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A major issue that responsible authorities [including private companies] and their management have to consider when considering the use of physical restraint is the issue of abuse, and the protection of those individuals from abuse that the authority has a duty of care towards.
The reason for researching and writing this paper has been driven by a need to help front-line staff and their respective management address the issue of physical restraint by not only considering the protection of the vulnerable service user, but by also considering the vulnerability and susceptibility of staff when, in attempting to protected a service user from abuse or prevent a service user from causing abuse, may end up being charged with abuse themselves, the implications of which can be personally and professionally devastating.
This paper does not dispute that abuse of children does take place and that some of those empowered with the responsibility to care for children do breach their duty of care. Therefore the aim of this paper is not to provide an excuse for abuse to take place or to look for ‘loop-holes’ for abusive staff to hide behind.
The aim of this paper is solely to investigate the relationship between the use of physical restraint as a risk control measure in promoting the safety and welfare of vulnerable service users and staff, and the consideration as to whether or not physical restraint is, by default, a form of abuse.
Physical restraint, by its very definition, is force generally used without the consent or co-operation of the individual being restrained. In addition, as restraint is restrictive by nature, it carries with it a higher degree of risk then manual handling which is normally undertaken in collaboration with a co-operative individual. Therefore, it is foreseeable that restraint generally promotes an increased risk of injury. As such it is an activity that needs to be strictly controlled with more emphasis placed on alternative control measures and training then say an activity that has a lesser degree of risk.
However, there have been occasions where staff members have been charged with abuse based on the concept of significant harm when possibly they shouldn’t have and it is the clarification of this issue that forms the basis for this paper.
The reason the situation needs clarification is simple. All staff in the child care sector have a duty to consider the welfare of the child in all dealings with children, and this welfare must be at the forefront of their minds at all times when dealing with children. However, the dichotomy that they are presented with is that if they have to use physical restraint to prevent harm to a child or others or serious damage to property (in the best interests of the child) they themselves could end up being charged with abuse or assault.
This has even led to the development of certain systems of restraint that are limited in nature by the very techniques they impose on staff in an operational role.
In such cases we can end up with staff more concerned with being disciplined or prosecuted. Therefore, when situations arise where restraint may be necessary in the best interests of the child [or indeed other vulnerable person] the concern for the child may actually be secondary to the fear of allegation, subsequent investigation and possible discipline held by staff.
An example of a recent situation we came across is as follows: A 15 year old boy is placed with a senior foster carer by a local authority Social Services Child and Family Placement team.
The child has behaviour difficulties, has a history of violence and has 18 placements in the last 12 months. The child attempts to assault the foster carer’s wife and is restrained by the husband by holding his biceps and sitting him in a chair. Nothing more.
When the foster carer is visited by a member of the social services team the next day the boy made an allegation of assault against the carer.
In line with local procedures the child was removed from the carers home and a case conference was set up involving social services and the police. With regard to the police investigation no charges were brought as the police felt that the force used by the foster carer was reasonable in the circumstances in the prevention of an assault. However, social services continued to investigate the carer on the basis that he had caused significant harm to the child when restraining him due to the bruising on the child’s biceps.
The questions that has to be asked here are:
1. What does the use of the words significant harm mean, and in what context should the words be used? and
2. If reasonable force was used could an individual still be investigated by a social services team for abuse and / or charged with and offence on the basis of causing significant harm?
3. What are the implications of charging a member of staff with misconduct under guidance issued by Government Departments with regard to The Protection of Children Act 1999.
4. Is it the individual who is solely accountable or is there a liability for the local authority?
1. What is the context for the use of the words ‘Significant Harm’?
Significant harm is a term used in evidence by social workers to prove abuse, and the words ‘significant harm’ are normally used when commencing care proceedings under section 47 of the Children Act 1989 and / or when applying for a court order [care order] to remove a child from its parents as defined under section 31 of the Children Act 1989.
Under section 31(2) of The Children Act 1989 “A court may only make a care order or supervision order if it is satisfied –
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and;
(b) that the harm, or likelihood of harm, is attributable to –
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or
(ii) the child’s being beyond parental control.”
For the purpose of clarification however, ‘Significant Harm’ is not a criminal nor civil offence as no such charge exists. It is simply a term used by social workers in proving that the abuse suffered by a child is both significant and harmful when considering the duty of a local authority in safeguarding children whom they believe to be at risk.
Therefore, the first issue to consider is that nobody can be charged with the crime of ‘Significant Harm’ as no such charge exists in law.
What is ‘Significant Harm’?
Significant harm is a term used to prove abuse. To consider abuse therefore, one must first turn to its definition. An example of a definition of abuse can be found in the National Minimum Standards for Children’s Care Home Regulations. In it abuse is defined as “something that causes actual or likely significant harm to a child. It may be physical emotional, sexual, or neglect of the child”.
Significant harm encompasses two words, significant and harm. Significant is not defined by statute but harm is, and we will come to this in a minute. When lawyers are looking for a meaning of something that is not defined by statute they turn to the rules of ‘statutory interpretation’ – in simple terms they look up the meaning in dictionaries. Therefore, under the rules of statutory interpretation the definition of significant can be found as having, conveying a meaning, full of meaning, highly expressive or suggestive, important or notable (Oxford dictionary). Fowlers modern English usage defines significant as the primary consent of significant is conveying a meaning or suggesting an inference, therefore within the understanding of significance we have something which is either occurring on a frequent basis, or if it occurs once is of quite substantial magnitude.
Harm on the other hand is defined by statute and specifically sections 31(9) and (10) of the Children Act 1989. Section 31(9) defines harm as meaning ill treatment or the impairment of health and development. Development, means physical, intellectual, emotional, social or behavioural developments, and ill treatment includes sexual abuse and forms of treatment that are not physical, including for example impairment suffered from seeing or hearing the ill treatment of another. Harm is also further clarified in section 31(10) as “where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health shall be compared with that which could reasonably be expected of a similar child”.
So with regards the definition of harm we not only have issues here concerning ill treatment, including sexual abuse and other forms of ill treatment, which are not physical, it also concerns the development of the child, development meaning physical, intellectual emotional and social. In addition the child’s development should be compared with that which could be reasonably expected of a similar child.
The interpretation of significant harm therefore, appears to indicate that significant encompasses frequency and / or magnitude of harm and the implications of harm on the impairment of the health and development of the child.
Therefore, with regard to the words ‘significant harm’ the following conclusions can be reached:
1. Significant harm is a term used in evidence by social workers to prove abuse, when applying for a court order to remove a child from its parents.
2. However, if a child is placed into local authority care a local authority official / employee cannot primarily be charged with significant harm and / or abuse simply because no such charges exist. Outside of its use in care proceedings (where the Court will determine whether there has been significant harm when considering an application by Social Services requesting a court order to remove a child from it’s parents) the use of the term is not relevant.
3. Had the same injury occurred whilst the child had been in the care of his / her parents then it could have been defined as abuse based on significant harm as part of the evidence required in care proceedings to obtain a court order.
4. This is not to say that an employee cannot cause harm that is by definition significant, but, in relation to the issue of physical restraint of the child, the employee could only be charged with assault if excessive force was used.
5. Therefore, if we are specifically talking about restraint then we do not need to talk about significant harm but whether the force used was reasonable or excessive.
6. With regard to investigating restraint (and indeed issues of self-defence) incidents the term “significant harm” therefore is redundant. It is best confined to care proceedings. To use the term outside of this context will lead to confusion and misunderstanding.
2. If reasonable force was used could an individual still be investigated by a social services team for abuse on the basis of causing significant harm?
In the previous example at the beginning of this document (based on an actual incident) the social worker said that the foster carer had caused “significant harm” appears to be the victim of muddled thinking. If the force used was reasonable in the circumstances (i.e. reasonable being defined as a force being necessary, or honestly believed to be necessary and in proportion to what harm was prevented) then the foster carer, if they have used reasonable force, cannot be charged with such an offence as no such offence exists.
Although harm to the child may have been caused that was by definition significant, if it is consistent with the wider interpretation of reasonable force and the positive obligation to preserve life as required by Human Rights legislation, then no crime will have been committed and therefore, no charges should be brought.
This is not to say that in the best interests of the child incidents involving the use of physical force should not be investigated. However, if those investigating the incident are unfamiliar with the concepts of law in this area and are basing their investigation (and possibly subsequent disciplinary action) primarily on the basis of abuse and significant harm and not on the concept of reasonable force / human rights legislation then it is highly possible that the investigating officers will wrongly discipline a member of staff who may have acted lawfully and competently in the circumstances.
The implications of this can be devastating and can lead to a member of staff being wrongly prosecuted for a Schedule 1 Offence or being wrongly referred to the Secretary of State for inclusion on the Protection of Children Act List.
What does the Act do and what are the implications of being charged with misconduct under guidance issued on the Protection of Children Act 1999?
The Protection of Children Act 1999 makes four principal changes to the Law:
· It places the existing Department of Health Consultancy Service Index (a list of persons considered to be unsuitable to work with children) onto a statutory basis. It then provides for names to be referred to this newly created Protection of Children Act List and also a right of appeal to a new Tribunal against inclusion on the Protection of Children Act List (and also inclusion on List 99). It also extends the scheme to health care services provided to children.
· It amends s218 of the Education Reform Act 1988 to enable the Department for Education and Employment to identify people who are put on List 99 because they are not fit and proper persons to work with children.
· It amends Part V of the Police Act 1997 to enable the Criminal Records Bureau, when established, to disclose information about people who are included on the Protection of Children Act List or List 99 along with their criminal records. In this way the Act provides for a “one stop shop” system of checking persons seeking to work with children.
· It requires child care organisations (as defined in the Act) proposing to employ someone in a child care position (as defined) to ensure that individuals are checked through the “one stop shop” against the Protection of Children Act List and the relevant part of List 99 and not to employ anyone who is included on either list.
The Act also contains other provisions, the most important of which are:
· To enable organisations (other than child care organisations as defined within the Act) to refer names to the Protection of Children Act List;
· To permit the Secretary of State to consider the transfer of names currently held on the DH Consultancy Service Index to be transferred to the Protection of Children Act List; and
· To allow organisations to access the new Protection of Children Act List and List 99 without first going through the Criminal Records Bureau until such time as the “one stop shop” comes into operation within the Bureau.
If a situation arose and it was deemed appropriate to refer an individual to the Protection of Children Act List then the responsibility for this would rest with the employer. Additionally, for professional staff the employer will also want to inform the relevant regulatory body of any action taken.
Misconduct from using “Intentional Inappropriate Restraint”
In a recent Department of Health document entitled: "The Protection of Children Act 1999 - A Practical guide to the Act for all Organisations Working with Children" reference is made to the use of physical restraint with regard to misconduct.
In section 7.6 (What constitutes "misconduct"?) the DOH document states that "misconduct would range from serious sexual abuse through to physical abuse which may include intentional inappropriate restraint and / or poor child care practices in contravention of organisational codes of conduct which resulted in harm or risk of harm to children".
Therefore, if a member of staff is disciplined for misconduct by their parent organisation for causing ‘significant harm’ to a child, and the result of that internal disciplinary is that the member of staff has been dismissed, removed from post and / or has left prior to the investigation concluding, their name may be passed to the Secretary of State for inclusion on the Protection of Children Act List as someone who is a risk to children.
However, if the employer is investigating staff who have used physical force to restrain a child on the basis that ‘significant harm’ was caused that would infer that the employer is investigating a use of force incident from the wrong legal perspective as the term “significant harm” is best confined to care proceedings and issues involving using physical force to prevent harm must be investigated on the basis of reasonable force.
The implications of using these words out of context can have serious implications for individuals investigated on that basis and found to have been guilty of misconduct.
What is possibly happening is that local authority child protection agencies may be comfortable with their understanding of the concept of significant harm but are not comfortable with their understanding of reasonable force.
For example, a member of staff who uses physical force to stop a child harming themselves or others may cause a degree of harm to the child as no system of intervention can guarantee an unequivocal guarantee of safety as too many variables are involved. However, if the force used was reasonable and not excessive in the circumstances then no charges should be brought or proved if an allegation is made.
If however, an allegation was made and an investigation was carried out by staff that are familiar with the term ‘significant harm’, but are not competent in understanding the complexities of reasonable force, the investigation will be flawed from the outset.
In addition, if the individual (and / or their support agencies including unions, solicitors, health and safety professionals) being investigated are not aware of this they may accept the internal award by their organisational management, and indeed even be advised to accept it by their colleagues and / or unions. This could lead to an individual being found guilty of a charge of misconduct when they had actually acted reasonably and lawfully in the circumstances. As a result they could end up on a Protection of Children List when they have done nothing wrong.
To seek further clarification of this issue I have written to the DOH and below is a copy of the e-mail sent and their reply.
From: Mark Dawes
Date: Friday, January 23, 2004 9:42am
To: info@dfes.gsi.gov.uk
Subject: The Protection of Children Act 1999
Dear Sir / Madam
In your publication - "The Protection of Children Act 1999 - A Practical guide to the Act for all Organisations Working with Children" you have made reference to the use of physical restraint.
Specifically, in section 7.6 (What constitutes "misconduct"?) the DOH states that "misconduct would range from serious sexual abuse through to physical abuse which may include intentional inappropriate restraint and / or poor child care practices in contravention of organisational codes of conduct which resulted in harm or risk of harm to children".
Physical restraint is an activity that carries with it a risk of harm to both children being restrained and also to staff who have to restrain children. Health and Safety Manual Handling research and research regarding the risk of fatality through positional asphyxia highlights that to minimise risk restraint should be applied for the minimum possible time. This may mean that less able staff, i.e. those at the lower end of the skill spectrum, may have to use more restrictive holds to immobilise a child who is at risk to themselves and others, especially if that child is more fit and agile the staff. This would be consistent with the positive obligation to preserve life as imposed by Article 2 of the Human Rights Act 1998 and must be in the best interests of the child.
However, my concern is that your guidance infers that staff can only use non-harmful methods of control and cannot use, even in exceptional circumstances, more restrictive holds and / or pain compliance techniques, even if such techniques were necessary to prevent a greater harm being caused. This is certainly the view of some trainers accredited by a particular organisation. As such staff may, by default, allow a child to be harmed in preference to using more restrictive holds and locks for fear of being charged with misconduct under The protection of Children Act 1999 and subsequently being referred to the Secretary of State for consideration of inclusion on the Protection of Children Act List. Therefore, by default decent staff will not act in the best interests of the child but in their own best interests ever fearful of being charged with abuse. There in lies the dichotomy of the predicament.
Being short and blunt on this issue restraint skills are being taught that are based primarily on non-harmful methods of control with more restrictive locks and holds being excluded from the syllabus. As such these systems are limited in their effectiveness, are not being taught with the best interests of the child at the forefront of our minds and are knowingly placing children at risk.
My questions are:
1. Where this is the case do such systems, that are knowingly being taught, constitute “intentional inappropriate restraint” for failing to protect children? And,
2. Does that in itself constitute misconduct?
It would clearly assist me and indeed many others if you would be so kind as to provide answers for me to the above questions to assist me in clarifying this issue further in consideration of the points I have raised above.
Yours Sincerely
Mark Dawes
From: [Name withheld]
Date: Thursday, January 29, 2004 5:15pm
To: dawes@markdawes.demon.co.uk
Subject: The Protection of Children Act 1999
Dear Mr Dawes
Thank you for your emails of 30 December and 23 January. I am sorry for
not replying sooner.
I note your concerns about restraint techniques involving children when applied to the Protection of Children Act List.
The extract you refer to from the PoCA guidance is purely to illustrate some circumstances were a referral should be considered and made by an employer and is not exhaustive. If a referral were submitted to the PoCA list when restraint had been used involving a child, this would have to be considered against the individual circumstances of the case and criteria for including a childcare worker on to the PoCA list. In other words, the employer would have a requirement to show the restraint had harmed a child or placed a child at risk of harm based on the evidence made available. It is also important to remember the determination of any misconduct considered would be a matter for the employer to decide.
The Secretary of State would then need to be of the opinion that the employer had reasonably considered the individual to be guilty of misconduct that harmed or placed a child at risk of harm. In other words, if a referral involving restraint were made to the PoCA list, the employer would need to demonstrate (for example), staff had received formal training and guidance on appropriate methods of restraint or that the restraint was not appropriate in the circumstances.
Regards
[Name withheld]
Protection of Children Act List Team
Department for Education & Skills
The above correspondence highlights a number of interesting points. As defined by the PoCA (Protection of Children Act) the employer is required to demonstrate that any referral to the PoCA list and would have had to consider that the employee was reasonably guilty of misconduct that harmed or placed a child at harm from the evidence available.
However, if the employer was relying on evidence from social workers solely based on the aspect of significant harm then the employer’s referral could be based on flawed evidence.
In our experience many local authority managers, including many front-line social workers, have little or no understanding of the concept of reasonable force nor of the complexities surrounding the activity of physical restraint and it’s associated hazards. Therefore, no matter how well meaning their investigations are in this area their judgements are likely to be misguided and based on evidential standards taken out of context.
In such circumstances many professional social workers will be willing to give evidence (and can only be expected to do so) based on their own professional training and experience. In some cases it may also be fair to consider that when considering the best interests of the child as the primary concern internal investigations may be flawed from the outset with such professionals referring to their professional judgement as opposed to the facts of the case.
What this can lead to is an investigation based on the assumption of guilt as opposed to being objective and within the realms of natural justice.
Is there a liability for the organisation / local authority?
Obviously any individual responsible for the welfare of children in their care must act in the best interests of the child and have the welfare of the child at the forefront of their minds in all dealings with children, and be responsible and indeed accountable for their own actions.
However, there is also a liability for the local authority in such circumstances. If a child has been placed in local authority care to protect the child from imminent or future abuse then the local authority must be able to demonstrate and be responsible for the protection of the child from further abuse.
Historically if a child has been harmed whilst in care it has always been the staff member who caused harm to the child who has been held accountable and in many cases disciplined and / or prosecuted. An example of this is a member of staff who has used physical force to restrain a child and has ended up causing harm to the child by doing so.
In many cases such action will have been justified when considering the welfare of children, the past history of abuse that has occurred to children in care, and the actions of staff that may have been abusive in the circumstances. However, the buck can no longer stop there.
The recent case of Lister v Hesley Hall would seem to shed light on this perspective and the case summary appears below as
Case Law - Lister v Hesley Hall
“The recent House of Lords decision in Lister v Hesley Hall represents a major change in the law of vicarious liability. Previously, the well-established law stated that the more heinous the employee’s act, the less likely it could be considered to be something for which the employer could be liable, on the grounds that it was less likely to be "in the course of employment". The Lister case seems to be a reversal of that view, and may have a great many ramifications, some of which are yet to be revealed.
This much can be gathered from the facts of the case, which consisted of a series of personal injury claims brought by former pupils of a school where they had been systematically abused by the housemaster (G). The claim was made against the school, on the grounds that the schools was vicariously liable for the actions of G and, therefore, liable for the personal injury inflicted upon them. It was recognised by the House of Lords that G’s actions were an abuse of the special position in which the school had placed him (to enable it to discharge its responsibilities).
Only by placing him in that position was G able to carry out the abuse, and he could not have done so had the school not placed him in a position of trust. The school was therefore, vicariously liable for those acts.
The Lords stressed that attention must be given to the close connection between the acts of the employee and the duties he is engaged to perform. In this case there is a close connection; there was a "care" element in G’s duties and the way in which he discharged those duties were criminal. They also stressed, in perhaps the most worrying aspect of the decision, that a broad approach should be adopted in considering the question of what falls within the scope of employment.
Whilst the decision is likely to have an immediate and substantial impact on those organisations responsible for the young and / or vulnerable – a wide grouping which includes not only schools but also nursing homes, colleges, prisons and old people’s homes – the overall effects are likely to be more wide-ranging.
The Lords even suggested that vicarious liability might extend to occupiers of land in relation to their visitors.
A consideration of the reasoning behind the judgement suggests that an employer may be liable for any wrongful acts committed by an employee (for example breaches of the Human Rights Act, or if a manager sexually assaults a more junior employee) if it was the fact of his or her employment which provided the opportunity for the act to be committed.
It is too soon to tell just how far-reaching the Lister decision will be, but in the meantime employers should consider carefully whether their organisation could place employees in this kind of position, and identify (as far as possible) the best means of guarding against those risks.”
The Lords decision in the above case stressed that attention must be given to the close connection between the acts of the employee and the duties he is engaged to perform. Organisations have, for many years, had staff that can be considered vulnerable in light of the severity and frequency of the risks that they are exposed to whilst at work. Therefore, in light of new legislation and in anticipation of the forthcoming changes, the protection of staff rights in any organisational environment must be the balancing of the economic and business interests of the employer against the employee’s right to be protected from unreasonable demands or restrictions imposed by the employer in pursuit of that business if the employer is to be afforded any defence for acts of violence against staff.
Whilst employers may be vicariously liable, this does not necessarily exonerate staff nor mean they are not accountable or immune from prosecution for wrongdoing. However, what must be considered in light of new statute and case law precedents is that if a child is placed in local authority care the authority, in acting in the best interests of the child, must take pro-active measures to ensure that risks are identified and controls are put in place to ensure the welfare and safety of a child previously identified as being at risk of abuse.
This means ensuring that adequate staffing levels are in place and that staff receive training as is necessary to work in the best interests of the child. However, in many local authorities these control measures are challenged and compromised due to financial limitations that result in staffing levels being reduced and training being cancelled. When this occurs front line staff responsible for the child’s safety and welfare are compromised by having to work with limited resource when it comes to dealing with the more challenging of behaviour, but are then likely to be placed in the frame when things go wrong due to the lack of adequate resources and appropriate training not being in place which is the responsibility of the employer and it’s management team.
It cannot be acceptable to remove a child from its parents to safeguard it from abuse and in doing so expose it to a regime or environment where such risk is still apparent. For example, if a child has been removed from its parents by order of a court because the child suffered a fractured arm when smacked by one of its parents, it would seem perverse that the same child could suffer similar injuries (or indeed more significant harm if it was happening more frequently or more severe injuries were sustained in care) if the child was placed in an environment where improper staffing levels and safe systems of work were not in place and where increased risk of injury is highly possible if restraint was used by untrained or poorly trained staff.
What must be made clear is that in such situations liability also rests with the authority and when incidents occur that result in harm to a child it should not only be the member of staff who is investigated but the management process that is responsible for assessing and controlling the risk and providing suitable and sufficient control measures – including the provision of training – normally the first thing to go when budgets are challenged.
Mark Dawes
Director & National Coach Tutor, NFPS Ltd. |
