Physical Intervention Working Group - Guidance sub group minutes: July 2021

Attendees and apologies

The following organisations were represented at the meeting:

• Scottish Government (Chair & secretariat)
• Education Scotland
• Positive and Active Behaviour Support Scotland
• Children and Young People’s Commissioner Scotland
• The Educational Institute of Scotland
• British Institute for Learning Disabilities
• Association of Headteachers and Deputies in Scotland
• Angus Council
• First-tier Tribunal for Scotland
• UNISON
• NASUWT

Items and actions

Welcome, introductions, apologies

The Chair welcomed everyone to the meeting. Apologies were noted from the following organisations:

• CALM Training
• Association of Principal Education Psychologists
• East Lothian Council
• Fife Council
• South Lanarkshire Council

Note of previous meeting (28 January)

The following amendments were requested:

• 4.2 (Seclusion), third bullet point: add reference to union representatives and consider moving to the wider comments section as it does not specifically relate to seclusion
• 4.2 (wider comments), sixth bullet point: resources reference is ambiguous. Consider change to ‘differentiated’ resources or remove

The Scottish Government will consider these changes. All to consider further comments and amendments by Friday 23 July.

Enable Scotland engagement sessions feedback report

The group discussed the draft feedback report from the Enable Scotland engagement sessions, which took place in January 2021. The sessions involved Enable Scotland’s young people, young adults and family connect networks which represent children, young people and young adults with learning disabilities. These networks had previously been involved in Enable Scotland’s In Safe Hands campaign on the use of restraint in schools.

The following comments were made:

• more information on the number of participants in each session, their geographic spread and whether feedback represents experiences in mainstream or specialist education provision could be added to contextualise the feedback
• the aims of the guidance should be added to the introduction of the report
• common themes of positive relationships, trust and transparency were noted
• the successful approaches highlighted in the report could be used to construct positive case studies in the guidance
• the feedback highlights the value in seeking the input of young people in the development of the guidance
• consideration should be given to opportunities to engage primary school age children in the development of the guidance during the public consultation
• the family connect session represented feedback from some families of primary school age children who would otherwise have been unable to engage in the session due to their complex communication needs

Action: the Scottish Government will consider the group’s comments, liaise with Enable Scotland to update the introductory section of the report and reflect its feedback in the draft guidance.

Action: all group members will consider the report and feedback any further comments by Friday 23 July.

Taking a ‘gold standard’ rights-based approach

The Scottish Government updated members on actions arising for the sub group from the physical intervention working group meeting in May 2021. These are:

• take account of the UNCRC (Incorporation) (Scotland) Bill and reflect its ‘gold standard’ approach to children’s rights in the development of the guidance
• ensure the voices of children and young people are listened to, heard and ring through the guidance in order that their rights in relation to restraint are clear
• take account of recent developments and reports that are relevant to the working group’s aims
• consider impact assessments in light of the UNCRC incorporation bill

Actions relating to the input of children and young people have been recorded under item 3.

UNCRC Incorporation (Scotland) Bill

To reflect and plan for the provisions of the UNCRC Incorporation Bill when developing the guidance, the sub group has been asked to consider the following articles in particular:

• article 1 (definition of the child)
• article 3 (best interests of the child)
• article 12 (respect for the views of the child)
• article 19 (protection from violence, abuse and neglect)
• article 37 (inhumane treatment and detention)

Consideration of these articles has been included in the draft Children’s Rights and Wellbeing impact assessment. A note of the group’s discussion is recorded under item 4.3.

Review of policy developments

The guidance sub group has also been asked to consider, within a Scottish context, the findings of the following reports and relevant to the development of the guidance. These are:

• The UN Global Study on Children Deprived of Liberty (2019)
• The Equalities and Human Rights Commission’s (EHRC) Human Rights Framework for Restraint (2019), which has been considered by the definitions sub group and their recently published inquiry into the recording and monitoring of restraint in schools (England and Wales)
• the impact of the COVID-19 pandemic on children and young people’s rights and their additional support needs. The CYPCS commissioned an Independent Children’s Rights Impact Assessment on the Response to Covid-19 in Scotland

The Scottish Government also highlighted that work is underway to deliver the Additional Support for Learning Review Action Plan (October 2020), the Independent Care Review (The Promise) Plan 21-24 and prepare updated Child Protection and GIRFEC guidance. The Scottish Government is working to align the physical intervention guidance with these wider pieces of work.

Impact assessments

In line with the Scottish Government’s policy development process, draft children’s rights and wellbeing (CRWIA) and equality impact assessments (EQIA) have been prepared for the guidance. These can be used to capture the relevant rights-based implications of the UNCRC Incorporation (Scotland) Bill, the Human Rights Act (1998), the Equality Act (2010) and any other relevant legislation on the practice outlined in the guidance. The impact assessments can also record relevant findings from the review of the policy developments outlined in item 4.2.

The group discussed the draft impact assessments. The following comments were made:

EQIA

• the Reducing Restrictive Intervention of Children and Young People research report, highlighted in the evidence gathered section, involved 720 families across the UK and Republic of Ireland. PABSS members confirmed that 475 of these were based in Scotland
• consideration should be given to the accessibility of language in the impact assessments
• the inclusion of the use of findings from the 2016 Behaviour in Scottish Schools Research will be considered further by the Scottish Government. It was noted that this information was gathered in response to the 2016 questionnaire, which asked teachers and headteachers about the range of approaches used in schools to support and respond to behaviour, including 'disruptive behaviour’ of pupils. The group noted that this term has been replaced with ‘distressed behaviour’ to avoid judgemental language

CRWIA

• consider whether the reference to consent in the impacts of UNCRC article 16 (right to privacy) is relevant
• the draft CRWIA has a clear focus on the impacts of the guidance on children and young people
• the inclusion of UNCRC article 16 (right to privacy) is welcome and references to UK General Data Protection Regulation, data protection rights and child protection legislation should be added.
• while the focus of the impact assessment is on the implications of practice in Scotland, it is important that it reflects international human rights relevant to practice. In particular articles 3 (Freedom from torture and inhuman or degrading treatment) and 5 (Right to liberty and security) of the Human Rights Act (1998)
• the impact of UNCRC article 37 (inhumane treatment and detention) will be expanded in relation to seclusion

Action: all group members will review the draft EQIA and CRWIA for their interests and feedback comments and suggested additions to the Scottish Government by 23 July.

Implications for guidance

The Scottish Government will consider group members comments on the impact assessments and policy developments noted above and will continue to reflect these in the drafting of the guidance.

Guidance drafting update

The Scottish Government updated the group on progress with the draft guidance. Extensive comments were received on the draft shared in January, which have been used to develop the restraint chapter and the reporting chapter. A full draft will be shared with group members as soon as the drafting of these chapters is complete.

Draft physical intervention definitions

The group discussed the list of draft definitions for types of physical intervention. These reflect the group’s discussion at the January meeting and terminology shared with the Scottish Government in June. The following comments were made:

• further clarity on the term and definition of ‘blanket restrictions’ is needed. The purpose for including this term in the guidance is to help schools reflect on existing ‘rules’ or ‘restrictions’ placed on all pupils and whether these are necessary and proportionate
• consider whether the term ‘universal restrictions’ would be clearer than ‘blanket restrictions’
• consider alternatives to the term ‘regular contact’
• the definition of pupil-led withdrawal is helpful. Further consideration could be given its position within the ‘diagram of physical intervention’

Action: all group members will consider the paper on the terminology and definitions of the types of physical intervention and feedback comments to the Scottish Government by Friday 23 July.

Any other business

The Scottish Government clarified the aim to complete drafting of the guidance during the summer to allow a public consultation to launch during the autumn.

Date of next meeting

The next meeting will take place at 10.00 to 11.30 on Thursday 29 July [post meeting note: the meeting dates was subsequently changed to Wednesday 18 August at the same time]

Scottish Government

July 2021