What
is Physical
Intervention?
Inside
Information
from a Leading UK Expert
Mark Dawes
Published by NFPS Ltd. at Smashwords
Copyright 2012 NFPS Ltd
What is Physical Intervention?
By Mark Dawes
All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means without written permission of the author. All company logos and trademarks are the property of NFPS Ltd.
Published in 2011 by NFPS Ltd.
Hampshire, England.
For more information on Physical Intervention, including becoming a Physical Intervention Instructor, go to:
Foreword
Many of you reading this are hopefully looking for an insight into what physical intervention is all about. Some of you will be looking at the possibility of becoming a physical restraint instructor and some of you may be researching this field for the purpose of commissioning training.
Either way, this book has been written to give you an insight into what physical intervention actually is and the legalities and liabilities in this area, which is a very important issue right now, due to the changing legal climate that we now find ourselves in and the implications and liabilities for trainers and organisations alike, if and when something goes wrong.
One objective of this book is to dispel some of the more common myths and misconceptions that exist in the field of physical intervention in an attempt to help you make a more informed decision when considering your options, and in doing this I am sure that this book will ruffle a few feathers too. However, my intention in writing this book is to provide you with information that will enable you to make better professional choices by helping you improve your knowledge and competence, whilst also helping you reduce your liability and culpability.
For example, one of the most common question is: “Are there any ‘Governing Bodies’ that exist for the accreditation or ratification of physical intervention techniques, training systems or syllabus?” and the short answer to that question is no – in spite of what you may have been led to believe or told by some sources acting in their own self-interest.
Physical intervention is also known by many other names, such as physical restraint or control and restraint. There are also numerous training organisations who have given their own names to the systems they teach in an attempt to market it to a specific industry sector.
As there are no ‘Governing Bodies’ or ‘Government Approved or Accredited’ systems of physical intervention, it means that the whole industry itself is basically unregulated.
The net effect of this is that a wide and diverse range of training providers exist that offer a wide and diverse range of services in an unregulated industry sector, and this can make the job of choosing who to qualify with and which training provider to use, a daunting task for many of you.
The overall primary aim of this book therefore, is to provide you with a competent insight into the world of physical intervention with the purpose of answering some of the most common questions that people ask.
I must add one caveat, however. I am not a professional writer. Therefore this book is not a novel or a story with a narrative aimed at providing you with an escape from reality, so I ask you to forgive any literary inconsistencies.
I am simply someone who has been involved in this field for over twenty years of my life. I am also someone who has operationally used physical intervention, and who teaches and trains front-line staff and trainers and provides advice and consultancy on the subject.
I am known for my ability to take on jobs that others do not wish to, due to the potential liabilities that exist in certain areas and I do this out of a genuine passion to provide some assistance and answers to those who feel stuck in a bad place, without proper support or guidance.
I am also passionate about supporting those people I train. To this end I have personally attended Court and Tribunals and written reports for the same, to ensure justice gets done so that good people doing a difficult job are not ‘hung out to dry’ and scapegoated for something that went wrong, due a failure further up the organisational chain of command.
As a result, this book has been written with the sole intention of providing you with a source of factual information that has been researched to the best of my knowledge and ability. It is a compendium resource of knowledge if you like, with the primary aim of being an information resource for you, written in a factual and explanatory way to help you make better and more competent decisions, so that you may extend a proper duty of care to those you owe it to.
However, it is not an excuse for you not to do your own due diligence in this area, and I urge you, even before you begin to read on, to question everything, even in this book. Take nothing for granted and do not assume anything.
For over twenty years I have believed that there are two main factors that end up injuring or killing people and they are - complacency and conformity, that is why, early on in my professional career, I adopted one of the most important first principles of science, which is the rigorous discipline of logic. In science this means ensuring that in any investigation all assumptions should be identified and challenged.
If assumptions are not identified and challenged we become complacent, which means that we become content in our knowledge and understanding and as a result, we stop learning and stop questioning. When this occurs we start to conform to the rules that are consistent with the limit of our understanding, simply complying with practice that has become established over time. When this happens we fail to notice those changes that challenge our established model of the world and take a more defensive stance.
My sincere advice to you is this – challenge everything - become a pain in the backside! It’s always worth it in the end.
Table of Contents
What is Physical Intervention?
The Use of Pain - Compliance Techniques
Physical Intervention and The Security Industry Authority
The Rise of Political Expediency and the Fall of Credible Training
Physical Intervention and Health and Safety
The Characteristics of Skill Performance
What is Physical Intervention?
Physical intervention, also referred to as physical restraint, can be defined as the positive application of force for the purpose of overcoming a person’s resistance.
It is generally used to:
1. Prevent the actual or imminent physical assault of self or others;
2. Effect a lawful arrest or prevent a person lawfully detained from escaping; and
3. Stop or prevent serious damage to property.
Generally physical intervention is taught as an occupational skill and is used as part of a person’s employed role. For example; door supervisors - who will be required to use physical intervention to control violent and aggressive members of the public; police officers - who will be expected to make arrests, and care home staff - who will be expected to intervene to protect service users from harm.
Physical intervention has its roots in the control and restraint system devised by the Prison Service in the 1980’s and today physical intervention is used by the police service, the NHS, mental health services, vulnerable children and adult services and elderly care homes.
The use of physical intervention however, should be the last resort in managing violent, aggressive and challenging behaviour and should form part of an overall strategy in a member of staff’s toolbox. To this end, it should be combined with other skills such as breakaway and de-escalation and negotiation training and even training in human behaviour and psychology, to enable staff to understand how some service users relate to their world from within their own psychological perspective.
In addition, as physical intervention is a skill that will degrade with time, staff initially trained in physical intervention should be refreshed regularly to ensure that their skills are kept up to date and in line with current legislation and we will come onto that later on in this book.
In some cases, particularly where the risk of injury or fatality is high, staff should also be trained in first aid and, if required, the use of life monitoring and life saving equipment, such as pulse oximetors and defibulators.
Restrictive and Least-Restrictive Physical Intervention
Physical interventions are generally broken down into two main sub-categories, which are ‘Restrictive’ and ‘Least-Restrictive’.
A restrictive physical intervention is a term normally associated with the application of a higher level of force used to control a person’s behaviour against their will. In these cases, more restrictive techniques, even the use of pain-compliance techniques are used, if required, to achieve control.
A ‘least-restrictive’ or ‘low-level’ physical intervention on the other hand, is normally associated with a technique that does not generally use a high degree of force to achieve compliance. In these situations, force is not generally applied against a person’s will, so to achieve the desired outcome the person whom force is being used upon is, to a degree, ‘compliant’, whereas if they weren’t, a more restrictive degree of force would have to be applied against their will, to achieve the same result.
Escorting, for example, would be classified as a least-restrictive or low-level intervention and escorting is defined as: “to accompany for the purpose of protection of guidance” (Oxford English Dictionary) and is most commonly used when supportive assistance is given to a subject who is complying with the use of physical force. In general, when we are escorting someone they are normally compliant and therefore the use of force is not generally applied without a person’s consent.
Another example of a ‘least-restrictive’ or ‘low-level’ intervention would be the use of ‘holding’, which has been defined by the Children Act 1989 as: “a commonly used, and often helpful containing experience for a distressed child”.
The Royal College of Nursing Guidance (Restraining, Holding Still and Containing Children: Guidance for Nursing Staff, April 2003) also provides a definition of what a holding technique may be. It states: “It may be a method of helping children, with their permission, to manage a painful procedure quickly and effectively. Holding is distinguished from restraint by the degree of force required and the intention.”
A point to bear in mind however is that a ‘holding technique’ may still be used to restrain. In these situations, we could still be using force without consent. In these cases though, emphasis is normally placed on using firm grips or holds, as opposed to locks or other techniques that could intentionally cause pain.
There may also be exceptional circumstances however, when staff have no option but to use a pain-compliance technique, such as a wrist-lock for example, in order to control someone who would not be able to be controlled with a lesser degree of force. Due to the emotive and sensitive nature of this issue I have dedicated a whole chapter to the use of pain compliance techniques, which you can read about further along in this book.
Other Forms of Restraint
Physical intervention is not just about the use of physical force. The Oxford English Dictionary defines the word ‘restraint’ as: “To keep in check or under control or within bounds, confine, imprison.”
Therefore, if we take the literal meaning of the word ‘restrain’ it means more than just the use of force by one or more people, to control another.
In fact, any action that removes a person’s liberty (their freedom to go about their lawful business, to do as they please, make their own choices and move about freely without restriction) is a form of restraint.
The simple locking of a door, to stop someone leaving a room of their own free will, can be defined as a form of restraint. Removing a person’s ability to make independent choices about how they go about their day to day business, for example, an elderly person whose daily routine is controlled by a care home, or whose finances are administered by their family, are also examples of how we can inadvertently restrict another person’s liberty, and in doing so be applying a form of restraint or restriction in their lives. It is for these reasons that other pieces of legislation and guidance, such as the Mental Capacity Act 2005 (and its associated code of practice) and the Deprivation of Liberty Safeguards Code of Practice, have come about, which have particular relevance for those people who are residing in hospitals or care homes and who may also lack the capacity to make everyday decisions.
Sometimes however, the range of legislation and guidance and approved codes of practice, all of which are intended to provide clarity, result in confusion, especially if combined with a subjective opinion of what someone thinks it means, as opposed to actually finding out what it actually means.
For example, I was once asked to provide some consultancy for a care home for the elderly. On arriving at the home I noticed that all of the locks on the door of the home had been removed making it impossible for the doors to be locked. On further investigation of this issue I was informed by the care home manager of this residential unit that cares for people with dementia, that the local NVQ assessor had recently undertaken a visit and had informed them that all of the locks on the doors had to be removed, because they amounted to a restriction of liberty.
I asked what the effect of having no locks on the doors was having on the home and I was told that on some occasions, elderly people (with dementia) will simply open the door and walk out of the home and in some cases, this has occurred late in the evening and during the night. When this happens, staff have been told that they can follow the elderly person and try to encourage them to come back to the home, using persuasion and negotiation, but that they are not allowed to physically touch them and physically escort them back to the home because that would be a restriction of the elderly person’s liberty. Staff were also told that as the elderly people in the home have human rights, it would also be infringing their human rights to restrain them against their will and if they did that they would be breaching the Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice and could be liable to discipline.
The result of this was that one elderly gentleman used to walk out of the home late in the evening. This was during the month of November, which is not one of our warmest months. He would walk out dressed only in his nightclothes and with nothing on his feet. He would walk across main roads, including a dual carriageway and across a railway crossing – and yet staff were told, by the NVQ assessor, that they were not allowed to lock the doors of the home to prevent this happening, nor physically escort him back to the home if he started to wander outside. This is an elderly gentleman who suffers from dementia in a home designed to care for him!
Yet this isn’t what the legislation and guidance was designed for at all. This was the net effect of someone (in this case the NVQ assessor) adding their subjective interpretation to what they ‘think’ the guidance means, sometimes without even reading it. How do I know this – I read everything and this is what the guidance actually says:
“Restraint is illegal unless it can be demonstrated that for an individual in particular circumstances not being restrained would conflict with the duty of care of the service. And that the outcome for the individual would be harm to themselves or others.” (Guidance for Inspectors: How To Move Towards a Restraint Free Care)
“Where people in care services have capacity restraint may only take place with their consent or in an emergency to prevent harm to themselves or others or to prevent a crime being committed.” (Ibid, no,6)
“Preventing a person from leaving a care home or hospital unaccompanied because there is a risk that they would try to cross a road in a dangerous way, for example, is likely to be seen as a proportionate restriction to prevent the person from coming to harm. That would be unlikely, in itself, to constitute a deprivation of liberty. Similarly, locking a door to guard against immediate harm is unlikely, in itself, to amount to a deprivation of liberty.” (Mental Capacity Act, Code of Practice, 2.10)
To summarise, we had the locks replaced and staff were given training in specifically what they could and could not do and the situation in that home was resolved.
But there is a moral to this story, and if you haven’t worked it out as yet, here it is: Do not simply accept something, without question, that which you genuinely believe to be wrong. Question it, and if necessary, challenge it. In short, if you don’t know, find out. It is worth the work.
The Changing Legal Climate
On the 16th February 2011, at Winchester Crown Court, Cotswold Geotechnical Holdings became the first company to be convicted of the offence of Corporate Manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007.
The conviction followed a lengthy trial into the death of Alex Wright, a young geologist employed by the company, who died on the 5th September 2008 when a deep trench that he was working in collapsed and killed him.
The company was found guilty of Corporate Manslaughter primarily because it failed to protect the young geologist from working in dangerous conditions that led to his death.
To find the company guilty, the Crown Prosecution Service had to establish that the way in which the senior management of Cotswold Geotechnical Holdings managed its activities formed a substantial element of the breach of the duty of care owed that led to Alex Wright’s death, which they successfully did.
In convicting the company of Corporate Manslaughter, the jury came to the conclusion that the system of digging trial pits was unnecessarily dangerous and that the company had ignored well-recognised industry guidance in this area.
This was echoed during the summing up of the trial, when the prosecutor told the jury that:
"The substantial cause of Alex Wright's death was the failure of the company to manage its affairs so as to comply with its legal duty to ensure that Alex Wright's health was not put at risk.”
In short, Cotswold Geotechnical Holdings was found guilty of Corporate Manslaughter because:
1. It failed to protect a member of staff working in conditions known to be dangerous;
2. The company ignored well-recognised industry guidance in this area;
3. There was a gross breach of the duty of care owed to the member of staff who died, and;
4. The way in which its activities were managed or organised by its senior management formed a substantial element of the breach that led to Alex Wright’s death.
In essence, the senior management of the company knew that unnecessary risks were being taken that went against good practice guidance, yet they chose to ignore it, and that ignorance resulted in a member of staff dying.
So, how could this case affect those of us whose staff use physical intervention at work, teach physical intervention or commission physical intervention training?
To answer that question we simply need to ask a series of questions based on the previous case, which are:
1. Does your organisation allow staff to work in foreseeably hazardous and knowingly dangerous conditions, yet allow the situation to remain dangerous by doing nothing about it, apart from teaching them physical intervention skills as the primary way of controlling the risk without looking at alternatives?
2. Does your organisation teach staff or allow and even possibly encourage staff to be taught to physically intervene on their own, when it is well documented that single–person restraint increases the risk of harm to staff and the person being restrained?
3. Is your organisation still teaching physical intervention techniques that have the potential to increase the risk of death from positional asphyxia, like the prone position, basket-holds or the seated double-embrace technique?
4. Is your organisation failing to adequately train staff to a sufficiently competent level so that the skills they are being taught are fit for purpose?
5. Is your organisation failing to teach staff how to use physical intervention within the constraints laid down by UK statute and common law? In other words, are you failing to give your staff legally correct advice and guidance?
6. Can you evidence all of the above if required?
If you have answered yes to any of the above questions then you have a problem, if and when a death results.
Prosecutions for Deaths in Custody
In addition, an amendment to the Corporate Manslaughter and Corporate Homicide Act 2007, which came into effect on the 13 September 2011 means that organisations can now be prosecuted under the Corporate Manslaughter & Corporate Homicide Act, for deaths in custody.
The extension of the Corporate Manslaughter Act to now enable prosecutions of organisations for deaths in custody will add to the Crown Prosecution Service’s ability to prosecute individuals (such as prison officers, nurses, doctors etc.) for individual gross negligence manslaughter and the standard health and safety offences that have always been available (and are still available) to be used against organisations.
The new amendment means that public authorities and private companies can be prosecuted under the Act if they fail to ensure the safety of someone in their care. Examples of this could include deaths during an immigration removal or when someone has been restrained using an authorised and badly taught body hold.
A positive effect of the law change is that it may provide added impetus to drive further improvements in the prison service, in care homes, and in mental health trusts to prevent suicides, fatal acts of violence between prisoners or patients themselves or involving staff, neglect of care and supervision resulting in fatal incidents and the use of known physical intervention techniques that increase the risk of death.
In considering any future prosecution under the new amendment the Crown will have to take into consideration whether or not a significant portion of that breach is related to the way in which senior management run the organisation, and also whether a death can be attributed to the neglect, consent or connivance of the organisational management.
These new changes in the law have major implications for many agencies that have custody of vulnerable individuals, especially those individuals who are likely to be more vulnerable and present a possible high risk of fatality when restrained. They also have major implications for those organisations who allow bad practice and unsafe systems of work to continue to be used or actively encouraged by neglect, consent or connivance, such as allowing staff to physically restrain on their own.
Swifter Justice for Workplace Deaths
In addition to the implementation of the new amendment to the Corporate Manslaughter and Corporate Homicide Act 2007, a key amendment to the Work-Related Deaths Protocol (WRDP) came into effect on the 1st October 2011, and this has changed the way workplace deaths are now to be investigated and prosecuted.
What this new amendment means is that there are now likely to be more health and safety prosecutions for deaths in the workplace prior to an Inquest taking place.
Prior to this amendment, cases were only taken before an Inquest by the Health and Safety Executive in exceptional circumstances and normally in connection with manslaughter related charges. Now, where manslaughter or homicide charges are not relevant, the revised protocol will allow a health and safety prosecution before an Inquest – if it is considered appropriate and in the interest of justice.
The changes were announced by the Work Related Deaths National Liaison Committee (NLC) and are supported by the Coroners’ Society.
The NLC was set up in 1998 and its aims are to improve the communication and collaborative working between all members when involved with a work-related death. Members currently include, amongst others, the CPS, the Health and Safety Executive, the British Transport Police and Local Authorities.
Richard Daniels, Chair of the NLC, said:
"All signatories are committed to seeking justice for bereaved family members, when a work-related death has occurred and someone should be held to account. The change will help us deliver this justice more effectively and sooner in less complex cases. The NLC has worked closely with the Coroners’ Society to agree the changes and they support this swifter resolution of prosecutions in some cases. We also welcome the Maritime and Coastguard Agency and the Chief Fire Officers’ Association as formal signatories of the revised protocol."
This is a very important amendment to consider for all of us who are involved with the use of physical force in the workplace, especially commissioning agencies that either actively condone or turn a blind eye to the use of known techniques that increase the risk of positional asphyxia. In short, if a restraint related death occurs due to the use of a knowingly unsafe technique, then the HSE, CPS, Police and Local Authorities can now prosecute prior to an Inquest taking place.
So just take a moment to stop and reflect - what is going to happen now if someone dies in your care? Just think for a moment how your systems, training and management will be scrutinised by the Health and Safety Executive and the Crown Prosecution Service, and try to consider how you will be able to justify what you did or did not do when cross-examined by a qualified solicitor in court.
Now, as you reflect on the above, consider this. In an attempt to reduce their liability many organisations will use training that is 'recommended' by let’s say their local authority who have signed up to a particular code of practice that they believe is endorsed by some sort of Government approval, or a local education authority or council who have a contract with a particular training provider. Their aim being, to standardise training within the schools in their local area without actually considering what the training provider will teach. However, some training providers are still actively teaching some techniques that they shouldn't as primary methods of intervention, such as: prone restraint, double basket-holds, nose distraction techniques, etc., without even looking at any possible alternatives, and I do wonder how soon it is likely to be before another person dies and the head of the commissioning organisation finds themselves being prosecuted.
You see the fact is, that the head of any commissioning organisation is ultimately responsible and accountable for whatever training they allow to be taught in their organisation.
For example, in schools the head-teacher of every school is ultimately responsible and accountable for whatever system of training is delivered in their school. As a result, they have to use their due diligence in finding the most appropriate specific system. This was highlighted in a letter received from a representative from the Department of Education who wrote:
“… the Government does not endorse individual training providers, or the content of their courses and materials. A wide variety of training organisations offer their services to schools on a commercial basis, and schools now have the autonomy to make their own decisions on which service is most appropriate for them. Ministers believe that head teachers and their immediate colleagues are best placed to determine what training is appropriate for their staff".
This is the same for all organisations that commission training, and the short message is - don't be fooled by a badge of approval.
Let the Great Axe Fall
On 6th June 2000 Anthony Scrivener QC was the keynote speaker at the Annual Symonds Safety Lecture at the Institution of Civil Engineers. The lecture was entitled 'Corporate and Personal Manslaughter: Where the Offence is - Let the Great Axe Fall'. His talk began with the following opening statement:
"Although in this short address I will refer to the Government's new proposals for corporate manslaughter I would wish to drive home a clear message to all of those involved in the management of companies. Even without these reforms there is an unstoppable movement towards using the full force of the criminal law against companies and executives forming the management of companies where death or injury is caused by serious negligence. They are out to get you and that is the clear message you should take back with you from this meeting to your boardroom. If you ignore the trend then you do so at your peril."
Anthony Scrivener QC Tuesday 6th June 2000
It is now over eleven years ago since that speech was made and the words of Mr. Scrivener QC have come true. The Corporate Manslaughter and Corporate Homicide Act received Royal Assent on 26th July 2007 and came into force on 6 April 2008, seven years and ten months to the day since that speech was made. Its aim, simply to make organisations more accountable and to be more easily brought to justice where death occurs in the workplace, and as you have already seen, it is starting to bare its teeth.
Do your own due diligence.
The Human Rights Act
The Human Rights Act came into effect on the 2nd October 2000 and it is the most significant statement of human rights since the 1689 Bill of Rights. It gives every citizen a clear statement of rights and responsibilities and provides for every citizen to challenge more easily actions of the state and of other such public authorities.
The United Kingdom helped draft the European Convention on Human Rights in 1950, and the 1998 Act makes this convention a part of UK law. Under the Human Rights Act it is now unlawful for a public authority to act incompatibly with the Convention rights and allows for a case to be brought to a UK Court or tribunal against the authority, if it does so. What this means is that instead of having to go to Strasbourg, people can use the UK courts to enforce their human rights. This reform is part of the modernisation of our constitution, making Government more responsible to the people ensuring that the rights of UK citizens become an everyday part of UK law.
Section 6 of the Human Rights Act 1998 now makes it unlawful for a public authority to act in a way that is incompatible with a Convention right. This means it requires all legislation, including policy, procedure and approved codes of practice, to be interpreted and given effect as far as possible compatible with the Convention rights.
In the field of physical intervention this legislation has a monumental impact on the way in which training is managed, structured and delivered, as all physical intervention training must comply with the Convention’s rights if it can be considered as legal. This means that training can no longer simply be ‘technique dependent’ but must incorporate fully the protected rights of the individual as detailed within the Convention.