the legal frame, the professional standards and the alternatives. It gives no instruction on how a restraint is applied, fitted, adjusted or removed, no method or technique, no device specification and no advice about medication. Those matters are set out in the Code of Practice and in clinical practice, and they belong to the people the law names, not to a website.

The legal test in section 33A of Cap. 459A

Section 33A of the Residential Care Homes (Elderly Persons) Regulation (Cap. 459A) states that a restraint must not be used on a resident in a residential care home unless three conditions are all met.

The first is that the safety, health or well-being of the resident or of other persons is endangered. The second is that no other less restrictive means to avoid the danger are available in the circumstances. The third is that the requirements relating to obtaining consent to the use of restraint, as set out in the Codes of Practice issued under section 22 of the Ordinance, are complied with.

The section then limits how a restraint may be used: only in the safe and proper manner set out in the Codes of Practice, and for no longer than is necessary. Subsection (3) requires the use of a restraint to be closely monitored and reviewed, so that those conditions continue to be met for as long as the restraint continues. The section is printed with the amendment note 12 of 2023 s. 45, and the version read for this article is dated at 16 June 2024 on the e-Legislation timeline.

Read together, those provisions answer three questions that a care home will be asked sooner or later. Was the danger present now, or was a risk factor merely present? Was anything less restrictive available and used? And was consent obtained in advance in the form the Code requires? A home that can answer only the third question has not satisfied the law.

The section also settles the shape of the decision. A restraint is a last resort that requires a documented assessment, a named decision maker and a review, and the least restrictive option has to be tried and recorded before it is used at all. That is why the paper trail in a Hong Kong care home is not administration around the decision; it is part of the decision.

What the Code of Practice requires before restraint is used at all

The Code converts section 33A into daily practice in paragraph 12.7. Paragraph 12.7.3 states the general principles. A home should adopt measures to avoid using restraints whenever possible, and should consider restraint only when there are no other less restrictive means available, meaning after other alternative attempts have proven ineffective, or in an emergency when the safety, health or well-being of residents is jeopardised. Consent from the persons concerned has to be obtained in advance.

The same paragraph limits the scale of any use: minimum restraint, minimum time, and the explicit statement that restraint is not to be regarded as a usual practice, absolutely not to be taken as a form of punishment, not as a substitute for caring for residents and not for the convenience of staff. Dignity and privacy must be protected. Guidelines on the use of restraint, including its use in emergencies, must be formulated for staff, and staff participating in restraint must be trained, including in the impact of restraint on dignity, privacy and safety and in after-care procedures, with that training included in induction and regular training where applicable.

Paragraph 12.7.4 sets out what the assessment must cover: the needs and risk factors of the individual resident, the contributing factors that put the resident or others in peril, the alternative attempts already made, the proposed response and the time of application. The areas assessed are self-injury and harassment, such as confusion or disorientation; functional capacity and activities of daily living, such as fall risks or an inability to maintain a correct posture; and harm to the resident's own health, such as removing a feeding tube or urinary catheter.

Paragraph 12.7.5 then lists the alternatives that make the assessment meaningful. It names attending to residents at times of unstable emotions, behavioural approaches at times of self-injuring or aggressive acts, leisure and diversionary activities such as exercise groups and assisted walking, and removing the triggers that agitate a resident, with the Code's own example being arranged assistance with routine toileting for residents with unsteady gaits so that they are less likely to fall going to the toilet alone. It closes with a list of environmental measures described later in this article.

Consent is the next requirement, and it is where many files are thin. Paragraph 12.7.6 requires written consent from the registered medical practitioner, the resident and the guardian, guarantor, family member or relative before the fact, on the form at Annex 12.4, and it requires that need to be re-assessed and consent obtained again at least once every six months or whenever the resident's condition changes. Annex 12.4 also carries a declaration signed by the home manager. The named decision makers are therefore visible on the form: the practitioner who consents, the person who assessed, and the manager who declares the record correct.

The professional frame from the Nursing Council of Hong Kong

The legal frame is completed by the professional one. The Nursing Council of Hong Kong's Guide to Good Nursing Practice on physical restraint opens by stating that the application of physical restraint in nursing involves the curtailment of the freedom of clients, and that the intervention could be viewed by clients as a form of assault, battery or even false imprisonment. It then acknowledges that physical restraint is sometimes necessary as a last resort, to prevent imminent danger of physical harm or to protect the safety of the client or others, when less restrictive options of treatment have failed.

The guide's principles carry the same sequence as the Code: restraint only out of protection of safety and well-being and in the best interest of the person; attention to the source of authority for applying it and to the institution's own policies before any decision; a genuine need, and the maintenance of the person's safety, comfort, dignity and physical and psychosocial needs; minimization, with application only as a last resort where no other viable option exists or where other options fail; restraint in the least restrictive form and over the shortest duration; close observation and regular assessment; informing the person and their family or guardian of the needs, risks and benefits before any possible use, and debriefing them as soon as practicable afterwards; proper documentation for record and inspection purposes; the exploration of viable alternatives; and current knowledge and skills.

The guide also lists the alternatives a nurse should be able to name: additional supervision and observation, decreased sensory stimulation, active listening, appropriate outlets for anxious behaviour, relaxation techniques, and the companionship of a family member or friend. Any one of those is a cheaper and more reversible answer than a restraint, and the guide places them before restraint rather than beside it.

Its list of the nurse's responsibilities adds two duties that a home's monitoring system can check. The nurse reviews the restraint regularly and considers the earliest possible discontinuation once the person's condition justifies it in the reviews, and the nurse maintains competence through continuing education and educates healthcare assistants in current knowledge and skills. A home with a standing arrangement and no recorded review has neither of those duties in evidence.

What a home must never do

The Code is unusually direct on this, and the prohibitions are worth stating plainly because each one is a finding waiting to be made.

A home must not treat restraint as usual practice. Paragraph 12.7.3 states that it should not be regarded as a usual practice and absolutely not as a form of punishment, a substitute for caring for residents or a convenience for staff.

A home must not use a restraint without the assessment, the written consent, the plan and the observation record. Paragraph 12.7.6 requires consent before the fact, and paragraph 8.7.2(e) requires the assessment, the written consent form and the observation record to be kept properly for every resident under restraint, including the reasons, the type, the duration, the consent signatures, the observation of the resident's condition, the duration or release for each application, and the dates and details of regular reviews.

A home must not continue a restraint beyond the point where it is needed. Section 33A(2)(b) limits use to no longer than is necessary, section 33A(3) requires close monitoring and review, paragraph 12.7.9(a) requires the use to cease immediately once the resident no longer displays the dangerous behaviours or once other non-restrictive alternatives can achieve the same protection, and paragraph 12.7.6(d) requires re-assessment and fresh consent at least once every six months or whenever the resident's condition changes.

A home must not improvise. The Code states that bandages, nylon ropes or strips of cloth must not be used as physical restraints. That sentence is a prohibition rather than a method, and this article reproduces it only as a prohibition. How a permitted restraint is applied is set out in the Code and is deliberately not reproduced here.

A home must not leave the resident unobserved or the record unsigned. Paragraph 12.7.8 requires close monitoring with the restraint released for examination and the resident allowed relaxation and body movement at least once every two hours, with the blood circulation, skin condition, respiratory condition and degree of restraint checked and recorded, and the record signed immediately after each observation. Paragraph 12.7.9(b) and (c) require a monitoring mechanism and random checks by the home manager, nurse or health worker at least once a day, with the observation record countersigned after checking.

What to try first, and record first

The alternatives are not a philosophical position in Hong Kong; they are a documented part of the decision. Annex 12.4 devotes a whole section to the alternatives attempted, with columns for the assessment date, whether the attempt was effective or ineffective, and remarks. The list on the form begins with seeking medical advice to find out the possible causes leading to an emotion problem or confusion, and handling the cause accordingly. Its practical meaning is that the behaviour may be a symptom rather than a fault, and that the first step is to find out what it is a symptom of.

The form's own list of alternatives continues with intervention from physiotherapists, occupational therapists, clinical psychologists or social workers; better furniture, including more appropriate chairs, cushions and accessories; improving the environment so that the resident feels secure, comfortable and familiar; providing leisure and diversionary activities; spending more time talking with the resident to build a relationship of trust; regular observation and inspection by staff; adjusting daily care procedures to meet the resident's special needs; and requesting visits and assistance from the resident's family or friends.

The Code's own environment list at paragraph 12.7.5(e) is the operational half of the same idea: removing sharp edged furniture; strengthening the signage that guides residents back to their bedrooms; assisting residents with suitable footwear and the appropriate use of walking aids; providing good lighting; installing bed monitoring systems; ensuring correct posture for residents in wheelchairs; and applying the brakes to movable objects such as beds, wheelchairs and commode chairs.

At night the same list reads differently, because a home at 3am is a corridor with one member of staff on it. Good lighting, a bed monitoring system, brakes on a commode chair and assistance with routine toileting are the measures the Code names, and the toileting example comes from the Code rather than from this article. None of them is described here as a clinical recommendation; they are the environmental and routine items the Code sets beside restraint.

The people side of the list matters as much as the equipment. Paragraph 12.7.5(a) and (b) place staff and family at the resident's side at times of unstable emotion, and the Nursing Council guide names additional supervision, active listening, relaxation techniques and the companionship of a family member or friend. Whatever is tried, the record has to carry a date and a result, because Annex 12.4 asks for both. An alternative that was never written down is, in the Code's terms, an alternative that was not attempted.

Forms of restraint, the legal basis and the alternative that must be tried and recorded first

The table below sets out the forms of restraint a home may encounter, the legal basis for each, and the less restrictive option that has to be attempted and recorded before that form is used. The third column is a record requirement as well as a care requirement.

The third column is not a list of ideas to mention to a family. It is the evidence a surveyor will ask for: what was attempted, on what date, with what result, and who signed for it.

The record that answers the question

If a home has to explain a restraint to the Social Welfare Department, to a family or to a court, the explanation is a file rather than a speech. Paragraph 8.7.2(e) of the Code lists what that file contains for every resident under restraint: the name of the resident; the reasons for the use of restraint; the type of restraint used; the duration of use; the written consent signed by a registered medical practitioner, the resident or their guardian, guarantor, family member or relative, the home manager and the responsible staff member; the observation of the resident's condition after the use; the duration and any release for each application; and the dates and details of the regular reviews.

The rest of the same paragraph requires the home to keep properly the assessment, the written consent form and the observation record. Paragraph 12.7.9(a) adds the decision that a well kept file tends to be missing, which is the decision to stop: the use has to cease immediately when the resident no longer displays the dangerous behaviours, or when other non-restrictive alternatives can achieve the same protection. A file with no cessation decision is a file that was never asked the question.

Two practical checks follow from those paragraphs. The first is whether the assessment on Annex 12.4 is dated and signed by the person who made it, and whether the alternatives section carries results rather than ticks. The second is whether the review date on the form is in the future or in the past; the Code sets it at least once every six months or on any change in the resident's condition, and a form past its review date is an unfinished decision.

This is also where restraint connects to the rest of a home's paperwork. The restraint records sit in the same inspection file as the care plan, the accident record and the log book, and a review of the resident's individual care plan is where a decision to stop restraint is usually first written down. How that file is assembled and what the Licensing Office of Residential Care Homes for the Elderly asks to see is described in our note on care home inspection preparation.

Where a reader needs a decision rather than a description, the law and the Code name the people who are allowed to make it: a registered medical practitioner for the medical questions, a nurse or health worker for the assessment, allied health professionals where their expertise is relevant, and the home manager for the declaration and the monitoring mechanism. Nothing on this page is a substitute for their judgement, and the regulation is written on the assumption that a home will obtain it.