Hi, guys. Mark Dawes here once again.
It’s a beautiful sunny day so I’m sat in my garden shooting this video so please forgive me the luxury. But I wanted to do this video because I want to get a point out. I want to get an opinion out and I want to clarify something. But first, I want to challenge you and here’s the challenge.
If you think that what I’m going to be saying in this video is in any way illegal, sue me. Okay? There you go. Simple.
So watch the video all the way through and if you think that what I’m saying is illegal, take me to court and sue me and let’s have at that in court because I think this thing needs to be talked about and it needs to be talked about in holistic and a sophisticated way.
Pain Compliance Techniques
And the subject I want to touch on is the issue of pain-compliance techniques, especially with the use of children because on the 30th of June, Community Care published an article that said that and organisation is looking to make the use of any pain-compliance technique with a child illegal.
This was also reported in the Guardian Newspaper on the 7th June 2018 in an article entitled: ‘MoJ to review use of pain-inducing restraint on young offenders‘.
Now I get why they’re doing it because people have been trying to do this for years and they’re well-meaning people and they want to look after vulnerable children.
They have the best interest of the child at heart and I get it. Okay?
But they are misguided because, actually, in some circumstances, if you ban the use of a restrictive intervention that may or may not cause discomfort, harm or pain, in certain circumstances, you cannot be acting with the best interests of the child, and I’ll come back to that later on.
Lets Update The Narrative
Firstly, let’s talk about the language, shall we? ‘Because I think the language is emotive and that’s what’s causing the issue.
The words pain-compliance probably date way back to the eighties, the nineteen-eighties and they probably have its roots in prison service training. Because I’m an ex-prison officer and I’ve worked with young offenders and we were trained to do the control and restraint programme and as part of that programme we were taught pain-compliance techniques. And we were trained that if someone wasn’t complying, and we had to control them, particularly if they were very strong and very violent and there was a risk to them and us, that we could use legitimate techniques that would intentionally induce pain to control that person.
Now, we’re nearly thirty or forty years on from then so let’s change the narrative. Let’s bring this up to date.
Why aren’t we talking about restrictive techniques?
Because, honestly, I believe that the vast, vast majority of people out there do not go out there intentionally to cause pain to children. That’s not on their mind. They don’t want to do that.
Acting in The Best Interests of The Child
Most of them are acting in the best interests of the children in their care because some of these children need serious care. They’re hurting themselves very, very badly – and I’ll come onto a case in a minute – but they’re also posing a risk to staff. And if you ban these techniques, in certain circumstances, the risk will increase.
So I think we need to bring the language up to date, first and foremost and we’re talking about the use of restrictive interventions that may or may not cause discomfort, harm or pain.
So let’s just update the narrative.
I think that’s one thing we can all do because any time those words are mentioned, pain-compliance, people think that people are going out there to ‘wack’ wrist locks on, to hurt people intentionally and I don’t think that’s the case.
The Argument To Make ‘Pain-Compliance’ Techniques With Children Illegal
Now the argument put forward in the article is that techniques that cause pain, referred to as ‘pain-compliance techniques’ (or possibly any technique that causes discomfort, harm or pain to a child) should be made illegal.
And they’re referring to two documents in the report there, which I may or may not speak about later on, but, in relation to one of the documents (that was produced that came from the Restraint Advisory Board), that document is now six years old.
It was produced in 2011 but I was invited to a meeting of the next group that was set up after the Restraint Advisory Board, which was the Independent Restraint Advisory Panel that was chaired by a Professor Sue Bailey. Professor Dame Sue Bailey (I believe that is what her correct title is).
Now whilst I was there, I was asked the question whether the use of pain-compliance technique with a child was illegal, and I said no. I was then challenged by the panel on this, specifically Professor Sue Bailey, who said I was wrong.
The statement made by Professor Sue Bailey, Chair of the Restraint Advisory Panel, was legally incorrect.
So, I actually went to a barrister for a professional legal opinion on this, and I actually asked the barrister for their opinion. I laid all the evidence before the barrister and in the summary of his letter in response to Professor Sue Bailey’s statement that“the use with pain-compliance techniques with children is illegal” is: “I agree with the statement, “the use with pain-compliance techniques with children is illegal”, was wrong.”
There you go. A barrister is saying that the statement made by the panel, chaired by Dame Professor Sue Bailey, was wrong.
So, just to clarify, when the Chair of the Restraint Advisory Panel, Professor Sue Bailey, said that the use of pain-compliance techniques with children is illegal, she was legally incorrect.
Here’s the Frightening Thing
But here’s the frightening thing. That’s quite an informative panel. They have a lot of influence and they have a lot of weight and they were going to produce a report and we had to go to a barrister, by the way, someone who’s legally qualified, competent to comment, to prove that what they were saying was wrong.
Now, this is my concern. When these groups get themselves set up, or these well-meaning parties set themselves up, I get it. I get that they want to look after children. I get that they have the best interests of children at heart.
But they’re trying to ban something but on the basis of the fact that they actually don’t understand what they’re talking about, particularly when it comes to the use of force. So there’s my first bone of contention.
What Are The Alternative Options To ‘Pain-Compliance’ Techniques?
Let’s look at the alternative options to pain-compliance.
Okay, mechanical restraint, let’s talk about handcuffs, shall we? Now, I know, even as I mention that, people who do not want restrictive techniques used on children will have jumped up in horror, probably, and probably put their head in their hands.
But a mechanical restraint has its place. It’s the least intrusive option. It can stop someone from harming themselves and others.
There’s another option, prone restraint. Let’s put someone face-down on the floor and hold them there because you can do that with not too much pain. You just use pressure and pressure’s probably alright. But interestingly enough, the Department of Health positive and safe document that came out in 2014 says we should not control people in a prone, face-down position on any surface, not just the floor.
So how do you stop people going to the floor, and the reason they want to stop people going to the floor, by the way, is because they die there?
There’s evidence that people can die if they’re restrained on the floor in certain positions in certain ways.
So how can you stop someone going to the floor? Use a restrictive technique.
So, my question is this: If we knew that someone was at risk of dying from a particular restraint position, in a particular way, would the use of another intervention, maybe one, a restrictive one, that could possibly cause discomfort, harm or pain, be justified legally in preventing a death? Well that’s a no-brainer, isn’t it really?
Article 2(1) of The Human Rights Act 1998 – The Positive Obligation To Preserve Life
And in fact these organisations and government panels, who talk about not wanting to cause pain to children, they also should realise that they have to comply with article 2(1) of the Human Rights Act. And article 2(1) promotes the positive obligation to preserve life and what that means, to us in our world, when we’re talking about physical intervention, or restraint, or control, or whatever you want to call it, is that if we know that there is position that increases the risk of death, then we are absolutely obliged, by law, to do something to stop that position being used.
So here’s my question.
If we knew that someone could go to the floor and we could prevent that by using a restrictive technique, one that might cause discomfort, harm or pain, but save their life, we’re complying with the Human Rights Act. How is that illegal?
But my other question is this:
If you take away that option from staff and someone dies, who’s in the frame? The organisation that have banned the technique? Or the commissioning agency for taking their advice?
I’ll come on to that later.
A ‘Pain-Compliance’ Technique is Torture Under Article 3 of The Human Rights Act
Now, I mentioned article 2 of the Human Rights Act so let’s talk about Article 3, because I know someone will bring that up.
Article 3 is the prohibition of torture and inhumane and degrading treatment or punishment.
So, if we use a restrictive intervention, one that might cause discomfort, harm or pain, are we intentionally torturing someone? Are we actually using inhumane and degrading way of actually restraining someone?
Well, the answer to that is no, particularly not if it’s consistent with article 2(1) of the Human Rights Act and we were acting in the best interests of a service user or child.
It can’t be. I mean the threshold for proving a case against article 3 is extremely high.
You’ve got to do some serious, serious torturing and treat people in a very inhumane and degrading way for Article 3 to kick in.
But I hear it all the time. Someone will say, “Oh, if you use a technique that causes pain, it’s torture”. No, it’s not. If that’s the case then my bloody dentist is guilty of torture every time I see him, because he causes me a serious amount of pain.
Now if you’re watching or reading this and if you think I’m wrong, sue me. For Christ’ sake. Please, sue me. I’m happy with that one.
You know, but we get this stuff coming out from well-meaning but legally misguided people – and it’s dangerous, because they are not looking at the whole aspect in a holistic and sophisticated fashion.
The Common Law and The Criminal Law Will Also Be Relevant
Now, when Sir Herbert Laming (who is now Lord Laming), was at the time the commissioner for the Social Service Inspectorate, he was involved in a document to give guidance on what staff could and couldn’t do when trying to comply with the Children Act in relation to restraint.
And one of the comments made was that the primary piece of legislation that relates to children and the use of force with children is the Children Act 1989.
But that document went on to say that the common law position and the criminal law relating to the use of force will also be relevant. So you can’t just ban law. You can’t do it. The law exists for everyone.
An Example To Consider
Now, let me give you an example to illustrate what I mean.
Let’s say you have a large, fifteen-year-old boy who is powerful and probably fitter and stronger and has more energy than the staff looking after him.
So demographically we have service users, or patients, or children in school that are fitter and stronger than the persons who are looking after them.
How is a strong, fifteen-year-old boy, who may weigh, say, thirteen stone, going to be restrained by two members of staff, probably maybe in their thirties, forties, even older who are carrying injuries and who maybe not at their peak of fitness, effectively?
How is it going to happen if you ban restrictive interventions?
Now, what if we took away that option. Let’s say you can’t use wrist locks. You’ve got to use something less intrusive. So, why don’t we just hold the arms? Well, what if it doesn’t work and the restraint goes on for a prolonged period of time? That increases the risk of death because one of the factors involved in restraint position asphyxia cases is the restraint going on for a prolonged period of time.
2 – 12 Seconds
What well-meaning people who come up with these ideas forget to understand is the whole aspect of the science of psychology around how people react in use of force situations.
The average human being will become oxygen deficient within two to twelve seconds.
That means their body is using up oxygen greater than it can produce it, which means that they haven’t got long to do something, and in a heightened stress environment, if they’re running out of breath, their heart rate will go up and if their heart rate goes up, other things happen.
Their hearing will be affected. Their vision is affected. They, basically end up with a frontal lobe lobotomy and they work from the limbic system, which means they can’t think and act in the best interests of anyone because we’re not allowing them to do so.
So there’s yet another aspect that we need to think of.
‘Best Interest’ Criteria or ‘Self-Interest’ Criteria?
Okay, let’s look at this from the best interest criteria.
Now we know that, in law, under the Children Act and the United Nations Convention of the Rights of the Child, that we must, at all times, promote the ‘best interests of the child’ and that must be at the forefront of our mind in all dealings with children. That’s what the law says.
Okay? How, then, can you act in a child’s best interests, if you take away something that could work in the best interests of the child?
And I’ll tell you what else will happen here as well. If staff and organisations fear that they’re going to be disciplined, or sanctioned, or have warning notices put on them by inspectorates that may not know what they’re talking about, then you won’t have a ‘best interest’ criteria. You’ll have organisations and staff acting with a ‘self-interest’ criteria.
They’ll be acting just so that they do what these people want them to do, so they can tick a box to say, we no longer use any restrictive technique that might cause discomfort, harm or pain and that’s kept the inspectors happy.
Unfortunately, we’ve got staff getting battered and we’ve got children now at risk, who are getting more serious injuries. So, I think, you know, that this whole thing about best interests criteria needs to be looked at more holistically.
Otherwise, as I’ve said already, it becomes a ‘self-interest’ criteria.
The Safeguarding Perspective
Now let’s look at this from a safeguarding point of view. Well, we all know that we have a duty to actually protect vulnerable children and adults at risk.
Well, if we don’t give staff the ability, the tools, to do their job properly and we take something away from them that could be effective in certain situations, then we are creating adults at risk.
That’s a safeguarding issue for staff.
So we can come at that from a safeguarding angle too if you like, and if any of you safeguarding professionals want to comment on this, I’d welcome your comments, because if staff are given as a system or techniques that won’t work in extremely exceptional circumstances, then an organisation will be knowingly (wilfully) placing adults and children at risk.
Okay, let’s talk about wilfull neglect.
This is a new piece of legislation that’s come out and basically, organisations and individuals can be prosecuted, where they fail to care for someone that they’re supposed to look after if they ‘wilfully neglect’ them.
So let’s say that you, as an organisation, decide to take away techniques that, if they were used, would’ve prevented serious harm or death to someone and you make that decision.
That is a conscious decision and, as far as I’m concerned, you have wilfully neglected the care of people in your care, by taking a proactive decision to actually remove these techniques.
This new piece of legislation carries quite a heavy fine and, I believe, a prison sentence too.
Let’s look at corporate manslaughter. There’s another of legislation that you can be hit on the head with.
If someone dies in your care because of inappropriate or ineffective physical intervention techniques, especially where the use of those techniques could have prevented someone from dying, you can be charged with gross negligence manslaughter and the organisation can be charged with corporate manslaughter.
And it won’t be hard to prove, I don’t think, because someone will have had to make a decision, at board level, that they didn’t want those techniques used possibly because they just ‘didn’t like them’ or they wanted to keep an ‘inspector happy’.
Now if you’re the person making this decision, how are you going to evidence that in a court of law? What is your justification? Where is your, what they call now, cogent reasons for actually making your case?
I don’t think you’d have any legs to stand on, to be perfectly honest with you. I think you’re walking on very, very thin ice. You’ve got to be very, very careful.
It’s Him Again!
Now, I just want to put a disclaimer in here as well, because there’ll be someone out there going, oh, it’s him again. He’s talking about pain-compliance techniques. He loves pain-compliance techniques. He likes to bend people up and hurt them. No, I don’t. I don’t at all.
I’ve spent a lifetime, teaching this stuff to stop people being seriously hurt and killed, genuinely, and virtually everyone I train is the same.
In fact, we’ve even thrown people off courses who’ve made inappropriate comments because they’re not fit and proper people to be teaching this stuff.
So let’s just get this point right. I am not into hurting children or anyone. That’s not what I’m about. It’s not what my organisation is about.
We’re into protecting people and I’m into doing it properly.
And the reason I’m doing this video is because I’ll go to court with you. If we train you, I’ll go to court with you and I’ll say, “Yes, we taught that for these reasons”.
I can provide you with the cogent reasons as to why you need to use those techniques. We’ve got risk assessments, legal audits, everything that will go into these medical reviews to say why we do what we do.
Now if you’re an organisation that’s also doing good behavioural care planning and your restraint risk assessments, on an individual basis, as you should be now, then you will also have the evidence to know what you should be doing and what you shouldn’t be doing.
If You Don’t Need A Restrictive Intervention – Don’t Use Them!
And if you don’t need to use a restrictive intervention, one that might cause discomfort, harm or pain, don’t use it! There are other options out there but if we’re getting to serious restraint issues, we’re getting to high levels of violence, then a restrictive intervention that might cause discomfort, harm or pain, may have to be our only option in those extreme circumstances.
Now, should they be monitored? Absolutely. Should restraint be supervised? Absolutely. Should there be post-incident debriefing? Absolutely. So I think that’s a really, really important issue.
It Would Damage The Therapeutic Relationship
Now, here’s a cracker. This is one I hear all the time, normally from therapists.
They say we’re not into using physical intervention in any way, shape or form because it will damage the therapeutic relationship with our client or service user. Really? What a crock.
Well, I worked as a prison officer. I restrained lots and lots of people, including young offenders. Did it damage my relationship with them? No.
Maybe one or two didn’t like me but we soon re-built bridge because that’s what you do.
If you’re acting in someone’s best interests, you always go in and you do a post-incident debrief and you involve the person that’s being restrained.
That’s what we did and I know that goes on now.
So, you know, all this stuff about, we don’t do it because it damages the therapeutic relationship with the person we’re using it on, seriously think about your therapy, okay?
Because what you’re doing by making that ridiculous statement is you’re saying, you’re a good guy, because you don’t want to damage the therapeutic relationship with that person, therefore, by default, the staff must not be good people because they’re using restraint and therefore they cannot have a relationship with the person they’re restraining.
You know, you need to get this in your head. Some staff are working with those people all the time and you, as a therapist, may turn up once a week or whenever you turn up to do your one hour slot and you don’t want to damage that one-hour relationship.
I think you need to be very careful what you’re saying with that one because I would find that offensive.
Why Aren’t Managers Managing?
Now here’s another angle I want to come in on as well. I mean, you know, you’re looking to ban restrictive intervention because you feel that it could be used in an abusive way or that it is being used in an abusive way.
Okay. Now, that could happen and I’m not going to paint a ‘whiter than white’ picture here.
But what are management doing about it? Because any intervention must be managed. Staff should be debriefed (and I’ve said all this already).
So, if a manager doesn’t know that they shouldn’t be doing that, then that member of staff needs to be spoken to. They need to be interviewed. They need to be debriefed. We need to find out why. You don’t just let a system run. It has to be managed.
So the training is only one part of the whole. You’ve got a policy, procedure. You’ve got debrief and supervision. All those things must come together.
So, if you are saying that you need to remove techniques that might cause discomfort, harm or pain because they’re being used badly, then I think you need to look at the way management is managing and staff are being supervised, which is a health and safety issue.
Please Tell Me What You Intend To Replace It With
Okay, let me humour you for a minute.
Let’s say we all agree that we should ban any restrictive intervention that might cause discomfort, harm or pain.
Please, tell me what you’re going to replace it with. What’s the alternative?
Considering the demographic make-up of staff and service users, the difference in variation in age and sex and size and injuries and capabilities or lack of, what are you going to replace it with?
If you can answer that question and it will work as a skill, (and by the way understand the definition of skill before you answer that question), if you can do that, great, we have a solution.
If you can’t, then why are you banging on about removing something that works.
You’re disabling staff and you’re placing people, staff and service users, vulnerable service users, at extreme risk, which is why I’m going to say again, this is all really well-meaning, absolutely well-meaning, but there’s no substance to it and it’s not been thought through in a sophisticated and holistic way.
Correspondence From Ofsted
Right, I just want to share this with you. This is some correspondence that I have from Ofsted in relation to questions I asked them. And here’s the first question.
I asked, what specific training do Ofsted inspectors receive, in relation to the use of force, physical restraint, as part of Ofsted statuary requirement to ensure that Ofsted inspectors are both qualified and competent in being able to assess any use of force, or restraint training, or activity within the organisations and the schools that its inspectors inspect to a professionally competent standard?
Answer: We do not train our inspectors in restraint techniques and it is not for our inspectors to assess the training that a provider chooses to commission. There you go. They don’t train them. And it’s down to you as a provider to ensure that you choose the right training.
Now, I know that some local education authorities believe that you can only use a particular training provider because they are in some way government endorsed, or preferred, or whatever.
Okay, I wrote to the secretary of state for education and the response I got from the secretary of state’s office was that it is the responsibility and accountability of the head teacher of every school to decide what training is fit and proper for their particular school. The government do not endorse anything and will not endorse anything.
Now, to give you another idea, I wrote to Ofsted again on a separate issue.
This was to do with the locking of a door but the point of this bit of correspondence is to ask Ofsted if they would take responsibility and accountability for any advice and guidance they gave because at the time they were saying you couldn’t lock a door.
So this is the question I sent to Ofsted:
“Is Ofsted willing to accept full responsibility and accountability under a non-delegable duty of care to any harm that may come to a child that could have been prevented by the temporary locking of a door”.
And the answer, from Ofsted is as follows:
“The legal position is clear that it is the responsibility of the provider of a children’s home to operate within the regulatory regime. Ofsted will accept no such responsibility and accountability, which may be alleged to stem from the carrying out of its statuary duties of regulating children’s homes, which involves ensuring that breaches of the relevant regulations are identified and drawn to the attention of the provider”.
Okay, now, I’m not a rocket scientist and I’m not an academic but if you, Ofsted, are not training people in the competencies and the qualifications that they need to have to actually be able to go in to understand why a particular restraint technique was used from a range of competent reasons, why then are they going in and saying that you can’t do stuff?
Most organisations now have more qualified staff in that area than Ofsted does. And I’m using Ofsted as an example because I have the correspondence from there but last week, or the week before, sorry, I was with an ex CQC inspector and I asked the same question. I said, “What training did you get when you joined CQC, in relation to understanding the use of force and restraint, physical intervention and positional asphyxiation?”
Their response was: “None. None whatsoever. We’re just told to go out and interpret the standards”. But he said, some people may have done training courses but then again they’d have a bias towards a particular system because that’s where they’ve come from but there is no overall training.
Now, if you are giving advice, guides and information, or you’re going to enforce or endorse something, then you must have the qualifications and competencies to do something.
Otherwise, you’re breaking the law. Read article 13 of the European Convention of Human Rights. There’s been cases where advice has been given, and action has been taken on that advice that was wrong and then people have been compensated as a result.
So, I just wanted to make that point very, very clear, because, with regards to this whole issue of banning certain techniques or making them illegal or unlawful, I don’t think you’re coming at this from a holistic perspective at all.
Right, so there you go. I’ve said my piece. There’s probably a lot more I could say but I’m not going to at the moment but I’ve said my piece on this.
I think that the direction these people want to take is well-meaning but I think it’s hugely misguided.
Probably they’re either getting the wrong advice or they’re not competent in this area to understand where they’re coming from and I think if you ban certain techniques or try and ban them … and, in fact, I don’t think you will ban them.
I don’t think they can be banned, not legally, anyway.
They might be banned in a guidance document but the law can’t ban them. I think if you allow an outright ban on these techniques then you’re taking a dangerous step.
You’re leaving people at risk, including the vulnerable children that you’re supposed to be protecting because, if staff do not have the capabilities, skills, the tools to do the job, then they can’t be expected to actually look after those people properly and it places staff at risk too.
Now, I set a challenge at the beginning of this video. If you think I’m wrong, sue me. I’m happy and I will gladly go to any court and answer any questions on this.
So if you think that any of the advice I give in this video about the use of restrictive techniques or the old name, pain-compliance techniques, is wrong, illegal in any way, shape or form, please, sue me.
Take me to court. Ofsted, CQC, you know, there’s an open invitation for you. I’m willing to stand to the line on this one.
Thanks ever so much for listening or reading this blog.
Speak to you soon.
To find out more about our next BTEC Level 3 Physical Restraint Instructor Award Course go to this web-page: https://www.nfps.info/physical-intervention-trainer-course