Care Avoiding freedom-restricting measures in the care sector

Everyone in Germany has the fundamental right to move freely. What would seem only natural to most people, is not always a matter of course for care recipients. This is because such people, especially those with dementia, are repeatedly affected by freedom-restricting measures. 

Measures are classed as restricting freedom if they prevent a person from moving freely against their will.

Restraints can only be used in care facilities, hospitals or by a care service if they have been approved by a court.

Freedom-restricting measures can take many different forms and are used in various situations both within and outside the care sector. Examples of freedom-restricting measures in the care sector: 

• Attaching bed rails
• Fastening someone into a wheelchair against their will
• Using a special table that can be placed in front of a wheelchair to prevent someone from getting up
• Pushing a person’s chair or wheelchair so close in to a table that they are unable to stand up of their own accord
• Removing required aids such as glasses or a walking stick
• Strapping someone to a bed
• Locking someone in
• Sedating people with medication

Measures like these can be used in care facilities, hospitals or when caring for elderly or sick relatives at home. Caregivers often use freedom-restricting measures in the assumption that they help to prevent risks such as falls. However, there is no evidence that such measures can prevent falls.

What is certain, on the other hand, is that freedom-restricting measures pose risks to care recipients’ mental and physical health and infringe their rights. If freedom-restricting measures are used against a person’s will, they are a form of violence. Such measures should therefore be avoided. There are also strict legal regulations on the use of freedom-restricting measures in care facilities and by care workers.

How is the suitability of using freedom-restricting measures in the field of care assessed?

The quality of nursing homes is regularly reviewed both internally and by the Medical Review Board (“Medizinischer Dienst”). This includes looking at the use of freedom-restricting measures. The results of these reviews can be viewed online.

In 2020, freedom-restricting measures were used on around 6 of every 100 residents in nursing homes inspected by the Medical Review Board. In most cases, these measures had been approved by court order. In earlier studies, freedom-restricting measures were sometimes reported with far greater frequency. 

When it comes to the provision of care at home, the use of freedom-restricting measures is not regularly checked. According to estimates, freedom-restricting measures are used on 6 to 9 of every 100 care recipients within the scope of home care.

Caregivers often use freedom-restricting measures in the belief that they prevent people in need of care from falling or having accidents. 

Freedom-restricting measures are particularly common in relation to people with dementia due to the wide range of care-related challenges: people with dementia are sometimes unable to correctly assess risks and their orientation is often impaired. In some cases, caregivers cannot rely on people with dementia to remember agreements. 

Freedom-restricting measures are also used if care recipients are aggressive or restless, or if patients disrupt or interrupt medical treatment. For example, if a patient repeatedly removes a tube that is being used to administer medication. 

When caring for relatives at home, difficulty coping and the physical and mental strain of providing care can lead to violence and the use of freedom-restricting measures. In some cases, people may be unaware that certain measures are infringing a person’s fundamental right to freedom of movement. 

One example: a woman looks after her husband, who is in need of care, every day. To complete a short errand, she needs to go through the effort of moving her husband and bringing him downstairs on a stair lift. As she is in a hurry, she decides to lock him in the house while she quickly runs her errand. At this moment, she is not thinking about how it feels for her husband to be locked in their home.

There is no evidence that freedom-restricting measures can actually reduce the risk of falling or injuries. 

On the other hand, such measures can negatively impact people’s mental health. Freedom-restricting measures can be traumatizing or remind people of previous experiences of violence. Such measures may cause care recipients to feel degraded, stressed and worried, or even to become aggressive.

Physical injuries such as grazes and bruises are also possible. If straps are used incorrectly, there is furthermore a risk of people strangulating themselves. If used for longer periods, freedom-restricting measures can lead to a decrease in mobility and balance. 

If medication is used as a freedom-restricting measure, this can have side-effects, including even increasing the risk of falls.

Freedom-restricting measures also have disadvantages for caregivers. Using such measures against the will of the care recipient can trigger feelings of guilt, frustration, grief and moral conflict.

People are entitled to decide whether freedom-restricting measures can be used on them.

The use of a freedom-restricting measure is permitted if a person who is capable of giving consent agrees to it. For example, people may wish for a bed rail to be used for their own protection even though this prevents them from getting out of the bed on their own. If people can independently remove a safety measure, such as a wheelchair seatbelt, this does not prevent them from moving freely.

The legal situation differs depending on the extent to which people are impacted by the freedom-restricting measures. If a person’s freedom of movement is restricted by a measure but this has little impact, the measure does not usually have to be approved by a court order. One example of this is if someone is temporarily strapped into a wheelchair for an excursion. On the other hand, measures such as locking people in or restraining them with straps are classed as restraints, which constitute the most serious form of restriction of freedom. Such measures deprive people of almost all freedom of movement. As a result, they usually have to be approved by court order if used within the scope of professional care. 

What are the legal regulations on restraints in the field of professional care?

If a person is being cared for in a care facility or hospital or by a care service and is not legally competent, a court must decide whether a restraint may be used. Reasons for some people not being legally competent include them having a mental illness or cognitive impairments, such as dementia. 

In such cases, a legal representative for the care recipient must apply to a court for the use of the restraint. However, legal representatives can only make such applications to a court if this expressly falls within their duties. The legal representative can be an authorized person or a legal guardian. 

Following the application, a judge will rule on the restraint. The court order must generally be obtained before the restraint is used. 

There is one exception: The one-off use of a restraint for a maximum of 30 minutes does not have to be approved. However, this is subject to an emergency situation having arisen where there is a significant and acute risk to the person that cannot be averted through any other measures. In such cases, the mildest form of restraint must also be selected.

If a person is not legally competent and does not have a legal representative, relatives, doctors and care personnel cannot simply apply to a court for the use of a restraint. They can solely trigger a legal guardianship or the review of a restraint by the guardianship court. 

The approval of restraints must be carefully considered by a judge. Strict conditions apply:

• Restraints must only be used if there is no other way to avert a risk.
• The presumed will of the care recipient must be considered. If possible, relatives should have their say.
• Alternatives to the restraint must be reviewed (for example lowering the bed or using a crash mat if there is a risk of falling). The mildest form of restraint must always be selected.
• The judge must carefully weigh up the risks of a restraint compared to other health risks.
• The court requires a medical certificate in order to make its decision. This must confirm that the restraint is necessary and justified from a medical perspective.
• The judge usually also obtains a personal impression of the care recipient, for example by visiting the nursing home. 

“Case guardians” (“Verfahrenspfleger”) also play an important role in the court proceedings. They represent the interests of the care recipient to the court, especially if the care recipient is unable to make their own will known. A case guardian’s role includes checking whether all alternatives to restraints have already been exhausted. It is useful for case guardians to be familiar with both the care and the legal situation. 

If a judge approves a restraint following careful consideration, the approval is granted for a specific period. Within this period, the legal representative can decide whether or not to use a restraint based on the specific situation at hand. The continuing necessity of a certain measure must be repeatedly reviewed. This is also the responsibility of the legal representative in particular.

Some federal states also have further laws on restraints. In North Rhine-Westphalia, for example, all care facilities must present a concept on the avoidance of using restraints.

Answers to legal questions about freedom-restricting measures can be found on the website of the Ombudsman for People with Disabilities and Patients in NRW (Beauftragte für Menschen mit Behinderung sowie für Patientinnen und Patienten in NRW). 

What legal regulations apply to the use of restraints in hospitals?

The same legal regulations apply in hospitals as in care facilities. This means that restraints can only be used if patients pose a risk to themselves that cannot be averted in any other way. In hospitals, self-endangerment can include patients being temporarily confused and disoriented following surgery and repeatedly removing intravenous lines that are important to their treatment. 

As in care facilities, restraints can generally only be used on hospital patients who are not legally competent if this has been approved by a court. This does not apply if a measure is only used as a one-off and for less than 30 minutes. 

Are there any legal regulations on the use of restraints when care is provided by relatives?

If people are cared for in their home by relatives, restraints do not have to be approved by a court. As in other settings, a legal representative decides on the use of such restraints if the care recipient is not legally competent. However, family caregivers should consider the fact that restraints always severely infringe upon people’s fundamental rights. From a legal perspective, they are considered to be a deprivation of freedom. They also pose health risks to the care recipient. In view of this, family caregivers should avoid using restraints for both technical and ethical reasons.

In the first step, it is important to be aware of the potential negative consequences of freedom-restricting measures. There are many alternatives that people are not always aware of. The options in specific cases depend on various factors such as the reason certain measures seem necessary. 

How can family caregivers avoid freedom-restricting measures?

Family caregivers often use freedom-restricting measures due to being worried about falls or other risks. To avoid such measures, it is therefore initially important to identify and mitigate potential health risks. 

When caring for people with dementia in particular, situations can arise that are extremely challenging for family caregivers. Many people with dementia are no longer able to correctly assess risks and hazards. Despite this, they should still not be prevented from moving around freely.

In most situations, there are other solutions for dealing with health risks or challenging behavior: 

• Risk of falls: There are various ways of preventing falls. These include crash mats by beds, hip protectors or wearing non-slip shoes. Home modifications may also be necessary to make the living environment as safe as possible.
• Restlessness and wandering: The symptoms of dementia can include a strong urge to move. This should be accepted and permitted as far as possible. It can be useful, for example, to install a wind chime to indicate if the house door has been opened. Special doormats can also emit a signal if someone goes to leave the house or a room. It is also important to work with the care recipient to try and determine what is causing the unrest. The person could feel physically unwell, be hungry or thirsty, or need to go to the toilet. A change of scene or a task can reduce potential boredom and the urge to move. Suitable tasks can include household chores as long as these do not overburden the person.
• Aggression: If a care recipient behaves aggressively, it is important to remain calm and not to appear threatening. Do not argue or swear as this can increase the aggression. The aim is to calm the person, for example through touch, music or other distractions. It sometimes helps to keep your distance.
• Reducing risks: When providing care in the home, it is particularly important to ensure that the environment is as safe as possible. Depending on the situation, relatives should remove or safely store health hazards such as sharp knives or cleaning agents.
• Removal of medical lines: Wherever possible, medical lines such as catheters for medication should be hidden under clothing and firmly secured. 

Further information on how to improve safety in the home, especially for people with dementia, can be found in the article Dementia-friendly homes. 

As a relative, it is useful to find out as much as possible about the care recipient’s medical conditions. Doctors and care personnel can also provide information about factors that increase the risk of certain symptoms associated with conditions. For example, low blood pressure can lead to dizziness and therefore increase the risk of falls. In this case, blood pressure medication needs to be adjusted to prevent falls.

Freedom-restricting measures or other forms of violence in home care can also result from excessive stress or strain on the caregiver. It is therefore important to make full use of support services, especially if caregivers have their own medical issues or are themselves elderly. Training and advice can help to make care tasks easier. The sense of security provided by care knowledge can also reduce excess strain. Various services provided by long-term care insurance providers may also help to relieve the burden on family caregivers. Care advice services can answer all questions about both care and restraints.

Local advice centers can be found using the database provided by the Center for Quality in Care (Zentrum für Qualität in der Pflege – ZQP).

Further tips on how to avoid freedom-restricting measures and other forms of violence in the field of care can be obtained from the “Preventing violence” (“Gewalt vorbeugen”) brochure published by the Center for Quality in Care (ZQP). 

Further information on the avoidance of falls can be obtained from the Center for Quality in Care (ZQP) and at gesundheitsinformation.de.

How can freedom-restricting measures be detected and prevented in professional care settings?

Knowledge about the risks of freedom-restricting measures and the associated legal situation plays an important role in care homes and outpatient care services. A clear attitude within the care facility and by the management is important for avoiding the use of such measures whenever possible. Employee training and a concept for the avoidance of violence in the facility help to prevent the use of freedom-restricting measures.

If relatives feel like a care facility is using freedom-restricting measures unnecessarily, they should start by discussing the situation with the care staff. They can also ask specific questions about the strategies employed by the facility to avoid the use of restraints. 

Our article Deficiencies in long-term care – who can I turn to for help? provides lots of other information about potential options in such cases.

When looking for a care home, quality reports can be a good source of guidance on the quality of care provided by a facility. These reports also provide information about whether and how often the facility uses freedom-restricting measures.

You can directly search for the quality reports for certain facilities on the following portals:
Care Navigator (Pflegenavigator) from the Federal Association of Public Health Insurance Companies (AOK-Bundesverband)
Care Guide (Pflegelotse) from the Association of Substitute Health Insurance Funds (Verband der Ersatzkassen – VDEK)
CareFinder (PflegeFinder) from the Federal Association of Company Health Insurance Funds (Betriebskrankenkassen – BKK)

Further information about the avoidance of freedom-restricting measures can be found on the website of the Center for Quality in Care (ZQP).
Information for family caregivers
Information for care personnel

There are numerous brochures that offer relatives, caregivers and doctors further information about freedom-restricting measures.

”There are other ways!” (“Es geht auch anders!”) from the Rhineland Palatinate Ministry of Social Affairs, Labor, Health and Demographics (Ministerium für Soziales, Arbeit, Gesundheit und Demografie Rheinland-Pfalz)

”Enjoy more freedom!” “Mehr Freiheit wagen!” by the Initiative for the Limitation of Freedom-Restricting Measures in Elderly Care (Initiative zur Begrenzung freiheitseinschränkender Maßnahmen in der Altenpflege)

”Measures for Preserving and Restricting Care Recipients’ Freedom” (”Freiheitserhaltende und freiheitsentziehende Maßnahmen bei pflegebedürftigen Menschen”) by the Supra-Local Working Group for the Care Sector in North Rhine Westphalia (Überörtliche Arbeitsgemeinschaft für das Betreuungswesen in Nordrhein-Westfalen)

Information about further projects with the aim of preventing the use of freedom-restricting measures can be found on the Justice portal (Justizportal) of the Ministry of Justice for North Rhine Westphalia.