Physical Intervention Working Group minutes: November 2021

Attendees and apologies

The following organisations were represented at the meeting:

• Association of Directors of Education in Scotland (Chair)
• Scottish Government
• British Institute of Learning Disabilities (BILD)
• Children and Young People’s Commissioner Scotland
• Convention of Scottish Local Authorities
• Enable Scotland
• Fife Council
• Highland Council
• Association of Principal Education Psychologists
• University of Edinburgh
• North Ayrshire Council
• Education Scotland
• Centre for Excellence for Children's Care and Protection (CELCIS)
• Positive and Active Behaviour Support Scotland
• The Educational Institute of Scotland
• Unison
• NASUWT
• CALM Training
• Health and Education Chamber of the First-tier Tribunal for Scotland
• Association of Head Teachers and Deputes in Scotland (AHDS)

Items and actions

Welcome, introductions, apologies

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

• University of Glasgow Adverse Childhood Experience Centre
• Senior Counsel, Westwater Advocates
• Society of Local Authority Lawyers & Administrators in Scotland (SOLAR)
• Mental Welfare Commission Scotland
• Scottish Youth Parliament

Progress updates from sub groups

Guidance sub group

The Scottish Government provided an update to group members. The guidance sub group met in July and August to progress the actions from the last working group meeting. specifically:

• take account of the UNCRC (Incorporation) (Scotland) Bill and reflect its ‘gold standard’ approach to children’s rights in the remit of the working group and the development of the guidance
• building on the guidance sub group’s January 2021 engagement sessions, the guidance sub group will consider bespoke engagement during the public consultation as a further opportunity to engage children and young people in this process
• take account of recent policy developments and reports that are relevant to the working group’s aims
• consider the guidance’s impact assessments in relation to the incorporation of the above articles and their provisions and reflect these prominently in the draft guidance

While the UNCRC Incorporation Bill has been delayed, the guidance sub group has continued to keep its children’s rights articles at the forefront of its work. Options for engaging children and young people in the consultation process were discussed under item 3.1. The sub group considered updated impact assessments reflecting the reports highlighted in the stock take exercise. Impact assessments will be kept updated following the clearance process and to reflect feedback received through the consultation.

The sub group has also produced a full draft of the guidance. This reflects:

• a focus on all schools (education authority, grant-aided and independent)
• a focus on universal and targeted support for children and young people in school
• prevention (and restraint reduction)
• working definitions for physical intervention, restraint and seclusion, agreed by the definitions sub group
• key considerations and safeguards for each practice (those considered most likely to be encountered in schools)
• legal framework for restraint and seclusion
• post incident support and learning reviews
• recording, reporting and monitoring expectations
• professional learning

The version of the draft guidance shared with the group reflects extensive comments from sub group members and input from the Scottish Government’s GIRFEC, Child Protection, Youth Justice, Learning Disabilities, Autism and Neurodiversity teams.

The Scottish Government will take forward the following work prior to the public consultation:

• commissioning an accessible version for children and young people and parents/carers
• proof reading the draft guidance for tone, language and accessibility
• adding resources
• making final adjustments to the annexes

The final draft will also receive legal and ministerial clearance in the Scottish Government.

Recording and monitoring

The Scottish Government provided an update to group members. The sub group met in May, June and August to agree a draft dataset for recording incidents of restraint. This process included:

• a request to all local authorities to share a copy of the datasets currently in use to inform best practice in recording and monitoring
• agreeing the purpose of recording, which has been reflected in the draft guidance
• considering recording recommendations made by the Equality and Human Rights Commission in England and Wales
• agreeing the essential data fields that should be completed for accurate and meaningful recording and monitoring of restraint

The draft dataset has been annexed to the guidance and it is proposed that feedback is received on it during the public consultation. The annex lists the essential data fields, rather than suggesting a recording form, in recognition that there are currently multiple recording systems in place across local authorities, grant-aided and independent schools. It is recognised that they will need to consider their current systems and update to reflect any newly recommended data fields.

The guidance sub group will consider feedback received on the dataset during the consultation and whether there are any barriers to their adoption. Consideration will also be given to the merits of a standardised recording system.

Next steps

Public consultation

The Scottish Government outlined the proposed next steps for consulting on the draft guidance. The current public commitment is to publish a public consultation on the draft guidance by the end of 2021. Subject to legal and ministerial clearance of the draft guidance, the Scottish Government propose launching a full 12 week public consultation on the draft guidance. This will involve:

• preparing accessible versions of the guidance for publication to aid participation and engagement with children and young people and parents and carers
• preparing a communications handling plan for the launch given the sensitive subject matter
• exploring opportunities for running specific bespoke engagement sessions/meetings with the following groups:
  • children and young people (including those with additional support needs and those with lived experience of restraint)
  • parents/carers
  • staff networks (teaching and support staff and relevant trade union networks from mainstream and special schools)
  • local authorities/ADES
  • independent schools
  • any other forums or priority groups identified by working group members

The Scottish Government’s policy team will also make themselves available for any engagement opportunities suggested to them during the consultation period. 

Following the consultation period, work will begin on analysing the consultation responses and undertaking any updates to the draft guidance prior to its final publication.

During the discussion, the following points were made:

• some members, including the CYPCS, expressed concern around the presentation of the legal framework within the draft guidance and whether it was reflected adequately
• group members requested additional time to consider the draft guidance and feedback comments
• group members requested the opportunity to consider a revised draft reflecting any further comments for final sign off by correspondence
• consideration should be given to extending any consultation period to compensate for school holidays

The CYPCS requested that a legal sub group be formed to consider how the current legal framework can best be explained within the guidance and explore any opportunities for strengthening the advice offered on existing human rights and Scots law. The establishment of a legal sub group will be considered at the next meeting of the working group, post consultation.

The Scottish Government will develop questions for consultation. These are likely to include seeking feedback on the content of the guidance and whether there are any gaps in relation to existing practice. Group members were asked to send any suggestions for consultation questions to the Scottish Government, who will share a draft set of questions for group members comments by correspondence.

Action: All group members will consider the draft guidance and provide feedback to the Scottish Government by Friday 3 December. The Scottish Government will then share an updated draft for final sign off by correspondence.

Action: The Scottish Government will develop and share draft consultation questions by correspondence for group members’ feedback.

Action: Once the group has signed off the draft guidance and consultation questions have been developed, the Scottish Government arrange for clearance and update the group by correspondence once a publication date has been agreed.

Post meeting note: Following feedback from group members, an updated draft was shared by correspondence on 21 December. All group members that responded by the deadline of 12 January (a majority) confirmed that they were content to proceed to consultation. The draft consultation questions were shared with the group by correspondence on 25 January 2022 and comments were invited by return.

Updates to the Additional Support for Learning Implementation Group (ASLIG) and the Scottish Advisory Group for Relationships and Behaviour in Scotland’s Schools (SAGRABIS)

The Scottish Government informed group members that a progress update will be prepared for ASLIG and SAGRABIS once a consultation date is confirmed as this work features on their workplans.

Action: The Scottish Government will prepare updates on behalf of the Chair once a consultation date is confirmed.

Legal framework

The draft guidance outlines the current legal framework and there is an existing commitment to review legal options for putting the guidance on a statutory basis should it not have the desired impact one year after publication. The Scottish Government informed the working group that the policy development process has also highlighted opportunities to strengthen the framework within education legislation. These opportunities will be explored following the public consultation on the non-statutory draft guidance.

The Scottish Government will provide a further update to the working group at their next meeting, post consultation. Consideration will be given to the establishment of a legal sub group to consider this area.

Any other business

No other business was raised.

Date of next meeting

The next meeting will be arranged following the public consultation.