Learning Disabilities, Autism and Neurodivergence Bill: consultation

Section 11: Restraint and Seclusion

What We Heard

We know that neurodivergent children and young people and those with learning disabilities can have negative experiences at schoolwhere restraint or seclusion is used in response to distressed behaviour.

We know that adults in certain settings, including hospital or care settings, may also have negative experiences as a result of restraint or seclusion being used inappropriately.

It is not acceptable for neurodivergent people and people with learning disabilities, or anyone else, to be subject to the misuse of restraint, seclusion or other restrictive practices. This can lead to increased and unnecessary distress and trauma.

Where do we want to get to?

• Neurodivergent children and young people and those with learning disabilities in schools have their needs met by people who are trained and understand how to change the environment to minimise distress.
• People with learning disabilities and neurodivergent people are not subject to restraint, seclusion or other restrictive practices unless as a last resort to keep themselves or others safe.

What rights do people have now?

Restraint and seclusion should only ever be used in schools as a last resort to prevent harm. Restraint cannot be used for disciplinary purposes in Scotland's schools. We are developing new rights-based non-statutory guidance on the use of restraint in schools which will be reviewed one year after publication. If it does not have the desired impact, legislative options will be considered. We publicly consulted on the draft guidance in 2022.

The Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003 both set out offences regarding ill treatment or neglect that must be considered with any use of restraint.

There are also regulations under the Public Services Reform (Scotland) Act 2010 about the use of restraint by care providers.

The Mental Welfare Commission has published guidance on restraint – Rights, risks and limits to freedom.^[279]

What can we do about it?

We have committed to exploring options for legislation in this area that would apply equally to all schools (education authority, independent and grant-aided). This includes the option of statutory guidance.

Daniel Johnson MSP, working with Beth Morrison and her campaign on behalf of her son, "Calum's Law", has conducted a public consultation on draft proposals for a Member's Bill which proposes introducing statutory guidance and other controls around the reporting of all instances of restraint and seclusion in schools, inspections and publication of data. The proposals also include training for school staff.

We are considering what legislative options we could take. However, we do not think that this 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.

There is a recommendation in the Rome report^[280] (Recommendation 7.6) that the use of detention, restraint or seclusion, and any other limits to liberty, should be monitored consistently for those with learning disabilities or autism across all public services.

The Scottish Mental Health Law Review (SMHLR)^[281] also made a series of recommendations to make the reduction of coercion a national priority over a period of years (recommendation 9.1), including a proposal for legislation to establish a national register of restraint and appoint a public body with oversight for collecting and publishing data on trends (recommendation 9.12).

In response to the SMHLR we have committed to establish a Mental Health and Capacity Law Reform Programme to take forward the Review's ambitions and enhance the protection of human rights across the mental health system. Consideration of what is required to reduce coercion and restrictive practices is an early priority for this work, which will take a staged approach to reform.

We also currently fund the Restraint Reduction Scotland Network based at the Scottish Commission for Learning Disabilities which has 140 members and will continue to work to eliminate the misuse of restraint, seclusion and other restrictive practices, and promote and support good practice.

We are committed to taking forward the following in relation to restraint and seclusion:

Children

• Following our analysis of consultation responses on the draft physical intervention in schools guidance, we will work with partners on our working group to make any final amendments to the draft guidance, ahead of its final publication.
• Work with partners on the working group to support the implementation of the guidance. This includes raising awareness of the new guidance amongst staff, children and young people and their families; providing advice on any subsequent changes that may be required to existing local authority or school level guidance; and supporting the monitoring of the use of restraint at a local level. The working group will also consider whether further resources may be required to support implementation.
• We will evaluate the effectiveness of the new guidance one year after publication.
• Alongside the publication of the new guidance, and in line with our original commitments, we are exploring options to strengthen the legal framework in this area, including placing the guidance on a statutory basis.

Adults

• As part of our Mental Health and Capacity Law Reform Programme, we will scope a programme of work to further reduce the use of coercion and restrictive practices, including seclusion and restraint over time.
• Our first delivery plan will be published in early 2024 and will set out the initial activities that will be taken forward to progress this commitment and the milestones that will be achieved.