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

Attendees and apologies

The following organisations were represented at the meeting

• Scottish Government (Chair)
• CALM Training
• Association of Principal Education Psychologists
• Unison
• The Educational Institute of Scotland
• Positive and Active Behaviour Support Scotland
• South Lanarkshire Council
• British Institute of Learning Disabilities (BILD)
• Association of Headteachers and Deputies in Scotland
• Education Scotland
• Angus Council

Items and actions

Welcome, introductions, apologies

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

• Children and Young People’s Commissioner Scotland
• Fife Council
• NASUWT
• Health and Education Chamber of the First-tier Tribunal for Scotland

Note of previous meeting (7 July)

The group confirmed they were content with the note of the previous meeting, which will be published on the Scottish Government website.

Stocktake: review of policy developments

The Scottish Government introduced a discussion paper on the review of policy developments, which formed part of the stocktake exercise agreed by the working group. The guidance sub group was asked to consider, within a Scottish context, the findings of the following reports and relevant to the development of the draft schools’ guidance:

• 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

In addition to these reports and policy frameworks, Scottish Government officials also considered the Welsh Government’s reducing restrictive practices framework non-statutory guidance, which was published in July 2021.

Key findings

In considering the above reports in relation to the draft guidance, the Scottish Government highlight the following key findings:

• the safeguards outlined in the draft guidance for using physical restraint are in broad alignment with the principles of international best practice and the application of rights based policy i.e. it should only be used to avert an immediate risk of harm where no less restrictive option is available
• further clarity on understanding deprivation of liberty and its relation to the practice of seclusion in schools (discussed in detail under item 3.2)
• an understanding of the absolute human rights based prohibitions around the practice of restraint (these have been included in the draft guidance)
• additional content on best practice for recording and monitoring incidents of restraint. These are being added to the guidance’s ‘recording, monitoring and reporting’ section

Deprivation of liberty and the practice of seclusion in schools

The draft guidance, following input from group members, has sought to discourage the use of seclusion in schools and states that it is not recommended for general use. It advises that seclusion should only be considered in an emergency where there is no viable alternative to averting an immediate risk of harm to a pupil or others. The draft guidance points towards the use of less restrictive responses in all other situations.

The UN global study on children deprived of their liberty reinforces the key policy objective of the guidance to reduce or eliminate the risk of a deprivation of liberty occurring within a school and by doing so lessen the risk of harm to children and young people.

The UN global study makes the distinction between a deprivation of liberty and a restriction of movement. It acknowledges that the latter necessarily occurs frequently throughout childhood and are often applied to ensure the safety of children. In the context of a school, such measures may include restrictions around leaving the school campus, break times and agreed parameters around the unsupervised activity of children. These types of restrictions, while they should always meet the tests of proportionality and non-discrimination are unlikely to be considered a deprivation of liberty under article 5 of the Human Rights Act (right to liberty and security).

While it is uncertain whether a restriction placed on individual pupils, such as seclusion, would amount to a deprivation of liberty in every case, there remains a risk that it could.

The Scottish Government sought feedback from sub group members, before the meeting and during the discussion, on the following two policy positions:

• in line with the current drafting of the guidance, the use of seclusion is not recommended for general use, but can be used in cases of extreme need, where it is judged to be the only means of preventing an immediate risk of harm. Safeguards to reduce the risk of a deprivation of liberty occurring and reduce the risk of harm to children and young people would need to be clearly stated
• the guidance recommends that seclusion is not used in schools under any circumstances

The following points were made during the discussion:

• restrictions on the movement of children and young people are necessary in specific circumstances in order to keep them safe. Examples given included restrictions on leaving the school campus, actions taken as part of road safety measures and where there is a significant risk of harm to the child, young person or others
• it is important that staff can continue to exercise judgement as part of their duty of care responsibilities to ensure the safety of children and young people. The guidance is an opportunity to support staff with these decisions and help them to choose the least restrictive option viable
• positon (a) should be strengthened to clearly outline the implications of using seclusion and support accountability of decision making to reduce the risks of harm and misuse
• position (b) is clearer, and has been adopted by some local authorities. However, there is a risk that if such a position is adopted, staff may not be able to exercise their duty of care responsibilities to prevent a risk of significant harm. There is also a risk that any use of seclusion would go unreported
• adopting position (a) would not encourage the use of seclusion or prevent individual authorities or schools from adopting position (b) if they chose to do so

Next steps

The Scottish Government thanked sub group members for their feedback, both before and during the meeting. The Scottish Government will ask for any further comments from members by correspondence by 27 August. Feedback will be considered in developing the draft guidance’s position and safeguards on the use of seclusion. A further draft of the guidance will be shared with sub group members for comments by correspondence. The draft guidance will then be shared with the working group to seek their agreement to proceed to consultation.

Any other business

No other business was raised.

Date of next meeting

As further comments will be sought by correspondence, this will be the last meeting of the guidance sub group before the public consultation.