Pain Compliance Techniques With Children Are Not Illegal

Pain Compliance Techniques With Children Are Not Illegal

In a recent blog post I mentioned that I had recently met with a Government-appointed panel of ‘experts’ who told me, quite enthusiastically, that it is illegal for anyone to use a physical technique with a child that may intentionally or unintentionally cause pain.

You can read that blog post here:

Illegal Comment Made by Professor Sue Bailey, Chair IRAP

This panel was the ‘Independent Restraint Advisory Panel’ (IRAP) and the comment was made by both Professor Sue Bailey (the Chair) and supported by Pam Hibbert one of the panel members. The other panel members also seemed to agree by default as they did not challenge this statement, which surprised me given the operational expertise that these other panel members are supposed to have had.

After I initially challenged the statement, I received an e-mail from a representative of the panel who works for the Department for Education that set out the Department’s understanding of the relevant key pieces of legislation in support of the Chair’s statement.

In a closing paragraph the IRAP representative states:

“You will see from this that the Department does not condone the use of any pain-inducing techniques in any children’s or young person’s setting. The guidance is clear and this is the point IRAP was trying to get across. The Department would of course expect any training provider to be familiar with the relevant regulations and guidance that apply to the setting they are providing training for.”

I subsequently sought an independent legal opinion by a very well respected Barrister at Law who is known as one of the UK’s leading public access barristers, in relation to the statement made by the Chair of the panel concerned.

An Independent Legal Opinion From A Barrister At Law

He has now had time to review the Department for Education’s understanding of the relevant key pieces of legislation in support of the Chair’s statement, as well as all of the other laws that apply and he has now provided me with a very in-depth and thorough response, an extract of which is as follows:

“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.”

This means that the statement made by Professor Sue Bailey and endorsed by Pam Hibbert of the IRAP panel was legally flawed.

It also means that the Department for Education’s understanding of the relevant key pieces of legislation that support the Chair’s statement and the panel’s position is also wrong and that the legislation has been misinterpreted and incorrectly understood.

It seems paradoxically perverse that the Department of Education have the arrogance to state that they “expect any training provider to be familiar with the relevant regulations and guidance that apply to the setting they are providing training for”, yet, it is this very Department who do not understand and who are not familiar with the relevant laws, regulations and guidance that they expect others to be aware of!

Youth Justice Board Report

Interestingly, the Youth Justice Board for England and Wales have just published a new report this year (2014), entitled ‘Deaths of Children in Custody: Action Taken, Lessons Learnt’, issued in 2014. In this report, it seems to corroborate what we have now had legally confirmed.

In the report it states that:

“A degree of pain compliance may be necessary in exceptional circumstances”, but, emphasising that restraints involving pain should be subject to “rigorous monitoring”.

The report went on to conclude that:

“While good policies, procedures, the training and preparation of staff, their supervision and management and the culture of the organisations in which they work, are crucial factors in determining the frequency and propensity for restraining young people, in the end it is the judgement of the member of staff when an incident occurs which is the single most significant factor in how it is dealt with in practice.”

Therefore the YJB recognises the importance of the ability of the member of staff to be able to use their judgement, skill and discretion as a significant factor in managing situations of violence and challenging behaviour.

Over the years we have always worked hard to ensure that our training and consultancy is as legally correct and accurate as it could be. I am therefore absolutely appalled that a panel, whom we would normally look to for good practice guidance, are making statements that are less legally accurate than the people and organisations delivering the systems of restraint that the panel is meant to be monitoring.

Cognitive Bias and Loss Aversion

The IRAP is clearly driven by a Chair with a very clear cognitive bias and supported by other members who seem to collude and agree with the same bias. This bias can cause staff and organisations to adopt a loss aversion mentality whereas the motivation in what they do is governed by what they fear losing (e.g. their jobs, etc.) as opposed to acting in the best interest criteria mindset.

Interestingly, this makes me wonder how many other agencies who went for an interview at the panel were told the same thing, but simply accepted it because they too were acting from a loss aversion mindset, perhaps because they were concerned about the repercussions that may have come from challenging what they possibly knew was not right? If you were one of them maybe it
is now time that you challenged it too?

My simple conclusion is that the IRAP is not ‘Independent’ as it states in its title, and the impression I got from my experience with the panel is that it is primarily very biased towards the welfare of children. Not once was the welfare of staff mentioned.

My position now is simple. If the statement made by Sue Bailey and corroborated by Pam Hibbert is now not retracted and such unjustified advice finds it’s way into the IRAP report or any IRAP recommendations, we may now seek a declaration from the Administrative Court to the effect that such a policy statement is unjustifiable and that a pain compliance technique could be a lawful means of restraint.

The Liability Rests With The Commissioning Agency

The real problem with all of this is that the actual liability for any injury or death that results from a restraint will primarily lie with the commissioning agency.

Interestingly enough, on the 6th of December 2010, I wrote to Michael Gove MP, The Minister of State for Education (who IRAP are mandated by).

Letter To Michael Gove MP

I wrote to Mr Gove because we have evidence that some physical restraint techniques being taught to school staff and that are subsequently being used on children, do not work, increase risk and are dangerous.

In my letter, I also raised the issue of who would be liable if a school was using restraint techniques that break good practice guidelines and/or increase the risk of harm and positional asphyxiation?

In a response to our letter Mr, Richard Laskier, from the Department of Education, replying on behalf of Michael Gove MP, on the 20th December 2010, stated the following:

“…..schools now have the autonomy to make their own decisions on which service is most appropriate for them. Ministers believe that headteachers and their immediate colleagues are best placed to determine what training is appropriate for their staff.”

The Department for Education’s response was clear that the responsibility (and accountability) is placed directly at the feet of headteachers who “now have the autonomy to make their own decisions on which service is most appropriate for them”.

Therefore, we have to ask the question – who will actually be held liable and accountable for the next serious injury or death in a children’s secure training centre, if it can be shown that the death could have been prevented by the use of a more restrictive or pain-compliance technique, but such techniques were not used because IRAP have stated that it is illegal to use a pain-compliance technique with a child and you simply followed that advice and so banned such techniques from use?

Anthony Scrivener QC – Where the Offence is – Let the Great Axe Fall’

As you consider the answer to that question, it would be worth noting the words of Anthony Scrivener QC who was the keynote speaker at the Annual Symonds Safety Lecture at the Institution of Civil Engineers on the 6th June 2000.

The lecture was entitled ‘Corporate and Personal Manslaughter: Where the Offence is – Let the Great Axe Fall’. His talk began with the following opening statement:

”Although in this short address I will refer to the Government’s new proposals for corporate manslaughter I would wish to drive home a clear message to all of those involved in the management of companies. Even without these reforms there is an unstoppable movement towards using the full force of the criminal law against companies and executives forming the management of companies where death or injury is caused by serious negligence. They are out to get you and that is the clear message you should take back with you from this meeting to your boardroom. If you ignore the trend then you do so at your peril.”

It is now nearly fourteen years since that speech was made and the words of Mr. Scrivener QC have come true. The Corporate Manslaughter and Corporate Homicide Act 2007 is now a part of UK Law. Its aim is to simply make organisations more accountable and to be more easily brought to justice, where death occurs in the workplace.

In short, don’t for a moment think that they wouldn’t come for you!

Section 37 Prosecutions Are On The Increase!

For example, are you aware that prosecutions under Section 37 of the Health & Safety at Work Act 1974 have increased by 400% in the past 5 years? In practice, that means that 30 – 40 directors and managers are prosecuted in the UK each year.

Also, from the 1st October 2012 the HSE can now charge for all investigations and follow up work until a prosecution is commenced, and they will be charging at £124 per hour unless ‘specialist input’ is required, which will incur an additional charge.

In addition, if someone were to die as a result of a breach of a duty of care owed to them, then the organisation and its senior management could be prosecuted under the Corporate Manslaughter & Corporate Homicide Act 2007, which could result in a senior manager, director or company owner going to prison, and the starting fine for an organisation found guilty of a Corporate Manslaughter charge is now £500,000.

Corporate manslaughter Prosecutions Are Also Up

With that in mind it is also worth noting that press releases have also stated that Corporate Manslaughter Prosecutions were up 40% on the previous year, and that there have been 141 Corporate Manslaughter cases opened since records began in 2009, and there are (at last count) approximately 60 cases currently being investigated for prosecution.

My advice, use the ‘old tailors rule’, ‘measure twice, cut once!’

Do Your Own Due Diligence

In simple terms, this means do not just accept what someone says because of who they are or the position they hold. Do your due diligence and make sure that you are not giving inaccurate or legally flawed advice.

Since publishing my last blog post on this issue we have been inundated with requests from a wide and diverse range of interested parties for further advice and guidance on this issue and I apologise if I haven’t been able to get back to you all, but we have been very busy.

Many of you have also been asking if we have any resources such as power points and supporting training materials that you could use in relation to the subject of the use of force with children and young people.

Therefore, what I have decided to do is bundle a load of resources together, including power points and other useful resources that we use and make them available for a limited period of time.

If this interests you then please keep your eyes open for future e-mails from us, as we will notify you of the offer when it becomes available in the next few weeks. Please note however, that it will be a limited offer and therefore only available for a limited period of time.

Best Regards

Mark Dawes