RESPONSE BY THE CHILDREN’S LAW CENTRE TO “GUIDANCE ON RESTRAINT AND SECLUSION IN HEALTH & PERSONAL SOCIAL SERVICES”


INTRODUCTION


The Children’s Law Centre was established in 1997. It is an independent non-governmental organisation, which helps children and young people, parents, carers and professionals work with and understand the law relating to children. The Centre is founded upon the principles laid down in the United Nations Convention on the Rights of the Child, in particular:

• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interest.
• Children have the right o have their voices heard in all matters concerning them.

The Children’s Law Centre’s Mission Statement is:

‘The Children’s Law Centre, using the law to promote, protect and realise children’s rights’.

The Children’s Law Centre is committed in working to:

1) Compliment existing services provided by the voluntary, community , statutory and legal sectors,
2) Work in partnership with children and other agencies committed to realising children’s rights;
3) Provide a comprehensive and accessible advice service on children’s rights and law as it relates to children and young people;
4) Involve young people in helping direct the work of the Centre through Youth@ clc;
5) Coordinate research and monitor the implementation of the United Nations Convention on the Rights of the Child;
6) Provide education and training programmes to all stakeholders to increase understanding of children’s rights legislation.

RESPONSE TO THE GUIDANCE ON RESTRAINT AND SECLUSION IN HEALTH AND PERSONAL SOCIAL SERVICES

The Children’s Law Centre was represented on the Human Rights Working Group on Restraint and Seclusion, which was chaired by Mrs Marion Reynolds of the Social Services Inspectorate, by Tara Caul who convened a small sub group which considered the legislative and policy context of the use of restraint and seclusion in relation to children and young people. The membership of this sub group is outlined in the consultation document.

The Children’s Law Centre welcomes the development of guidance in this area and commends the steps taken by the DHSS PS to address the complex human rights issues which arise. We do however have a number of concerns which remain and it is for this reason that we wish to take the opportunity to respond formally to the draft guidance which has now been issued for consultation (“the guidance”).

The United Nations Convention on the Rights of the Child (the UNCRC)

The UNCRC is an international treaty on children’s rights, which all countries in the world have signed with the exception of U.S.A and Somalia. The key relevant provisions of the UNCRC are set out in the draft guidance and are repeated below for ease of reference:

Article 2

State parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parents or legal guardian’s race, colour, sex, language, religion, political or other opinion, national ethnic or social origin, property, disability, birth or other status.

State Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians or family members.



Article 3

1 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.

2 State parties undertake to ensure the child such protection and care as is necessary for his or her well being, taking into account the rights and duties of his/her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end shall take all appropriate legislative and administrative measures.

3 State parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff as well as competent supervision.

Article 12

State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

Article 19

State parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has the care of the child.

Article 25

State parties recognise the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.

Article 37

State parties shall ensure that:

a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner, which take account of the needs of a person of his/her age. In particular every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances
d) Every child deprived of his/her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Article 39

State parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of; any form of neglect, exploitation, or abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self respect and dignity of the child.


The United Nations Committee on the Rights of the Child

The implementation of the UNCRC is monitored by the United Nations Committee on the Rights of the Child. In the “Concluding Observations of the United Nations Committee on the Rights of the Child, United Kingdom of Great Britain & Northern Ireland”, October 2002 , the Committee expressed concern about figures indicating that children had sustained injuries as a result of restraints and control in prison. In addition the Committee expressed concern about the frequent use of physical restraint in residential institutions and in custody as well as the placement of children in solitary confinement in prisons.
The Committee recommended the review of the use of restraint and solitary confinement in relation to children and young people in custody, education, health and welfare institutions to ensure compliance with the UNCRC in particular articles 25 and 37 UNCRC (which are set out above).

The Committee also expressed concern that the principle of primary consideration of the best interests of the child is not consistently reflected in legislation and policies affecting children and recommended that the principle of the best interests of the child as a paramount consideration should be enshrined in all legislation and policy affecting children.

The National Children’s Bureau has very recently published a report entitled “Report on the Use of Physical Intervention Across Children’s Services”. A copy of this report is attached in full at Annex A to this submission. The report concludes as follows;

“It is clear that there is a huge disparity in policy and practice across services in the use of restraint on children. There are basic principles which are common to all: physical restraint as a last resort; the use of minimum force and for the shortest duration possible and that restraint must not be used as a punishment. Otherwise, there is little commonality. These differences stem not only from the legal and policy framework but from professional values and institutional culture.”

“Given these dangers, it can be argued that there is a need to impose a single model of best practice across (children’s) services “

Recommendations:

1. In order to comply with the recommendations of the United Nations Committee on the Rights of the Child, there should be a comprehensive independent review conducted about the extent of the use of restraint and seclusion in respect of children in Northern Ireland.

This review should focus on the rights of children as enshrined in the UNCRC and ECHR, the legislative and policy framework for the use of restraint and seclusion across all children’s services including health, care, secure care, education, mental health and youth justice settings, the extent of the use of restraint and seclusion, the threshold criteria for its use, methods of restraint and seclusion, the evidential basis about what works when dealing with challenging behaviour in children and young people, training used (including accreditation of training), monitoring and reporting ( including assessing and recording the wishes and feelings of the child concerned and the child’s access to independent advice and information).

2. There are specific rights which are protected under the UNCRC which should underpin any policy in relation to the use of restraint and seclusion in respect of children and young people. As reflected upon in the NCB report, there have been few studies of the safety and effectiveness of different restraint techniques, particularly in respect of children. For this reason and in light of the particular needs of children and young people given their age and vulnerability, it is our view that there should be a distinct policy operated by Trusts/ Boards in relation to the use of restraint and seclusion in respect of children and young people.

The European Convention on Human Rights as incorporated by the Human Rights Act 1998 (the ECHR)

The Human Rights Act 1998 came into force in October 2000 and incorporated most of the rights enshrined in the European Convention on Human Rights into our domestic law.

All public authorities are obliged in accordance with the rights sets out in the European Convention and our courts must take Convention rights into account when deciding cases. These rights apply to children as well as adults. In the context of the use of restraint and seclusion the following articles of the ECHR should be taken into consideration:

Article 3 ECHR

No one shall be subjected to torture or inhuman and degrading treatment or punishment.

Article 5 ECHR

Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a) the lawful detention of a person after conviction by a competent court.
b) the lawful arrest or detention of a person for non compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law.
c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority.
d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of educational supervision or his lawful detention for the purposes of bringing him before the competent legal authority.
e) The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.
f) The lawful arrest or detention of a person to prevent his affecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.


Article 8 ECHR

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The paper attached at Annex B outlines key articles of the ECHR and case law which are relevant to the use of restraint and seclusion.

3. Recommendation; Paragraph 4.55 of the guidance should include a requirement on employers to ensure that staff working with children and young people receive training on children’s rights under the UNCRC in addition to the ECHR as incorporated by the Human Rights Act 1998 and the associated case law.

Legislative Framework

The guidance provides an outline of the international children’s rights and domestic legislative framework with respect to the use of restraint and seclusion in relation to “service users” including children and young people. (We have attached a detailed outline of the legislative framework in respect of children and young people at Annex B to this submission).

In relation to paragraph 4.37 of the legislative context section, we would draw your attention to the guidelines issued by the National Foster Care Association on the Care & Control of Children and Young People in Foster Homes (a copy of which is attached at Annex C to this submission) and would suggest that these guidelines are referenced at the end of paragraph 4.40.

It is a matter of concern to us that primary legislation in Northern Ireland makes little explicit reference to the use of restraint and seclusion, with the issue being dealt with in most areas by Guidance and Regulation.

There is no uniformity of approach across different sectors and no standard threshold indicating when such measures can legally be used. The exception to this is the education sector where the use of restraint in schools by authorized persons is regulated by primary legislation and by detailed guidance.


Restraint and seclusion in relation to the care of children and young people should only be used in exceptional circumstances and it must be ensured that all techniques used are approved, safe and in compliance with international children’s rights standards and that those using these techniques are authorised and properly trained.


Recommendations:

4. The government should seek to regulate the use of restraint and seclusion in respect of children by legislation and regulations. The regulations should stipulate that these techniques should only be used as a matter of last resort, for the shortest period of time possible and that methods should be formally approved and accredited by the DHSS PS. The Regulations should also stipulate requirements for those using restraint techniques to be properly trained. Any legislative amendment should incorporate the best interests of the child as the primary consideration.

5. The Strategy for Children and Young People being finalised by the Office of the First Minister and Deputy First Minister needs to explicitly recognise and address the importance of developing coherent and comprehensive guidance which will apply to all children, whether in an educational, care , home or justice setting which protects their rights.

Training/ Accreditation

We have noted in section 3.2 of the guidance that good practice in the use of restraint and seclusion described in the guidance will be monitored as part of HSS Trusts compliance with the Duty of Quality requirements established by the HPSS Order 2003. The guidance states that the establishment of the HPSS Regulatory and Improvement Authority, which is scheduled to become operational in 2005, will also ensure that standards of practice and levels of compliance in these areas will be regulated on an independent basis across the statutory and independent sectors. The draft policy attached at Annex D of the draft guidance states at para 4.5.1 that “training courses should be available, if possible before service commences, or as soon as possible thereafter”.

6. Recommendation; It is our view that the guidance should state clearly that all employees working with children and young people must have training before they use restraint techniques and each policy should clearly set out the training which will be made available. The DHSS PS should be responsible for monitoring and accrediting this training to ensure that techniques used are safe, non punitive and respectful of children’s rights. Only accredited training should be used.

Forms of Restraint and Seclusion used in Respect of Children & Young People

The guidance does not indicate any forms of restraint or seclusion which should not be used in respect of children and young people. For example, Volume 4 of the Children (NI) Order 1995 sets out clearly measures which are prohibited under The Children’s Homes Regulations 1996.

Also many policies which we have considered throughout our research in relation to this matter relating to the use of restraint in schools specifically prohibit certain types of physical force e.g. interfering with breathing, blood supply or genital areas, holding the head, throat or fingers, holding wrists at the joints, face down holds, slapping, kicking punching or using any implement, holding or pulling by the hair. In addition some guidance prohibits the use of physical restraint in respect of children and young people who have certain medical conditions e.g. brittle bone syndrome, epilepsy, asthma, Downs Syndrome.

Many of these policies annex suggested forms of non physical crises intervention techniques and suggested forms of restraint.

Different methods and techniques of restraint and seclusion appear to be used in respect of children and young people depending upon the setting which they are in e.g. Physical Control in Care (PCC), TCI or C&R (Control and Restraint).

The physical intervention monitoring form attached to the draft policy on restraint which is the subject of this consultation at Annex E to the guidance asks for an indication of the point of contact e.g. “wrist grab” and also asks for details of the service users’ position during restraint e.g.” lying on a bed – face down”. We are not of the opinion that this form would be suitable for use in cases involving children.

7. Recommendation; It is our view that guidance issued by the DHSS PS should indicate clearly what forms of restraint and seclusion are suitable for use with children and young people and what forms are entirely prohibited. The guidance also needs to be clearer about the forms of restraint which can be used in relation to children and young people with certain medical conditions and children and young people with a disability and/or special educational needs.

Participation of Children and Young People

Paragraph 5.9 of the draft guidance should refer to the wishes and feelings of children and young people specifically and paragraph 5.16 should have a sentence requiring the views of children and young people (as service users) to be recorded as part of the protocol arrangements. The statement of principles at paragraph 5.19 should include a principle stating that children and young people will be informed about the restraint and seclusion methods which are likely to be used as part of their care plan. In relation to complaints, an additional sentence should be inserted stating that a complaints procedure in a child friendly format will be provided to all children and young people who have been subject to restraint or seclusion.

Equality Impact Assessment

The Equality Impact Assessment Screening attached at Annex H of the draft guidance recognises that it is possible that these proposals could differentially impact on persons of different age and persons with or without a disability but that there is currently no quantifiable evidence available on the groups subject to restraint and seclusion procedures in HPSS. We are concerned to note that the DHSS PS do not currently hold central statistics about the use and methods of restraint and seclusion used in respect of children and young people in Northern Ireland.

8. Recommendation; we recommend that an equality impact assessment should be conducted in respect of these proposals. This should include a review of the use of restraint and seclusion in respect of children and young people as recommended by the United Nations Committee on the Rights of the Child.




Tara Caul, Head of Legal Unit, Children’s Law Centre August 2004