The use of pain compliance on children is an emotive subject, it is contentious and one that many organisations fail when issuing legally robust policy and guidance. NFPS has covered this subject in previous publications and links to these will be given at the end of this post.
Of course, applying pain to a child is the absolute last thing any decent person wants to have to do. But the bottom line is that there may be circumstances in which it is reasonable to do so.
I was recently chatting to a prominent member of the NFPS family who was recently accused of “making money from misery”. This was because he (correctly) advocated for pain compliance, where necessary and proportionate to do so; and, advocated for the use of mechanical restraints, again, where it can be evidenced to reduce the risks to all concerned and help ensure the best possible outcomes for all.
Regardless of the cogent reasoning offered to the person who made this accusation, they remained obstinate. I also found the accusation somewhat hypocritical because the person making the accusation was endorsing a system of ‘no pain compliance’ and indeed ‘no touch’.
The person completely failed to accept that doing nothing in certain circumstances can lead to far more dangerous outcomes for all concerned and that utilising pain compliance and mechanical restraint may in fact be the least intrusive option that prevents greater harm.
So, since this person is drawing a wage from an organisation who fails to allow for the use of force on a child, where (absolutely) necessary, they are the ones, in fact, making money from (potential) misery.
Everyone knows that Police will use force, if necessary, on a child who has absconded. Some may egregiously think it is only the police who can do so, but surely even those who think this must acknowledge that legal powers exist that allow for the use force on a child.
The point is, should it be reasonable to do so, any person can use force on a child to prevent a greater harm. And the law is very clear on this.
School staff now have lawful authority to stop and search pupils for weapons, remove the weapon(s) and if necessary, use force to do so. Knives are a real threat in schools and this threat is increasing.
Many will remember the 8th of December 1995 case of Philip Lawrence; and the stabbing in New City College (Hornchurch) on 21st February this year, to evidence this real and present danger. This stop and search power is in addition to the Education Act 1997, which allows for members of staff to restrain pupils.
Phone the police to deal with a knife incident and you’ll get either an Armed Response Unit, Officers armed with Tasers or at a minimum, a support unit equipped with body armour, batons, incapacitant spray, handcuffs and shields. I appreciate that this approach has changed within certain police forces, however, these options are still available to them.
So why is it perceived that it is against the law for some staff to use more restrictive techniques, including pain compliance, when it is lawful for other members of the public, who may happen to be a police constable, to do so?
This question, and those like it give rise to the paradox in our society today, where the very systems and polices put in place to protect children, by well-meaning adults, could actually be placing the child, other children and indeed the staff member, at an increased risk of harm.
The Concerns Around The Use Of Pain Compliance On Children Is Not New
During the 1990’s, there was considerable concern about the abuse of children in residential care. There were no less than 10 public enquiries between 1990 and 1996 alone. There was particular interest around the injuries children were sustaining from the use of restraint, which included broken bones.
Many will remember the ‘Pin Down’ report and the Department of Health’s response by commissioning the ‘Utting’ report. The conclusion of which was that the Children’s Act 1989 should prevent the likes of ‘Pin Down’ from ever happening again.
A significant document, Local Authority Circular ‘LAC (93) 13’, was released on the 28th of April 1993 under s.7 of the Local Authority Social Services Act 1970, entitled ‘Guidance on Permissible Forms of Control in Children’s Residential Care’. This was disseminated to all senior staff members in every local authority, to assist with the implementation of care.
There was still a great deal of confusion by those on the front-line delivering care, and those creating policies on how to operate in a legally compliant manner when having to use force on a child.
To avoid any future confusion on what powers staff could use under ‘LAC (93) 13’, Sir Herbert Lamming released a letter on the 20th of February 1997, entitled ‘The Control of Children in The Public Care; Interpretation of The Children Act 1989’. In his letter he makes it clear what staff can and must do.
It states that the guidance in ‘LAC (93) 13’ is clear and that staff must intervene to prevent a child from absconding, when there are grounds for believing they are putting themselves at risk of harm or will cause injury to others or property. The letter goes on to say that the guidance in ‘LAC (93) 13’ is clear and that physical restraint can and should be used in certain circumstances.
Training For Staff And The Use Of Pain Compliance
For those staff required to carry out restraint, there is often confusion about when it is appropriate and how it should be done. For staff tasked to research and commission fit for purpose training, they will also need to consider the history of restraint abuse; the wide and diverse range of statute and common law expected to be complied with; and the lack of specific training regulation. These factors contribute to making this a potentially daunting task.
In much of the literature concerning the care and control of children and young people, emphasis is quite rightly placed upon avoiding the need for physical interventions, and looking at alternatives, such as: the imposition of sanctions; boundary setting; positive reinforcement and conflict management.
It follows, therefore, that physical skills training should not be taught in isolation, but as part of a larger program that provides staff with other skills. If a competent risk assessment identifies that physical intervention training is necessary, then staff must also develop a clear understanding of the legal context in which the physical interventions may be used. As it is not the technique alone which renders restraint reasonable or otherwise, but the circumstances in which it is applied.
This is why it is vital that organisations task a staff member who is competent enough to exercise due diligence with regards training providers and training organisations. Liability will ultimately reside with the organisation commissioning the training, make no mistake about this, caveat emptor.
Add to this the fact that individual Directors, Managers and Supervisors may be held personally accountable for the training and policies they implement, especially if something goes badly wrong; and which could have been prevented if suitable training was provided.
There is currently an organisation who are aggressively overstretching their reach and claiming, without any peer reviewed evidence, that their system is ‘best practice’ across all sectors involving Physical Intervention. Further, that your organisation “must”, or at least “should” adhere to their ‘Training Standards’.
This is simply not true as an overarching statement, and there will be links evidencing this below.
In the interests of Natural Justice and avoiding any bias, our government has not mandated for a specific training provider for all things Physical Intervention; despite what you may have dishonestly been led to believe.
Ironically, this organisation does not ‘approve’ restraint techniques, nor allow for pain compliance. Indeed, at the time of writing this post, Standard 1.3.7 states that it does not support the use of pain to gain compliance. Further, that training providers must not include the teaching of any restrictive intervention that uses pain to force an individual to comply.
What is very interesting is the fact, due to this organisation’s commercial interests, they are happy to overlook pain compliance techniques if they are renamed as “escape & rescue” techniques.
This organisation is pushing into other sectors outside of mental health, especially education, care, acute hospitals and (hospital) security. What these standards fail to account for is situations where the tertiary response may in fact be the primary intervention needed, in other words, there may be certain high-risk situations where staff need to use an approved pain-compliance intervention. For example, forcing a person to release a grip around victims’ neck.
Particular care must be taken when being told that your organisation ‘must’ adhere to one particular set of standards or ‘accredited’ training. As stated, this may not be true and there is no statutory ‘mandatory’ physical intervention system you must adopt for all sectors.
Everything your organisation needs should be identified via a suitable and sufficient risk assessment. The most legally defendable system your organisation can ever have, is one which meets all the needs of the staff and service users who are owed a duty of care.
There will also be more information at the end of this post to help you decide on your training provider.
A Barristers Opinion On The Use Of Pain Compliance On Children And Suella Bravermans’ Response To IICSA
The government’s response to the seven-year long Independent Inquiry into Child Sexual Abuse (IICSA) enquiry, costing £186M and released back in October, was given in May in the Commons by Suella Braverman.
The Government committed to adopting 19 of the 20 recommendations made by IICSA. The enquiry is primarily related to Child Sexual Abuse and how the government can improve on dealing with the victims of these heinous crimes.
Recommendation 5 of the inquiry states:
“The Inquiry recommends (as originally stated in its Sexual Abuse of Children in Custodial Institutions: 2009–2017 Investigation Report, dated February 2019) that the UK Government prohibits the use of any technique that deliberately induces pain (previously referred to by the Inquiry as ‘pain compliance techniques’) by withdrawing all policy permitting its use in custodial institutions in which children are detained, and setting out that this practice is prohibited by way of regulation.
“…calls for a ban on the use of pain compliance techniques on children in custodial institutions has been dismissed…
…It is essential that staff are equipped to keep children safe in custodial institutions. That is why they must be trained in the use of safe pain-inducing techniques for scenarios where they may need to prevent children from self-harming or causing physical harm to other children.”
The Independent Barrister
At a meeting of the Independent Restraint Advisory Panel (IRAP) in January 2014, two members of the panel, Professor Sue Bailey and Pam Hibbert, maintained that the use of pain compliant techniques for children was illegal. An egregious and carelessly incorrect claim, especially from people with such influence.
In 2014, Mark Dawes, the former director of NFPS was requested by a Barrister to advise whether, or not, this is an accurate statement of the legal position. Mark made the point that for something to be illegal it has to be forbidden, prohibited or contrary to law.
The Barrister, Mr Henry Hendron, had also involved a gentleman by the name of Jim Brown, who provided evidence on the permitted use of force on children from several pieces of legislation.
The combined inputs from Mark Dawes and Jim Brown were integral to the final comments and conclusions formally submitted by Mr. Hendron.
The report makes reference to:
- The Young Offenders Rules 1980, now Young Offender Institution Rules 2000; Rules 50-52.
- The Secure Training Centre Rules 1998: Rules 37-38.
- The Children’s Homes Regulations 2001: Regulations 17, 17A and 17B (Since updated in 2013).
- The Children Act 2004: Section 58.
- The Children and Young Persons Act 1933: Section 1.
- The Children Act 1989 Guidance and Regulations Volume 5.
- paragraph 6.77 from Independent Review of Restraint in Juvenile Secure Settings by Peter Smallridge and Andrew Williamson.
- What is Physical Intervention by Mark Dawes.
The Barrister’s comments:
“…a working definition of pain compliance…techniques intentionally to impose pain as an intrinsic part of a control system, usually through applying and relaxing pressure on joints… can then be relaxed to end the pain.”
“…distraction techniques… used as a ‘distraction’ only in specified and high-risk situations where other methods would be ineffective.”
“Unintended consequence… Some restraint techniques, which usually involve holds, are intended to be effective without need for pain but pain may result inadvertently if the person struggles against the hold.”
“…there is a place for Pain Compliance Techniques in the secure estate and they are not unlawful if necessary and proportionate, bearing in mind the interests of the child and self-defence, protection of property and the safety of third parties’ issues.”
“…pain compliance does have a role in restraint, where it can be effective in bringing to an end longer, more exhaustive restraint incidents which can compromise the safety of young people and staff.”
The Barrister’s Conclusion:
“It seems to me that providing any pain compliance was necessary and proportionate and in the interests of the child, it would not be unlawful.”
“I agree that the statement “the use of pain compliant techniques for children was illegal” is wrong. Pain compliance for the purpose of punishment is certainly unlawful, but it may be appropriate as a means of restraint in an emergency”.
There will be more discussion about this report, and delegates can view the full document on our next BTEC Level 3 Advanced Restraint Instructor Course in September.
This post aims to help policy makers and those charged to source and commission training by ensuring you can evidence doing everything ‘reasonably practicable’ to provide ‘fit for purpose training’ to your staff.
The statements and evidence contained within will hopefully allow for more informed decisions to be made and ultimately help ensure your organisation succeeds in constructing legally robust policies and procedures.
My take-away message to you is this: pain compliance and the use of mechanical restraints, including soft cuffs, hand cuffs, safety pods etc. can be evidenced, in certain circumstances, as the least intrusive option that prevents greater harm to all concerned. There lawful application is entirely human rights complaint and can be the most dignified method of restraint that preserves life. Therefore, they should absolutely be used, where necessary.
A no-touch policy may result in negligence, should it be evidenced that restraint could have prevented harm, injury or death to a person.
And for those who feel they are trapped into adopting the standards due to a “condition of contract”, first make sure the standards apply to your organisation; ask if implementing these standards will reduce the overall standard of care currently in play; assess the cost v benefit of adopting the standards, especially if they are evidenced as not necessary.
With regards the CQC, it remains to be seen what they would do in terms of rating an organisation if the organisation evidenced they have given “regard” to the training standards (referenced in the statutory guidance), and they meet the standards (or better) and decided not to adopt the standards for they feel they would be lowering the level of care they provide.
One thing I am confident of, is that a court would look for evidence of ‘best practice’ based on a competent risk assessment, and would care far less about a certification scheme over Health & Safety and Human Rights legislation.
Still Unclear, Or Not Convinced About Not Having To Adopt These Training Standards?
Dr. Ben Spencer MP wrote, on behalf of a very concerned constituent, to the Rt. Hon. Edward Argar MP, then Minister of State at the Department of Health and Social Care, and the Ministers’ response will eliminate any residual doubt.
The letter states:
“… The Mental Health Units (Use of Force) Act 2018 sets out requirements for staff and the appropriate use of force, it does not mandate the use of the Restraint Reduction Network (RRN) national training standards or the BILD accreditation scheme. Although the statutory guidance references the RRN standards and the accreditation scheme, it does not mandate their use.”
You can see a video about the letter here – https://nfps.info/department-of-health-social-care-letter-jan-2022-re-bild-and-the-rrn/
So, final fact to share is that BILD Act Certification and the RRN Standards are not Mandatory outside of a mental health unit in a NHS hospital in England and the limited scope provided by the statute guidance which you can read more about here – https://nfps.info/rrn-compliance-not-necessary/.
“Outside of a Mental Health Unit in a NHS Hospital In England And The Limited Scope” What Does This Mean?
Ok, this is where is gets interesting. I have already evidenced that our government will not push for one training provider over another. And indeed, they haven’t; although arguably they may as well have, as I am about to evidence, and this is indeed vexing. They have now said the RRN-TS is mandatory in a very limited set of circumstances. That being said, they have not mandated that it is only the RRN who must deliver these standards, hence their ‘get out of jail card’, so to speak.
This means anyone can deliver the standards, provided they are approved to do so:
“The Restraint Reduction Network owns the Restraint Reduction Network Training Standards 2019 and the Certification Scheme (as agreed by UKAS and HEE). The Restraint Reduction Network licences the Standards to certification bodies, subject to agreement to the scheme rules…”
And bullet point 3 reads:
“Certification bodies licence the standards from Restraint Reduction Network for agreed royalty rate (of 20%)”
In short, any alternative option to the BILD ACT certification would need to pay them 20% of all income. Naturally, no one has done this and so that leaves only the RRN centres to deliver the training.
One person actually had the backing of two eminent Universities and approached UKAS about setting up an alternative to the RRN standards, that were only being offered through BILD.
But when the 20% royalty rate was unexpectedly brought up, the two Universities couldn’t get involved on ethical and moral grounds.
The BILD/RRN process has been set up (as is clear by the 20% royalty rate issue) to make it less attractive and to prohibit other agencies from being in competition in the marketplace.
“an association of manufacturers or suppliers with the purpose of maintaining prices at a high level and restricting competition.” (Google)
“A cartel is a group of independent market participants who collude with each other in order to improve their profits and dominate the market.” (Wikipedia)
“A cartel is a formal agreement between a group of producers of a good or service to control supply or to regulate or manipulate prices.” (Oxford Learner’s Dictionary)
I’ll just leave these definitions up there for your considerations. It is also an interesting point of discussion to consider the Common Law doctrine of Restriction of Trade and the Misrepresentation Act of 1967.
Are Training Requirements Going To Change For Some Organisations?
Take Bravermans’ response to IICSA and couple that with the recent announcement of ‘Right Care, Right Person’ from Humberside Police, then simple logic dictates that powers of restraint and pain-compliance must be conserved. The requirement of staff to use restraint may substantially increase in future given the increased levels of threat to staff (and public); and the lawful use of pain compliance may also increase as a result.
This can be a discussion point for another blog post, however, feel free to leave your thoughts and comments.
I hope this post is of some benefit and use to everyone involved in the physical intervention domain, especially leaders who will be responsible for ensuring adequate duty of care is provided to those who may have to restrain, and to those who may be restrained.
There are still some places left on our flagship BTEC Level 3 Advanced Restraint Instructor Award Course in September and if you would like to know more about this course, please click this link:
I look forward to reading your constructive comments and if you have any other questions, please get in touch.
Useful and relevant links for further reading include:
- Compilation of Previous NFPS Blog Posts on Pain Compliance: https://nfps.info/pain-compliance/
- Why you may not legally be required to adopt the RRN Standards – https://nfps.info/rrn-compliance-not-necessary/
- BILD Act Certification and the RRN Standards are NOT Mandatory – https://nfps.info/department-of-health-social-care-letter-jan-2022-re-bild-and-the-rrn/
- RRN Standards and BILD Act Certification – Is It Mandatory or Not? – https://nfps.info/rrn-standards-and-bild-act-certification-are-they-mandatory-or-not/
- Why The RRN Standards Are Unworkable
- The Reasons Behind Why NFPS Ltd Will Not Be Adopting The BILD/RRN/UKAS PI Accreditation Scheme [Video]
- Eric Baskind and I Discussing The Legal Implications of a Care Quality Commission Freedom of Information Response [Video]
- Is the New PI Accreditation Worth It or Are We Putting Profits Before Safety? [Video]
- NFPS Ltd will not be seeking accreditation under the new PI accreditation scheme that is due to come into effect in April 2020
- Why You Should Consider Not Training With Us!
- Why people should choose NFPS and the standards and experience we maintain: https://nfps.info/nfps-ltd-accreditation/
- Government Response to the Final Report of the Independent Inquiry into Child Sexual Abuse: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1158298/Government_Response_to_IICSA_FINAL.pdf
- Independent review of pain-inducing techniques – Government response: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/893194/pain-inducing-techniques-government-response.pdf