Physical intervention in schools: draft guidance
We are consulting on this draft schools guidance "Included, engaged and involved part 3" which takes a relationship and rights based approach to physical intervention in Scottish schools.
Annex C: Legal framework for restraint in schools
1. The key legislation and human rights safeguards in relation to restraint are listed in Annex A. It is important to note that there are absolute legal prohibitions that apply to the use of restraint. These are summarised in the Equality and Human Rights Commission's Framework for Restraint, which notes that it is never lawful to use:
- restraint with intent to torture, humiliate, distress or degrade someone;
- a method of restraining someone that is inherently inhuman or degrading, or which amounts to torture;
- physical force (such as physical restraint) as a means of punishment; or
- restraint that humiliates or otherwise subjects a person to serious ill–treatment or conditions that are inhuman or degrading.
2. Education authorities, the managers of grant-aided schools and the proprietors of independent schools should ensure that restraint is only used as a last resort, to prevent harm, with the minimum necessary force, and for the minimum necessary time. In practice, the principle of last resort means that restraint should only be considered where no less restrictive options are viable.
Equality Act 2010
3. Under the 2010 Act, education providers have a duty to make reasonable adjustments for disabled children and young people and must not discriminate against a child or young person in the provision of education, or by subjecting a child or young person to "any other detriment". Discrimination can also arise when a child is treated unfavourably because of something that arises from their disability. The consequences of a disability include anything that is the result, effect or outcome of a child or young person's disability. This can include a child or young person's distressed behaviour if it arises from their disability.
4. Unfavourable treatment, such as physical restraint, will not amount to discrimination arising from disability if the school can show that the treatment is lawful and proportionate.
5. However, the Equality and Human Rights Commission technical guidance (5.38) states that, in a case involving disability, if a school has not complied with its duty to make relevant reasonable adjustments, it will be difficult for it to show that the treatment was proportionate. Reasonable adjustments for a child or young person's distressed behaviour arising from their disability would include the consideration and use of less restrictive or preventative approaches and de-escalation or co-regulation strategies, before a physical restraint is used.
6. Education providers must therefore ensure that they comply with the provisions of the 2010 Act in relation to any use of physical restraint in schools.
Duty of care
7. Education providers owe a duty of care to their pupils and staff in relation to their physical wellbeing. They have a duty to take reasonable care to prevent any harm that can be foreseen. Similar duties are placed on education providers under Health and Safety legislation. This guidance highlights the preventative approaches that can be taken to meet the needs of children and young people and lower the risk of harm to themselves or others arising from distressed behaviour. It also highlights the de-escalation and co-regulation strategies that should be considered ahead of restraint if an unexpected risk of harm arises. Nevertheless, it is accepted that there are situations when the use of restraint may be the only viable option available to staff to prevent a greater injury or harm.
8. A person entrusted with the care of a young child may be required to restrict the child's actions to ensure their welfare and safety. If the restraint is consistent with ordinary acceptable parental restrictions upon the movements of a child of that age and understanding this will generally be lawful.
Protection from assault
9. The criminal law of assault is relevant to the use of physical restraint in schools. The common law crime of assault, in short, is a deliberate attack upon another person, whether or not actual injury is inflicted. No particular degree of force is required. What matters in the context of restraint is the question of intent. Restraint, if used inappropriately, excessively or harmfully, could result in a charge of assault being brought.
Human Rights Act 1998
10. Under the Human Rights Act, public authorities can only interfere with a child or young person's Article 8 rights (the right to respect for private life, which includes respect for physical integrity), where it can demonstrate that its action is lawful, necessary and proportionate in order to:
- protect national security
- protect public safety
- protect the economy
- protect health or morals
- prevent disorder or crime, or
- protect the rights and freedoms of other people.
11. Any physical restraint would have to meet this test.
Standards in Scotland's Schools etc. Act 2000
12. Section 16 of the Standards in Scotland's Schools etc. Act 2000 prohibits corporal punishment in schools and subsection (4) is relevant to the use of a physical restraint:
16 No justification for corporal punishment
(4) Corporal punishment shall not be taken to be given to a pupil by virtue of anything done for reasons which include averting–
(a) an immediate danger of personal injury to; or
(b) an immediate danger to the property of,
any person (including the pupil concerned).
Legal framework for seclusion in schools
13. In addition to key aspects of the legal framework outlined for restraint, there are a number of human rights protections relevant to the use of seclusion. Of particular relevance is the legal framework surrounding deprivation of liberty.
14. Under Article 5 of the ECHR (incorporated by way of the Human Rights Act 1998), everyone has the right to liberty and security of person. No one shall be deprived of their liberty save in certain circumstances, set out in Article 5, and in accordance with a procedure prescribed by law.
15. In contrast, restrictions of movement may be permissible. It must be acknowledged that in the school context, as in other areas of children's lives, some restrictions of movement are normal and desirable, for example in the interests of children's safety.
16. A deprivation of liberty can occur where a person is confined to a place that they cannot leave.
17. There is no legal process for authorising a deprivation of liberty in the school context. As such, the use of any act which amounts to a deprivation of liberty would not be in accordance with the law, and may be legally challenged.
18. Article 37(b) also sets out the principle that no child shall be deprived of their liberty unlawfully or arbitrarily. The detention of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. Paragraphs (c) and (d) are also relevant in outlining rights following any deprivation of liberty.
19. UNCRC Article 3(1) is relevant to all decision making in this area in stressing that in all actions concerning children, the best interests of the child shall be a primary consideration.
20. Similarly to Article 37(b) of the UNCRC, the UNCRPD Article 14(1) (liberty and security of person) sets out that state parties should ensure that persons with disabilities are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
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