Keeping People Safe

Inquiry into schools’ use of restraint on pupils

Wed, 19 Feb 2020 14:38:06 GMT

'A New Hope'

I have said before that restraint is very often shrouded in misinformation, misinterpretation, and grey areas and is an especially emotive subject when it involves children. This can easily lead to decision makers making incorrect, and even dangerous choices when creating well intended provisions for the safety of pupils and staff.

But this is not an isolated reason why we have seen unprecedented attention within the media reflecting a growing concern about restraint in schools. Mismanagement is generally a result of systematic failings as opposed to finding a single cause. Recently, the Equality and Human Rights Commission announced they would be launching an inquiry into schools’ use of restraint on pupils .

Now, please excuse the sub-title of this piece, but I truly hope the investigation is thorough and shines a massive light on the realities of restraint in schools not only for the pupil but also to reflect the physical and emotional cost for both teachers and senior managers.

A Reactive Culture

There seems to be a reactive culture when addressing restraint in schools. It is often the case that management will only acknowledge the requirement of positive handling training after they are faced with violence. But by this point, the damage is already done. The child is mismanaged, and staff are put in the untenable situation of not being fully equipped to manage the situation safely. In short, everyone’s physical and emotional well-being are being put at risk.

Towards a Proactive Culture

But would it not be better to proactively prevent these incidents in the first place? It is very rare that an individual child will demonstrate behaviour that has made restraint necessary without warning and danger signs. Additionally, the vast majority of children who have been restrained within schools have been restrained on a number of occasions, and if recorded properly, these incidents will usually have a common pattern of behaviour and distinct triggers. If we are aware that a child is a risk to themselves or others, we have a legal obligation to carry out a risk assessment (yes, I’m banging that drum again) that should be carried out specific to that individual child.

Why is this important?

Central to all restraint policies should be ways to reduce the incidents of restraint and so maximise the safety of pupils and staff. How do we do that? We reduce the need for restraint by recognising common patterns in behaviour, or changes in a child’s environment that we know is likely to cause a downward turn in that child’s conduct. This information can feed into a Positive Behaviour Support plan, thus aiding us in proactively managing a child and their experiences.

Furthermore, there is actually a legal requirement for schools to have adequate reporting procedures in place should any level of force be used against a child.

How do we know what these triggers are?

We are in a better position to understand challenging behaviour when we can unpack the circumstances in which it arose, but we can only do that with accurate reporting of incidents and information sharing. We might ask ourselves the following questions;

What was the build up to this incident?

What happened?

Where did it happen?

When did it happen?

What did you do?

Why did you take that course of action?

This helps build a picture of the entire incident through the eyes of the staff member in question. Legally speaking, this is exactly how a person’s actions are judged. By collating a number of reports, it becomes easier to identify patterns in behaviour, environmental impact on the child at each incident, if a specific individual is the cause for certain types of behaviour and so on.

The need for information sharing

The sharing of positive behaviour support plans and risk assessments is vital to ensure the safety of the pupil and others that may work with that pupil on a day to day basis. If we keep the information recorded but locked in a filing cabinet, we might just as well have not done the risk assessment in the first place because the frontline staff are not aware of it.

A teacher I had a discussion with recently had been assaulted by pupil that had been transferred from another school and had a risk assessment and care plan specific to him. Unfortunately, the teacher in question had not been made aware of the care plan or risk assessment relating to the child, so she treated him as she would every other child in her class. Once the incident with the child had been resolved and the related investigation had begun, only then did she find out about the care plan and risk assessment. When she asked why she had not been told about these documents, she was told it was for “data protection purposes”.

Had she been privy to this information, she would have probably managed the incident as per the care plan had she known about it. How could she be expected to follow the preferred methods enshrined in the document if she wasn’t made aware of them? It stands to reason the assault on the teacher, and the anguish the child went through could possibly/probably have been avoided if the details of the care plan had been made available to her.

Although this is just one example, I have been given a whole range of reasons why information sharing was withheld. One that stands out was how there was a belief that a pupil had moved to a new school for a ‘fresh start’ and therefore a care plan wasn’t necessary. This one for me is hugely negligent, both on the behalf of the staff but also the pupil. By all means, allow the pupil a new beginning, but the responsibility to safety has not diminished in anyway, and until it can be suitably demonstrated the challenging behaviour no longer poses a threat, the risk assessment should stay in effect.

Justifying your actions to others

Reporting is not just about informing risk assessments or positive behaviour support plans. A robust reporting mechanism is powerful tool to collate evidence to underpin why as a teacher, you responded in a particular way, and the decision-making process behind that action. Technically, if we restrain an individual we are assaulting them and restricting their liberty, which is a breach of their human rights. Now, provided we can justify our actions we have a suitable legal defence and no charges relating to the ‘assault’ should be brought.

Avoiding the ‘it’s your word against theirs’

So, how can we ensure this justification is communicated clearly to those with a vested interest? With the creation of an accurate and detailed report. To quote the old Police and HM Prison Service maxim, ‘if it ain’t written down, it didn’t happen’. In other words, if you don’t create a report of an incident, all sorts of allegations can be made, and it is ‘your word against theirs’. By writing a report you have created your evidence, your defence to your actions as seen ‘through your eyes’. Again, you are ‘painting a picture’ of what happened so that any reasonable person looking at it would likely respond in the much the same manner.

Report writing also documents the particulars immediately after the incident. Most investigations and related legal cases occur many months, if not a couple of years after the incident, and as time passes it can get increasingly more difficult to remember exactly what happened and in what order. By recording the incident in a report, you have an aid to memory when it comes to explaining yourself during an investigation.

Investigation?! Should I be worried?

In short, no. An investigation is simply that; an investigation. A method of finding out the facts of any given subject. How can the facts relating to your actions be discovered during an investigation? By the use of a report… are you seeing a pattern here?

Ok, you’ve banged the drum about reports. What can I do?

We cover report writing in all of the restraint and positive handling courses we deliver. Alternatively, get in touch with us at COVIC Training Solutions and we can discuss what you need to do to create an accurate and detailed incident report.

Banning Restraint with Children in Scotland

Wed, 12 Feb 2020 10:01:32 GMT

A 'Bridge Too Far?'

I’m going to start this piece by saying I disagree with the Care Review and the related article in The National , and the concept of banning restraint, physical intervention, safe holds (insert preferred term here). Why is that? Isn’t finding an alternative to restraining an individual, whether it is a child or adult a much better outcome for all? Well, in an ideal world yes.

Never having situations where restraint is the only viable option to keep an individual or other people safe would be fantastic. Service users would benefit as not many people like to be restrained. Staff would benefit as they would no longer have to put themselves in danger of physical injury by restraining a service user. Unfortunately in the real world, this simply isn’t the case, and here is why.

Before we go any further, for the purposes of this article and the ease of writing, all physical intervention methods that involve the direct application of force to restrict the movement of an individual will be referred to as ‘restraint’.

What about the risk assessment?

Firstly, if an organisation, school, care facility has a restraint policy it should be informed by a risk assessment. That assessment will be a measurement of known and likely risks that an individual, or groups of individuals may pose to themselves or others. If that risk is present the organisation must, by law, implement all reasonable actions and measures to eliminate or reduce that risk. If the identified risks include violence, aggression, self-harm or any threat to the physical welfare of a service user or others, then appropriate measures must be put in place to prevent or reduce those risks.

Secondly, if a risk assessment has been carried out and the risk of violence, aggression, self-harm etc. has been identified, but the organisation only goes so far in its reduction of risk to the point where those measures are not fit for purpose, the organisation is at risk of breaking the law. Low level strategies will only go so far in the management of aggression, and removing the option of reasonable force will raise the risk of harm to all. You can read more about risk assessments and risks to employees here.

Would restraint reduction strategies work better?

At COVIC Training Solutions, we are known as a leading training provider for restraint and personal safety training. That is a given. However, the bulk of what we actually teach could be described as ‘restraint reduction’ strategies such as conflict management, positive behaviour support, and effective communication techniques. Why? Because it has been proven time after time that strategies such as these significantly reduce the number of incidents an organisation may experience. Furthermore, the ethos of any given organisation has a huge impact on the mind-set of its staff.

Ultimately it is right that we do all in our power to NOT use force . With that said, we must also prepare to have to use force if a particular situation makes it a necessary option.

Does the Care Review raise important issues?

The report from the Care Review raises some very salient points, particularly around the use of restraint as a form of abuse and/or punishment. I completely and unreservedly agree with the Care Review on this. Restraint should NEVER be used as such, and should only be used in the prevention of harm. The Care Review also highlights a few techniques that potentially increase the risk of harm during an incident. Again, I completely agree with their findings.

So should restraint be completely banned?

Absolutely not! There are many restraint packages available, and some are better than others, but those that are worth their weight in gold are those that work and are safe. A simple analogy that works for me is ‘cars have killed many people so we should ban all cars’. Is this a reasonable measure? Of course it isn’t. The need for transport is still there. The need for people and businesses to get around the country hasn’t gone away, and the same can most certainly be said about the risks some service users pose. Banning restraint doesn’t reduce the risk.

Is the Care Review keeping people safe?

In short, if the Care Review can guarantee carers, and anyone working with service users will not be put at risk by aggression and violence from service users, and never have to manage incidents of self-harm, then I will be at the forefront of having restraint banned in all organisations, and will then have to find another job. Until then, I will continue to train staff in safe, appropriate, and effective methods of restraint alongside actively promoting methods of how to minimise the need for it.

A final thought…

Let’s consider the ramifications on the carer/teacher/someone in charge of a young person. If a service user physically attacks a carer , teacher, member of staff and that staff member fears for their life and uses reasonable physical force to stop the assault from continuing, should that carer be punished? Should they lose their job? I’ll take that thought further. The carer has been told restraint is no longer an option so the carer decides their only option to protect themselves is to strike the service user. Again, should the carer be punished? Should they lose their job? Are the Human Rights of the carer not as important as those of the service user? Should carers just expect that their life is put on the line when giving care?

Violence in schools: What to do if you find a knife

Tue, 28 Jan 2020 13:13:36 GMT

A knife's tale

I was sat watching the news last week when knife crime raised its ugly head once again. Three men were stabbed to death in Ilford . Another death of a 16 year old reported last night at a train station, the London Bridge Attacks at the beginning of December. Fatal stabbings keep happening, but It’s not just isolated to the big cities. Knife crime rose by up to 50% in rural areas in the last year with Suffolk, Norfolk, North Yorkshire, Derbyshire, Kent, Lancashire and Dyfed-Powys seeing some of the biggest rises. As a father, I find this hugely concerning as I know from my time working in a Young Offenders Institution that knife related offences are not the sole domain of adults.

According to the BBC, the number of teenagers stabbed to death in the UK is at an 11 year high. Perhaps most startling is that statistics compiled by the BBC from the Ministry of Justice highlighted that children aged 10-17 years old represented 20% of all those who cautioned or convicted of knife crime offences. Now I am not naive enough to think these children and young people only possess a knife when they are outside of school. Inevitably, this knife culture finds itself inside schools.

A freedom of information request made by the BBC found the number of weapon possession offences within schools had risen significantly since 2015 as depicted in the graph below. But findings from the Millennium Cohort Study put these figures into perspective; 3.47% of 14 year olds surveyed said they carried a knife, of which 71% were boys. Yes, that is right, girls carry knives as well!

This comes at a time when violence towards teachers is on the rise. A recent freedom of information request undertaken by the Scottish Liberal Democrats revealed that teacher attacks in Scotland alone totalled almost 30,000 in the last three years. Let me give you a moment to let that figure sink in. Thirty . Thousand . Like you, I had to double take that figure. But perhaps what is more startling is we are seeing an upward trend in violence more generally. According to a survey by the NASUWT, released in April 2019 , 1 in 4 teachers are physically assaulted at least every week. Approximately 29% of teachers had been hit, punched or kicked and almost 39% had been shoved or barged by students. Of course, I’m sure we all remember the tragic case of Ann Maguire, the secondary school Spanish teacher who was stabbed and killed in the middle of a lesson in front of the entire class. It is perhaps unsurprising the Health & Safety Executive lists education as one of the groups most at risk of occupational violence.

It is clear our society is changing and there are new levels of threat within our schools. London Mayor Sadiq Khan has acknowledged this change and proposed, helpfully or otherwise, that all London based schools are issued with a metal detecting wand to reduce knife crime. But what happens if you do find a knife? Do you know how to handle the situation? I have put together a list of questions and answers that may be of some help should you find yourself in this situation.

If I suspect a student of carrying a knife, should I consider searching them?

Yes, you should at least consider it. As a teacher, you have a duty of care to other pupils and colleagues to eliminate or reduce the risk of harm, particularly when considering the threat of violence, but only if you judge it is safe to do so. I would not suggest anyone puts their personal safety at risk, especially when there may be other methods to eliminate the risk of a knife in a school. An option may be to refuse entry and call the Police.

Am I allowed to search pupils?

Yes, you are. Under Section 550ZA Education Act 1996 , a teacher has the power to search a pupil and their belongings with their consent.

What if the pupil does not give me consent?

The Headteacher has the power under Section 550ZB Education Act 1996 to authorise the teacher to search without the pupil’s consent. This includes desks, bags, lockers, as well as the pupil themselves.

How do I keep myself and others safe?

Ideally, you would have undertaken some training on how to search safely and effectively. Unfortunately, there doesn’t seem to be a lot of training available around searching, but this is something we can help with. Please get in touch if you would like further advice on searching safely and effectively.

What happens if I do find a knife?

You will need to confiscate it and remove the hazard, but only if it is safe to do so. There are a range of ways to do this.

1. Put it into an ‘evidence tube’. If you Google ‘evidence tube’, you will find a whole range of products available.

2. Put it in a solid clear container such as sandwich box where the lid can be securely closed once the knife has been put inside.

3. Any container the blade cannot readily pierce, preferably transparent so anyone can see where the handle is before opening the container.

What do I do with the confiscated knife?

When undertaking any type of search, if you find an illegal or prohibit item you have 4 options;

1. Deliver the item to a Police Constable as soon as is reasonably practicable

2. Return the item to its owner

3. Retain the item

4. Dispose of the item

Of course, how you deal with the item really depends on what you find. If you find a knife I would hope the decision to ‘return the item to its owner’ would be dismissed in favour of delivering it to a Police Officer. However, if a phone has been found, and the school has a no phones during lessons policy, then of course the phone will be returned when appropriate.

If you have any further questions, or would like to discuss any of the issues raised in this blog, please get in touch. Further advice on searching can be found in the Department for Education guidance, titled ‘Searching, screening and confiscation: advice for schools’ .

Source: Freedom of Information request, 27 out of 43 police forces . The Metropolitan Police data for calendar years 2014-2017, the rest are for year ending March.

Safeguarding in Schools - Getting the basics right

Thu, 16 Jan 2020 15:35:10 GMT

Sitting down with a well-deserved cuppa, a news article into an abuse scandal in a private school popped up on my emails. It was a review of historic abuse allegations which I found incredibly difficult to digest. However, upon reflection, I believe the issues raised were as a result of non-existent safeguarding practice; in short, they never should have happened. Although this is an extreme case, it does raise a number of questions about how schools approach the very dynamic issue of safeguarding.

I did a trusty Google search of safeguarding news pieces and to my dismay inadequate provision appeared in volumes. But unlike the abuse scandal mentioned above, many of the failings were elementary oversights that had found their way into inspector’s reports. For example, a pre-school found children forced to wash their hands in a muddy bowl of water before eating and found rotting fruit and veg left floating in a bucket next to them while they played. An after school club did not record attendance robustly or seek written consent for the use of medication for children in their care. A news piece worryingly entitled ‘Babies being put at risk of harm’ flagged up staff having inadequate knowledge on how to safeguard babies and children, and leaders not adequately sharing information.

These basic oversights were very rightly highlighted as a safeguarding risk, but what is so sad is that the hard work, successes and examples of excellence by other schools and pre-schools were overshadowed by inflammatory headlines. Indeed, I only found one such article which praised effective safeguarding practices which leads me to suspect that safeguarding is done very well in the lion’s share of schools, although we seldom hear about it.

But it seems that governmental guidance on safeguarding is vague where one school had a very different interpretation than that given by their Ofsted report. This is perhaps unsurprising as there are a number of different guidance documents that outline how educators should fulfil their safeguarding responsibilities. Why is this? It is because each school is as individual as the children they cater for. The issues and concerns they address vary from one school to another, and it is the responsibility of each school and each headteacher to identify and address those concerns, while using the guidance for what it is; guidance.

Guidance documents are not hard and fast instructions on what to do and what not to do, rather they are there to guide the decision making process and signpost a headteacher toward elements that should be considered when creating a policy. Guidance documents are but one tool to be used. The main tool in a headteachers arsenal is a suitable and sufficient risk assessment, and it is through risk assessment that an accurate picture of risks and the associated counter measures can be identified.

So I leave with this; let’s get the basics right and by using a robust, suitable and sufficient risk assessment, and write a policy that embeds best safeguarding practices specific for your school .

Who Can Use Handcuffs

Tue, 04 Jun 2019 12:16:10 GMT

I recently spoke to a Door Supervisor who operates in a city in the Midlands, exchanging stories of our experiences and working practices. I asked him about the use of handcuffs by Door Supervisors in the city and in particular how Police Officers reacted to Door Supervisors carrying cuffs. He explained that handcuffs are not allowed by private security personnel in the city and Police Officers confiscated cuffs from Door Supervisors.

Worryingly, he explained that one Saturday night while on duty a Police Officer confiscated his cuff key, used to lock and unlock the cuffs, leaving him with just the handcuffs. Later that evening a Police Inspector confiscated the handcuffs explaining that only Police Officers were allowed to carry and use handcuffs.

Is this the case? Are only Police Officers and those involved in law enforcement allowed to carry and use cuffs? In short, no. Technically you and I as civilians are, by law, allowed to carry and use handcuffs. However, before you rush out and buy a set ‘because Colin from COVIC said so’, there is a mass of information you need to understand first.

Ultimately you need to be trained in the reasonable use of handcuffs and they need to be of serviceable and fit for purpose quality. Ideally you would also be trained in restraint as this is good practice and you will understand the concepts of reasonable force. A handcuff training course not only teaches you how to apply cuffs, but also the underpinning legislation in relation to their use, some of which we will look at now.

The Human Rights Act 1998

The Human Rights Act 1998 came into effect on 2nd October 2000. Under Articles 2, 3 and 5, the following needs to be taken into consideration if handcuffs are to be authorised for use in an organisation and applied by its staff.

Article 2

Article 2(1) promotes the positive obligation to preserve life. This means that if there is a risk to life and something can be done to eliminate or reduce that risk to life then that absolutely should be done.

One of the main risks to life during physical restraint is the risk of death due to positional asphyxiation, which can be brought about by many factors including a prolonged struggle and a restrained person being held in a prone position for extended periods of time, especially if pressure or weight is applied onto their back. If this risk of death can be eliminated or reduced by the application of handcuffs then the authorisation of their use can be justified under Human Rights legislation.

With regard to the use of handcuffs therefore, the restriction of liberty has to be balanced against the positive obligation to preserve life. Simply put, if the application of handcuffs is justified as a proportionate response to prevent a greater harm occurring (especially if the harm is potentially life threatening) then they must be considered as a positive controlling option to minimise risk.

Article 3

Article 3 covers the prohibition of torture and degrading and inhumane treatment. It could be argued that handcuffing a female prisoner during childbirth, or the handcuffing of a mentally ill patient during a hospital or dental visit, or even the handcuffing of a prisoner in court are all degrading and humiliating circumstances in violation of Article 3. However, a balance between Articles 2 and 3 in the form of a suitable and sufficient risk assessment must be undertaken in order to justify either using or not using handcuffs. This must also be backed up by clear policy and staff training so that they may use their discretion competently.

Article 5

Article 5 covers the right to liberty and security of a person. People have the right to not be detained or arrested unless it is authorised by law. Subsection 1c of the article states: “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”. Any Door Supervisor worth their salt will explain arrest powers under SOCAP 2005 .

Health & Safety at Work Act 1974

Outside of the Human Rights Act 1998, there’s the Health & Safety at Work Act 1974 and it states in Section 2 (1) : “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

Section 2 (2a) states: "Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular… The provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health ;”

The important part there is the term ‘plant’. This refers to tools, PPE and anything required in carrying out a job. The Act goes on to state appropriate training must be carried out as well.

Under the ‘umbrella’ of H&S legislation Manual Handling Regulations 1992 can be found. Manual Handling Regulations 1992 Section 4 (1bii) states: “where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured- take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable”

How does Manual Handling come into a discussion about handcuffs or restraint? Well, when we restrain a person we are using physical effort, or manual handling to restrain them. Furthermore, the restrained person can be identified as the load, and can be a potentially damaging hazard, especially when resisting. When handling an uneven load in a warehouse, we take counter measures to control the load don’t we? So, when a restrained person is resisting to the point of staff losing control, the load has become uneven and a problem for manual handling. Should we not utilise counter measures to ensure the safety of all concerned as per Health & Safety legislation?

We can see by the examples highlighted that as security operatives we have a duty to carry and if necessary, use handcuffs under certain conditions. Failure to do so may result in injury of the restraining staff, members of the public and the individual under restraint with the litigation coming down squarely on the restraining staff. Don’t forget, if you arrest and/or restrain someone, you are removing their liberty anyway. If you apply handcuffs, it is because you’ve arrested them or they are of too great a risk without them. A dynamic risk assessment along with conscious justification should be enough to make an educated decision.

A lengthy post I know, but there’s a lot of legislation surrounding the use of handcuffs, and this isn’t all of it. Lastly from the Police perspective, a release from ACPO Association of Chief Police Officers states handcuffs can be used by members of the public and it is not illegal to carry them as a standard citizen due to their classification as a ‘mechanical restraint device’ as opposed to an ‘offensive weapon’. A copy of the excerpt is available from me on request.

Cover yourself. Get trained and get informed!

What is ‘Self-Defence’?

Fri, 31 May 2019 11:55:16 GMT

All too often I have heard various misconceptions about the term ‘self-defence’ and what does and does not constitute a legally accurate and a fit for purpose description of this term.

I have heard people at one extreme say “He hit me first so I hit him back; it’s self-defence” through to the other extreme of “You can’t do anything by law if a pupil attacks you or it will be assault against a child”. Both of these extremes are incorrect and incredibly dangerous for varying reasons as you will soon find out. I aim to not only explain what self-defence is but also give you the tools with which to look at other instances of self-defence or use of force so you can judge for yourself if the force was legitimate or assault.

Before we look at these examples, we first need to understand what ‘self-defence’ actually is and if indeed, we are allowed by law to defend ourselves.

Well, quite obviously we are all allowed to defend ourselves when faced with an attacker or violent situation and this is provided by Common Law. ‘The lawyers' practitioner’s text (Archbold 19-41)’ states:

"It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary."

At COVIC Training Solutions we define use this definition when teaching self-defence:

“The defensive use of physical force for the purpose of preventing an actual or imminent threat of unlawful violence against the person with the aim of creating a window of opportunity to escape the threat”

Section 3 Criminal Law Act 1967 (1) states:

“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

Ok, that’s great! The law has said we can defend ourselves, but what do ‘reasonably necessary’ and ‘reasonable force’ actually mean? Well, let’s see what the courts say. In assessing the reasonableness of the force used, prosecutors generally ask two questions:

Was the use of force necessary in the circumstances, i.e. was there a need for any force at all?

and

Was the force used reasonable in the circumstances?

The courts have indicated that both questions are to answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr App R 276) , (R. v Oatbridge, 94 Cr App R 367) .

If we look at those questions individually, the important part of the first question is the word ‘necessary’. In other words, was force the only option the defendant had to ensure their own safety? Could they have withdrawn from the area? Could they have resolved the situation with effective communication? Was their only exit blocked? How violent or aggressive was the assailant?

If a person has no other option but to use force to ensure their own safety, in the circumstances as they see them at that point in time, there is a very strong case for force to have been necessary.

Ok, so what is reasonable force, as mentioned in Section 3 Criminal Law Act 1967? ‘Reasonable’ is a bit of a subjective words isn’t it? What is reasonable for one person could be very different for another. Well, quite frankly yes it is, very subjective, however there is a simple way of clarifying what is reasonable force.

One must look at the level of damage or injury that would likely have occurred if force was not used, and balance it against the damage or injury caused in the prevention of that crime.

For instance, I’m about to be assaulted by a man of similar build and weight to my own without any weapons. If I pick up an iron bar and hit him over the head with it, this is excessive force. The damage he is likely to do to me if I don’t use force doesn’t compare to the damage I would do to him by using an iron bar. The force is disproportionate. I am risking his life when there is little or no threat to my own.

If, however, he pulls a knife out and I genuinely believe he is going to use it and my life is in imminent danger, is it potentially proportionate in this instance to use an iron bar in my own defence? My life is in danger from the knife. I could feasibly kill my attacker with the iron bar, but if I don’t do something I could well end up being stabbed and being killed. With the latter example, it would be much easier to claim self-defence as there is risk to my life if I do not act, balanced against the risk to the assailant’s life if I do.

The threat level to me at this level is significant. Consider how much higher would the threat level be if I were a young female, 5’6”, weighing approximately 9st and my attacker was a mid-40’s male, 6’2” and weighing approximately 16st? Would it be reasonable to expect the female to wait for a knife to be pulled before using an iron bar? It could be argued that due to the massive difference in size, weight and strength that the female could use much higher levels of force when protecting herself due to the increased level of potential damage if she sustained any blows.

When discussing reasonable force, I like to use simple formula like this:

Necessary + Proportionate = Reasonable

Life threatening and highly severe self-defence is provided by law but only if it can be suitably justified and proved that without prejudice, the action taken was the only option available at that time. This level of force can only be employed when absolutely necessary and must be strictly proportionate:

".... where a forcible and violent felony is attempted upon the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force, and, if necessary, to kill the aggressor ....".

Chisam (1963) 47 Cr App Rep 130

If we refer back to the example where I’m being threatened by an armed man, my life is in danger but I can’t just take the attackers life. I do have other options. I have an iron bar but I can strike the attackers arm, breaking it and making him drop the knife. The force is proportionate but I’ve not taken the attacker’s life and the level of force used is more easily defensible.

"If there has been an attack so that the defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

Palmer [1971] AC 814 (Privy Council) Lord Morris

That last quote basically means that in some instances the defendant can’t be expected by the court to have weighed up and thought through every option available before acting in self-defence. This provides for genuine cases where excessive force is used by the defendant, but the circumstances of the incident prevented the defendant from being able to weigh up all options. The key to this again is justification of actions by demonstrating the level of perceived threat.

So when we look at the first examples of people’s perceptions of self-defence again, we can see that both extremes are incredibly flawed. Recently there was a case of a Police Officer assaulting a prisoner for spitting in his mouth, claiming that he thought the prisoner was going to spit again. The questions I would ask are:

‘Why didn’t you step back out of spitting range?’
‘Was the act of striking the prisoner in the face, causing enough damage to create a pool of blood in the van proportionate in damage or injury to a being spat in the face?’

Using the formula above we can see that force was not necessary as the Officer could possibly have backed out of spitting distance. Was the punch to the face proportionate? No, of course it wasn’t. I have no doubt the Officer was quite rightly angry at the prisoner, but this isn’t suitable reason to use that level of force. This action is more commonly known as retaliation or revenge; not self-defence.

So when does genuine self-defence become assault? Can it become assault? Well, in short, yes it can. We only have a legal right to use force against another while there is a genuine perceived threat to our safety. Once that threat has gone or has been eliminated, we no longer have the right to use force. Similarly, the level of force one can use will differ in relation to the presented threat.

For instance, if I’m being threatened by a man with a knife and I genuinely fear he is going to kill me, I am well within my rights to use enough force to remove that threat. That isn’t necessarily strike him with the iron bar on the head as previously mentioned. I could instead strike him on the arm that is carrying the blade. Would that not eliminate the threat of being stabbed as he drops the knife? He may well suffer a broken arm, but the threat of being stabbed has now been eliminated. If I then begin to attack him further with the iron bar, I now become the aggressor. This is because the threat level to me is now greatly diminished, but the level of damage I would cause is disproportionately higher making the level of force illegal and therefore assault. When using force we must always reduce the level of force in line with the reduction of perceived threat.

So, in summary; yes we can defend ourselves provided the force is necessary and the force is proportionate to the damage or injury likely to be sustained if we don’t act, regardless of gender, age or any other demographic. As long as there is a threat to our safety, we are able to use proportionate force to eliminate that threat. Once the threat has been negated, force is no longer an available option.

I hope this helps to clear up any misunderstanding surrounding what ‘self-defence’ actually means in law.

If you would to discuss this further then by all means send me a message.

Colin Ellis-Vowles

Monkey Bananas and Mob Culture

Fri, 31 May 2019 11:38:26 GMT

I recently received an amusing email from a friend that spoke about an experiment involving a number of monkeys, a ladder, some bananas and a cold shower. After reading the email and agreeing with its sentiments, I realised that it struck a chord with me and I couldn’t shake off the message it conveyed. I conducted a little research into the alleged experiment to find that it did actually take place back in 1967 as an experiment into ‘mob culture’.

The experiment goes along the lines of a group of scientists placed 5 monkeys in a cage. In the middle was a ladder with bananas at the top. Every time a monkey went up the ladder, the scientists showered all of the monkeys with cold water. After a while, every time a monkey went up the ladder the other monkeys beat him up. After some time no monkey dared climb the ladder, regardless of the temptation.

The scientists decided to substitute one of the monkeys. The first thing the new monkey did was climb the ladder to get the bananas. Immediately the other monkeys beat him up. After several beatings the new member learned not to climb the ladder, although never knowing why.

The second monkey was substituted and the same occurred. The first monkey participated on beating the second monkey. A third monkey was substituted and the same was repeated. The fourth was substituted and the beating was repeated, and finally the fifth monkey was replaced.

What was left was a group of 5 monkeys that even though never received a cold shower, continued to beat up any monkey that attempted to climb the ladder. If it were possible to ask the monkeys why they beat up all who attempted to climb the ladder, I bet their answer would be: “I don’t know, that’s how things are done around here”.

Now I’m fully aware that we’re discussing monkeys and we’re human beings and as such we’re obviously far more evolved, developed and intellectually advanced than our genetic cousins… but just how much more advanced are we in our rationale and thought processes?

In 2004, Edgar Schein discusses “unconscious, taken-for-granted beliefs, perceptions, thoughts and feelings. The ultimate source of values and action” (Schein, 2004). This is the element you see or experience but it is difficult to understand ‘the why’. Often these assumptions conflict with the ‘values’ promoted on posters and intranets or discussed in inductions.

For instance, a healthcare organisation is extremely proud of their strong culture and ethos of caring for patients. From their new employee induction and orientation program to their performance management program, everything focussed on caring, quality and more importantly for this example, speaking up when they saw something wrong.

Several years ago, a new nurse just out of induction publicly corrected a physician and was openly “flogged” in front of colleagues, patients and superiors. That nurse later became a mentor to several other nurses, and quickly explained that what they learned in orientation about speaking up was a bad idea, and they would actually be subject to disciplinary action if they challenged a physician or a more senior nurse.

Year after year, the unspoken rule is handed down and the energy and excitement of hearing the values at induction gives way to cynicism and silence.

The same occurs within the realm of understanding reasonable force and its application. All too often I have heard staff within care homes, schools and hospitals tell me that it is illegal to use physical force to prevent someone harming themselves or another. It is assault to use physical force to use force to protect oneself from attack, particularly if the assailant hasn’t actually struck first. However, when I have asked the usual question “Who told you that?” the response is usually a manager, a supervisor or another colleague. Quite often they cannot remember who told them; however, they perpetuate the myth based on misinformed assumption through ‘the ranks’.

The result? Reduced morale, staff feeling unsupported and more importantly, staff feeling unsafe and even scared.

Don’t be the monkey! Get informed, do your own research and ask questions. Information is readily available from a wide variety of sources including the internet, the Government legislation website, and industry specialists like the team at COVIC Training Solutions.

We are on hand to offer legally accurate advice, guidance and support in relation to the use of reasonable force, conflict management, and training needs.

MET Police Response to Psychiatric Units

Fri, 31 May 2019 11:22:07 GMT

The Metropolitan Police Service has launched new policy stating that it will no longer respond to calls from psychiatric units where staff require help restraining patients, unless there is significant threat to life or limb. This is in effort to reduce the workload on Met Police, allowing them to tackle crime more efficiently.

NHS senior managers and staff are greatly concerned of the increased risk to staff and patients without the presence of Police Officers during restraint incidents.

Why? Yes, that’s correct; I’d like to know why? Before I justify the question, let me ask a couple of my own…

How quickly do the Police respond to an incident of restraint in a psychiatric unit?

Having been involved in more incidents of restraint than I can remember, I can quite comfortably state that in a spontaneous instance of restraint anything over 30-45 seconds is usually too late. Either the person being restrained is under control, or worse the restraining staff have been overpowered. Police response time would only be of little concern if the patient is contained and needs to be relocated safely.

The other concern when considering Police response times is the position of the patient while staff wait for Officers to arrive. If staff have pinned a patient face down in the prone position and have no way of transferring the patient to a seated or standing position, there is a very real risk to the patient’s life by way of positional asphyxia.

Do Police Officers receive the same level of training as Psychiatric Care Staff with regard to the needs of mental health patients?

Well, to be quite frank, no they don’t. If a Police Officer is called to restrain a mental health patient they will treat the individual the same as any other member of the public they encounter in the street. The Officers are then accused of not being ‘sensitive’ enough and treating the patient ‘like a criminal’. The problem arises when the patient, who may not understand what is happening, reacts defensively toward a Police Officer. The Officer is aware of the increased level of resistance and violence, and increases the level of force used to restrain the patient. The Officer is not at fault in this instance. After all, they have been called to restrain this violent individual and as such the safety of the Officer is at risk. They are, quite rightly, going to employ the techniques they are taught to ensure their own safety and that of everyone concerned.

This scenario could have lasting emotional and psychiatric consequences for the patient, and indeed the staff involved.

If Police Officers will no longer attend incidents of restraint, who will restrain patients instead?

In short, the care staff will. A suitable and sufficient risk assessment will already have been carried out, and it is the duty of senior managers to review the risk assessment in order to protect the health and safety of staff and patients as the level of risk has increased. The obvious reaction to this review will be fit for purpose training in restraint for all staff directly involved with patients. This should include instruction in breakaway techniques in addition to low and high level restraint training.

Included in this training would be a wide variety of controlling techniques as well as medical considerations to be vigilant about, including positional asphyxia.

Shouldn’t the care staff already be trained to use restraint?

If it has been recognised that Police intervention is required to restrain certain patients with enough frequency for it to be of concern to the Met Police, then under Management of Health and Safety Regulations 1999 the risk assessments should be reviewed and any current control measures that aren’t working need to be addressed, reducing or even eliminating risks.

It could be argued that the staff in psychiatric units should already be trained to a high enough level to not need Police intervention.

When I’ve spoken to care homes and psychiatric units in the past and raised the subject of high level restraint techniques and the use mechanical restraints (handcuffs), the managers have responded with wide eyes and instant refusal to discuss the employment of such techniques. This is due to the use of handcuffs and restrictive techniques potentially damaging the ‘caring establishment’ image. However, the same managers are quite content to call for Police Officers to arrive at the ‘caring establishment’ with their body armour, handcuffs and even Tasers to regain control and subdue the patient. Once the situation is resolved those same managers often criticise the Police Officers for being too ‘over the top’ and not being ‘sensitive’ enough.

Article from PoliceOracle.com

"Mental Health: 'Officers should not restrain patients'

Date - 27th June 2013

By - Jack Sommers - Police Oracle

Healthcare professionals should use their training on the control of mentally ill patients to restrain them rather than relying on police officers, Federation officials have said.

Kevin Huish, the Fed’s lead on mental health issues, said that mental health professionals receive specialist training in the control and restraint of mentally ill patients and have powers to sedate them. Officers are only trained to subdue, restrain and arrest violent people, he added.

In a submission to the Home Office he said that police officers should not be called to mental health premises to assist in the restraint of aggressive or violent patients.

He told PoliceOracle.com: “People in mental healthcare settings are ill and are not always in control of their actions but all should still be treated with dignity and respect by all professionals who come into contact with them.

“It is not always easy and frequently very difficult but that is why mentally ill people have been sectioned in the first instance and those caring for them are fully aware of this.”

Mr Huish was speaking after mental health charity Mind noted sharp differences between how often different mental health trusts called officers to restrain patients when their staff could not cope with them.

The charity asked 55 mental health trusts how often they called police to restrain patients. Those that responded noted 361 incidents among 27 trusts in 2011/12 - one trust recorded doing this 100 times while three said they had never called officers out in the same period.

“Given this variation in the need to call the police, it raises the question of how necessary or appropriate it is to call law enforcement into health settings,” the charity’s report said.

“One person responding to our inquiry, who witnessed physical restraint on a ward, described what happened when staff were unable to de-escalate a situation and police were called in, ‘storming the car-park, alarming visitors and patients’. They heard staff making accusations to someone, which did nothing to defuse things, and police mocking the situation."

Mr Huish explained that his submission to the Home Office was in response to its review surrounding aspects of mental health legislation. Home Secretary Theresa May discussed this at the Police Federation conference last month.

At the event, Mrs May said police officers were spending too much time trying to ensure the safety of those with mental health issues.

She added: “I want to work with the Federation to get things like mental health right, not just for the patients we’re talking about but for the NHS and the police too. I believe things are better, indeed the outcomes are better for both the police and the public, when we work together.”

http://www.policeoracle.com/news/Race+and+Diversity/2013/Jun/27/Mental-health-Officers-should-not-restrain-patients_67314.html

How to Avoid Unlawful Restraint

Fri, 31 May 2019 11:14:46 GMT

Dudley hospitals deny 'unlawful restraint' of patients

Staff at an NHS Trust in the Midlands have been accused of unlawfully restraining patients , including a 14 year old child. The allegations are thought to have been made by the Trust’s former head of security, but the claims are denied by Trust Chief Executive Paula Clark.

The news article doesn’t give specifics with regard to any particular incidents where patients may have been unlawfully restrained, however does state that the information has been passed to the Care Quality Commission (CQC) for further investigation.

The use of restraint on patients, particularly children and vulnerable adults is a very emotive and controversial subject. The concern and worry for staff and managers has been compounded by previous investigations such as the Winterbourne View Inquiry in 2011, the release of the Pindown Report in 1991 and countless other investigations into excessive and inappropriate levels of force and dreadful ‘techniques’ used in care facilities across the UK.

As a result many care staff, including security personnel are unsure of when they can, or more appropriately should physically intervene and what level of force they should use in any given scenario. This confusion can lead to hesitation or even unwillingness to act when a situation may require physical intervention, in turn potentially causing unnecessary pain, injury and suffering to staff as well as patients and service users.

So how can we remedy this? How can we ensure staff are aware of exactly where they stand in relation to the use of reasonable force and the law? More importantly, will this prevent further incidents of unnecessary injury to staff and service users?

Well the good news is that this can be remedied. Through fit for purpose and legally accurate training, guidance and supervision we can stem the tide of people getting hurt in the workplace. Moreover, we can confidently defend our actions if challenged by those unaware of the legalities in relation to restraint and the use of force. Suitable training will enable this in two ways. Fit for purpose techniques and legally accurate education.

Techniques employed by staff need to fit three main criteria:

Effective
Easy to recall
Safe

The techniques need to be effective. There is no point being taught techniques that either don’t work or only work in prescribed situations. Staff need to be taught techniques that will work regardless of age, gender or build.

The techniques must be easy to recall, particularly in high stress situations when a chemical change occurs in our bodies. Adrenaline is just one of the numerous chemicals that floods our bodies when involved in high stress scenarios and as a result our thought processes become more instinctual and our fine motor skills are greatly reduced. Techniques that involve multiple steps and small movements are easily forgotten when they are needed the most. By making the techniques simple and easy to recall we are ensuring they will be used, reducing the possibility of reverting back to pre-learnt, instinctive techniques such as head locks and neck holds.

All techniques must be safe to apply. Restraint is a tool used to prevent a greater harm from occurring, not as a punishment and as such techniques that are likely to cause injury or death should never be taught. In particular, any techniques or positions that restrict breathing or the movement of the chest cavity shouldn’t be used.

Providing staff with legally accurate education in relation to the law and guidance regarding restraint and the use of reasonable force, will undoubtedly increase their confidence when managing violent situations and incidents of restraint. This in turn will lead to a reduced number of staff and service users being injured and an increase in restraint incidents being resolved more efficiently and professionally.

Furthermore it will eradicate any confusion over whether it was unlawful to restrain a 14 year old child or not. As it is suggested ‘Forewarned is forearmed’.

For further advice on this subject, get in touch with the team at COVIC Training Solutions. Hindsight is a clever fellow, it’s just a shame he’s always late’.

Assessing Risks to Employees

Fri, 31 May 2019 10:47:21 GMT

Do you employ staff or manage employees?
Do you provide a service or product to the general public or service users?

If so then you owe a duty of care to employees, service users, and visits as enshrined in UK law, and this is inescapable.

Under Section 2 The Health & Safety at Work Act 1974 ,

“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

Furthermore, Section 3 The Management of Health & Safety Regulations 1999 states

“3. (1) Every employer shall make a suitable and sufficient assessment of -

(a) The risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b) The risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking.”

What does this mean?

Well, in order to fulfil the duty of care owed to employees, service users and the general public, a suitable and sufficient risk assessment must be carried out in order to identify the risks, and then identify and implement control measures to reduce or even eliminate that risk.

This process is not a difficult one, in fact it can be very easy. The consequences of not conducting a suitable and sufficient risk assessment can be nothing short of devastating to all concerned as highlighted in the case of Lothian Health Board who have been fined a total of £32,000 after pleading guilty to a breach of Section 2 of the Health & Safety at Work Act 1974.

A lone working psychiatric nurse was assaulted by a service user that suffers from psychiatric illness, while providing her with domiciliary care. “During the incident the nurse was forced to the floor, threatened and had her hair pulled so violently that several clumps were pulled out. Since the incident, she has been understandably apprehensive about undertaking home visits and has experienced unwelcome ‘flashbacks’.”

Could you imagine the consequence if the nurse had died? How far could the courts prosecute the managers? In short, if it is found the duty of care owed was breached by the acts or omissions of managers, then they could very well find themselves with hefty fines and potentially a prison sentence under the Corporate Homicide and Corporate Manslaughter Act 2007 .

Conducting a suitable and sufficient risk assessment and then implementing identified control measures will help reduce incidents and injury at work; in turn reducing the devastation suffered by all concerned.

Don’t get caught short, ensure you have your risk assessments in place and that they are reviewed regularly. If you need advice and guidance on how to conduct a suitable and sufficient risk assessment, the team at COVIC Training Solutions are here to help.

5 Very Good Reasons Why You Should Conduct A Risk Assessment:

Fri, 31 May 2019 10:30:20 GMT

Health & Safety legislation states that where there is a foreseeable risk then a suitable and sufficient assessment of risk should be done and it should be done by suitable qualified / or competent persons.

Prosecutions under Section 37 of the Health & Safety at Work Act 1974 have increased by 400% in the past 5 years. In real terms that equates to 30 - 40 Directors and managers being prosecuted in the UK each year.

As of the 1st October 2012 the HSE were able to charge for all investigations and follow up work until a prosecution is commenced. They will charge £124 per hour unless 'specialist input' is required, which will incur an additional charge.

Furthermore, if someone were to die as a result of a breach of a duty of care owed to them, then the organisation and it's 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.

The starting fine for an organisation found guilty of a Corporate Manslaughter charge is now £500,000.

Lastly, Corporate Manslaughter Prosecutions were up 40% on the previous year according to recent press releases. Furthermore, there have been 141 Corporate Manslaughter cases opened since records began in 2009, and at last count there are 56 cases currently being investigated for prosecution.