key: cord-0747996-uo32gjbj authors: Stewart, Cameron; Brunero, Scott; Lamont, Scott title: COVID‐19: Restrictive practices and the law during a global pandemic – an Australian perspective date: 2020-08-14 journal: Int J Ment Health Nurs DOI: 10.1111/inm.12785 sha: 6e81a65cc3fe655a535bd0854fa190378e46a390 doc_id: 747996 cord_uid: uo32gjbj The COVID‐19 pandemic has created a heightened state of anxiety and fear in many communities (Usher, Durkin, & Bhullar, 2020), particularly within vulnerable populations (such as the elderly, people with disability and people with mental illness; prisoners and asylum seekers). These vulnerable populations are already sensitive to the use of restrictive practices, namely, the use of interventions that restrict the rights or freedom of movement of patients via restraint (chemical, mechanical, social or physical) and seclusion. These concerns are exacerbated in a time of pandemic (World Health Organization, 2020). The laws in all Australian jurisdictions require consideration of the principle that the freedom of people in care is restricted as little as possible. It is therefore essential that restrictive practices are undertaken lawfully and with careful consideration (Chandler, White, & Wilmott, 2016). Two recent decisions of tribunals illustrate these concerns (See Box 1). (such as the elderly, people with disability and people with mental illness; prisoners and asylum seekers). These vulnerable populations are already sensitive to the use of restrictive practices, namely, the use of interventions that restrict the rights or freedom of movement of patients via restraint (chemical, mechanical, social or physical) and seclusion. These concerns are exacerbated in a time of pandemic (World Health Organization, 2020) . The laws in all Australian jurisdictions require consideration of the principle that the freedom of people in care is restricted as little as possible. It is therefore essential that restrictive practices are undertaken lawfully and with careful consideration (Chandler, White, & Wilmott, 2016) . Two recent decisions of tribunals illustrate these concerns (See Box 1). Australia lacks a uniform regulatory approach to restrictive practices in mental health, but they usually fall under each jurisdiction's regulation of compulsory treatment orders, with an emphasis on them being seen as 'last resort', subject to the principle of being the least restrictive alternative of caring for the person, and having to be reported and regularly reviewed (Table 1) . Guardianship and disability regulation may also play a role in regulating restrictive practices for those with mental illness who are under some form of guardianship arrangement but not subject to a compulsory mental health order (see Box 1; see Table 1 ). This article is protected by copyright. All rights reserved COVID-19 has added another dimension to this picture via the introduction of public health law. Health authorities in all Australian jurisdictions can invoke public health orders that allow for an extremely broad range of coercive orders including controlling the person's conduct, forcible detention, testing, and treatment of any person reasonably suspected of being COVID-19 positive. Table 2 sets out the various Australian state and territory legislation, and relevant sections that outline these powers (Kerridge, Lowe, & Stewart, 2013) . The use of restrictive practices in public health orders raise a number of challenges for mental health practitioners (Arnold, Bickler, & Harrison, 2019) . Firstly, public health orders lack the kinds of tight regulation of restrictive practices that we see in mental health and guardianship law, especially in how they lack a principle of the 'least restrictive means'. The use of public health powers comes with the risk that the governance of restrictive practices may loosen. Secondly, mental health teams are unlikely to have a working knowledge of public health law but may nevertheless be asked to act in accordance with it (Power, Baker, & Jackson, 2020) . Poor knowledge of regulation may lead healthcare practitioners to illegally authorise restrictive practice (Lamont, Stewart, & Chiarella, 2016 . Thirdly, some health practitioners have in the past been uncomfortable and reluctant to enforce public health orders, due to a conflicting sense of feeling like a 'jailer' (Kerridge et al., 2013) . Any such reluctance needs to be considered in relation to the protection of others (Coker, 2003) , and of course protecting oneself (Matheny Antommaria, 2020). This article is protected by copyright. All rights reserved Australian mental health practitioners need to lawfully navigate the challenges raised by COVID-19. Firstly, mental health practitioners must familiarise themselves with the relevant regulation of restrictive practices (see Table 1 and 2) (Ryan, 2018) . Restrictive practices, applied to a patient with suspected or confirmed COVID-19 infection, are only defensible when made in accordance with mental health, guardianship or public health legislation (Carter, 2020) . Secondly, we believe that there needs to be careful monitoring of restrictive practices authorised by public health orders so that the nature, frequency and extent of these orders becomes known (Carter, 2020) . Such requirements exist under mental health and guardianship regulation so we believe this should be mirrored in the public health regulation. Thirdly, discourse needs to be established between clinical teams in mental health and local public health units, who primarily have governance in this context (Khan et al., 2017) . Mental health units and public health units need to be aware of each other and establish lines of communication so that they can work together on the kinds of restrictive practice have been ordered for patients. Fourthly, consideration needs to be given once again to a nationally uniform approach to restrictive practices across the regulatory map of mental health, guardianship, disability and public health. While these health systems have different aims, the concerns about use of restrictive practice are the same. Policy needs to be clear, transparent, and unambiguous, in mitigating against anxiety, fear, and uncertainty (Khan et al., 2017) . A nationally consistent regulation is the best way to encourage best practice, fair decision-making, the protection of human rights and the promotion of public safety. This article is protected by copyright. All rights reserved The first 5 years of Part 2A Orders: the use of powers from court applications to protect public health in England 2010-15 The use of coercive public health and human biosecurity law in Australia: An empirical analysis The doctrine of necessity and the detention and restraint of people with intellectual impairment: is there any justification? 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