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One of the most common questions we get asked when people enquire about restraint training is "how often do I need to do a refresher course?"
As many of you will already know there is no set time limit laid down, by any Government statute or associated regulations as to what would and what would not constitute a reasonable period between initial training and subsequent refresher training in physical restraint.
In short, the determination for staff to undertake any refresher training rests with the employer.
This is actually already required under Health and Safety Statute, specifically Section 2(2)(c) of the Health and Safety at Work etc Act 1974 which states that:
"It is the employer's responsibility to ensure that employees receive such information, instruction, training and supervision, as is necessary, to ensure the health, safety and welfare of staff."
This is further promoted by Regulation 5(1) of The Management of Health and Safety at Work Regulations 1999 which states that:
"Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventative and protective measures."
The ACOP (Approved Code of Practice) that provides guidance for compliance with the above regulation defines an aspect of 'Monitoring' as:
"having a plan and making adequate routine inspections and checks to ensure that preventative and protective measures are in place and are effective."
Furthermore Regulation 13(3) of the Management of Health and safety at Work Regulations states that:
"The training referred to in paragraph (2) shall:
a) be repeated periodically where appropriate;
b) be adapted to take account of any new or changed risks to the health and safety of the employees concerned; and
c) take place during working hours."
In paragraph 84 of the ACOP that accompanies the regulation it states that:
"An employee's competence will decline if skills are not used regularly. Training therefore needs to be repeated periodically to ensure continued competence."
As such, by failing to refresh training skills on a regular basis, an employer may be in breach of the Health and Safety at Work etc Act 1974 by failing in its duty of care to it's employees and others who may be affected by their acts and omissions, leaving itself open to a criminal offence and/or claim of civil negligence.
This is a view also echoed by other agencies.
In a finding by the Police Complaints Authority in their report 'Striking the Balance - The police use of new batons' it was identified that there was a relationship between the frequency of refresher training and the level of complaints. They found a reverse correlation between the frequency and extent of training and the number of complaints received. It stated:
"The more frequent the refresher training the lower level of such complaints."
Although the report was focused on the use of the new style Police batons, it's findings should not be restricted solely to baton training and what we need to understand from this report is the inference that any system of skill training involving a degree of technical complexity, and designed for use in operational situations where fear and anxiety will be present, should be regularly refreshed to reduce the risk of human error that will lead to complaints and claims.
Her Majesty's Inspector of Constabulary also highlighted the importance of refresher training in a report on Officer Safety Training in 1997. In the report (Office Safety - Minimising the Risk of Violence) it states;
"There are implications for forces and officers where refresher training is not undertaken within the set time limits, or where it is inadequately administered; an officer whose time limit has expired may not only breach force instructions but could be liable for civil negligence."
There is also evidence from other sources as to why we need to refresh skills due to the way the ability to recall information degrades with time.
In a survey first conducted by IBM, and the findings later confirmed by the UK Post Office more recently, it was found that individuals who were only 'told' about something only had a 10% recall after 3 months, others who were 'told and shown' had a 32% recall after 3 months and those who were 'told, shown and experienced' had a 65% recall after 3 months. However, these percentages are very possibly likely to degrade even further with time, so in a year how much will an individual actually be able to recall correctly even if they had been 'told, shown and experienced' the learning fully?
There is also evidence from coaching research that shows that goals achieved in training will be less achievable in reality. This is due to the added pressures when an individual is faced with an emotionally charged situation or the reality of a violent assault. For example, goals, which may be achievable 70% of the time in training, may only be achievable 40% of the time in reality due to added pressures.
Therefore, if we are to ensure continual competency in a person, who is expected to use physical restraint in their occupational role, we must accept that the skills they are initially trained in, are perishable skills that will deteriorate with time. As such they will require refreshing to maintain a competent standard of operational skill, especially if the skills taught are expected to be used to counter the threat of physical violence.
In addition many employed staff will be expected to use their discretion in situations where the use of restraint is used. To improve an individual's judgement we need to improve their knowledge and therefore refresher training is an important component in the continual development of an individual's operational competence and risk management.
One foreseeable risk associated with physical restraint is the risk of fatality and there have been a number of recent high profile cases of death where physical restraint has been a factor in the restrained person's death.
Under Article 2 of the Human Rights Act all persons are afforded the right to life. Article 2(1) is an absolute right in so much as it is seen as a basic fundamental right that all people have a right to life that cannot be derogated against. As such all public authorities (direct or quasi) are bound, by law, to take positive steps to promote the right to life at all times, especially where a risk to that right is known to exist.
In part (2) of Article 2 of The Human Rights Act 1998 it states that any force used must be "no more than 'absolutely necessary". Absolutely necessary imposes a stricter test that that normally associated with the necessary aspect of Reasonable Force. Furthermore, the associated case laws further impose that any use of force must be "strictly proportionate" - not "proportionate" - but "strictly proportionate", again imposing a greater degree of planning and control where the use of force may result in a death due to the vulnerability of the person to be restrained due to, for example, biological or medical implications, alcohol / drug abuse, and / or ineffective systems / methods of control.
This imposes a greater responsibility and accountability on the employer as, in the Judges summing up of the McCann case it was stated:
"In making any decision a Court will take into consideration not only the actions of staff who actually administer the force but also the surrounding circumstances including such matters as the planning and control of the actions under examination. This idea of planning and control is important. The Court will have held in the past that the state must give appropriate training, instructions and briefing to its agents who are faced with a situation where the use of lethal force is possible. The state must also exercise 'strict control' over any operations that may involve the use of lethal force."
This not only supports the health and safety requirements but also creates a strict liability issue for organisations whose staff are expected to use physical restraint. This is by virtue of the fact that all public authorities (and indeed certain private companies whose role involves public duties) must comply with the new Act.
The McCann case also highlighted the need for the organisation to provide "appropriate training, instructions and briefing" and as such echoes the requirements laid out in the previous paragraphs with regard to Health and Safety. Failure to do so in such situations will, as proved by the McCann case, leave the employer liable for any injuries or deaths sustained as a result of not doing so.
In summary therefore, any organisation that initially trains its staff has accepted that the training is required because a risk has been identified and the training has been implemented as part of an operational control measure. Therefore, as part of a continual training strategy the initial skills taught should be refreshed at regular periods to ensure continual operational competency of staff and compliance with the law.
Therefore, it is good sense to refresh any physical skills taught to staff on a regular and frequent basis if the employer is expecting their staff to use such skills competently in their operational role. And it would be naïve to propose that once trained an individual would maintain a suitably sufficient degree of competence without the ability to have their skills monitored and reviewed.
It would be very shortsighted not to do so, leaving the company increasingly liable for any injuries sustained by the activity as times passes.
In conclusion, the responsibility for restraint refresher training rests with the employer whose is responsible for ensuring that employed staff are competent at what they are expected to do as part of their employed role. As such, it is for the employer to determine when they feel their staff should be 'refreshed' or 'upskilled' as part of their process of their commitment to Health and Safety statute and their strict obligation as required by the absolute rights imposed by the Human Rights Act 1998.
There are also good reasons to attend refresher training with regard to how our memories are stored, recalled and changed. To read more click here |
