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I was recently invited to give a presentation at a Seminar event for an Association of Health & Safety Professionals on the use of 'Reasonable Force'. Prior to my slot an HSE Inspector gave a talk on the subject of violence at work. In part of his speech he stated that as part of an HSE Inspection, Inspectors would look to ensure that only 'minimum force' was being used by staff who may have to control a service user.
Following on from that event I was privileged to be invited to run a training event on the subject of physical force for a different organisation in a different part of the country. Whilst talking to many of the staff who were arriving prior to the event starting I was interested to be informed that they had been advised that they "were only allowed to use only 'minimum force' as that was what was legally required by the Children's Act 1989". This was apparently the advice and guidance given to them by a physical restraint instructor.
Now these staff, including the HSE inspector, are good people. They do a difficult job, at best with limited resources, and in many cases are left to use their own initiative in absence of adequate guidance and instruction, and sometimes, in the light of incorrect and inaccurate instruction.
In addition, these good people, like many of you reading this article, are all primarily focused on reducing the risk of harm to the service users in their care, and also to themselves and their colleagues. And this is possibly where the drive behind the use of the terminology 'minimum force' comes from.
However, what if the intention was right, but the consequences of the application of the principle behind the intention was wrong, and this resulted in an increase in the risk of harm? If this is the case we have a paradox, in so much as the terminology designed to reduce risk is actually creating it. This is the basis for this article. I believe that the whole aspect of the use of the term 'minimum force' is based, in the main on a flawed understanding of the law in relation to the use of reasonable force.
I have touched on the subject in chapter 3 of my book 'Understanding Reasonable Force', however, I thought I'd go a little further in this article to clear up these misconceptions regarding it's use and it's possible consequences, and address the conception of this term in context and how it's application out of context can increase risk as opposed to reducing it.
My concern is that the use of these words creates more problems than they are designed to prevent. For example;
· Government Departments issue guidance stating that only 'minimum force' can and should be used.
· Local polices are written by local management that promote only the use of 'minimum force' to control vulnerable service users.
· Staff are told by employers and training providers that because their service users are vulnerable they are only allowed to use 'minimum force'.
· Physical skills providers develop and deliver training courses that are run on the basis of promoting the use of techniques that promote only the use of 'minimum force', which are by design, limited in effectiveness by failing to provide staff with the specific skills to be able to adequately physically control some service users and / or provide protection to themselves (see case law 'Teacher attacked by pupil awarded £190,000').
· Where an ineffective technique subsequently fails to prevent harm occurring to a service user, a member of staff may then be (wrongly) put in the frame for not being able to execute the complex physical skill effectively.
· In contrast to the above point, if a service user is harmed during an intervention the same member of staff may again find themselves being investigated or disciplined with having harmed a service user by using force that was, by default, not, in the eyes of the employer, 'the minimum amount of force required'.
If I am to be blunt, but also to the point, the promotion of 'minimum force' normally derives from a source not competent in their understanding of the law in relation to the use of physical force. The dangerous dichotomy here however, is that the incompetent source is also likely to be the very same source that will be responsible for the choice of the system of training used, choice of training provider, and any investigation and management in relation to the operational use of force within the organisation. This can (and has) led to staff being investigated and charged with disciplinary offences that they cannot be charged with (see article on Restraint v Abuse). This can result in staff being wrongly accused, being unlawfully recommended for disciplinary action, or worse, unlawfully recommended for a placement on a 'list' as they pose a risk to children. In the latter case, work prospects can be affected, and ultimately someone is psychologically damaged and traumatised by the whole process that should never have occurred in the first place.
The fact that 'minimum force' exists at all, and has gained such widespread acceptance is simply down to what I refer to as the Kings New Clothes syndrome.
So where does the myth of minimum force have its origins?
To start with 'minimum force' does not exist in statute or common law, and it is not mentioned in the Children's Act 1989 either.
However, in spite of this the use of these words permeate numerous departmental policy and guidance in relation to the use of physical force, and many staff working in a diverse range of occupations are trained and instructed that they can only use 'minimum force' when defending themselves or physically controlling a service user.
In short the wording 'minimum force' appears to be a police invention. To further prove this point, the Metropolitan Police's Good Practice Guide to Officer Safety, produced by the Directorate of Public Affairs June 1995 states: " No mention of minimum force is made in statute or common law; indeed this term appears to be a police invention."
In a paper published by the Criminal Law review in 1990 P.A.J. Waddington, Ph.D., Director of Criminal Justice Studies at the University of Reading, stated that "the principle of 'minimum force' goes beyond, and is more restrictive than, what the law requires", which is that we all may use Reasonable Force in the defence of ourselves and / or others etc.
In his paper P.A.J. Waddington looks at the principle of minimum force and draws the conclusion that simply "minimum force" is merely one expression of the "necessity" requirement, with regard to the wider interpretation of Reasonable Force. In other words we should first "minimise the need" to use force and if this can be achieved, force should not be required to be used.
From a health and safety perspective this makes absolute sense, because if we can eliminate or reduce the need to use force, this is the option that should be taken. For example, if we can eliminate the need for staff to be exposed to situations or circumstances where they may be exposed to the risk of assault, we have minimised the need for them to have to use physical force for their protection or the protection of others. On the contrary however, exposing staff to the risk of assault and then placing them on courses to teach them how to use "minimum force" to defend themselves or others, would be a basic breach of the necessity principle.
This is also important from a behavioural management care planning perspective. Minimising the need to use force (physical restraint, etc.) must be one aspect of what competent behaviour management planning is required to do. However, allowing the risk to exist and then advising, instructing or training staff that they may only use "minimum force" is again a breach of the necessity requirement of the wider interpretation of Reasonable Force.
If we look at the Police use of firearms we can start to see where the beginnings of minimum force has its roots. In P.A.J. Waddington's paper, where he refers to the use of firearms by police or security forces, he breaks the aspect of necessity down into two further requirements. The first being that force should not be employed until it becomes essential, meaning that where it is not necessary it should not be used.
The second aspect is "that the amount of force used should only be sufficient to overcome resistance". In short this is the "proportionality aspect of reasonable force', i.e., the force used must be 'proportionate to what it prevents'. In other words if harm is caused by the application of force the harm caused must be in 'proportion to the harm it has or is intending, to prevent'.
He further states, "No matter how much harm is threatened by an adversary, the force employed should be limited to that which is necessary to subdue him or overcome resistance. Once resistance is overcome the use of more force would be gratuitously punitive." This is absolutely correct and sits well with the fact that force cannot and should not be used as a means of corporal punishment. For example, I may use force to prevent you harming me, but once that threat is over I cannot use force to teach you a lesson.
Let us for a moment come back to the use of firearms and the relationship with the issue of 'minimum force'. I think we can accept the fact that firearms are inherently lethal weapons and that their use can only be justified in the most extreme conditions of an immediate threat to life. Hence, police officers and members of the security forces are instructed that they may only open fire in conditions that would justify killing the person at who they are aiming at, even if the shots themselves did not result in death. Therefore, lethal force should only be used when it becomes essential for the preservation of life, where failure to do so could enable the armed assailant to open fire at the police etc., and even innocent bystanders, or provide the person with the ability to detonate a bomb.
On that basis, if armed officers are instructed to open fire they must do so ensuring that their actions are effective. In other words, incapacitation has to be total and immediate, and this will involve causing devastating and possibly irreversible injury to the assailant, where failure to do so could result in the threat posed being realised and executed.
If we were to apply the principle of "minimum force" into the equation with regard to the 'amount of force used' then the officer is left with a dichotomy. Should he shoot to kill or shoot to wound and disable?
If the principle of 'minimum force' was to be followed in terms of the 'amount of force applied' then this could lead to an officer having to attempt to shoot an assailant in the arms and legs to incapacitate him, as opposed to stopping him fully. This could actually lead to an increased margin of error. Shots intended to wound, may miss, as limbs are much more difficult to hit than the torso of the body, especially if you have a moving target and even if the shots did hit the limbs they may be very unlikely to stop a determined assailant who would have more opportunity to carry out the threat.
There is also another issue here, if officers were to be instructed to shoot at limbs to inflict injury that was "minimal" compared to the loss of life, it could result in officers opening fire too early, at a lower level of threat.
If this was the case, then opening fire at a lower level of threat, where limbs are targeted, and which would fail to incapacitate an assailant fully, may lead to an increased margin of error that could lead to a greater loss of life.
Therefore, to minimise the overall loss of life, armed officers may have to use a lethal (maximise) degree of force where failure to do so could result in an increased risk of greater loss of life.
So how does the principle of 'minimum force' apply to the use of physical force for restraint or defence?
In short and in terms of the way it is promoted in many establishments, it doesn't and it shouldn't. The principle of 'minimum force' in relation to the 'amount of force applied' is a social principle and not a legal one.
In it's correct application, as part of the necessity requirement of 'Reasonable Force' it should be applied in the context of 'minimising the necessity to use force' and not as 'only using the minimum amount of force necessary'. The latter is an incorrect assumption based on a social interpretation that has no basis in a legal requirement and which can be misleading and lead to increased risk to staff and service users and increased liability.
How does this sit with regard to the 'Welfare or 'Paramount' Principle owed to the Child or other vulnerable person?
The 'Welfare', or 'Paramount' principle promotes the best interest of the child (or indeed any other vulnerable person). For example, Section 1 (1)(a) of The Children Act 1989 states that: "When the Court determines any question with respect to the upbringing of a child the child's welfare shall be the court's paramount consideration."
In Article 3 (1) of the United Nations Convention on the Rights of the Child (Best interests of the Child) states that: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration."
Competency
However, when considering these issues there is also the issue of competency to consider. For example, Article 3(3) of the United Nations Convention on the Rights of the Child (Best interests of the Child) also states: "State parties shall ensure that the institutions, services and facilities responsible for the care or the protection of children shall conform with the standards established by competent authorities, particularly in the area of safety, health, in the number and suitability of their staff as well as competent supervision."
Therefore, consistent with the 'Welfare', or 'Paramount' principle, with regard to the best interests of the child (or other vulnerable person), it may be required in some circumstances that a much higher degree of force may have to be used to minimise the overall likelihood of a greater harm occurring to a vulnerable person. This would be consistent with the requirements provided by law.
However, if staff, who have responsibility for the welfare of vulnerable people, believe (or have been led to believe) that they are only allowed to 'apply the minimum amount of force' then we could end up with situations where vulnerable people (and indeed staff) are being placed at unnecessary risk. This may be primarily because the need to use force has not been minimised by the application of suitable and sufficient risk reduction / management controls, including adequate staffing levels.
As a result, when the need to use force arises, staff believing that they can only use 'minimum force', have to use ineffective physical techniques that fail to prevent harm by their inability to effectively control a vulnerable person. As a result the margin for error increases and people are hurt.
If this is happening because of the inference of what 'minimum force' means, then staff may not have the best interests of their vulnerable service users at the forefront of their minds, but the interest of not being disciplined by managers who do not have a competent understanding of what the law, specifically the law in relation to the use of physical force, actually means. In short, in clear breach of Article 3(3) of the United Nations Convention on the Rights of the Child, the standards and supervision with regard to the best interest of the child are incompetent.
In short, those person's responsible for the strategic and operational use of force within the organisation / department are possibly making incompetent decisions based on flawed and incorrect assumptions about what they think the law requires.
As a Master Practitioner of NLP I believe that people make the best choices available to them based on the knowledge and resources available to them at that particular moment in time. Therefore, the next time someone mentions the words 'minimum force' to you, you will have a clear indication of the minimal amount of knowledge that they have on the subject they are proposing to advise on.
Treat their statement with the contempt for indifference that it truly deserves. |
