Physical Intervention – Legal Issues

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umbrella

Physical Intervention is an umbrella term covering all the different ways in which staff can restrict a person’s freedom of movement

For example:

  • By blocking their way
  • By pushing, pulling, re-directing or ‘steering’ them
  • Carrying them
  • Holding them to restrict their freedom of movement
  • Physically immobilising them

A need for Physical Intervention is strongly predictable in NHS settings

A need for staff to physically intervene to prevent someone causing harm to themselves or others is something that is strongly predictable in NHS settings - and Healthcare Security Officers are relied on to support nursing staff in such emergencies.

Records show it is a frequent occurrence

Figures released 6th June 2013 by mental health charity Mind, provided an indication as to the frequency of application of physical restraint in mental healthcare settings. Data secured by the charity, using Freedom of Information requests, discovered that there were at least 39,883 incidents of physical restraint during the year 2011-12. Although there are no national records to show the number of times physical intervention is employed in acute hospitals, the figures for Mental Healthcare settings support the view that it occurs fairly frequently.

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Physical Intervention is high risk

The purpose of Physical Intervention is usually to protect against harm happening. However, Physical Intervention can infringe a person’s rights and lead to injuries and even death, from which can follow, complaints, civil claims for damages (i.e. compensation) and criminal prosecution (e.g. assault and/or false imprisonment). Equally, a failure to physically intervene where it becomes reasonably necessary in the circumstances can lead to violation of peoples’ rights (e.g. to be safe from attack) and/or lead to injury, death, complaints, civil claims for damages (compensation) and also, potentially, criminal prosecution.

The risk of complaints and civil claims for damages from injured parties is higher if staff action (including inaction) was unjustified, excessive or negligent. Likewise, the risk of criminal prosecution of staff involved is higher if use of force was unnecessary, excessive, or in any other way unlawful.

Liability for adverse outcomes rests not only with the staff that actually perform the Physical Intervention, but also with employers (who are vicariously liable for the actions of their staff – including staff hired/contracted in).

Potentially lethal

Since 1998, there have been at least 13 restraint-related deaths of people detained under the Mental Health Act 1983*.

Eight of these occurred in a single year (2011).

Guidance published by NHS Protect in Dec 2013 states:

“Between 2009 and 2012, 126 out of 823 physical intervention incidents caused moderate or severe harm and even led to death of two patients.”

* Info Source: Independent Advisory Panel on Deaths in Custody (2012).

Too serious to ignore

When Physical Intervention goes wrong (or doesn't happen at all) the consequences can be disastrous and even fatal.

The potential gravity of the consequences mean that in the event of an adverse outcome, a management failure to ensure provision of suitable guidance, instructions and training is a very serious matter, that can result in a prison sentence!

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SIA training is inadequate for healthcare security purposes

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Healthcare organisations that employ, or hire in Security Operatives should be aware that although they may be sufficiently trained to qualify for an SIA Licence they may not be adequately trained for their role in terms of Health & Safety expectations.

The SIA training Specification for Security Guards DOES NOT include training in Physical Intervention Skills or Restraint and training that Door Supervisors get in Physical Intervention DOES NOT include training in Horizontal (i.e. Floor) Restraint.

Training deficiencies can mean automatic conviction

No training, or inadequate or unsuitable training can mean that liability is established instantly on the basis of “Res Ipsa Loquitor” i.e. the facts speak for themselves!

scales of justice

Physical restraint training for Healthcare Security Officers is legally necessary

Where a need to employ physical intervention is foreseeable and recurring in a workplace, Health & Safety legislation requires employers to ensure provision of suitable training.

For certain security roles, the need for training in Physical Intervention Skills is instantly and unmistakably recognisable - and consequently legally ‘necessary’.  This is particularly true for Healthcare Security Officers.

The information below underlines this.

barrister

In October 2010, the SIA, in conjunction with the NHS Security Management Service, the National Association of Healthcare Security, Skills for Security and other industry experts published sector specific Guidance on how to reduce the risks associated with physical interventions. The (free) Guidance, titled “Physical Intervention: Reducing Risk” is a guide to good practice for employers of security personnel operating in healthcare settings in England. The Introduction to the Guidance (page 4) states:

“While healthcare providers accept that there are inherent risks associated with the provision of some services, they have a duty to address the risk of harm to staff (deliberate and unintentional) and the risks to individuals they come into contact with. Case law shows that employers, employees and security suppliers are vulnerable if they fail to identify and reduce risk and adopt safer methods of work.

The Health & Safety Executive's expectations of employers are detailed in HELA Local Authority Circular Ref: LAC No. 88/2 * dated October 2000, (Operational Circular 213/2).

Summary:

  • Employers are expected to have taken appropriate steps to minimise any risks to employees that might arise from physical intervention and these steps will include ensuring that appropriate systems of work are in place (including appropriate policies, communication systems, manning levels and emergency procedures) to enable the safe application of physical restraint.
  • It would be appropriate for the employer to clearly state what form of restraint should be used and what forms should not be used. Staff should be trained to know how to monitor the subject and what to do in the event of distress being noted.

The Recognition, Prevention and Therapeutic Management of Violence in Acute In-Patient Psychiatry - A literature review and evidence based recommendations for good practice prepared for the UKCC (January 2002) starkly warns:

Page 65 - If managers decide not to provide training in physical restraint because of ethical concerns or a desire to avoid litigation in the event of its use, litigation can also result from this very decision if harm is subsequently suffered because of it.

Page 66 - There may be legal consequences if harm results because restraint is used inappropriately or if it is not applied at all under circumstances where it was appropriate to do so.

Under S. 36/37 H&S at Work Act 1974, individuals within an organisation (including directors) can be charged with criminal offences where, through consent, connivance or neglect, they contribute significantly to serious harm occurring.

The Health and Safety (Offences) Act 2008 provides for the imprisonment of individuals convicted of a breach of sections 7, 8, or 37 of the Health and Safety at Work, etc. Act 1974 ("HSWA"), or regulations made under the HSWA.

Magistrates can impose 12 month prison sentences on any director, manager, secretary, or other similar officer of a corporate body, or person(s) who purported to act in that capacity. A Crown Court can impose sentences of up to 2 years.

So, managers who have responsibility for organisational policy, procedures, instructions and guidance to staff and/or commissioning staff training in relation to the management of dangerous or violent behaviour who, through consent, connivance or neglect, have contributed significantly to serious harm occurring (i.e. as a consequence of failing to implement 'appropriate arrangements'), could potentially be sent to prison!

Note: On conviction, NHS Foundation Trust Directors can also be prohibited from acting in connection with the promotion, formation or management of a Trust or company for up to 15 years.