Learning Disabilities, Autism and Neurodivergence Bill: consultation analysis

Section 11: Restraint and Seclusion

Introduction

The consultation document indicated that the Scottish Government was considering legislative options to tackle issues related to the use of restraint and seclusion, particularly in relation to children and young people. However, it also stated that the Government “do not think that the LDAN Bill would be the right place to do this because it would need to apply to all children and young people, and not just neurodivergent children and young people and children and young people with learning disabilities.”

Rather, the consultation document set out Scottish Government intentions to take action which would reduce coercion and restrictive practices and prevent the misuse of restraint, seclusion or other restrictive practices. This included:

• For children: the development of statutory guidance in the area, as well as commitments to raise awareness of the new guidance amongst stakeholders, and to support its implementation and evaluation; and
• For adults: the scoping of a programme of work to further reduce the use of coercion and restrictive practices, including seclusion and restraint and monitoring progress with this work over time.

Main Findings

This question attracted less feedback compared to earlier sections of the consultation and many of those who responded also provided less detailed feedback compared to other sections.

Respondents were asked if they agreed with the approach set out.

Just under two thirds (64%, n=202) of the respondents that answered the closed question indicated they supported the approach set out in the consultation document, compared to just over one third (36%, n=116) who did not. Organisations, and in particular public sector organisations were, however, more likely to agree with the approach compared to individuals or the aggregate level results (see Appendix B). While 61% (n=148) of all individuals agreed, 71% (n=54) of all organisations, and 88% (n=29) of public sector organisations agreed. The small sample size of public sector organisations (n=33) however, needs to be borne in mind when interpreting the results.

Overall, 303 respondents also provided qualitative comments at this section. However, these comments contained considerable overlap between people who ‘agreed’ and those who ‘disagreed’ with the proposals, suggesting perhaps some confusion with regards to what was being asked. Instead of analysing responses by agreement/disagreement, therefore, a more thematic approach was taken which considered all qualitative data separately from the closed question feedback.

Support for a Separate Bill

A very large proportion of respondents (both individuals and organisations) agreed that this was a complex area of work which they felt was deserving of its own legislation and that it should not be subsumed within the LDAN Bill. They noted that control and restraint were issues that affected a diverse mix of populations and was not something confined to people with learning disabilities and neurodivergent people. Indeed, some specifically noted that it would be inappropriate to silo this issue, as to do so would minimise its importance/relevance to alternative populations:

“Whilst we are aware that this group are disproportionately impacted by the use of restraint and seclusion, and this is an area that would benefit from more clarity in law, it does not feel appropriate to single out any one demographic.” (Education Service)

Reserving this issue for separate attention was also seen as necessary to ensure that it protected those without diagnoses and others who might not automatically or obviously be recognised by the LDAN Bill.

Conversely, a much smaller number of respondents felt it was important to acknowledge that people with a learning disability and neurodivergent people were more likely to experience restraint and seclusion than those within the general population, and so provisions within the LDAN Bill may be appropriate.

Including legislative provisions in the LDAN Bill linked to restraint and seclusion was seen as especially important for those who use behaviour to communicate.

Others argued that a separate Bill may be appropriate but that it could either also be included in the LDAN Bill and/or any alternative Bill could have a separate and focussed section relating to people with learning disabilities and neurodivergent people (to ensure that their unique needs did not get lost or overlooked in wider legislation).

A small number of respondents also referenced the Scottish Government’s consultation on the draft ‘Included, Engaged and Involved: Part 3’ (IEI3) which included updated guidance on restraint and seclusion in schools. It was felt that this was an issue best progressed through that route. For adults, some respondents mentioned the Scottish Mental Health Law Review (SMHLR) and noted that the Bill provided a useful mechanism through which to implement or make the changes that it recommended.

Support for Quick Action

Whether included in the LDAN Bill or elsewhere, several agreed that this was an area of great importance, especially for vulnerable young people, and were keen to see it expedited, rather than being “delayed” (which they perceived may be likely if the issue was reserved for a separate or later Bill). It was felt that any change in this area should be addressed as a priority, that change was needed urgently, and that it needed to be supported by legislation to enforce appropriate practice:

“If there is to be further legislation or policy on its appropriate use then we support it being omitted from this Bill, however we have concerns over delays which will lead to further harm.” (Health Service)

Separate Provisions for Children and Adults

There was strong support for guidance in relation to children and young people and suggestions that this should be comprehensive, broad in scope and appropriate to multiple professional groups. It should also clearly assert that restraint and seclusion should be used only as a ‘last resort’:

“[Organisation] supports the publication of non-statutory guidance on physical intervention in schools and recognises the need to provide clarity for all in the school community in relation to this important issue… such guidance, in addition to being clear and accessible, should focus on the promotion of positive relationships, behaviour and wellbeing; on minimising the use of restraint and seclusion as measures of last resort; and on the adoption of a rights-based approach which acknowledges the rights of all in the school setting… Restraint should be a measure of last resort, only used by those who are trained in its use as part of a whole-school approach. The guidance should promote good practice to ensure that all children and young people are safe and protected in a nurturing environment where additional support needs are well understood and provided for.” (Education Service)

While guidance for children and young people was welcomed, several respondents felt that more or additional guidance relating to the use of restraint and seclusion was also needed in relation to adults/adult institutions.

Statutory guidance was particularly welcomed in relation to the grey area of 'last resort', with respondents noting that the threshold for this can vary.

Indeed, if statutory guidance was advanced, this should provide:

• Clear explanations of what constitutes restraint or seclusion;
• A clear definition and explanation of ‘consent’;
• A requirement that restraint or seclusion are only used as a last resort where there is a risk of injury;
• Guidance on de-escalation and alternative approaches;
• A focus on avoidance, as opposed to minimisation or ‘safe’ use;
• Reporting and data gathering requirements; and
• Requirements to report incidents to parents and carers and the timeframe for doing so.

Any guidance must be written in formats accessible to teachers, young people and parents/carers, it was felt, and should also be supported by training (discussed below). It should also include clear guidelines around when teachers, care professionals or others could or should call in the outside help of the police, etc. to ensure that risk of harm to the individual and others is minimised.

If guidance was developed, respondents again urged that this be done in close collaboration with those with lived experience.

A few respondents noted that this section could have made more mention of adult populations generally and felt that the consultation was too skewed towards children and young people on this topic. While many agreed that the LDAN Bill may not be the most appropriate place to incorporate new legislation on this (as it was a matter of basic Human Rights relevant to all regardless of age, diagnosis, setting, etc.), they nonetheless felt that the plethora of existing legislation and guidance could have been bolstered further by the LDAN Bill (noting that any work done to address restrictive practices including restraint and seclusion in Scotland must pay due regard to this existing legislative framework).

Respondents noted that legislation and safeguarding mechanisms already exist within the Adults with Incapacity (Scotland) Act 2000 and the Mental Health Act 1983 to ensure the safety of individuals during restrictive practices. Further, the Mental Welfare Commission, Care Inspectorate and Adult Support and Protection processes also contribute to the implementation of this, as well as the work of the Restraint Reduction Network. Despite this, it was suggested that there was still a lack of consistency in application and that compliance/adherence to good practice needed to be better monitored.

Training

There was agreement that education and training were required to ensure that all those working with children and adults (both with and without learning disabilities or neurodivergent conditions) were aware of appropriate best practice. Several other respondents also urged training around alternatives to restraint and seclusion:

“We would emphasise that there are effective, evidence based alternatives to restraint available and would advocate for training and provision of these to be prioritised.” (Children's Organisation/ Service)

Several respondents shared personal negative experiences of restraint and seclusion, noting that distressed behaviours from neurodivergent or learning disabled individuals were often a result of communication difficulties, but were misunderstood as indicators of aggression.

Including restraint and seclusion in the mandatory training discussed elsewhere in the consultation was suggested and, overall, respondents noted that better training for health and education staff may help to reduce the use of restraint and seclusion indirectly.

Training (and guidance) for early years staff, teachers, Pupil Support Assistants (PSAs), and other classroom support staff was seen as being particularly important. Training was also considered important to protect staff themselves and to support a safe working environment.

Similarly, it was argued that the legislation should also make it easier for staff to speak up about any misuse of restraint and dangers of injury to patients and staff alike (with a perception that current systems were being under-utilised due to cultural pressures including lack of time, normalisation of violence in daily work and lack of access to reporting systems).

The importance of (and demand for) training for parents and carers was also raised. It was highlighted that restraint and seclusion can also happen in family homes and therefore families, carers and professional workers need support and training to prevent this. A lack of training for families was highlighted as a gap currently, and a source of unmet need which needed to be addressed.

Some respondents felt that, while welcomed, greater clarity was needed around the type of training that would be delivered. A small number also specifically suggested that training in Positive Behaviour Support (PBS) and other preventative measures was necessary to enable the development of ‘capable environments’.

Positive Behavioural Support (PBS)

There was some debate around Positive Behavioural Support (PBS) at this question.

Some championed this as an effective, person centred approach to ensuring needs were understood and met and were disappointed not to see it feature in the consultation:

“We are missing an opportunity in this Bill, particularly under the overarching theme of mandatory training in the public sector, to embed and promote approaches like Positive Behaviour Support (PBS). PBS is a values-led approach to supporting people with complex support needs; it is not about changing the person’s behaviour but changing the way support is delivered in order to ensure the person is supported in a manner that makes sense for them and to improve their quality of life.” (Justice Organisation)

Proponents viewed that seclusion, segregation and restraint could be delivered within a comprehensive PBS framework. Others argued that PBS approaches should become more mainstream practice and not attached to labelled groups.

Conversely, others, mainly representing neurodivergent communities, viewed PBS in very negative terms and argued that it should be avoided:

“Positive behaviour support should be banned or at least highly regulated. It is abuse… It is put in place by people who do not understand the harm it does. I have seen firsthand how plans are used in social care settings - restrictive, demonising plans put onto autistic people for so called "challenging behaviour" which is in fact autistic responses to poor care. PBS plans put in place with no consideration of neuro-affirming alternatives.” (Neurodivergent Individual)

While some therefore argued for more training and investment in PBS, others argued for it to be banned and there was no real conclusion that could be reached from the feedback around how PBS should be approached.

De-Escalation

A number of respondents discussed the importance of de-escalation and felt that more could be done to raise awareness, invest in training and promote this as an alternative and preventative course of action. It was noted that this may reduce or remove the need for restraint and seclusion:

“It is also important that any guidance to reduce restraint includes training on/implementation of preventative measures, with capable environments that reduce anxiety and meet people’s emotional, communication, physical, mental health and sensory needs.” (Mental Health Organisation)

Respondents felt that de-escalation should be given greater consideration within the LDAN Bill.

Impacts of Restraint and Seclusion

Some respondents used this question to outline personal testimonies of where restraint and seclusion had been used wrongly or inappropriately in the past, and to highlight the significant negative consequences of such practices.

Several also stressed that early intervention was needed in this regard, as negative experiences of restraint and seclusion in childhood could have long-term impacts that might permeate adult life. Links between restraint and seclusion and trauma were highlighted by many, along with the need to avoid traumatisation and retraumatisation when using such practices.

Several respondents used this question to assert that they did not agree with restraint (and less so seclusion) at all.

Necessary Restraint

A small number of respondents noted that a binary option of ‘support’ or ‘lack of support’ for the proposals did not allow for the nuances/complexities of the issues to be properly discussed, as use of restraint and seclusion should always be on a case-by-case basis.

Several respondents accepted that restraint was sometimes necessary if it was the only means of keeping people safe (either the individual themselves or others), but they stressed that it should always be a last resort.

Other minority views were given that some restraints such as seatbelts in cars, taxis and buses as well as wrist restraints in busy areas may be permissible if they helped to keep vulnerable people (especially children) safe.

Other Comments and Considerations

Other comments included that a consistent, national approach was needed as practices in this regard were currently variable around the country/in different organisations/institutions.

It was also felt that restraint and/or seclusion should be subject to regular data collection, monitoring and review. This would allow oversight of the national and local/sector specific situation, benchmarking, and the identification of any issues and areas of good practice to allow support and improvement measures to be implemented as required.

Support was given to including parents, carers and those with lived experience on a working group to monitor implementation of any changes and ongoing progress in the use of restraint and seclusion as a result of the proposals set out here.

Similarly, robust accountability mechanisms were again urged in this regard. It was felt that guidance alone would not be strong enough to achieve the desired outcomes.

A small number of respondents stressed that further consideration of this issue must acknowledge that restraint and seclusion exists in spheres other than those mentioned in the consultation (schools, hospitals and care settings).

The Scottish Government was also urged to:

• Mandate local authority level data collection, which would provide a much clearer view of the extent to which restraint and seclusion practices are being operated across Scotland;
• Place a duty on public bodies to monitor and report on the use of restrictive interventions;
• Require local services to have local seclusion and long-term segregation policies which include people with learning disabilities and autistic people;
• Require all relevant public sector organisations to produce a regular updated and reviewed workforce development plan in relation to the reduction of the misuse of restrictive practices, including restraint and seclusion;
• Require local services to ensure that individuals have access to independent advocacy for anyone subject to such restrictions;
• Take care that any new legislation and guidance documents do not overlap or misalign with existing legislation and guidance. Respondents were concerned that any misalignment may risk fragmentation of practice approaches and individuals being subject to different rules, guidance and legislation depending upon the setting within which the individual is present;
• Continue funding the Restraint Reduction Scotland Network;
• Have a focus on restraint elimination, not restraint reduction; and
• Carry out more research in this area, including gathering more feedback from people with lived experience and seeking the advice of parents and carers in this regard.

As with many other areas of the consultation, some respondents again queried whether additional funding would be made available for any proposals to be implemented around restraint and seclusion.