‘Excessive’ Use of Face-Down Restraint
About the Author
A former Royal Marines Commando and High-Security Prison Physical Training Instructor, Operations Director of Tactical Safety Responses Ltd Mark Williams, is an Association of Chief Police Officers trained Trainer of Instructors delivering expert instruction in Personal Safety, Close Protection and Close Quarter Defensive Tactics to Law Enforcement, Military, Healthcare, Government and large corporate companies and establishments. Mark also acts as an expert witness in cases of legal action bought in respect of injury due to physical restraint.
This includes most weaponry currently being used by Police Officers in the UK. He has experience in reviewing evidence and producing reports, together with giving oral evidence to assist the courts in relation to the use of force. He is considered an expert witness in the use of force and defensive tactics by the courts.
He holds numerous International Instructor qualifications in respect of many aspects of use of force training, and has trained and advised many organisations across the world in associated subjects. This has included the design development, implementation and evaluation of training. He has authored many articles on this subject.
He represented Kent Police on the National ACPO Self Defence Arrest and Restraint working group. He represented the South East Police Region (as Deputy Chair) as part of the committee for the National Practitioner’s Advisory Group. This Group is a subcommittee of the Association of Chief Police Officers (ACPO) – Working Group on Self Defence Arrest and Restraint.
The issue of ‘Prone Restraint’ has again been in the headlines, and a call for a total ban on ‘face down’ restraint within mental hospitals.
I have many years’ experience of training staff in such hospitals, and of restraining violent people, and this article aims to outline a few points and give my opinion.
Since the introduction of Personal Safety Programmes, organisations within the UK have continually evaluated the effectiveness of training. This has resulted in continued developments and amendments to the programmes as a result of feedback from staff. As well as considering the practical skills within the programmes delivered, organisations have legal obligations to consider less intrusive options to manual restraint.
As a result of data provided from various reporting processes it was possible to identify particular hazards with people who continued to offer violence during restraint. This resulted in injuries to themselves and staff and sometimes-considerable damage to property.
It is acknowledged that the application of manual restraint methods does not in itself establish control. Whilst a number of those placed in restraint do cease their resistance, there are a few who continue to fight and pose the risks.
It is also acknowledged that one of the main risks to life from physical restraint is the risk of death from positional asphyxiation, which can be brought on by many factors including a prolonged struggle and restraining a person for extended periods of time in the prone face down position, especially if weight is applied to the back.
This is well documented, yet there are still many organisations that refuse to consider their legal obligation to not only the patient, but to the staff, and consider less intrusive methods than manual restraint like handcuffs and soft restraint systems.
To have a complete ban on prone restraint, in my opinion, is problematic, as there may be occasions when during restraint everybody falls on the floor, either accidently or while trying to control the person, and it would not be an option in some circumstances to disengage and for the staff to stand up. If the patient was causing serious self-harm to themselves or seriously assaulting the staff for example.
‘Prone Restraint should be avoided if possible’ is a more realistic approach, otherwise the next time there is a restraint related death on the floor, the organisation/individual will have the policy used by the prosecuting team.
In my opinion a policy should not contain ‘absolutes’ but should cater for the information at the time, the person’s perception at the time, the law, and the ‘totality’ of the circumstances. Decisions during a restraint are made based on the staff members’ threat assessment to all concerned, in line with the law, and the options available to them at the time.
My observation of the training I have conducted in many mental hospitals over many years is that often the only tactical option staff have available is manual restraint. Therefore their options are very limited when trying to prevent the example above.
When I ask the simple question, ‘Why don’t you substitute the manual restraints into a set of cuffs or restraint equipment, as that is less intrusive, and in line with the law?’ The answer is often ‘We have a NO cuffs in restraint policy!’ Yet the staff see the clear benefits, and the trust will use handcuffs for other applications?
There are also organisations I have trained that have no options to deal with falling to the floor trying to establish control of someone. For me this is a ‘foreseeable risk’ when trying to establish control of a violent individual.
There appears to be a huge reluctance for the use of what is deemed ‘mechanical restraint’ on people with mental health issues, and I understand the moral argument. However explain to a judge and jury why you didn’t apply a set of tried, tested, widely used, medically reviewed piece of equipment that the law says you should use because it is less intrusive and less damaging to all concerned in the restraint, and you continued to restrain the person in manual restraint for a prolonged period of time on the floor until he/she died?
Quite often during manual restraint, the person will struggle and try and get themselves off the floor, and the staff, during the stress of the situation, to prevent this will press down and apply pressure to try and prevent them from getting off the floor. A piece of equipment enables the staff to gain control quicker and get them up from the face down position as soon as possible.
I am not suggesting that ‘any’ piece of equipment is used. I am talking about equipment that has been around for many years and is widely used and has been subject to medical and legal reviews.
Most staff I train can see the benefits of the use of equipment, yet the organisational structure prevents them from introducing such equipment.
Use of Force – The Law – Policy
With the current Law & Legislation an organisation/individual should be able to evidence that they have considered options available, and the option used was the least intrusive to all concerned. This is obviously difficult if the only option staff have is manual restraint! It is suggested good practise that an organisation’s policy is written by someone who has an appropriate knowledge of all relevant legislation, and knowledge and understanding of the personnel safety programme. How can you have someone writing the restraint policy that has no understanding of the law or the training package?
Organisations have a duty of care not only to the people that they are using force on, but also to the staff to provide them with the safest option when it becomes necessary to use physical force on another person.
Any use of force must have a legitimate and lawful objective (e.g prevention of injury to others or the person) It should also have a regard to the nature and gravity of the threat and be proportionate to the harm it is seeking to prevent.
The objective for use of force should preserve the safety of the subject, staff and innocent persons, by establishing and maintaining control.
The basic proposition in law is that the use of force is unlawful unless it is justified. Therefore, in order to make an appropriate decision regarding an option for dealing with conflict a sound knowledge and understanding of the law on use of force is essential, and the equipment that is available to achieve this.
Below is some of the Law & Legislation that should be considered. There are also various pieces of Health & Safety Legislation that is applicable to this issue that I have not included in this article.
Corporate Manslaughter and Corporate Homicide Act 2007
An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised:
(a) Causes a person’s death, and
(b) Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased
The use of restraint equipment is usually governed under Common Law.
Common Law gives a person the right to use force to protect themselves or others should they perceive imminent danger. The force must be reasonable to the threat being offered, and therefore requires the need for some evidential basis for the person’s belief.
Common Law principles could be interpreted according to the seriousness of the circumstances to be prevented and the right to self-defence, and the necessity to use force.
Section 3 (1) of the Criminal Law Act 1967
Section 3 CLA is an ‘any’ person power, and there is no specific reference to Police. It gives a person the right to use force as is reasonable in the circumstances in the prevention of crime, or in the effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
It must be appreciated that what is ‘reasonable’ in one set of circumstances may well be unjustified in another.
Therefore the use of restraint equipment could be lawfully excused provided that their use was reasonable in the circumstances.
Human Rights Legislation
In the light of the Human Rights Act 1998, it is also extremely important for organisations’ to understand the applicability and scope of the provisions of the European Convention on Human Rights (ECHR). The fundamental rights and principles contained in the Convention should be regarded as the basic ‘ground rules’ upon which the common law and statutory powers are exercised. Statute Law governing use of force must be read in conjunction with the Human Rights Act.
The Human Rights Act 1998 has two basic purposes:
1. To give effect to the rights and freedoms contained within the European Convention of Human Rights before domestic courts.
2. Courts and tribunals, public authorities and Government Ministers will have to act in a way that is compatible with the law of the convention.
Articles within in the Act that are relevant to this issue are:
Article 2: Right to Life
Deprivation of life shall not be regarded as inflicted in contravention of this Article when results from the use of force which is no more than absolutely necessary.
Therefore if the risk to life can be eliminated or reduced by the application of a piece of restraint equipment the authorisation of the use can be justified under Human Rights Legislation.
The balance would be the restriction of liberty against the positive obligation to preserve life.
Basically if an organisation has a restraint related death, they need to be prepared to explain why they ‘considered and then dismissed’ a less intrusive option to prolonged physical restraint in line with their Human Right obligation to preserve life.
Therefore with all the research and documentation surrounding the dangers of prolonged prone restraint, an organisation could be deemed as breaching article 2 by having prone restraint as their primary method of intervention, and/or not having a less intrusive option.
Article 3: Prohibition of Torture, Inhumane or Degrading Treatment or Punishment
Of course the application of restraint equipment could be deemed as degrading or inhumane treatment. However what has to be considered is the balance between Article 2 and Article 3.
This can be achieved and evidenced by an organisation having a clear working policy that all staff are aware of, and suitably trained staff can decide what viable use of force option is justified based on the totality of the circumstances and as much information as possible.
Is the application of restraint equipment proportionate to the harm it is seeking to prevent?
In my opinion an organisations’ use of force options should not be a hierarchy approach i.e if option A doesn’t work we go to option B. Staff should have suitable and sufficient training and a selection of options that they justify to use based on the information, threat assessment and the Law.
No two circumstances of restraint are the same, so staff training and policy should reflect this.
If a person being restrained can be prevented from going down into the prone position by applying a piece of medically reviewed equipment, in my opinion this should absolutely happen.
As an organisation, and based on the above article, if there were a death resulting from prolonged manual restraint, could you explain to a judge and jury why you ‘considered and dismissed’ a less intrusive method in line with the law?
To prevent a patient from going into the prone position, and the known risks associated with that, if an option would be to apply a set of handcuffs/equipment instead, to keep the patient on their feet. To me that would be a proportionate response to the harm it was seeking to prevent.
Prone restraint should NOT be the primary method of intervention, and if staff members and the patient end up on the floor for whatever reason there must be methods to get the patient from the prone face down position as soon as possible.
The sensitivities and moral issues of using restraint equipment on people with mental health issues are understandable. However the law is quite clear on the obligation to keep not only the patient safe from harm, but the organisations’ responsibility to keep the staff safe by providing them with up to date suitable and sufficient training and equipment. So for staff only to have the option of manual restraint, in my opinion, is not sufficient.
There are many staff members that are regularly assaulted in the course of their work, and restraint equipment may have prevented this, and this would also sit with an organisation implementing practises to prevent reoccurrence.
Use of Force is about the ‘Necessity’ to use force in the first place, and to be able to justify that you considered and dismissed all options available based on the circumstances at the time. If the only option staff have is manual restraint, there are always going to be occasions when staff restraining patients ‘may’ fall to the floor, and it is still necessary to gain control. In my opinion ‘prone restraint should be avoided where possible’ and methods/equipment should be explored to prevent ending up there in the first place, and if so, methods/equipment to remove the patient from the prone position as soon as is practicable, and prolonged manual restraint is avoided.
I have had the pleasure to train with thousands of highly professional people of the years, many that work in High Risk environments, and many that share my opinion.
All the training I provide has been medically reviewed by a leading UK medical expert, and I have for years been trying to push for a National Standard within Health Care, similar to the system that was adopted within the Police force when I worked with that sector.
My view of the Health Care sector is that there is no National Common Minimum Standard, and the training from Trust to Trust can vary greatly. With some delivering, in my opinion, legally flawed systems with questionable audit trails of qualification in the event of any litigation.
How many more ‘restraint related deaths’ do there need to be before an appropriate, fit for purpose, medically and legally reviewed National standard is put in place?
19th June 2013