RRN Standards and BILD Act Certification – Are They Mandatory or Not?

RRN Standards and BILD Act Certification – Is It Mandatory or Not?

Many of you will be aware of the recent letter sent out by the RRN, CQC, HEE and Skills for Care, dated the 18th November 2020 and entitled ‘RE Certification of Training in Restrictive Practices’.

A similar letter was also sent out in July 2019, which states:

“From April 2021 CQC will expect all services across health and social care to only use training in restrictive practices that is certified as complying with the Restraint Reduction Network training standards.”

Also, on the RRN’s website and in the RRN Training Standards booklet it states that:

“The Training Standards will be mandatory for all training with a restrictive intervention component that is delivered to NHS commissioned services for people with mental health conditions, learning disabilities, autistic people and people living with dementia in England.”

The word mandatory” seems to imply that the requirement to comply with these standards is in some way a statutory legal requirement as the Mental Health Units (Use of Force) Act 2018 also seems to get mentioned quite a lot in various correspondence (and I’ll come onto that in a bit).

In fact the Cambridge Dictionary defines ‘mandatory’ as:

Something that is mandatory must be done, or is demanded by law”. 

And the Oxford English Dictionary defines  ‘mandatory’ as:

“Required by law or mandate; compulsory.”

However, this is not true. It is not a legal requirement.

I have also received quite a few messages from people who have concerns regarding the letter and one such message (included below with the senders permission) echoes the concerts of a number of people who have contacted me regarding this proposed ‘certification scheme’.

The message I received is as follows:

“Hi Mark,

I only use NFPS trainers, normally [names redacted], I have seen your videos on the new CQC regs for restraint, and I just came across the post” – The content of which reads as follows:

“The Restraint Reduction Network (RRN), Care Quality Commission (CQC), Skills for Care (SfC) and Health Education England (HEE) issue [sic] a letter of clarification to all regulated services on the RRN training certification scheme and the action that your organisation will need to take as the requirement for certified training is introduced from April 2021

From April 2021 CQC all services across health and social care will be expected to only use training in restrictive practices that is certified as complying with the Restraint Reduction Network training standards.”

The link in the post goes to this letter issued on the 18th November – https://restraintreductionnetwork.org/wp-content/uploads/2020/11/Letter-restraint-training-certification-ALBs-2020.pdf

“I keep being asked by a company “do my trainers meet these standards”, and I say yes. They then ask are they BILD accredited or CQC approved……….

Can you shed some light on this for me on how I can respond to them please as I am genuinely worried that many trainers are going to be out of work through no fault of their own.

[Name Redacted]”

My Response Post Legal Advice

My response to the above message, post having taken the appropriate legal advice, is as follows:

“Hi [Name Redacted]

Thank you for your message and I am aware of the letter that you linked to, a previous version of which was distributed in July 2019.

In the letter linked to in the post it states:

“From April 2021 CQC will expect all services across health and social care to only use training in restrictive practices that is certified as complying with the Restraint Reduction Network training standards.”

There are two points to consider here:

One is that these standards are not mandatory because the parts of the Mental Health Units (Use of Force) Act 2018 that relates to what the Restraint Reduction Network (RRN) Standards and BILD Act certification is offering has not as yet been forthcoming from the Secretary of State for Health.”

Therefore, the current situation is that compliance with the RRN standards is not a legal mandatory requirement as can be seen by the word ‘Prospective’ next to the relevant section of the Act here if you view ‘Latest available (Revised)’ version – (see here- https://www.legislation.gov.uk/ukpga/2018/27)”. Note the image below with a red arrow pointing to what version to view.

MHUUOF Act 2018

Furthermore, The Mental Health Units (Use of Force) Act 2018 is

“An Act to make provision about the oversight and management of the appropriate use of force in relation to people in mental health units;……”

As stated right at the top of the Act itself.

MHUUOF Act Description

Therefore, the provisions of the Mental Health Units (Use of Force) Act 2018 only apply to the following institutions (as taken directly from the Act itself)::

“Mental health unit” means—

1. a health service hospital, or part of a health service hospital, in England, the purpose of which is to provide treatment to in-patients for mental disorder, or

2. an independent hospital, or part of an independent hospital, in England

(i) the purpose of which is to provide treatment to in-patients for mental disorder, an
(ii) where at least some of that treatment is provided, or is intended to be provided, for the purposes of the NHS.”

Any organisation that falls outside the scope of the definition of a mental health unit provided by the Mental Health Units (Use of Force) Act 2018 is not affected by this law because it doesn’t fall within the scope of what the Act requires.

Secondly the letter that went out from the RRN, CQC, HEE and Skills for Cares tates that:

“Commercial training provider: Where service provider organisations commission training from a commercial training organisation they must ensure that the commercial training provider has been certified (with a link to this page – https://bildact.org.uk/certified-organisations/)”.

This is a Condition of Contract – Not a Legal Requirement

That requirement was decided on the basis of an NHS standard contract only and not by law.

That means that the requirement has been set as a condition of contract.

With regards to what, if anything the Secretary of State for Health’s guidance will require is as of yet not known because no guidance has been forthcoming by the Secretary of State for Health as yet. But once again, I stress that at this present moment in time this requirement is a contractual requirement only and not a legislative mandatory one.

Currently however, quite a lot of agencies are not happy with this and are quite prepared to use their preferred training provider/s even if they do not have the BILD Act certification, as long as they can evidence that they can meet or exceed the RRN standards to satisfy CQC’s ‘expectations’ (and I’ll come onto that in a minute).

In short, they are willing to override the ‘contractual’ condition if they are happy with the training provider they are currently using or are intending to use.

Also, a number of trusts are now asking CQC what legitimate sanctions CQC can impose on them if they choose not to get the BILD Act certification or use a training provider certificated under the BILD Act certification scheme.

The reason they are asking that question is because there are no legitimate sanctions that can be imposed and if any illegitimate sanctions were unfairly imposed that had a negative or disproportionate and adverse effect on the service, the service users, staff and someone’s business then that would possibly leave CQC open to a range of legal challenges.

Violence Prevention and Reduction Standard

Furthermore, in an Official document entitled ‘Violence prevention and reduction standard’ issued by the NHS in December 2020, it states:

“All NHS commissioners and all providers of NHS-funded services – referred to in this document as NHS organisations – operating under the NHS Standard Contract should have regard to the violence prevention and reduction standard, and are required to review their status against it and provide board assurance that they have been met it twice a year.”

Interestingly the words “should have regard to” is emphasised in bold in the document itself. This is totally different to the “must” requirement being promoted by certain agencies.

An Alternative to The BILD Act Scheme & The 20% Royalty Rate

Interestingly a professional colleague of mine approached UKAS to set up an alternative option for certification so that there would be an alternative option to just the BILD Act scheme with university backing.

It was then that we were presented with a document that states the following:

“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. The scheme rules are outlined in this handbook and licence agreement includes:” 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 twenty percent of all income.

The fact is, in most other professional industry sectors, as long as an organisation can show that they have met and complied with the necessary regulatory standards, by whatever means, where it is a legal requirement to do so, that is all that matters.

With regards to the BILD/RRN process it has been set up (as is clear by the twenty percent royalty rate issue) to make it less attractive and to prohibit other agencies from being in competition in the marketplace.

UKAS Response To My Enquiry

As this was agreed by UKAS and HEE (Health Education England) I spoke to UKAS about this and the response I got contained the following statement:

“UKAS is the national accreditation body who accredits Certification Body’s to offer accredited certification for different products/processes and services. The accreditation process provides confidence to many stakeholders over the competence of a Certification Body to certify a specific product or service. Therefore in context of training involving physical restraint practices, a certification body could certify a training provider for the provision of a service which meets a specified criteria (e.g. contains required course content, verification of TNA, competence of trainers). This provides assurance to stakeholders that the service being delivered meets the standard. UKAS then accredits the Certification Body to provide assurance that the certification body is competent in undertaking a reliable certification process. With regards to the specified criteria this could be the BILD RRN standard or any standard produced.”

On UKAS’ website it states:

“UKAS accreditation provides an assurance of the competence, impartiality and integrity of conformity assessment bodies. UKAS accredited certification, testing, inspection and calibration reduces the need for suppliers to be assessed by each of their customers.”

However, in correspondence to me they have  also stated this:

“UKAS has not offered accreditation in the area of restraint reduction training services before”.

So the ‘certification’ scheme is nothing more than an internal quality assurance programme designed by and for BILD that meets certain quality assurance standards, similar to an ISO 9000 quality assurance process. What that means is that it is written around what an organisation wants to achieve. It is nothing more than a UKAS certificated in-house training programme. This is unlike an ‘accredited qualification’ programme delivered through an Awarding Organisation like Pearsons, Highfields, or QNUK (for example), which is regulated by Ofqual and involves strict internal and external verification and quality assurance practices to be in place that meet nationally regulated requirements.

Furthermore, because UKAS has never been involved with this area of expertise before, it is taking advice from the very organisation that has approached it for certification. Now I’m not the cleverest person on the planet by far, but isn’t this akin to a person taking their driving test telling the examiner what they have to do to pass them?

In short, anyone can apply to UKAS to get anything ‘certificated’, but it is not an Awarding Organisation, Ofqual Regulated qualification or accreditation.

It Is Also Very Expensive

Another problem with this ‘certification’ scheme is that it is very expensive, involves a lot of work, increases training requirements and costs, will possibly reduce compliance and add further logistical costs to an already cash-strapped NHS.

And what is equally important is that it will intentionally put some training providers out of business, when many are already struggling due to the financial impact that covid has already had on their businesses.

Will It Keep People Safer?

The bottom line is will it keep staff and patients safer? I don’t think so. Anytime bureaucracy (an excessively complicated administrative procedure) is implemented, the focus ends up on the process of administration and not the outcome.

Interestingly in a HSJ publication on the 18th December 2019 entitled ‘Staff assaults and killing spark investigations of 20 providers’, it highlighted that:

“Safety inspections have been carried out at 20 health and care providers after three health workers have been killed by patients in the last five years.”

It went on to state that HSE has said it inspected

“a mixture of acute and mental health care providers” in the first half of 2019-20” and added that around “22 percent of non-fatal incidents reported to HSE between 2015 and 2018 in health and social care were attributed to acts of violence, which is three times as high as in all industries”.

Most interesting of all was that it stated that HSE inspectors

“observed significant contraventions of the law”.

What Does The Law Really Require?

What Health & Safety legislation (real legislation) requires is that any training etc that you provide must be ‘reasonably practicable’, which in simple terms is the justification based on the balance of cost vs risk. 

So if there is a low risk of something foreseeable happening that presents a low hazardous risk, then you do not have to spend lots of money to control or reduce the risk. 

However, if there is a foreseeably high risk of something dangerous happening that could cause a high level of injury or harm then you are legally bound to undertake a risk assessment process to reduce and minimise the risk to its lowest possible level. 

What Do Organisations Legally Have To Do?

All organisations legally have to ensure that they comply with Health & Safety at Work legislation, which requires that the organisation provides training where it has been identified that it is reasonable and practical to do so.

Now having said all of that I have no problem with the standards in terms of what they aim to achieve.

However, I do have an issue with having to ‘sign up’ to the RRN, pay them the fees that they are demanding and provide them with ongoing information to ensure that we are complying with the standards.

Health & Safety Compliance

The Health and Safety Executive (HSE) is Britain’s national regulator for workplace health and safety and we don’t have to pay the Health & Safety Executive a ‘fee’ for complying with Health & safety legislation nor go through a protracted and costly process of ‘certification’ to ensure that we meet what the requirements of what the Health & Safety at Work Act and  its associated regulations, Approved Codes of Practice and Guidance require, of which many are legally mandatory requirements.

Therefore, why should we be expected to pay and be certificated by organisations that are not recognised or appointed regulators and which are promoting a scheme which is not a legally mandated requirement (although it gives that impression)? 

So with regards to the RRN standards, if you can demonstrate that you can meet them, where it is reasonable and practicable to do so, that should be all that is legally required.

We have been tracking the RRN standards and we comply with them where it is reasonably practicable to do so, but we are not signing up to the RRN and the reason is because we cannot see any beneficial reason in doing so.

Will It Actually Become A Legal Requirement?

The fact is that it has been nearly three years since the Mental Health Units (Use of Force) Act 2018 was part enacted.

Yet to date, there has been no guidance forthcoming from the Secretary of State to specify how the remaining ‘Prospective’ (unenacted) parts of the Act should be made to work in practice, which is a requirement of the Act to enact the remaining parts of it.

Until such guidance is forthcoming the fact remains that the Restraint Reduction Network Standards are nothing more than a set of voluntary standards that have no mandatory status.

What Can CQC Legitimately Do If You Decide Not To Sign Up To The RRN Standards?

The Care Quality Commission is the independent regulator of health and adult social care in England and in the letters that have been sent out  it states (as you have already seen):

“From April 2021 CQC will expect all services across health and social care to only use training in restrictive practices that is certified as complying with the Restraint Reduction Network training standards.”

Therefore, it seems that CQC will ‘expect’ to see that various agencies are complying with the RRN standards, but is an ‘expectation’ legally enforceable? 

Many people are afraid of the CQC (Care Quality Commission), because a less than good rating or report from a CQC inspectors visit or an enforcement notice from CQC can badly damage a business’ reputation and income. 

But what can CQC legitimately do if you don’t or if you’re not fully complying with the RRN standards?

Now this is a question that a lot of people have been asking and I know one person who has written directly to CQC and asked that question specifically, but as of yet (and the time of publishing this report) not received an answer.

CQC Inspectors Recommendations and Competence

I sent a Freedom of Information request to CQC, which I got a response to in May 2020. 

One question I asked was:

“Are CQC Inspectors expected to advise on what restraint techniques or systems of restraint trusts must adopt?”

And the response I got from CQC was:

“CQC inspectors are not expected to advise providers about the restraint techniques providers should use. CQC inspectors do not give advice about restraint techniques or systems of restraint.”

I also asked:

“What competent training are CQC Inspectors given in physical restraint, including duration and content, and how are CQC inspectors formerly assessed as being competent to advise on all of the different systems of restraint used in NHS Trusts?”

The response I got from CQC was:

“CQC inspectors do not undertake physical restraint training. CQC inspectors do not receive training about the appropriateness of restraint training. CQC inspectors do not give advice about restraint techniques or systems.”

Based on CQC’s own responses they should not be advising providers as to what system of restraint they should be using because they are not trained and therefore not competent to do so and it falls outside the scope of their professional capacity. 

The Rules of Natural Justice

As the Care Quality Commission is the independent regulator of health and adult social care in England it has to adhere to the ‘Rules of Natural Justice’.

In English law, there are two main rules of natural justice.

One is the rule against bias and the second is the right to a fair hearing

Over the years this has come to be replaced by the general “duty to act fairly”.

The ‘Bias’ Rule

This states that no one should be judge in his or her case.

This is the requirement that the deciding authority must be unbiased when according the hearing or making the decision.

Additionally, investigators and decision‐makers must act without bias in all procedures connected with the making of a decision.

A decision‐maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before him or her without favouring one party over another.

Even where no actual bias exists, investigators and decision‐makers should be careful to avoid the appearance of bias.

The rule also requires that all Government, public authorities or quasi-judicial/regulatory bodies should ensure that there is no conflict of interest, which would make it inappropriate for them to conduct the investigation, make biased recommendations or provide biased advice.

Therefore, CQC Inspectors need to be very careful when it comes to recommending that organisations only use training providers that are certificated/accredited under the UKAS scheme, even if they state that they are only ‘signposting’ best practice as that could be a breach of the bias rule.

The ‘Evidence’ Rule

The ‘Evidence’ rule requires that any administrative decision must be based upon logical proof or evidence material.

Investigators and decision makers should not base their decisions on mere speculation or suspicion.

An investigator or decision maker should be able to clearly point to the evidence on which the inference or determination is based.

Evidence (arguments, allegations, documents, photos, etc.) presented by one party must be disclosed to the other party, who may then subject it to scrutiny.

As the Mental Health Units (Use of Force) Act 2018 is still largely ‘Provisional’ (not made law) because no guidance has been issued by the Secretary of State for Health, there isn’t currently any legal and legitimate basis, especially if you have done what is required of you under other laws (Health & Safety, Human Rights, etc). 

Therefore, if an organisation already has training that is fit for purpose and which complies with all of the relevant statutory legislation and regulatory requirements and the RRN standards (where it is lawful and reasonably practicable to do so) on what real evidence can CQC Inspectors recommend that a commissioning agency move away from that training provider and only use a training provider that is accredited via the UKAS scheme?

By doing that they are excluding from their process any training providers who is not so certificated, even where that training provider is appropriate in all other circumstances.

By removing these other training providers from their processes, they are effectively closing their minds to what is out there.

The Real Question

The real question should be this one:

“On what legal or legitimate basis can CQC give me a bad report, based on a poor rating, for not complying with a non-mandatory set of standards, that are not reasonable and practicable to implement and which (unless you are a mental health unit in a NHS trust in England) do not apply to my industry sector, especially when we have implemented training in line with a training needs analysis and assessment of risk that evidences that we have addressed the risks to the required competent standard as required under Health & Safety legislation?”.

However, many providers fear CQC so tend to go along with what CQC recommends without question because they fear that sanctions may be taken against them. 

The fact is though, at the end of the day it won’t be CQC, BILD or the RRN who will be liable if something goes wrong.

It will be you.

Does our Training Meet The RRN Standards?

We have mapped our training over the the RRN standards and our training definitely meets the standards. 

In fact, we have been committed to restraint reduction for many years now and in February 2019 I reported on how we had managed to reduce restraint in one very large healthcare organisation by seventy-nine-percent. You can read that blog post here – https://nfps.info/achieving-a-seventy-nine-percent-reduction-in-prone-restraint-video/

I was actually told at the time that it would have possibly been an over ninety percent reduction, but the organisation had acquired another company that was using a different system of PMVA, who were co-incidentally looking to become BILD accredited!

And as for CQC’s ‘expectation’ that certain agencies should comply with the standards, if you look at the definition of the word ‘expectation’ you will see that an expectation is nothing more than a strong belief that something will happen or be the case.

But is that expectation a reasonably practicable one?

That is for you to decide. 

Do I Have To Train With Someone Who Is BILD Certificated To Meet The RRN Standards or Get BILD Certificated Myself?

BILD (British Institute of Learning Disabilities) has recently created a certification scheme under one of its subsidiary companies called ‘BILD Act’ (‘Act’ standing for ‘Association of Certified Training’ NOT an ‘Act of Parliament’ – just in case you found that confusing). 

The ‘BILD Act Certification scheme’ is run through UKAS, which is a National Accreditation Body for the United Kingdom.

It is basically an ISO-type scheme based on BILD and the RRN’s own requirements. It is not a regulatory scheme nor is it a recognised Awarding Organisation Qualification regulated by Ofqual. 

All an organisation is actually required to do is demonstrate that they meet the RRN Standards (where it is necessary and/or reasonably practicable to do so) if they are bound by a condition of NHS contract.

And this only applies to the provision of training for those staff who work on a

“mental health unit…”  in “a health service hospital, or part of a health service hospital, in England”. 

It doesn’t apply anywhere else!

Any organisation that falls outside the scope of the definition of a mental health unit provided by the Mental Health Units (Use of Force) Act 2018 is not affected by this law because it doesn’t fall within the scope of what the Act requires.

Once again, this is only a requirement by a condition of contract from the NHS. 

It is not a ‘mandatory’ (legal) requirement.

Is NFPS Ltd Applying For BILD Act Certification?

Are we (NFPS Ltd) applying for certification through the BILD Act scheme?

The answer to that is no and the reason is because we can’t see that it provides anything additional value to what we already do.

We were the first organisation worldwide to develop a BTEC Level 3 Award Qualification in the Use of Physical Restraint Instruction in partnership with Pearsons, possibly the world’s largest Awarding Organisation. 

Our trainer training will therefore qualify you with a BTEC Level 3 Award in Physical Restraint Instruction. That is a (proper) Awarding Organisation (Pearsons) Accredited Certificate, regulated by Ofqual that takes learners through a structured process of learning and development with internal and external quality assurance.

It is delivered by people who hold the appropriate recognised Awarding Organisation teaching and educational qualifications and is internally and externally quality assured by individuals who also hold the appropriate recognised Awarding Organisation assessment qualifications. 

The legal aspects of our course are taught by legal experts (Lawyers, QC’s, Professors of Law and Expert Witnesses on The Use of Force). 

The Health & Safety aspects of our course have had input in them from properly qualified and competent Health & Safety Professionals.

Our physical techniques have been medically reviewed by a properly qualified and competent medical professional who is one of the Government’s preferred medical experts on the medical implications that relate to the use of physical force and an Expert Witness in his own right. 

All of our trainers who deliver the physical aspect of the training also have operational experience in the use of restraint as well as other specialised expertise too. 

All of this means that we can help you by giving you advice that is aimed at keeping everyone safe (staff and service users).

To that end we will recommend the use of whatever technique will objectively and legally be the best and safest option to use given all of the foreseeable circumstances and evidence and also based on staff and service user demographics.

However, BILD Act Certification requires complete compliance with the RRN standards and the standards….

“Do not support the use of pain to gain compliance. Training providers must not include the teaching of any restrictive intervention that uses pain to force an individual to comply” (Standard 1.3.7 as just one example).

A Short Disclaimer

Now, I just want to put a disclaimer in here as well, because there’ll be someone out there going, oh, it’s him again.

He’s talking about pain-compliance techniques.

He loves pain-compliance techniques.

He likes to ‘bend people up’ and hurt them. 

No, I don’t. I don’t at all but some people will use that as a means to distract you from the real point of the issue.

And the real point of the issue is that an organisation that has produce a set of voluntary standards, that do not (as yet) have any legal mandatory status, are dicticating to you what techniques you can and cannot use or teach, which (if those skills are required to prevent a greater foreseeable harm) is setting you up for a breach of health and safety legislation (and possibly breached of other laws too).

Your BILD Act Certification Can Be Suspended

The fact is if you don’t comply with the RRN standards by teaching something that they have decided you can’t teach then your BILD Act certification can be ‘suspended’ or ‘terminated’ as this clause shows in their current certification handbook:

“Provided training in practices which are deemed to be a breach of the Restraint Reduction Network Training Standards”.

This means that all the money that you will have spent to get it will be wasted. 

So What Actually is BILD Act Certification?

In short, BILD Act certification is basically an in-house certificate from BILD that has been ‘dressed up’ using an ISO-type process through UKAS (a UK Accreditation Body) that by its own admission has no experience in delivering restraint related programmes:

“UKAS has not offered accreditation in the area of restraint reduction training services before” (email dated 25th July 2019). 

Ever since I started in this industry I have given a personal guarantee and that guarantee is that if you train with us we will give you the best and most legally accurate training that you could possibly get and if you need us to support you then we will be there for you to justify what and why we teach

However, if we decided to go through BILD Act certification to comply with the RRN standards, I wouldn’t be able to put my hand on my heart and give you that guarantee because we would be restricted by the clauses of a non-mandatory (voluntary) certification process.

That would be acting in our own self-interest, not in the best interests of those we serve which is what our commitment to you is all about.

That’s not why I chose to work in this industry sector.

More info …….

And if you wish to know more about that then you can read the following blog posts that make our position on this very clear:

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!

NFPS Ltd And The Priory Will Shortly Be Parting Company (By Mutual Agreement)

I hope that helps clarify the situation for some of you from our understanding of the situation based on the correspondence and evidence we have acquired.

Best Regards
Mark Dawes
Director, NFPS Ltd.

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