Physical intervention, restrictive intervention and restraint

The Mental Capacity Act 2005 (MCA) provides a legal definition of restraint:

“When someone uses or threatens to use force to secure the doing of an act which the person resists or, restricts a person’s liberty whether or not they are resisting.”

Note: Restraint can take a very wide variety of forms and it doesn’t necessarily involve manually i.e. ‘hands-on’ physically restraining/ immobilising an individual.

The Department of Health has defined physical restraint as:

“Any direct physical contact where the intention is to prevent, restrict, or subdue movement of the body (or part of the body) of another person.”

The Commission for Social Care Inspection (CSCI) report ‘Rights, risks and restraints‘ (Nov 2007) provided the following definitions:

“Physical restraint is a physical restriction to moving around as one wishes. This might be by using belts or cords, sheets or blankets to tie or secure someone to a place such as a chair or a bed; chairs or beds from which someone is unable to move; bed or side rails; or chair or lap tables.”

“Physical intervention is a direct physical intervention by another person which can involve the use of techniques to physically ‘manhandle’ individuals. Someone may hold a person in a chair or bed, or physically stop them from going where they want. Or, a person may be physically carried or moved from one place to another.”

The Department of Health has defined ‘restrictive interventions’ as:

“Any deliberate acts on the part of other person(s) that restrict an individual’s movement, liberty and/or freedom to act independently in order to take immediate control of a dangerous situation where there is a real possibility of harm to the person or others if no action is undertaken; and end or reduce significantly the danger to the person or others; and contain or limit the person’s freedom for no longer than is necessary.”

A need for physical restraint is strongly predictable in NHS settings

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

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 restraint is instantly and unmistakably recognisable and consequently ‘legally necessary’. This is particularly true for Healthcare Security Officers.

The courts have confirmed the position

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) warned:

  • 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 65)
  • 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 (Page 66).

In October 2010, the Security Industry Authority (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 Introduction to the Guidance (page 4) stated:

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.

HSE Expectations

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.

Department of Health Guidance

On 3rd April 2014, the Department of Health published guidance aimed at promoting the development of therapeutic environments and minimising all forms of restrictive practices, so they are only used as a last resort.

The guidance, titled ‘Positive and Proactive Care: reducing the need for restrictive interventions’ says:

  • All forms of restrictive practices should be reduced over two years
  • Restrictive practices should only be used as a last resort in emergency situations
  • There is an objective to end prone (face-down) restraint
  • Board members should be fully informed of their trust’s position on restrictive practices AND the management plan to reduce their use
  • The board should identify an executive director to lead on recovery approaches and reducing restrictive practices
  • Providers should publish an annual report on the use of restrictive interventions
  • The Care Quality Commission will monitor and inspect against compliance with the guidance. 
DoH Positive and Proactive Care Guidance

Guidance to CQC inspectors on physical restraint

The Care Quality Commission (CQC), monitors and inspects healthcare services to check whether they are safe, effective, caring, responsive and well-led, by assessing them against the Regulations for health service providers and managers.

During service visits and routine reviews (including regulatory inspections of service quality), the CQC will seek to assure themselves that people who are exposed to restrictive interventions have access to high quality behaviour support plans, designed, implemented and reviewed by staff with the necessary skills and that restrictive interventions are undertaken lawfully.

Note: A CQC inspection can take place at any time and usually unannounced.

CQC Inspectors know that Regulation 13(2) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, requires healthcare providers to have effective systems and processes to safeguard service users from suffering any form of abuse or improper treatment while receiving care and treatment.

Note: Improper treatment includes discrimination or unlawful restraint, which includes inappropriate deprivation of liberty under the terms of the Mental Capacity Act 2005.

Guidance to CQC Inspectors on what to check for in relation to restraint (physical and mechanical) includes:

  • Conduct a review of training records to check all team members have been trained in the relevant physical intervention package for that setting or had a refresher training session in the last 12 months
  • Establish exactly how many restraints there have been over the past six months and how many of these were in the prone position
  • Assess staff awareness of best practice and the quality of de-escalation and application of the principles of positive behaviour support
  • Establish the percentage of ward/service staff who have had training in best practice restraint
  • Report findings on the reporting of incidents of restraint and of staff de-briefings
  • Report on the quality of the provider’s ‘restrictive intervention reduction programme’, restraint reduction plans and audit, the quality of reporting to commissioners and processes for ensuring appropriate staff training.


If CQC Inspectors consider the situation puts people at risk of harm, CQC can take enforcement action to protect them, including closing down the particular ward, department or unit, as well as, criminal enforcement action.

NICE Guidance

The National Institute for Health and Care Excellence (NICE) provides national guidance and advice to improve health and social care. Whilst, it is not mandatory to apply NICE recommendations, when exercising their judgement, professionals and practitioners are expected to take the guidelines fully into account, alongside the individual needs, preferences and values of their patients or the people using their service.

NICE Guidance (NG10): Violence and aggression: short-term management in mental health, health and community settings – Reducing the use of restrictive interventions (published 28 May 2015) states:

 Staff training

1.2.1 Health and social care provider organisations should train staff who work in services in which restrictive interventions may be used in psychosocial methods to avoid or minimise restrictive interventions. This training should enable staff to develop:

  • A person-centred, values-based approach to care, in which personal relationships, continuity of care and a positive approach to promoting health underpin the therapeutic relationship
  • An understanding of the relationship between mental health problems and the risk of violence and aggression
  • Skills to assess why behaviour is likely to become violent or aggressive, including personal, constitutional, mental, physical, environmental, social, communicational, functional and behavioural factors
  • Skills, methods and techniques to reduce or avert imminent violence and defuse aggression when it arises (for example, verbal de-escalation)
  • Skills, methods and techniques to undertake restrictive interventions safely when these are required
  • Skills to undertake an immediate post-incident debrief (see recommendations 1.4.55–1.4.61)
  • Skills to undertake a formal external post-incident review in collaboration with experienced service users who are not currently using the service (see recommendations 1.4.62–1.4.63).

Restrictive intervention reduction programme

1.2.2 Health and social care provider organisations should ensure that all services that use restrictive interventions have a restrictive intervention reduction programme to reduce the incidence of violence and aggression and the use of restrictive interventions.

Records show physical restraint is a fairly 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.

In 2016, the Liberal Democrat Party reported that, based on Freedom of Information request responses received from mental health NHS Trusts, there had been 66,681 incidents of physical restraint during 2015-16.

That’s 183 physical restraint incidents a day!

It also equates to a 40% increase since 2011-12.

The increase continued.

Figures published Nov 2017 by NHS Digital showed patients in mental health units had been physically restrained by staff more than 80,000 times during 2016-17.

That’s 219 physical restraint incidents a day!

And, it equates to a 50% increase since 2011-12!

The NHS does not publish national figures showing the number of times physical restraint is employed in acute settings. However, the figures for mental healthcare settings support the view that it occurs fairly frequently.

To give an idea, figures obtained under Freedom of Information laws by the Crisis Prevention Institute (CPI), indicated that across the NHS, physical restraint was used 97,000 times in 2016-17. If you deduct the 80,000 incidents that happened in mental health settings, that leaves 17,000 incidents, which happened elsewhere (i.e. acute settings/ ambulance trusts.)

Physical Restraint is high risk to patients and staff

In June 2014, Andrew Masterman, NHS Protect said:

“Between 2009 and 2012, about 15% of all restraint incidents resulted in moderate or severe harm to patients in acute settings and a significant proportion of these incidents occurred as a result of security staff or police being called either in isolation or in combination.”

In 2015-16, there were 66,681 incidents of physical restraint. These resulted in 1,548 injuries to patients and 2,789 injuries to staff being reported.

That equates to an injury to someone, (patients or staff), every 15 incidents of physical restraint.

Physical Restraint is also high risk to NHS Trusts and management

The purpose of physical restraint is usually to protect against harm happening. However, physical restraint 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 or excessive.

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).

It’s a risk that’s too serious to ignore

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

In 2012, the Independent Advisory Panel on Deaths in Custody reported that, since 1998, there had 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).

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 could result in a prison sentence!

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.

It’s worth remembering too, that the only defence to charges alleging a breach of statutory Health & Safety obligations, is for the accused employer to prove that they had exercised due diligence and done “everything reasonable and practicable” to avoid the commission of the offence(s) complained of. Contrary to the norm in legal cases, it is incumbent on the employer to prove that they have fulfilled their legal obligations.

Training commissioners be aware

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.

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

Liability cannot be delegated to security contractors

NHS Trusts that contract with security provider companies for security service provision at their premises cannot delegate their legal responsibilities onto the security contractor and will be ‘vicariously liable‘ for adverse outcomes resulting from the actions of security officers.

This was confirmed in the case of Hawley v Luminar Leisure Limited, where the Court of Appeal decided that a nightclub exercised sufficient control over the actions of a doorman supplied to it by a security company to deem the nightclub his “temporary” employer for the purposes of vicarious liability.

So, if you hire in security at your NHS Trust, you must insist they are suitably trained in physical intervention and restraint skills.

Management risk being sent to prison!

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 responsible 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!

It hasn’t happened yet. However, the government is intent on reducing the incidence of physical restraint in healthcare settings and the risk of it happening ‘to set an example’ is rising.

barrister

Find out more – Tel: (UK) 01202 773736

To discuss your situation with our experts and get free advice, contact us.

Contact Us