Reducing restrictive practices in childcare, education ...



Consultation ResponseReducing restrictive practices in childcare, education, health and social care settings in WalesConsultation detailsTitle of consultation: Guidance on reducing restrictive practices in childcare, education, health and social care settingsSource of consultation: Welsh GovernmentDate: 31 December 2019For more information please contactRuth CoombsEquality and Human Rights CommissionBlock 1, Spur DGovernment Buildings, St Agnes Rd, Gabalfa, Cardiff CF14 4YJ02920 447710 (we welcome phone calls in Welsh)ruth.coombs@Contents TOC \o "1-1" \h \z \t "Heading 2,2" Introduction PAGEREF _Toc29283100 \h 3Summary of recommendations PAGEREF _Toc29283101 \h 5Our response PAGEREF _Toc29283102 \h 6IntroductionThe Equality and Human Rights Commission is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. Protecting the rights of people in institutions including education, health and care settings is a priority aim in our strategic plan. We are committed to working to reduce the use of restraint and eliminate unlawful treatment. We seek to promote better compliance with human rights standards in relation to restraint and we developed our human rights framework for restraint to support this work. There are persistent concerns about the use of restraint in a range of sectors in Wales, including health and social care. For example, according to the charity Mind, there were 382 incidences of face-down restraint in mental health services in Wales in 2014 to 2015. A Health Inspectorate Wales report identified concerns about seclusion in mental health services, as well as deficits in training related to control and restraint. During inspections, they noted excessive use of restraint in child and adolescent mental health services, and expressed concern about both the number of incidents and their length. There is widespread anecdotal evidence about excessive use of restraint in education, including the use of segregation. This particularly affects disabled children. In response to a freedom of information request, local authorities in Wales reported 2,182 restraints on children in special schools and 214 injuries between 2014 and 2017. Only 11 of 22 local authorities were able to provide information about their use of restraint, suggesting the real incidence may be much higher.The UK undergoes periodic examinations by UN committees to assess compliance with the human rights treaties it has ratified. The UN Committees for the Convention Against Torture, the Convention on the Elimination of Racial Discrimination, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities have all highlighted serious concerns about the use of restraint. In this context we welcome the Welsh Government’s proposed guidance to reduce the use of restraint across settings. We welcome in particular the adoption of our human rights framework and efforts to translate this into practice. We would also like to note the availability of alternative formats of the consultation documents. Our comments relate to all of the settings that are being consulted on: childcare, education, health and social care. Throughout our response, where we use the term ‘service providers’ we refer to all these settings.Summary of recommendationsWe recommend that the Welsh Government: Takes action to ensure the framework leads to real improvements in practice by: developing an implementation plan, establishing a clear role for regulators, and promoting the guidance among service providers. We recommend that the effectiveness of the framework is kept under review and that additional steps are taken if it is not adopted sufficiently by providers. This could include giving the guidance or aspects of the guidance statutory force, or developing further guidance to support improvements in specific sectors. Clearly sets out the need for service providers to collect and monitor data on the use of restraint, including on people with different protected characteristics. This data can be used to understand and tackle the disproportionate use of restraint on particular groups and to assess and ensure compliance with the public sector equality duty. Ensures that the guidance is fully comprehensive by adding further information as highlighted in our response, including advice about the particular considerations relevant to children and the use of restraint, the legal basis for restraint, the risks of face-down restraint, and the need for effective complaints procedures. Our responseQ1. Are the aims and purpose of the framework, as set out in the introduction, clear and easy to understand?In our analysis the framework has clear goals and some strong messages about reducing restraint. To ensure the framework has impact we recommend you develop an implementation plan setting out what success would look like. This should include steps to be taken by inspectors and regulators to assess compliance with the framework. We also recommend you take steps to promote the framework among providers to ensure they are aware of it and use it in the development of their policies, procedures and training. It will be important to monitor the effectiveness of the guidance and take further action if it does not result in improvements, including as identified by regulators. This could include putting the guidance or aspects of it on a statutory footing, or developing or updating further sector-specific guidance.There are a number of references to the need for providers to have restraint policies throughout the guidance, including policies on the use of restrictive practices, seclusion, face-down restraint, a policy to help employees understand their duties under human rights and other legal frameworks, and a restraint reduction strategy. We recommend that the guidance is clear about the expectations on providers and emphasises the need to ensure policies are clear and accessible. Policies should be available in one place and in alternative formats as required. Q2. Does chapter 1 set out information on a human rights framework for the reduction of restrictive practices in a way that is clear and useful?We note the guidance explains that the use of restraint must comply with the European Convention on Human Rights. We also note the references to the United Nations Convention on the Rights of the Child, the United Nations Principles for Older Persons and the United Nations Convention on the Rights of Persons with Disabilities. We recommend the guidance is strengthened with references to specific human rights protections to ensure it effectively supports providers to develop a human rights-compliant approach. Our restraint framework sets out the key principles of the European Convention on Human Rights that govern the use of restraint across all settings: article 3 which prohibits inhuman and degrading treatment, article 8 which protects the right to family life, and article 14 which provides for these rights to be enjoyed without discrimination. We also highlight the relevant UN human rights treaties: the Convention Against Torture; the Convention on the Rights of Persons with Disabilities; the Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights; and the Convention on the Elimination of Discrimination against Women.We welcome that you have used our definition of restraint, and make clear that restraint includes a range of acts including the use of seclusion and segregation. In addition to emphasising that the use of restraint must be lawful, we recommend you also underline that a legal framework governing the use of restraint is required for each sector or setting. This must include a legal power authorising the use of restraint (a) in the individual’s circumstances and (b) for the intended purpose of the restraint. The legal power to restrain may be contained in primary or secondary legislation, or in common law. Our human rights framework includes further information about this matter, which you could draw from. We note your important advice that restraint should only be used when necessary and must be proportionate, using the least restrictive option. We recommend you expand this section to emphasise that restraint should only be used where there is a real possibility of injury or harm to the individual or others. You could illustrate this point with case studies for different sectors to make it clear for providers. The guidance appropriately explains that restraint should never be used to humiliate, degrade or punish, and we recommend this section is expanded to illustrate what this means in practice and to emphasise the requirements of article 3 of the European Convention on Human Rights, which prohibits inhuman and degrading treatment. We recommend that you add further information explaining why restraint is damaging to those who experience it, as well as those who implement and witness it. It may be useful to highlight that restraint indicates a breakdown of relationships and undermines trust and care.We recommend you add further information about the adverse impacts of restraint on children. As we advise in our human rights framework, children are developing physically and psychologically which makes them particularly vulnerable to harm. The potentially serious impact of restraint on children will therefore require weighty justification. You may also find it useful to underline that Welsh Ministers must have due regard to the requirements of the UN Convention on the Rights of the Child when exercising their functions.Q3. Does chapter 2 provide information about positive behaviour support in a clear and useful way? Positive behaviour support is a critical first step for service providers to take in reducing restrictive practices. This is particularly important in ensuring that disabled people with certain impairments are not unnecessarily and disproportionately subject to restraint. We would encourage you to make two clarifications in this chapter: to clarify which groups should be involved in the co-production of guidelines on positive behaviour support and to replace the references to ‘implementation fidelity’ with plain language. Q4. Does chapter 3 explain the principles for practice to support the reduction of restrictive practices in a clear and useful way? We welcome the focus of this chapter on leadership and restraint reduction strategies. It is crucial that service providers take all possible steps to prevent the use of restraint. We are pleased to see the acknowledgement that recording and data collection is an essential component in reducing restrictive practices. While we welcome the reference to monitoring equality issues, we recommend a stronger emphasis on the importance of data collection to understand and address disproportionality. We therefore recommend that you provide further guidance about gathering restraint data on people with different protected characteristics, setting out how data should be analysed, published and used to reduce disproportionality. In developing this you may find it useful to refer to recent legislation governing the use of force in mental health units in England (section 6 of ‘Seni’s law’), which sets out a range of data to be collected about restraint. This includes, for example, the protected characteristics of a patient and whether they have a learning disability or an autistic spectrum disorder. We note that the draft guidance does not include an example of the minimum requirements for recording information on restraint, but recommend that when this is produced it includes examples of equality information. We also recommend that the guidance include evidence about the use of restraint on different groups in relevant sectors to ensure providers are aware of existing disproportionalities - for example in relation to disabled people, people from ethnic minority groups, women and girls, and boys and men. We urge you to provide advice about the need for greater consistency in the collection of data on restraint. Without this it is not possible to make comparisons between institutions or sectors, or at the regional and national levels. Under the public sector equality duty, public authorities including listed authorities in Wales must collect and publish a range of equality information. However, there are currently significant gaps and inconsistencies in the way restraint is recorded. For example, the Committee on the Rights of the Child has expressed concern about the lack of data on restraint in schools. The Committee has recommended that disaggregated data on the use of restraint on children is systematically and regularly collected and published. In light of this, we recommend that you are explicit about the need for service providers to collect and publish restraint data, including to identify and address any disproportionate use on those who share protected characteristics. The development and use of common terms for different types of restraint is also important. Research from Scotland highlighted significant variations in the number of incidents reported in mainstream schools but it was difficult to establish whether this was due to differences in the number of incidences or different recording rates and methods. The research identified a diverse range of terms used for restraint by local authorities, and where common terms were in use they often had different definitions.We welcome the inclusion of information on workforce development and note your observation that staff often receive training on using restraint rather than on prevention. We welcome your advice that training should be developed with people with lived experience and cover the trauma experienced by those who use and experience restraint. This includes those who witness restraint. We recommend that you refer to recent training standards published by the Restraint Reduction Network, which provide a national and international benchmark for training in education, health and social care settings.We note your reference to involving children, adults, families and those with lived experience in policy development and service design. We recommend you clarify that this includes disabled people. Article 4(3) of the UN Convention on the Rights of Persons with Disabilities requires that disabled people, including disabled children, should be closely and actively consulted on relevant issues. Engagement with relevant groups may also be important in establishing the potential impact of a policy on people with certain protected characteristics, as part of the requirements of the public sector equality duty. We note that you refer to the need for children and families to be able to access information to support them to understand their rights in relation to restraint. This is important for all individuals who may be subject to restraint, and we recommend you expand the guidance as such. Information on individuals’ rights must be accessible. We note the specific reference to providing information about making complaints, and recommend this section is expanded to provide guidance about the importance of complaints procedures and the steps service providers should take. Such procedures should be accessible and regularly reviewed, and information arising from complaints should be analysed and used to improve future practice. Q5. Does chapter 3 explain the principles of the use of restrictive practices in a clear and useful way? We note your recognition that policy and practice should focus on reducing restrictive practices but, where used, restraint must be lawful and comply with human rights standards. We recommend that you refer service providers to our restraint framework, which sets out the key human rights principles relevant to the use of restraint and can be used to help evaluate the compliance of policies and practice. We recommend that you include in this section specific guidance about seclusion in schools. There are growing concerns about the scale of its use and its impact on children. For example, the Department for Education in England carried out research with a sample of mainstream schools which found some primary schools and over half of secondary schools used isolation rooms. Some schools had a focus on punishment and called them ‘sanction rooms’, while some sought to keep pupils away from others, and some viewed them as supportive environments. You may consider that supplementary guidance would be beneficial on this issue, which could be developed with Welsh local government, schools and teaching bodies. We welcome the guidance that pain-inducing techniques must never be used. We recommend that you emphasise the special considerations for children in this respect under domestic and international human rights law. This includes the UN Convention on the Rights of the Child, which prohibits the use of pain-inflicting techniques on children as a means of control. We note your advice about the risks of face-down restraint. We are concerned about the use of this technique and recommend you emphasise the inherent dangers. The Joint Committee on Human Rights recently reported that face-down restraint is used too often on children and young people in detention. The Committee stated that face-down restraint is distressing and potentially dangerous, and its use on children as anything but a last resort is not compliant with human rights standards. We recommend that you include further information about the risks of face-down restraint within the guidance.Q6 Is the information in the glossary and appendix useful?The information set out in the glossary is helpful and we particularly welcome the explanations of the different types of restraint. We note the inclusion of information about the public sector equality duty in the appendix, including the general and specific duties and the duty to make reasonable adjustments. We recommend this information is moved to the main body of the framework to make sure providers are aware of their responsibilities, and that you refer providers to our guidance on the public sector equality duty for further detailed information. Similarly, we recommend you move information about reasonable adjustments to the main body of the framework and refer providers to our guidance on this issue. ................
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