|
On the 7th March 2008 the MP’s and Lords that make up the Joint Committee on Human Rights (JCHR) recommended that all distraction techniques (involving inflicting pain to thumb, ribs or nose, the latter described as a ‘karate-chop to the nose) used in secure training centres should be abolished without delay to protect the human rights of children.
In the JCHR report, The Use of Restraint in Secure Training Centres, it stated that there was
“no excuse for the deliberate infliction of pain on children in detention” and the use of these techniques went against the United Nations Convention on the Rights of the Child, which states that restraint should "not involve the deliberate infliction of pain as a form of control".
Andrew Dismore MP, chair of the committee, said:
“What is in effect state-sanctioned infliction of pain against children to ensure 'good order and discipline' should not continue. Restraint should only be used to prevent injury to the trainee or others or to prevent escape.”
Now I agree with this wholeheartedly. Any force with a child should only ever be used to prevent injury to the child, to others and / or serious damage to property and not merely to ensure compliance with staff instructions – unless of course by not complying there will exist a foreseeable or imminent risk of harm. This is consistent with the requirements of all children’s legislation and its associated guidance.
With regard to the ‘distraction techniques’ referred to in the JCHR report, such as the nose distraction technique – a variation of which was taught to military personnel to kill – I again agree completely with their recommendations. That specific type of technique should not be intentionally used on children in care, and I think most reasonable people would think the same.
However, my concern is that the response given by the JCHR may possibly be taken out of context and over-generalised in other areas of physical restraint, and what I mean specifically by that is that this will extend to the use of more restrictive holds, holds that may actually save a child from or prevent a greater harm from occurring, and this is what forms the main part of this article.
In short, it is possible that in response to the report by the JCHR, some organisations may possibly ‘ban’ the use of more restrictive holds for fear that they breach the United Nations Convention on the Rights of the Child, based on their interpretation of JCHR report. In addition, the use of more restrictive holds may even be considered (wrongly so) as corporal punishment, and staff could then find themselves on the wrong end of a child protection investigation. In short, if this issue is not dealt with in a more sophisticated and holistic way, the implementations of the JCHR report intended to reduce the risk to children, if interpreted and perceived wrongly by some, will actually increase risk if the points made are taken out of context.
We actually came across this issue some time ago when a CSCI Inspector was arguing that any use of intentional pain on a child amounted to abuse under Article 19 of the Convention. The situation in question was that a member of staff intentionally applied a wrist-lock (pain-compliance) technique on a big 15 year-old boy who was about to glass another member of staff, and this intentional application of pain was considered ‘abusive’ by the inspector and, in his eyes, constituted ‘corporal punishment’.
As a result we wrote to CSCI and eventually received a response from someone in QPM – Quality Performance Management – the department that manages the quality of CSCI’s Inspectors performance. In their e-mail to us, the QPM representative states:
“I make reference to the United Nations Convention because Article 19 is relevant to the issue of "pain-compliance" as part of restraint……….. I understand the term ‘pain-compliance technique’ to mean a method of restraint that uses the experience of pain by a child to bring about compliance. Such a method of restraint is unacceptable. It is a form of corporal punishment, which is contrary to Regulation 15(5)(a) of the Children's Homes Regulations 2001. The use of pain to manage children's behaviour could also fall within the ambit of child protection procedures…………….Consequently an inspector could legitimately say that "staff are not allowed to use pain-compliance techniques as part of a restraint of a young child".
Now you can see the difficulty that some staff are likely to face when presented with a high-risk situation such as the one described. However, if we read Article 19 of the United Nations of the Rights of the Child, it does not specifically mention anything about restraint! What the United Nations Convention on the Rights of the Child (specifically Article 19) states is:
"Children shall be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of their parents or of any other person."
Therefore, the perception of this particular (possibly well-meaning) individual’s response is based primarily on their own subjective opinion (based on their operational experience) of what they believe constitutes a breach of Article 19 and not on objective legal fact.
Furthermore, as all individuals have the right to use as much force as they honestly believe is reasonable in the circumstances (see the Tony Singh article and the Garry Slapper artcle) any imposed contravention of this could amount to a breach of an individuals common and criminal law rights, which they could find themselves liable for if that breach led to a harm or a fatality that could have been prevented by a more effective technique.
In response to the reply from QPM we asked them what competence or qualifications an Inspector would hold to enable them to make comments regarding the use of restraint, and we received the following reply from QPM:
“Starting with your final question, inspectors observations about the use of restraint will be based on the regulations and standards and other relevant documents such as the United Nations Convention on the Rights of the Child. Whether or not an inspector has received training in the use of physical restraint, will depend very much on their own past experience and training. Such training is not part of the required training for inspectors.”
In short, although Inspectors are expected to “legitimately say that staff are not allowed to use pain-compliance techniques as part of a restraint of a young child" they do not seem to have any formal competence or qualification to make such a statement. As such, their comments would be far from legitimate and more realistically bordering on incompetent and possibly even illegal.
Now, I must stress that I am not promoting the use of pain over non-pain compliance techniques, where a non-pain compliance technique will achieve control. However, I am stressing that if we are expected to act in the best interests of the child as required by the Welfare Principle of the Children Act, the United Nations Convention on the Rights of the Child, and indeed the Human Rights Act, that means that if a technique can be used that will reduce the risk to the child (and staff), even if it has to be a more restrictive or possibly even a pain-compliance technique, it should absolutely be used if it can be considered reasonable in the circumstances – especially where a lesser use of force is very likely to be ineffective. Why? Because that is not only consistent with the requirements of law, but it is also morally and ethically correct if it is in the best interests of the child and also staff. (This is covered more extensively in our new book – Understanding Unreasonable Force).
Therefore, it may become absolutely necessary in some circumstances to intentionally use a higher degree of force to minimise the overall likelihood of a greater harm occurring to a child. This would be consistent with the concept of reasonable force, and if it was used to prevent a much greater harm, for example a possible foreseeable fatality, then such techniques should absolutely be used. In fact, failure to do so must amount to a breach of not only the children’s legislation, but also a whole host of other legislation – including The Human Rights Act – and lets not forget the implications of the new Corporate Manslaughter Act!
Education v Regulation
We need ‘education’ not more ‘regulation’. Over-regulation can lead to staff working in a repressed atmosphere of fear of discipline, where the primary concern with regard to the use of restraint, is not the welfare or best interests of the child but the best interest of themselves. This will come about directly as a result of the need to protect themselves from disciplinary action and possibly even prosecution by inspectors or managers who are operating with a distorted, over-generalised, and possibly even polarised, perception of what they believe the law says about the use of certain restraint techniques.
If this becomes the case it would seem to echo the words written by a man called Upton Sinclair over 100 years ago:
“It is difficult to get a man to understand something when his salary depends on him not understanding it.”
Although the Children Act and the United Nations Convention on the Rights of the Child are the primary statutes that professionals in the child care sectors refer and relate to, other Acts of Parliament are also relevant, such as The Criminal Law Act and the Health and Safety at Work Act, as well as the Common Law, and these can’t be deferred to as being any less important than the others.
Judgement, Skill, Knowledge and Discretion
If we are to serve the best interests of the child we need to provide staff with appropriate and effective training to enable them to competently control the risks that they will be exposed to consistent with the requirements imposed on them as ‘employees’ and on their organisation as ‘employer’, in line with the broad range of statute that must be referred to – in the correct context. By doing this we can better equip staff with the correct knowledge and skills to enable them to make better decisions in line with their training and to use that with their combined experience to use their discretionary powers unfettered.
This was summed up very clearly in a thematic inspection report by Her Majesty’s Inspectorate of Constabulary on officer safety in 1997. What was included in the report was as follows:
“Her Majesty’s Inspector is of the view that it is the responsibility of chief constables, in response to informed risk assessments, to:
§ identify, purchase and issue appropriate officer safety equipment;
§ provide the required training; and
§ give the necessary operational guidance for its use.
However, they should not suppress an officer’s right to use discretion. There is a division between the chief constables’ responsibilities as ‘employer’ and the individual’s responsibility to him/herself, colleagues and the public. The office of constable is individual and its discretionary powers and judgment should not be unduly fettered.”
It seems a bit perverse to me that some organisations are still willing to implement systems of restraint that their own staff tell them won’t work and then discipline or prosecute the same staff for an injury that has occurred during a restraint either because an ineffective technique failed, or because a member of staff had no option but to use their discretion, and as a result used something that worked, but which wasn’t something they had been trained in.
If you would like to order a copy of our new book: Understanding Unreasonable Force - click here
If you would like to become an Approved and Accredited Restraint & Breakaway Instructor by undertaking what is possibly one of the most legally accurate courses in the UK – click here |
