Recently I was asked to provide a quote for an organisation with regard to the delivery of breakaway training. The company concerned worked with adults with learning disabilities who presented challenging behaviour which manifested itself in a risk of harm to self, others or in serious damage to property that would pose a risk of harm to the service users.

Whilst undertaking a brief training needs analysis with them it became evident from the types of incidents that were occurring, and from discussions with staff, that staff may (and have been doing so), on occasion, have the need to physically intervene with regard to the duty of care owed to the service user in their care. When I raised this point of fact I was informed by the management of the organisation that they had in place a ‘no restraint policy’. When I asked why, I was informed that they (the organisational management) didn’t want to promote the use of physical restraint as it wasn’t necessary.

I then asked the following question: “If it is not necessary to restrain why have a no restraint policy?”

If you think about it, if there is no need to restrain then you don’t need a policy, so why have a policy in place to formalise a procedure for something that is not required or foreseeable? You see, if it’s not necessary to restrain then you don’t need a policy in place to tell staff not to do something that isn’t required.

However, on the other hand, if the policy is in place to actively discourage the use of physical restraint because staff are doing it, then the question has to be asked what the real intention of the policy is.

If staff are using restraint to protect service users from harming themselves or others, where this is necessary, and this is being actively discouraged this could lead to a breach of the duty of care under common law or Health and Safety legislation that is owed to a service user if they were to become injured or killed as a result of staff not being allowed to intervene.

In addition there is also the moral issue here. Is it right in our society to enforce a policy whereby staff are expected to stand back and watch a service user get injured, or even worse, killed. This can lead to states of learned helplessness where staff will ‘learn’ that they are not expected to do things that any reasonable person would expect someone in their position to be doing. This in turn can lead to increased levels of distress for staff and further additional liability for the company.

Furthermore, Human Rights legislation, in particular Article 2, makes it a requirement that all public authorities must promote a ‘positive obligation to preserve life’. The right to life as promoted by Article 2 is a basic fundamental human right which ensures that all citizens have the right to be protected from anything that may compromise that right. This means that where there is a risk to life all public authorities must ensure that positive steps are taken to ensure that action is taken to prevent the unnecessary loss of life [X v United Kingdom (1979) 14DR 31].

One example of this that we can see in our society today, is the issue of ‘Tazers’ to police firearms officers. A tazer will deliver 50,000 volts of electricity through someone’s body which will most definitely incapacitate them, but will possibly not kill them. A use of a conventional firearm however, will most probably kill the assailant. Therefore, a tazer, although unpleasant, is consistent with the police (as a public authority) taking positive steps to prevent the loss of life by the introduction of such equipment as a lesser use of force option in potentially very serious and life threatening situations.

This does possibly raise the question however as to what is a public authority for the purpose of the Human Rights Act?

Well, there are basically two types, pure and quasi. A pure public authority is an authority that is governed or mandated by Government, either central or local. Courts, Police, Prisons etc would all be examples of ‘pure’ public authorities and as such, are required to comply with the principles and Articles of the Human Rights Act.

A ‘quasi’ public authority on the other hand could be a private company that, as part of it’s trading activity, provides a public service. For example, a private security company providing security officers who work in Courts, private nursing or care homes, whose staff deal with vulnerable members of the public, etc.

And public authorities have responsibility which is directly enforceable under Human Rights legislation. Section 6 of the Human Rights Act has made it unlawful for any public authority (pure or quasi) to act in any way which is incompatible with the principles and Articles of the Act. Therefore, if an organisation were to promote, and actively encourage, a no restraint policy and this led to injury or death of a vulnerable person, there is possibly very good grounds for the organisation to be prosecuted, not only under current Health and Safety Legislation for failing to ensure a duty of care, but also under Human Rights legislation for failing to take positive steps to ensure that their right to life is actively promoted by acting incompatibly with the requirements of the legislation.

But what about those staff who will intentionally intervene and use force in contravention of the organisational policy and are then  possibly disciplined for doing so? Well, Courts and tribunals are defined as public authorities and so they have their own primary duty to act compatibly with the Act. Therefore, if a member of staff acted with the best interests of the service user at the forefront of their mind, consistent with the rule of law, the intervention can be viewed as being necessary in a democratic society and the intervention was proportionate to the harm it prevented the disciplinary action may itself be unlawful and give grounds for the member of staff to have the disciplinary action challenged in Court.

Also, there is the aspect for civil negligence to consider where a person may seek compensation from their employer for any injuries sustained as a result of a breach of a duty of care owed as the following example shows.

In the case of Costello v Chief Constable of Northumbria Police (1998) a female inspector had arrested a young woman. The woman later attacked the female police inspector in a cell. A male inspector accompanying the female inspector did nothing to help his female colleague, and she was injured during the attack. The female inspector claimed compensation from the male inspector’s employer on the basis that he had a duty of care to come to her rescue and had failed to do so. Her claim succeeded in the first instance.

Currently the Security Industry Authority, who exist to manage the licensing of the private security industry as set out in the Private Security Industry Act 2001 , and who also aim to raise standards of professionalism and skills within the private security industry and to promote and spread best practice, have made the following reference with regard to physical intervention.

In a consultation document [V0.3] issued by the SIA in February 2004 regarding training for Security Guarding it states in section 1.4.5 Physical Intervention Techniques that: “The SIA specification requires security officers to know how to minimise conflict in aggressive situations. This may include some physical contact with customers in certain situations. The specification does not require security officers to acquire specific knowledge of physical intervention techniques, the training for which usually requires 2 days and includes and annual refresher. As a regulatory authority, the SIA requires that security officers have the relevant level of competence to operate in a professional manner and increase public trust and confidence in those offering security services. The standards specified do not preclude the right of security officers to defend his/herself when faced with a threatening situation. It also does not remove the duty of the employer to identify and provide additional training for security officers should they deem it necessary”

Therefore, the SIA have left the issue firmly at the feet of the employer to decide if physical intervention training should be done and it would be unwise for employers to wait until the SIA, or indeed any other Government mandated agency, bring out requirements as the following case illustrates.

Harvey v Northumberland County Council [2003] EWCA Civ 338

Harvey was employed by Northumberland County Council as a residential social worker at a secure accommodation unit. The residents at the unit were disturbed children with behavioural problems who were likely to be volatile and aggressive.

There was an induction course for all staff when the unit opened, which covered the content of the Council’s circular dealing broadly with restraint in Social Services establishments. Significantly, the circular gave no advice as to how employees should restrain individuals.

No further training had been given to staff at the time that H suffered an injury to his knee, while attempting to restrain a child who had become aggressive, though such a course was subsequently provided. H brought a claim for damages against the Council on the grounds that it had failed to provide adequate training in how to cope with children who needed to be restrained, in breach of its common law duty to ensure a safe workplace. The High Court judge found in favour of H and awarded him a total of £19,000 in damages.

The Council’s appeal against that decision was dismissed by the Court of Appeal. The Court found that safer restraint techniques were available than those that were being used at the time of H’s injury, and that while the Council knew that training was needed, it did not trouble to look and see where it might be found. The Council had a common law obligation to take reasonable steps to ensure the workplace was safe and it could not put that obligation on hold pending advice from official departments.

All organisations have a responsibility to positive duty of care to their staff and others and part of that duty of care is ensuring that suitable and sufficient training is required that equip staff to a competent level. Some agencies try to get around this by engaging the services of agency staff or sub-contracted agencies. For example, many nightclubs do not employ door supervisors directly but either use a sub-contracted agency or pay staff on an ‘as-required’ or ‘self-employed’ basis. This is also same for many care homes and NHS hospital Trusts. However, the duty of care owed under common law cannot be passed on by means of a contract.

In the introduction to the Management of Health and Safety at Work Regulations 1999 (Approved Code of Practice and Guidance) it actually states:

“If people are working under the control and direction of others are treated as self-employed for tax and national insurance purposes they may nevertheless be treated as their employees for health and safety purposes. It may therefore be necessary to take appropriate action to protect them. …….a legal duty under section 3 of the Health and Safety at Work etc Act 1974 (HSW Act) cannot be passed on by means of a contract and there will still be duties towards others under section 3 of the HSW Act.”

Therefore, we have to ask the question as to why some organisations feel the need to promote ‘no restraint policies’. You see it’s fairly straightforward. If there is no need to restrain then you don’t need a policy and you don’t need training. If there is a need to restrain then there should be policy and procedure in place and staff should be trained to a competent standard.  So why have a policy for something that staff are not likely to do………………….unless of course the policy is to prevent staff from doing what the organisation knows they are doing because if staff didn’t break the rules they and possibly others may be at risk of harm……..or the organisation doesn’t have the money to train staff…..or they are waiting for guidance from a Government authority.

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