In 2002, the Department of Health and Department of Education jointly published guidance on the use of restrictive physical interventions for staff working with children and adults who display challenging behaviour, in association with learning disability and/or autistic spectrum disorder.
Ten years later, in 2012, the DoE then advised that they were in discussion with the DoH on revising this, and incorporating it with guidance on the use of restrictive physical interventions more generally on pupils with severe behavioural difficulties.
The assurance given by the government at that time was that the new, updated guidance would be published by the end of 2012 as, in light of changes since 2002, the content of the 2002 document no longer reflected current Government policy.
However, whilst 2014 saw further guidance issued in relation to adult health and social care, we are still awaiting the updated policy document relating to children, and are thus yet to see any further evidence of the government genuinely scrutinising the use of these controversial techniques on some of society’s most vulnerable people.
Physical intervention is defined by the government as ‘the use of force to control a person’s behaviour…employed using bodily contact, mechanical devices or changes to the person’s environment’.
This includes both physical restraints and removal to a seclusion or ‘calm room’.
The relevant provision for members of staff dealing with children is contained in s.93 of the Education and Inspections Act 2006, which provides that they may use ‘such force as is reasonable in the circumstances’ to prevent the pupil from committing an offence; causing personal injury to himself or others; or ‘engaging in any behaviour prejudicial to the maintenance of good order and discipline’.
Fundamentally, this does not permit the use of force for the purposes of punishment; as such force would amount to corporal punishment which is outlawed by s.548 of the Education Act 1996.
The 2002 guidance expressly states that the nature and scale of the physical intervention must be proportionate to both the behaviour of the individual concerned and the nature of the harm they might cause; the least restrictive intervention must be used, for the shortest possible time, and only so far as necessary to meet the immediate need.
Further, whenever a restrictive physical intervention is used, this should be recorded in a book as quickly as practicable by the person(s) involved, and in any event within 24 hours of the incident.
Following the Winterbourne View scandal, where it was found that unacceptable levels of physical restraint had been used on adults with severe learning difficulties, a campaign was launched by the mental health charity Mind to end the use of deliberate face-down restraint in mental health hospitals.
This campaign followed research findings by Mind that physical restraints were often being used on service-users for prolonged periods of time, including instances where these types of restraints were used to inflict pain, humiliate and punish.
The result of this, in the context of adult health and social care, was further guidance from the Government providing that all staff working in health and social care settings should never deliberately restrain a person in a way which restricts their airway, breathing or circulation (including face-down restraint).
However, despite it being recognised that procedures restricting breathing or impeding the airways carry an ‘elevated risk’ when used on children, no equivalent ban on their use has been introduced for children. The only limited exceptions to this are:
- The ‘seated double embrace’ (two people forcing the individual into a sitting position and leaning them forward);
- the ‘double basket hold’ (holding the individual’s arms across their chest);
- and the ‘nose distraction technique’ (applying a sharp jab upwards under the individual’s nose).
Such restraints have now been recognised as presenting an unacceptable risk to young people, following the tragic death of 15 year old Gareth Myatt, who died in 2004 after being held in a ‘seated double embrace’ by staff at a youth training centre.
This means that people working with children who may have a learning disability and/or autism are still permitted to use the following physical interventions, provided this is exercised ‘reasonably’:
- The ‘supine restraint’ (where the individual is made to lie with the back of their body on a surface);
- the ‘prone restraint’ (where the individual is made to lie with the front of their body on a surface);
- and the controversial MAPA technique (where pressure is applied to pain stimuli).
Such restraints may also be used on adults provided airway/breathing/circulation is not restricted. It is notable, however, that some mental health trusts have decided to ban their use as they are considered too dangerous and traumatic.
A further concern is the use of seclusion or ‘calm rooms’, where the individual may be forced to spend time on their own against their will.
All guidance makes clear that seclusion outside of the Mental Health Act should always be a last resort and that it is a criminal offence to lock an adult or child in a room without a court order, except in an emergency when the use of a locked room as a temporary measure whilst seeking assistance may be justified.
Further, that children should never be left unsupervised in a room where they are unable to get out, whether that be because of double or high door handles or locking outside doors.
In addition to the potential criminal liability that may be incurred through the unjustified and wrongful use of seclusion rooms, there is also the possibility that such treatment may amount to a violation of the individual’s rights under Art.3 (the right not to be subjected to inhumane or degrading treatment), Art.5 (the right to liberty and security), Art.8 (the right to respect for private and family life); and Art.14 (the right not to be discriminated against in the enjoyment of those rights) under the ECHR.
There are also instances where the use of seclusion may constitute an unlawful deprivation of liberty.
In R(C) v A Local Authority and Ors  EWHC 1539 (Admin), for example, the Court of Protection found that an 18 year old man with autism and severe learning disabilities, who had been regularly placed in a padded seclusion room [the ‘blue room’] more than six times a day at a residential school for children with complex needs, had been unlawfully deprived of his liberty.
The judgment made clear that, although seclusion may be used to control aggressive behaviour, this must be the least restrictive option available, should only be used for so long as necessary, and must be exercised in accordance with the individual’s intervention and prevention plan.
That plan, and guidance for the use of the seclusion room, must be written up into a protocol forming the individual’s care plan, and all staff must be trained in a manner that is specific to the individual. Further, it is never lawful to use seclusion as a form of punishment.
R(C) has also been an important judgment in establishing that, whilst the DOLs regime does not apply to residential schools and children’s homes, an application for lawful authority must nonetheless be made to the Court of Protection before depriving some who is aged 16 of their liberty.
Whilst there is undoubtedly a huge variation in the use of restrictive physical interventions on both adults and children by educational, care and health providers across the country, their permissibility, and the failure by some to adequately scrutinise their use, creates a real risk that such techniques become routine in some institutions; are not deployed in exceptional instances only; and are used in an entirely unreasonable and excessive manner.
This, combined with the frequent failure by some care providers to record such incidents in writing within 24 hours as required, only increases the risk of abuse and ill-treatment.
We are continuing to learn the hard way that the use of such physical interventions, if not appropriately controlled and monitored, often lead to an escalation, rather than de-escalation, of behaviour; create distrust and damage personal and professional relationships; humiliate, degrade, and undermine the dignity of both the staff and individuals involved; and, in the most severe cases, result in physical and/or psychiatric harm.
In light of these concerns, we feel it is time for the government to issue its updated guidance on the use of restrictive physical interventions on children; to review as a matter of urgency the real necessity for such practices in the context of both children and adults; and, if such practices are not to be outlawed, to ensure that adequate safeguards and monitoring systems are put in place to minimise, so far as possible, the risk of abuse and ill-treatment.
This blog was co-authored by Kate Whiting and Alison Millar