Physical intervention in schools guidance consultation

The document reads clearly enough as a policy document but it is hard to see how easy it will be for teachers to apply in the classroom context, unless supplemented by more targeted and specific advice.

Others are better able to comment on how well these map onto what may be acceptable practices in education settings. However we are not confident that the legal implications of some interventions has been fully addressed. For example, para 77 appears to say ‘restraint’ when it means ‘seclusion’ and simply identifies a legal problem and asks schools to take advice. The ECHR duty is on the state, so the Government needs to give its own clear advice about what it regards as acceptable. If Government envisages seclusion may sometimes be justified in an emergency, it needs to identify a process for legal authorisation and appropriate safeguards. Otherwise it should make clear that it should not happen.

See answer to q5 – there needs to be consistent monitoring across settings. It should also be a requirement that there is an independent review where restraint has been used or is contemplated, especially if used more than once on an individual child.

Others are better able to comment on this so we make no response

Para 95 – one of the functions of recording should be to identify how restraint is being used in order that steps can be taken to reduce it in future. This should be a responsibility of the Scottish Government, not just schools and education authorities.
Para 96 – It is wrong that individual restraints only need to be reported to an independent body if the education establishment happens to be a residential school. There needs to be a consistent process of notification of restraint in all educational establishments with oversight by a single and independent agency. There are examples in other settings, e.g. in England and Wales the Mental Health Units (Use of Force) Act 2018, and see also recommendations 9.8 and 9.12 of the Scottish Mental Health Law Review. https://mentalhealthlawreview.scot/
Data gathering needs to be comprehensive and consistent across Scotland, identifying variations between services, and addressing the particular impact of restraint on particular groups, including protected characteristics (disability, gender, race etc).

The roles and responsibilities of the Scottish Government need to be set out. These should include ensuring there is action being taken across Scotland to reduce the use of restraint, including addressing issues of law, guidance, culture, training and independent oversight. This should be in the context of the duties on the State set out in ECHR, UNCRC and UNCRPD. The duties of scrutiny bodies including the Care Inspectorate and Education Scotland also need to be set out (and, as we say in response to question 5, the duties should be strengthened).

The guidance should
• identify practices which should never happen
• provide clarity on parental consent
• give clearer guidance on how legal duties, particularly those arising from Article 5 and 8 of ECHR can be adequately met.

We believe the guidance should not stand on its own but should be seen in a wider context. We refer to the discussion on p660-663 of the Scottish Mental Health Law Review (SMHLR) https://mentalhealthlawreview.scot/ and recommendation 12.22, that
‘The Scottish Government should co-ordinate further work on the use of restraint and isolation to ensure consistent standards across education, healthcare, childcare and justice settings, which reflect human rights-based best practice.’
The review found strong and wide support for consistent standards in relation to restrictive practices across healthcare, education, childcare and justice settings, and for the Scottish Government to lead work in developing them.
The reasons for this include
- Human rights apply across settings, and children in different settings have similar needs and issues
- Children may well be in more than one setting and need a consistent response
- There should be a levelling up of standards and safeguards – otherwise some services become backwaters of practice
- Scottish Government has responsibility as the State body to ensure human rights standards are met.
SMHLR recommendation 9.2 on coercion is also relevant. It reads
‘The Scottish Government should ensure effective recording, monitoring and action to reduce coercion across settings. This should include:
- Mainstream alternatives to coercion with a view to legal reform
- Develop a well-stocked basket of non-coercive alternatives in practice
- Develop a road-map to radically reduce coercive medical practices, with a view to their elimination, with the participation of diverse stakeholders, including rights holders
- Establish an exchange of good practice between and within countries
- Scale up research investment and quantitative and qualitative data collection to monitor progress towards these goals.’
That implies more than issuing guidance for the sector. This needs to be a nationally driven agenda with clear actions to change practice – in line with the CRPD recommendations in 2017 – either by Scottish Government or by human rights bodies with government support.
Another significant gap in the guidance and the overall approach is that there should be remedies alongside access to justice for children and families affected or harmed by restraint. This should include access to a court or tribunal with powers to change practice (alongside process of independent review by monitoring agency. We do not believe a child protection referral, as suggested at para 93 is an adequate remedy, or one that meets the requirement of Article 6 ECHR.