The following Q&A was written in 2014 by Mark Dawes of www.nfps.info in an effort to clarify many questions that people have about physical restraint interventions and the law.
85 Questions and Answers that Relate to Physical Restraint
1. Do males need to consider the types of physical restraint that can be used on females? Do females need to consider the type of physical restraint that can be used on males?
There would need to be a consideration of the types of techniques used based on the physiological and psychological difference between men and women. In summary terms this means that men (generally speaking) should be able to use a lesser degree of force when controlling a woman, whereas a woman would need to use a higher and more effective method of restraint to control a male (based on the findings from the Allied Dunbar National Fitness Survey).
In addition, there is also the need to consider what positions would and would not be appropriate in certain circumstances. For example, a woman who had been sexually abused should not be restrained in a prone or supine position on a floor as this may trigger a previous trauma.
2. Where do we stand on using restraint on a person who is putting themselves in immediate danger?
Generally speaking physical force can be used to prevent harm to self, others, damage to property and to prevent a crime. Therefore, if someone is placing themselves in immediate danger then restraint can and in many circumstances where a duty of care is involved, and must be used if it can prevent a greater harm from occurring. This is allowed under common law and would be consistent with the ‘best interest’ criteria.
3. Can I be sacked for using physical restraint on a patient who is deemed vulnerable but is a danger to themselves, staff and other patients? If not, then why not?
Obviously the full answer to the question is dependent upon a lot of facts that are not present in your question, but generally speaking if a reasonable amount of restraint was used, to prevent harm to self, others, damage to property and to prevent a crime, then you cannot be disciplined or sacked for that. This is supported by section 44 and section 100 of the Employment Rights Act 100 of the Employment Rights Act 1996. To see the sections of the above Act so to these links: http://www.legislation.gov.uk/ukpga/1996/18/section/44 and http://www.legislation.gov.uk/ukpga/1996/18/section/100).
4. What are the possible ramifications of acting outside the scope of the new DoH guidelines (to be enforced by the CQC) even if the action itself is a legally justifiable use of force?
As is covered by Colan Ash in his presentation, the DoH guidance is issued under the Health and Social Care Act 2008 and under Section 25(2) of that Act it states that: “A code of practice under section 21 or guidance under section 23 is also admissible in evidence in other criminal or civil proceedings”. This basically means that the guidance can be used in evidence from which the trial judge finds the guidance useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections.
However, the Act also states in Section 25(3) that: “A failure to observe any provision of a code of practice under section 21 or guidance under section 23 does not of itself make a person liable to any criminal or civil proceedings”.
This means that you do not have to comply with the guidance because it is only guidance and not law. Therefore an individual commits no crime (as stated in Section 25(3) of the Act) provided of course that they can demonstrate that they are complying with the duty of care owed (to service user and staff) in other ways as required under Health & Safety legislation and also under other Acts of Parliament.
However, practically this does not mean that CQC would not make things difficult for you and that is why the letter produced by Colan Ash, entitled ‘An Inspector Calls’, is such a powerful tool.
5. How is the use of force measured in a court of law?
When courts have to consider an issue in relation to reasonable force they apply a two-step process. Step 1 is the subjective view and courts have to consider the facts presented to them by the person that used force ‘as that person believed them to be at the time’, and even if it subsequently transpired that the person was wrong, but that they had acted with an ‘honestly held belief’ then that is acceptable.
Step 2 is that the jury then have to consider an objective view. This is where the court will apply the principle of what a ‘reasonable person’ would do, and they then look at the situation from a detached perspective and, considering all of the facts and evidence have to decide if another reasonable person would have done a similar thing given all of the facts and circumstances.
6. How is the use of force currently balanced, is it weighed in favour of the user?
In all of these proceedings it is for the prosecution to prove, beyond reasonable doubt, that what the accused did was not reasonable, and if there is any doubt whatsoever the jury must acquit the case and find the defendant not guilty.
7. How much detail does there need to be in a risk assessment to ensure that any physical restraint carried out is suitable and sufficient?
For a risk assessment to be considered ‘suitable’ it should have either been done by someone with a specific expertise in the area they are assessing and / or in consultation with others who have that expertise.
In addition, ‘suitable’ would also apply to the ‘suitability’ of staff expected to carry out the activity, in this case physical restraint, and their capability in being able to do it to a suitably required standard.
With regards to ‘sufficient’ the risk assessment must show that it has considered ‘sufficiency’ in terms of the control measures that it uses to eliminate or reduce the identifiable risk. One of these areas would be in the number of staff identified in the assessment and the training and possible additional resources and equipment that they may need to be able to restrain another person to the ‘suitably’ required standard.
The amount of detail in a risk assessment varies considerably depending on the complexity of what you are assessing. There is no general standard. With regard to physical restraint I would envisage the risk assessment covering areas such as: evidence of skill construction, medical review of techniques, manual handling in terms of posture, risks of slips trips and falls, risk to pregnant people, minimum numbers of people to be involved in a restraint, vulnerability of service users, demographic make up of staff v service user, etc.
8. What happens if the RA did not identify the correct methods because of a problem/situation not considered prior to the physical restraint?
A risk assessment only has to assess what is termed a ‘foreseeable risk’. Therefore, when undertaking a risk assessment consideration has to be given to the ‘extreme’ types of circumstances in which restraint is to be used (low-level, medium risk or high risk) that can be planned for. This will be based on what has happened in the past combined with what is ‘reasonably foreseeable’. Then if something occurred that couldn’t have been planned for because it couldn’t have been foreseen, you are generally okay.
9. What is the legislation in relation to the use of force with children and young people in Scotland?
The primary pieces of legalisation in Scotland are the Children and Young People (Scotland) Act 2014, the Children (Scotland) Act 1995 and the Protection of Children (Scotland) Act 2003.
10. I see that in America a headlock has been used which killed the person in question, is it legal in the UK? No one helped the guy in question, he was unconscious and no one seemed to apply CPR. Are these officials guilty? How would that work in the UK?
There are no legal or illegal techniques per se. Force is judged on the circumstances a person finds themselves in at the time. However, with regard to restraint in the scenario you describe, all UK guidance highlights the risk of neck restraints and suggests that they should not be used due to the high risk associated with such techniques and their implication in a number of restraint related deaths. Therefore, any trained restraint team should avoid the need to use such a technique.
As for how this would work in the UK, I can comment from experience because I was the expert witness in a case where a head/neck lock was intentionally applied to a person being restrained who died in the restraint. The person who applied the head/neck lock (also known as a ‘sleeper’ hold) was found guilty of manslaughter and went to prison for six years.
11. Why is such an important matter not regulated by a government agency?
This question has been asked for many years and there is no easy answer to it. Currently there are a number of ‘Restraint Advisory’ panels set up by the Government to look at restraint in certain industry sectors (Secure Training Establishments, Immigration, etc.), but these panels are only as good as the members who make up the panels. Interestingly not one expert witness I know has been invited on any of the panels.
In addition, there is such a wide scope of industry sectors that restraint is used that it would be almost impossible to regulate everyone in the same way.
In short, the Government’s view is that the ‘regulation’ can be found in the various Acts of Parliament and therefore it is for the agency involved in commissioning training to ensure that it complies with the law.
12.Why has the SIA created a standard that is not fit for propose regarding physical intervention.
THE SIA (Security Industry Authority) had a difficult task in hand when it brought in physical intervention, because it was in a no-win-situation. There were people lobbying parliament to regulate door supervisors to try and prevent more people being seriously injured and killed on the doors and to change the image of the classic ‘bouncer’ to one of a door supervisor. As part of this process physical intervention was brought in, but it has only been designed to provide door supervisors with a low-level introduction to restraint with more focus placed on conflict management and communication skills training. In fairness to the SIA it has stated the following:
“In terms of the legislation, we say that the licence-linked qualification in no way changes the obligation of an individual to act in accordance with the law on the use of force that applies to any private citizen, and that the training does not change the employer’s legal obligations with regard to ensuring the safety and security of customers and employees. We make it clear that this includes the need for any additional training that a Door Supervisor may require that is identified via an employer’s risk assessment of a particular venue or event.”
13. A pre-emptive strike is a very grey area for me. How is a person to know for sure that they are going to be attacked or assaulted and not just someone trying to scare me or tempt me into hitting them so that they can claim? Or is there an open book on this one?
A pre-emptive strike is allowed provided that it is used consistent with “demonstrating an unwillingness to fight, to temporarise or disengage”. Therefore, if someone was being aggressive and threatening to you and you demonstrated an unwillingness to fight by stepping away and attempting to leave and then they moved towards you making you believe that you were about to be physically assaulted, then that would be a example of where a ‘pre-emptive strike’ would be used. Of course, if you have the time to leave without using force than that is the option the law would prefer as opposed to staying and using a pre-emptive strike.
Another example, would be where you believed someone had a weapon and was about to attack you. You wouldn’t want to wait until they were lunging at you with a knife, let’s say, so you could use pre-emptive force to strike them to provide you with an opportunity to escape.
14. I was hit the other week and it stunned me and through instinct I attacked the person immediately and knocked him to the ground and he got hurt. I have heard nothing back from this yet. If I do what grounds do I have to attack this person, as he did take a step back after he hit me but I was stunned and not totally aware of this?
This would fall under the principle of the ‘uplifted-knife’, which states that: “detached reflection cannot be demanded in the presence of an uplifted knife”. Now it is an old principle and it was designed to provide a defence for someone being attacked with a knife. But in modern day terms it means that in an instant you can’t be expected to think rationally and that is your defence.
You may recall John Prescott (the then Labour Deputy Prime Minister), who had an egg thrown at him and he turned round and hit the person who threw it. He was never charged either.
There is also the case law of Palmer which states that:
“If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a Jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.”
15. What are the implications of a lone teacher intervening to stop a student fight and injuring one of the students?
Sir Herbert Laming (now Lord Laming) the then Chief Inspector of the Social Services Inspectorate, in a document entitled – The Control of Children in the Public Care: Interpretation of the Children Act 1989 (S.S.I. 1997), stated: “Every effort should be made to secure the presence of other staff to ensure that any action taken is both safe and successful. It would be an error of judgement if a member of staff tried to restrain a young person without proper assistance and in so doing caused injury to himself or the young person because the intervention was handled ineptly.”
Also a lone teacher would be classified as a lone worker under the lone working guidance issued by the Health & Safety Executive. So if a student was injured as a result then a claim for negligence could be brought against the school / college for allowing it to happen.
Having said all of that, teachers have a duty of care to the children in their care and it would be wrong to expect a teacher to stand back and do nothing, but this would be down to the foreseeability of this happening which should be covered in the risk assessment which I have covered in question 7 above.
16. What are the implications if a lone teacher does not intervene to stop a student fight and one or more students are injured?
If a lone teacher didn’t intervene in a fight then that could be possibly seen as negligence but it would depend on a number of factors, such as: 1) would the teacher on their own be able to stop the fight and control the students, 2) do they need to act immediately or, 3) can they call for back up, and 4) intervene when other teachers arrive.
There is a protection under Regulation 8 of the Management of Health & Safety at Work Regulations for dealing with ‘Serious and Imminent Danger and for Dangerous Areas’ which states: “Enable the persons concerned (if necessary by taking appropriate steps in the absence of guidance or instruction and in the light of their knowledge and the technical means at their disposal) to stop work and immediately proceed to a place of safety in the event of their being exposed to serious and imminent and unavoidable danger”.
So, if a teacher was confronted with some mature teenagers having a full-on battle with possibly other weapons / knives involved, it would be reasonable to not expect the teacher to intervene but to back away and call for help or call the police.
All this should be detailed in the school / college risk assessment.
17. Legal, but effective techniques that can be used to separate fighting children aged 6 – 12yrs old in a classroom and playground environment?
As mentioned earlier, there are no legal or illegal techniques. Only techniques that would be considered ‘reasonable in the circumstances’.
The difficulty of restraining smaller children is that many of the techniques taught are designed for bigger children and therefore may not work on a smaller child. In this case staff should be expected to apply the principles of ‘best interest’ criteria and in ‘acting like a good parent should’ and hold the child in the best way possible to prevent harm to the child or others or from seriously damaging property.
There are certain techniques that should not be used on children such as: seated double-embrace, basket holds (also known as wraps), nose distraction techniques and prone and supine techniques and there is lots of Government guidance that advise against these techniques being used.
My advice would be to get a training provider to work with you and your teaching staff to produce skills that are fit for purpose.
18. Legal, but effective techniques that a person in charge of children’s care (teacher, care worker, school dinner lady etc.) can use to protect themselves when being attacked by a 6 – 12yrs old?
Under common law you can use force that is reasonable to defend yourself against anyone, of any age. So holding the child’s hands to stop them hitting you, moving away to stop a child kicking you, etc., would all be reasonable. As long as the force being used is for defence and not to teach the child a lesson or for retaliation or retribution, you are on safe ground.
19. If the force used is reasonable are the health implications less of a factor when it comes to potential prosecution?
There is a rule in law called the ‘Thin-Skull or Eggshell-Skull’ rule’ and what it means is that you take your victim ‘as you find them’. In short this rule holds one liable for all consequences resulting from his or her activities leading to an injury to another person, even if the victim suffers an unusually high level of damage (e.g. due to a pre-existing vulnerability or medical condition). The term implies that if a person had a skull as delicate as that of the shell of an egg, and a defender / aggressor who was unaware of the condition injured that person’s head, causing the skull unexpectedly to break, the defender / aggressor would be held liable for all damages resulting from the wrongful contact, even if the person using force did not intend to cause such a severe injury.
20. To what extent is the trainer responsible for the actions of the trainee should their intervention lead to prosecution?
The trainer would only be liable for any wrong doing if it was found that the trainer had been negligent in the provision of their training. For example, leaving out a technique that could reduce risk, or giving incorrect or legally flawed advice and instruction.
Generally speaking however, a trainer can’t be held liable in the same way that a driving instructor who passes a learner driver on their test cannot be held liable should the new driver decide to leave the test centre, ignore what he/she had been taught and drive dangerously, get involved in an accident and be arrested – provided of course that the driving instructor had carried out their duties properly and not passed someone who should have failed.
Interestingly the police are now quoting Article 13 of the Human Rights Act 1998 during their training, which states: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” In lay terms this means that if anyone has been violated by someone working or acting in an official capacity they are entitled to a remedy before a national body – and possibly even an enforceable right to compensation (Article 5(5) of the Human Rights Act 1998).
With regards to the Use of Force if someone gives incorrect (or legally flawed) advice, guidance, training and instruction) and that affects someone’s human and civil rights – for example they are arrested, suspended, investigated, etc., – then that person has a right to challenge the advice, guidance, training and instruction, and they are also entitled to an enforceable right to compensation if it is found that the advice, guidance, training and instruction that they have been given infringed their rights.
21. Can any recording device be acceptable as evidence in a court of law and if not, what specifications do recording devices need to be (i.e. pixels etc.)?
This falls outside the scope of this agenda and also outside of my professional field, but I did find a reference online that may help you and that is here:
22. How does an employee reconcile the law, their professional obligation and their contractual (employment) expectation when acting in physical restraint? E.g. complaints made, perceptions of third parties of the actions of the restrainer / defender?
Provided that the employee has acted in good faith and with good honest intent then that employee will have good grounds for reconciliation with whoever they used restraint on and in justifying their actions / perception, if having to answer to a complaint made against them.
23. When is it advisable to use restraint against proportionate legal force, e.g. when threatened or feeling your life is at risk or threatened?
The issue of when it would be advisable is a subjective one and this is where an individual would have to rely on their training, skill and knowledge to enable them to act with good judgement and discretion in any set of given circumstances.
You do not have to wait until your life is threatened to use restraint and you can use force to manage a less severe threat. I have already answered the question in relation to the aspect of the pre-emptive use of force in question 13.
24. Physical Restraint is a good skill to have as a security operative. There still appears to be inconsistency in up skilling and training. Is it likely to be streamlined and consistent?
The SIA is moving towards getting some common practice principles together in relation to standardising the training and they have recently undertaken a full review of all of the training providers listed on the SIA website and a meeting was recently held in London with all of the approved training providers on the SIA list to come to common agreements about this issue. The SIA will publish those findings in due course.
25. Is the new guidance from the DOH on Physical Restraint legally enforceable?
The short answer is no and I have answered this fully in question 4 already.
26. If the risk assessment that has been carried out prior to delivering training justifies the use of more restrictive techniques, can these be used?
Yes, particularly where the use of a more restrictive technique is a proportionate response to preventing a greater harm from occurring, and once again you can find a fuller answer to this in question 4.
27. When did the use of the prone restraint come into effect?
I am not sure on this one but I know that it has been in practice for a very long time.
28. Are the powers that be going to “pull the plug” on the prone restraint?
There is a lot of pressure to stop people using prone, and this is because of the risk associated with this position in relation to a number of restraint related deaths where this position has been used. In addition, historically, prone has been used far too much as a primary restraint position which in many cases was possibly unnecessary and there are issues regarding putting people in this position in relation to their human and civil rights, especially Article 3 of the Human Rights Act with protects all people against being subjected to “inhumane and degrading treatment and punishment”. However, in many areas the use of prone cannot be avoided and some secure hospitals are an example because they deal with very high levels of violence and the prone position is the safest position to prevent a greater harm. Therefore, I can’t see a complete ban working, but there is a need to safeguard the use of this technique so that it’s use is clearly justified, and, if the same outcome can be achieved without needing to use the prone position then that should be explored and, if safe to do so, used in preference to the prone position.
29. How long can a person be kept handcuffed legally?
There is no legal time limit. Each case will depend on it’s own merits and it is all about controlling the risk.
30. If the funding for the restraint training is supplied by an organisation (e.g. a local authority), and they therefore will only fund a trainer of their choice (i.e. the cheapest) but you are the employer of the staff being trained, (as in a Direct Payments situation for an individual with special needs and challenging behaviour), what is the legal situation if you, as the employer, know that the training being supplied is incorrect/defective and can the funding organisation refuse to supply that part of the funding that pays for the training if you, as the employer, insist on using another trainer?
Your situation is interesting because if I understand it correctly you will be responsible for employing the staff directly. That makes you (as the employer) directly responsible for the Health, Safety and Welfare of the service user with special needs and also for the staff who you will be employing to help you look after him/her.
With regard to the local authority insisting that they will pay provided you only use the company they have a contract with, that is also interesting, because on one level it will depend on what the contractual agreement is between you and the local authority in terms of who pays for what. On another level there is a liability here if what you are saying is that the training this company will provide is “substandard” and not fit for purpose.
With regards to your liability as employers there is of course a liability for you if you are knowingly supplying sub-standard training that could foreseeably fail and in doing so result in someone being harmed.
In terms of the “legal right of those providing the funding to restrict your choice of training provider” there is no legal right to do so per se, there is only a contractual issue which will depend on the terms and conditions of the contract which you have with the local authority.
However, there has been an interesting case with regard to what is now known as the ‘Non-Delegable Duty of Care’ which involved a school and a local education authority and you can read about that here: .
The key tool to use in all of these issues is a risk assessment, so it is imperative that you have your risk assessment in place. That will become your best friend and your weapon. Use your risk assessment to highlight the risk to staff, the risk to the service user with special needs and yourselves, the need to comply with the varying legal requirements and the ‘best interest criteria’ in terms of safeguarding the service user.
In terms of ‘safeguarding’, if the training you are being advised to use, is, as you state: “incorrect / defective”, then that in itself is a safeguarding issue, and you need to raise that with the local authority.
If the decision is being made in relation to the local authority having to comply with the new Department of Health guidance issued under the Social Care Act 2008, then the guidance is only guidance. Is it not statute and provided that an individual can show that they are complying with the law in other ways then they do not need to comply with the guidance per se, especially where it can be demonstrated that the guidance is not in the best interest of the service user and / or detrimental to the health, safety and welfare of staff.
First step first, find out whether or not the training being offered is or is not suitable in controlling the risks identified.
31. How to convince companies that they are responsible for the actions of workers, that are not theirs but are working together, i.e. Brewers, Door Supervisors.
On page 2 of the Management of Health and Safety at Work Regulations 1999, it states: “If people working under the control and direction of others are treated as self-employed for tax and national insurance purposes the may nevertheless be treated as their employees for health and safety purposes. It may therefore be necessary to take appropriate action to protect them. If any doubt exists about who is responsible for the health & safety of a worker this could be clarified and included in the terms of a contract. However, remember, a legal duty under section 3 of the Health & Safety at Work etc. Act 1974 (HSW Act) cannot be passed on by means of a contract and there will still be duties under section 3 of the HSW Act. If such workers are employed on the basis that they are responsible for their own health and safety, legal advice should be sought before doing so.”
I suggest that the employer reads these regulations.
32. And how do I better control a subject when seated?
There are numerous options here which can include: more restrictive techniques, use of mechanical restraint equipment and also a more appropriate chair / sofa. You could also consider the use of bean-bags, as these are very effective in controlling someone who is struggling as they mould to the person’s body and make it more difficult to get out of, but you would need to purchase a bean-bag that was fit for purpose so look at ones that have been designed for this purpose and do not simply buy a bean-bag from a local store. A key element here is training of course and there are some techniques that work well and there are some techniques that have been advised not to be used, such as the ‘seated double-embrace’, so getting the right information is imperative. We cover all of this on our ‘BTEC Level 3 Advanced Restraint Instructor Course’ so if you wish to attend that you will learn more about this specific issue.
33. Will there be a clear guide of how much pain compliance can be used when restraining someone and will any standards set, be recognised by the courts?
The answer to your question lies in the law in relation to reasonable force. Provided that the force was proportionate to what it is preventing that is all that the law requires. So, if in restraining someone you use a degree of ‘pain’, and that prevents a greater harm from occurring, then you will have acted reasonably. Pain is also a subjective issue and there is no clear definition of what ‘pain’ actually is or how it is defined. Even medical professionals cannot define ‘pain’ as you will see from Dr. Tony Bleetman’s video. For example, when does ‘discomfort’ become ‘pain’? Therefore, in answer to your question: “Will there be a clear guide of how much pain compliance can be used when restraining someone?” the answer is no, because it simply cannot be defined or measured. That is one reason that banning ‘pain-compliance’ techniques is virtually impossible. All the court will need to decide on is whether the force used was proportionate in the circumstances, i.e., was the harm, intrusion or pain caused, justified by the greater harm, intrusion or pain it prevented from happening.
34. Is the law going to change regarding prone restraint and how will it affect us?
The short answer is I don’t know. However, my personal and professional opinion is that it won’t change because the law cannot be that prescriptive as the law already provides for us to use force that is reasonable in the circumstances and in some circumstances it may be necessary to control someone on the floor to prevent a greater harm from occurring. Having said that, Article 2(1) of the Human Rights Act 1998 requires all public authorities and quasi public authorities (private companies who undertake a public function) to take pro-active steps to promote and preserve the right to life, and because the prone restraint has been implicated in a number of restraint related deaths, all such agencies using restraint are legally required to take pro-active steps to look for (and evidence that they have done so) alternatives to the prone position and use them where it is practicable to do so. The problem is that the prone position is, in some training systems, over-used as a primary method of intervention, which is why so many agencies are lobbying the Government to end it’s use and I can understand the Government’s reasoning (because of their legal obligation under Article 2(1) of the Human Rights Act 1998) to pro-actively look into this issue, but it would be difficult to ban the prone position outright, especially if no alternative could be found in certain circumstances and where not using prone would increase the risk of injury and possibly even death. If that was the case then not only would that be a breach of health & safety legislation, if the prone position was banned outright and someone died as a result of not being able to be controlled on the floor (with the appropriate safeguards in place) then that in itself could amount to a breach of Article 2(1) of the Human Rights Act.
35. How can we as trainers stop all negative publicity happening?
You will never stop all negative publicity. What you can do is respond to it professionally and in a way that educates others. A key to being able to do this is good evidence and good documentation, so make sure that your risk assessments are in place and done to a suitable and sufficient standard (see answer to question 7 for more information on this) so that if challenged you have the evidence at hand to support your response.
36. What restraints are not allowed?
There are certain restraints that are advised not to be used because of the high risk they carry and the fact that many of them have been implicated in a number of restraint related deaths. These techniques are: neck holds / locks, seated double-embrace, basket-holds (also known as wraps), nose distraction techniques and prone and supine positions.
37. Having been restrained in the past and might I just add I didn’t do anything wrong, I think the one thing that is always in the back off my head is, if you have to do it for a long time while waiting for assistance, how long can you do it for before it’s classed as to dangerous, and if the worse happened how and what would be my legal back up in this case?
There is no minimum or maximum time limit here and you can read an article about someone who dies in restraint in under 30 seconds here: . Some people die in restraint after a longer period and some die within seconds. There are some common factors that are involved in these deaths and these are explained in Eric Baskind’s second presentation and they are: lack of training and awareness of the risks, use of prone, neck locks and other positions that impeded the ability to breathe, lack of supervision of the person being restrained, lack of emergency medical equipment available and training in how to use it, etc. In short, when restraining someone for an extended period of time it is absolutely critical that the vital signs of the person being restrained is monitored by someone who is trained to notice the danger signs.
In relation to your latter point I can speak from experience here as I have been involved as an Expert Witness on a number of cases where someone has died as a result of being restrained and I can tell you that if the worst case scenarios occurred and someone died as a result of being restrained the court will want evidence of: what training you had received, whether it was competent, why such techniques were used and whether there were any lesser risk alternatives, did you act outside of the scope of your training provision or any guidance (DoH or SIA) and if so why and did you have any additional ‘top-up’ training, is there a suitable and sufficient assessment of risk to support the operational use of restraint and why you acted outside the scope of your sector guidance, etc. The court or the police when conducting their investigation may also very possibly want to see your certificates, your organisations policies and procedures, the training material you were given and they will ask you questions that you should be able to answer to enable you to justify what you did and why. If you can do all of that, then you have a much stronger defence.
38. What realistic alternative is there to physical restraint, when verbal and other non-physical methods are exhausted?
Physical restraint does not just mean the use of force by physical effort alone. It can include the locking of a door to prevent someone leaving a room or a building of their own free will, a verbal instruction that they comply with that restricts their liberty, the use of high door handles in a school to stop children being able to leave a school, handcuffs, belts, cot-sides, etc. You could, in some circumstances, let the person leave and call the police, if that was the best possible option. In short ‘physical restraint’ is anything that restricts or removes a person’s liberty to go where they please and is generally only used and justified to prevent a greater risk of harm occurring. Therefore, in answer to your question there are a number of alternatives you can use, but the key is in understanding the wider interpretation of what physical restraint actually means. Once again, your risk assessment is the tool that will help you identify these alternatives.
39. What are the danger issues regarding choke / neck holds which seem to be the preferred choice of Door Supervisors?
Choke and neck holds are very dangerous and should not be used in a restraint by trained staff as they are known to increase the risk of death and this is evidenced by numerous medical reviews and coroners inquests into restraint related deaths. The problem with this being “the preferred choice for door supervisors” is that many door supervisors train in martial arts or MMA or other fighting skills where these techniques are used and so they tend to ‘creep into’ the use on the doors. This is well known and is not a secret. However, if an employer knows that staff have been trained in these techniques and that they are likely to want to use them, then that employer has a legal obligation to ensure that there DS staff are briefed and properly trained to only use techniques that are authorised for use and not use techniques that carry a higher degree of risk and that are advised not to be used. If any employer does not do that and someone gets seriously injured as a result then that employer can be sighted for negligence under the Health & Safety at Work etc. Act 1974. If someone was to die because a technique was used that shouldn’t be used then the employer is potentially looking at a manslaughter charge under the Corporate Manslaughter & Corporate Homicide Act 2007.
With regards to the door supervisor that used the technique, they could end up being charged with manslaughter and ending up in prison. See this blog post for more info on a recent case where this actually occurred:
40. What are the time limits for restraining a person on the floor before it becomes physically dangerous / detrimental to their health?
This has been answered in question 37 above.
41. In reality, in your opinion, how often do frontline Hospital S/O Security Guards need to refresh Physical Intervention principles and techniques?
There is no set time limit as to when refresher training should take place. The general ‘custom and practice’ that has existed is that refresher training is normally done on an annual basis. However, this is not legally enforceable and as long as you can demonstrate how and why you have decided on the time-scale for when refresher training should be carried out, that is what you will need to produce in evidence if required to do so. The regulation that relates to this is Regulation 13(2) of The management of Health & Safety at Work regulations 1999
43. Hi Mark, I have been following you for a while now on Facebook and have read your book on understanding reasonable force, but I have a situation that no one wants to really give me a straight answer. I work in a JCP as security for a well known company, my role is as a CCO which sometimes means I need to step into a situation dealing with members of public, sometimes this can become quite a heated situation, we are told by our employer not to touch a member of the public, only if they are attacking a member of staff, I have not been given any kind of physical intervention training, but thrown in at the deep end, basically the way I see it is that I make that judgement, in fear of losing my job, if a member of staff was attacked and I am sure if a serious situation was to occur, that I would not be supported by my employer, if a member of public was also to press charges of assault, where would I stand, it makes my job not only hard but the question is when a incident occurs do I or don’t I step in?
If you are expected to intervene in any situation where there is a degree of risk then your employer must provide you with: information, instruction, training and supervision training under Section 2(2)(c) of the health & Safety at Work Act etc. 1974 to ensure your safety at work (http://www.legislation.gov.uk/ukpga/1974/37/section/2).
You are stating that you have been told by your employer “not to touch a member of the public”, that may be a reasonable instruction if ‘touching’ isn’t necessary to avoid any escalation or confrontation or allegations of improper contact.
However, you then go on to state that: “…only if they are attacking a member of staff”, which would seem to infer that an attack on a member of staff is foreseeable. Therefore, if this is the case then you should be given the appropriate ‘information, instruction, training and supervision’ (as required above) under section 2 of the Health & Safety at Work Act 1974.
In addition to that, because someone “attacking a member of staff” is a potentially high risk activity, your employer would be required to have undertaken a risk assessment for that activity as required under Section 3(1) of the Management of Health & Safety at Work Regulations 1999 (http://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made)
This risk assessment should outline the level of risk and the required control measures.
Furthermore, under Regulation 13(1) of the Management of Health & Safety at Work Regulations 1999 your employer has to consider your ‘capabilities’ when entrusting tasks to you. With regards to physical restraint it would be unwise for any employer to expect someone to have the ‘capability’ to restrain another person safely on their own due to the varying risk factors that can come into play, that should have been identified in the risk assessment undertaken.
Following on from that, under Regulation 13(2) of the Management of Health & Safety at Work Regulations 1999 your employer has to provide you with training and under Regulation 13(3) that training has to be repeated periodically and take into account any changes to the risk. (http://www.legislation.gov.uk/uksi/1999/3242/regulation/13/made)
As such it would be unreasonable for you to simply be expected to “use your judgement” and then be responsible for the outcome if none of the above was provided for you.
Under common and criminal law, all law-abiding citizens of the UK have the right to use force to protect themselves and others. This is a legal right and cannot be derogated against or taken away with the stroke of a pen or by a verbal instruction. However, if the risk is increased by the nature of a person’s employed role then the Health & Safety at Work Act comes into play along with the associated regulations listed above.
With regards to your comment about you losing your job, you have protection in the law there too, specifically under the Employment Rights Act 1996. Under Section 44(1)(e) of that Act it states that: “An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger”. (http://www.legislation.gov.uk/ukpga/1996/18/section/44).
Under Section 100(1)(e) of the same Act it goes on to state: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that … in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger”. (http://www.legislation.gov.uk/ukpga/1996/18/section/100).
With regard to a member of the public pressing charges for assault against you, that is a foreseeable possibility. However, the common law and criminal law provides a defence in the fact that provided you acted reasonably and with good honest intent you can not be expected to weigh up the nicety of the situation and this is reflected in the case law of Palmer that even the CPS refer to which states: “If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …” (http://www.cps.gov.uk/legal/s_to_u/self_defence/),
With regard to your final point as to “do I or don’t I step in” you are protected under Sections 44(1)(e) and 100(1)(e) of the Employment Rights Act 1996 if you do “step in”, and, you are also protected under Sections 44(1)(d) and 100(1)(d) of the Employment Rights Act 1996 if you don’t step in; which states: “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”. (http://www.legislation.gov.uk/ukpga/1996/18/section/44 and http://www.legislation.gov.uk/ukpga/1996/18/section/100).
In final summary this is my advice to you:
#. Ask to see your terms and conditions of employment. This should clearly state what is and what is not expected of you.
#. If in those terms and conditions you are expected to intervene in an assault situation ask to see the risk assessment that identifies what the risks and control measures are.
#. If you are not happy raise your concerns with your line manager, requesting a consultation. The requirement to consult is identified in Section 44(1)(ba) of the Employment Rights Act 1996 and also under the Health and Safety (Consultation with Employees) Regulations 1996.
#. If you get no joy there, raise the matter with your union representative if you have one.
#. If not and you are still not happy, ask to see your employers ‘Whistleblowing policy’ and what the procedure is.
#. If that gets you nowhere, then raise your concerns in writing to the Director responsible for Health & Safety within your organisation.
#. If, for whatever reasons, you feel that you can’t tell your employer then you can make a representation to your local Health & Safety Executive Inspector at the Local HSE office or to the Environment Safety Officer of your local authority.
44. What if my employer has not/will not give me the necessary training to deal with a situation, what can I do?
I think the answer to this question is the same as the answer to question 43 above.
45. If I was involved in an incident in a workplace using physical restraint and the person decided to press charges for assault and an employer would not act on your behalf to give you support. What are my options?
Firstly your employer has a direct duty of care towards you under section 2 of the Health & Safety at Work etc. Act 1974 and if they expect you to intervene in situations then they should have policies and procedures in place to support you in the circumstances you describe. Therefore, ask to see their policies on restraint including the specific policy that relates to post incident support and back up.
In addition, your employer should also have employer liability insurance in place and part of the insurance cover will provide legal support so your employer needs to contact their insurers and they should take up the case on your behalf. Therefore ask to see a copy of your employer’s insurance documents.
You are also protected under the Employment Rights Act (see the answer to question 43 above) so if your employer will not support you may have grounds to take them to an industrial tribunal or take action against them for negligence so you could contact a solicitor and get a free legal consultation on that. They will provide you with the best way to proceed.
46. Do you see a time when the use of prone restraint will be outlawed in all disciplines?
Please see the answer to question 34 above.
47. Can restraint ever really be seen as therapeutic?
This is an interesting question because many agencies promote their systems as being ‘therapeutic’ and there are a number of issues here. It could be seen as therapeutic if the restraint provides a degree of comfort to a distressed person. However, in many areas we need to take into consideration other factors such as ‘attachment’ issues whereby a service user engineers the need to be restraint because it is at least some form of physical contact. In these circumstances this, if not monitored as part of an overall behavioural management care plan, can lead to an over-reliance on restraint which will be counter-intuitive to what it is intended to achieve and therefore not necessarily therapeutic per se.
Also, many systems that promote a ‘therapeutic’ approach are American based systems and so we have to bear in mind that our American cousins do not have to comply with the same laws that we do, such as the Human Rights Act and the United Nations Conventions on the Rights of the Child, etc., and that is why they can have institutions like Guantanamo Bay and we can’t. In short, they may have to comply fully with UK and European law that UK organisations are legally bound to comply with. The net effect of these systems is that although many of them promote a ‘therapeutic’ approach they still use techniques that have been advised not to be used in the UK as part of their system because American Law and Guidance hasn’t banned them and to see an example of how a ‘therapeutic’ system has killed someone go to this video post: .
In short I think that restraint can be therapeutic if applied in the right way and for the right reasons, but it has to be pro-actively managed, monitored and reviewed as part of a service user’s overall care plan and systems should not just be implemented on the primary basis that they have the word ‘therapeutic’ in their name.
In addition, any agency looking to use an system with the word ‘therapeutic’ in it should ask to see evidence that it complies fully with UK and European law.
48. How are we going to reduce the use of prone/face down restraint?
I think that I have answered this question in question 34 above.
49. If a panel of ‘experts’ are formed to write guidance relating to physical restraint, and the law relating to physical restraint, should they have experience in restraint and documented qualifications and relevant background, and if they haven’t does this make the guidance legally flawed, and could the guidance be challenged in court?
Absolutely. As already mentioned in a response to one of the questions above ‘suitably qualified or competent’ person/s should be involved. If not and the guidance is based on a ‘biased’ opinion rather than evidential fact and competent experience and opinion, then any guidance produced is very likely to be flawed and easily challenged in court. You can read more about this and how we challenged the Independent Restraint Advisory Panel on this very point by going to this blog post: .
50. Is prone restraint dangerous and do we still need to do it?
The prone position has been implicated in a number of restraint related deaths and it can be dangerous especially if combined with other factors as raised by Eric Baskind and also Dr. Tony Bleetman in their presentations. However, there are many agencies using the prone position and they have been doing so for years and have never had a major incident because the way they manage the restraint is very competent and professional.
With regards to whether we still need to do it, I have covered this in my answer to question 34 above.
51. What is the safe alternative to prone restraint?
There are a number of possible safer alternatives to prone restraint such as: containment, seated restraint positions, restraining someone on their side, standing restraint positions, use of bean-bags, handcuffs or other mechanical restraints and if necessary chemical restraint. The skill here, is in determining which one is the least intrusive and the most legally, medically and ethically appropriate solution to the situation / managing the presenting behaviour. In addition, some of these options would require the use of more restrictive techniques to prevent a person going to the floor and so the question has to be asked: would the use of a more restrictive technique be considered proportionate and consistent with Article 2(1) to eliminate / reduce the risk of someone ending up on the floor where there is s greater risk of harm or the potential for a restraint-related death to occur? If the answer to that is yes, then the use of a more restrictive technique is not only necessary is must be used consistent with the positive obligation to preserve life as required by Article 2(1) of the Human Rights Act 1998.
52. Will management be held accountable and accept responsibility for the inevitable injuries/death caused to those in their care and those in their employment due to the ban (or perceived ban) on the use of prone restraint techniques?
Yes, management can be held accountable under various sections of the Health & Safety at Work etc. Act 1974 and also under the Corporate Manslaughter and Corporate Homicide Act 2007 if they ban the use of techniques that, if used, would have prevented a greater harm / death from occurring without having any evidential reasoning for doing so. That would be classed as a negligent omission.
53. Do you not agree that all Trainers that deliver physical restraint should be medically trained to be able to identify when a restraint becomes a medical emergency, and they have the training and equipment to resus?
I agree that training should be provided to all staff to enable them to identify the signs of positional asphyxia and excited delirium in a person being restrained and how to monitor a restrained person’s vital signs and apply first aid, CPR and even use equipment such as oximetors and defibrillators if they need to do so, and that there should be clear protocols and procedures in place to summon medical help if necessary so that there is no delay in getting a restrained person the correct medical support if needed.
Whether that should extend to all trainers being ‘medically trained or not’ is an interesting question and my view on that is it would do no harm to train trainers so that they can pass on that information to the people they train. But then the question has to be asked as to whether or not we should include full medical training in a restraint programme or whether it is enough to include awareness training on the risk associated with physical restraint and what procedures to follow should that risk materialise.
The answer to me would lie in the risk assessment as to the degree of risk in differing environment and therefore the need for differing levels of training and control measures. For example, in a low risk environment where very low level restraint is taking place and where the service user demographic is more vulnerable as opposed to challenging and violent, it may not be deemed ‘reasonably practicable’ to make every member of staff undertake medical training’ to the same level as someone working shall we say in a medium to high secure setting where the risks involved in restraint are much higher because the service users are far more aggressive and violent and therefore there is a need for a much higher level of restraint and as such a higher degree of risk.
54. An outline of the medical implications of a blow to the head as we are usually dismissive of it as a regular occurrence?
As Dr. Tony Bleetman discussed in detail in his presentation, any blow to the head is potentially dangerous and I think that the answer to this question is found in the video of Dr. Bleetman’s session.
55. On the question of restricted liberty an Ofsted inspector recently said to a client that they cannot lock a door nor prevent a child of 16 years of age leaving the premises of a children’s home as it is against their human rights and against legislation. The inspector quoted section 17a from the Children’s Homes Regulations 2011 stating that as it is not a secure home they have no right to restrict liberty. This young girl returns to the home most nights drunk and is clearly at risk yet after explaining that what the inspector quoted has been misinterpreted in that while it makes reference to what can be done if it was a secure home and restrict the individual from leaving a secure setting, under that section it makes no reference to what can be done in a non secure home and therefore the inspector is wrong to have said this to them as they have a duty of care to that child to ensure that child’s safety and safeguard the child from any potential harm even if this meant a restriction of their liberty because of the larger context of protecting the child from harm. My client’s response to my comments was that they believed that what I explained was legally correct however they are questioned and made to jump through hoops by Ofsted who exert an enormous influence on their day to day business and could well be the difference between them staying in business or not … Q: if this is the type of inaccurate and incompetent advise given out there by Ofsted inspectors who along with CQC inspectors wield all of this control over Children’s Care Homes is there anything you can suggest we can do collectively to challenge these bodies. I spoke to my client about having a thorough risk assessment in place and to challenge such advice, yet it would appear the fear of upsetting Ofsted and the CQC outweighs for many companies what should be done based on a legal defence.
In answer to your question about what ’we can do collectively to challenge these bodies’, I have always found that each case has to be challenged on it’s own merits, otherwise Ofsted won’t do anything. However, we can all help by raising the issues and publicising them regularly and writing to our MP’s and also Ofsted asking for the justification and clarification on any inspector’s decision.
Risk assessments are always good to have in place and Colan Ash’s letter ‘An Inspector Calls’ is a great tool to use as a template to challenge any decision that you or your client may feel is wrong.
It is true that many companies will not challenge Ofsted for fear of upsetting an inspector and just put up with whatever they say. That I am afraid has to be the choice of the individual concerned.
56. Can you clarify please the legal position should a company act on the advice of an Inspector, Ofsted or CQC, where the advice given is bad advice and as a result a child is injured or worse still, a death occurs. I’m thinking here about the McCann v United Kingdom case, would this apply due to bad advice and planning in the care and protection of the child? If any laws have been broken, what are they and why?
The commissioning agency will always hold direct responsibility and liability for what they chose to do, and if that means adhering to any inspectors recommendation, even though they know it is wrong, they will take on-board the culpability and liability of any harm that may result from doing so and then it would be for them to challenge Ofsted in court.
There is an issue for Ofsted or CQC (or indeed any other Government agency) that gives flawed advice and this was highlighted in the Supreme Court ruling in the case which has paved the way for the family of a brain-damaged girl to pursue compensation from a local education authority, and you can read more about this here: .
There are obviously Human Rights issues here too and I think that if a Government inspector is giving incorrect and inaccurate advice then that can be sighted as a possible breach of Article 13 of the European Convention of Human Rights which states: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” In lay terms this means that if anyone has been violated by someone working or acting in an official capacity, they are entitled to a remedy before a national body – and possibly even an enforceable right to compensation (Article 5(5) of the Human Rights Act 1998), and you can see a case example in this blog post: .
With regards to the Use of Force if someone gives incorrect (or legally flawed) advice, guidance, training and instruction) and that affects someone’s human and civil rights – for example they are arrested, suspended, investigated, etc. – then that person has a right to challenge the advice, guidance, training and instruction, and they are also entitled to an enforceable right to compensation if it is found that the advice, guidance, training and instruction that they have been given infringed their rights.
57. Should someone die whilst being restrained due to complications from an existing medical condition, would the charge of murder/manslaughter still be valid?
Yes it would and this is known as the ‘Thin-Skull’ or ‘Eggshell-Skull’ rule, and it basically means that you take your victim as you find them.
This rule holds a person liable for all consequences resulting from his or her actions (usually stemming from a negligent act or omission) or activities that result in an injury to another person, even if the victim suffers an unusually high level of damage due to a pre-existing vulnerability or medical condition. The term implies that if a person had a skull as delicate as that of the shell of an egg, and a defender / aggressor who was unaware of the condition injured that person’s head, causing the skull unexpectedly to break, the defender / aggressor would be held liable for all damages resulting from the wrongful contact, even if the defender / aggressor did not intend to cause such a severe injury.
In criminal law, the general rule is that the defendant must “take their victims as they find them”, a quotation from the judgment of Lord Justice Lawton in R v. Blaue (1975), in which the defendant was held responsible for killing his victim, despite his contention that her refusal of a blood transfusion constituted ‘novus actus interveniens’.
The doctrine is applied in all areas of torts – intentional torts, negligence, and strict liability cases – as well as in criminal law. There is not even a requirement to have any physical contact with the victim. For example, if a trespasser’s wrongful presence on the victim’s property so terrifies the victim that they have a fatal heart attack, the trespasser will be liable for the damages stemming from his original tort (trespassing). The foundation for this rule is based primarily on the fact that they do not want the defendant or accused to rely on the victim’s own vulnerability to avoid liability.
58. What would be the likely outcome if someone caused themselves a serious injury through struggling etc. when being restrained by security/police etc.?
If someone was injured because they were struggling when they were being restrained then that injury would be judged in a criminal court on the basis of the reasonableness of the force used. In other words, was the harm caused both necessary and proportionate to what the security / police officers were trying to prevent the restrained person doing? From a civil law (tort) perspective, even if the injury was justified in a criminal law court a person could still sue if they can successfully argue that the harm to them would not have been caused if the security / police officers were properly trained. Therefore, if the injury to the restrained person was due to untrained or ‘out-of-date’ staff being involved in a restraint, then there may be a case to bring a civil case for negligence against the person / persons who restrained them or the company they work for, to compensate for the injury caused.
59. What would be the potential consequences for an employer (or an individual manager) if they were to breach health & safety legislation despite being in possession of information and a risk assessment highlighting dangerous practices?
The employer and possibly even the manager could be prosecuted under various sections of the Health & Safety at Work etc. Act 1974 if an injury / harm was to occur that they knowingly could have prevented. This is highlighted in section 37(1) and (2) of the Act which states: [S37(1)] “Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly”, and in s37(2) it goes on to state: “Where the affairs of a body corporate are managed by its members, the preceding subsection shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.”
60. If an organisation used a piece of equipment e.g. handcuffs for a purpose for which it was intended to be used for, would the organisation be breaching PUWER regs’?
Not at all, provided that the PUWER Regulations were complied with.
61. Why is there such opposition to the use of pain compliance in situations where life or limb is in danger?
This is primarily because some people think that using any technique that intentionally or unintentionally causes pain is abuse, and therefore should not be used. However, they fail to understand the wider implications with regard to the fact that in some cases not using pain will lead to a much greater collateral fallout that could have been prevented by the use of a more restrictive technique. In short, they do not understand the law in relation to the use of force and are ill informed.
62. Why do some organisations still insist that their staff are not allowed to use restraint even when there is plenty of evidence of the need?
There are a number of reasons why this is the case. For example, some agencies promote the fact that if restraint is used, staff have failed in communicating or using their de-escalating skills properly. This makes staff feel disabled. Some agencies believe that restraint is abusive and therefore should not be used. Some believe that because the service user can’t control their behaviour it is therefore not the service user’s fault and so they should not be restrained, and some believe that if staff choose to work in their organisation they should put up with being assaulted as ‘part of the job’. In some cases the company simply don’t want to invest in restraint training so will make up a rule that staff do not restrain anyone. There are loads of reasons why this is the case. However, if there is a no-restraint policy in place and someone is injured, that could have been prevented by a restraint, then that policy highlights the employer’s negligent liability and as such they will be highly culpable.
63. Use of force in prevention of assault is pretty straight forward (ish), intentional or reckless, but can you give any case example of use of force to prevent harm where a person lacks mental capacity (as this I believe is not technically assault???) and a very common scenario on the neurological / brain injury, detox and eldercare dementia wards at the general hospital in which I teach.
If someone lacks mental capacity then the legal justification for using force would be under common law, and the same legal principles apply in terms of necessity and proportionality. For example there was the case where George Harrison (the former Beatle) was attacked in his home by a man called Abram who “believed that The Beatles were witches who flew around on broomsticks. Subsequently, George Harrison possessed him and that he had been sent on a mission by God to kill him. He saw George as a sorcerer and a devil.” (You can read more about this here: http://ultimateclassicrock.com/george-harrison-attacked/?trackback=tsmclip). The fact is that George Harrison defended himself and his wife struck Abram with a lamp, causing him to drop the knife. Harrison and his wife were never charged because under common law they have the right to use force, even if the person attacking them clearly lacks mental capacity.
64. Can the use of prone position restraints ever be justified?
Please read my response to questions 28 and 34 above and in addition to that, prone restraints can be justified if the position is likely to reduce a greater risk of harm by not using that position. The tool to justify the use of the prone position would be your risk assessment and you would need to make sure that any risks associated with the use of that position are eliminated or reduced by ensuring that staff are competently trained, medically trained staff are on hand, the restrained person is being monitored by properly trained and sufficient numbers of staff (I would recommend that all staff involved in the restraint are trained to basic or intermediate life support), oximetors and defibrillators are available and staff are on hand to use them and as soon as it is safe to do so the restrained person is moved into a less risky position.
65. What will be the implications for physical intervention should the HRA be abolished and replaced with a British Bill of Rights (as the Conservatives propose to do)?
I do not think that there will be any major changes to the implications already in place at all.
66. Is a hands off policy legal and if a company has such a policy are they legally bound to share it and who then is responsible if someone (either service user / staff/public) are hurt during an incident of violence /aggression?
It is often believed by some agencies (particularly schools and certain care homes) that they should have a ‘no touch’ policy as part of their safeguarding and child protection policy. The myth that seems to underpin this approach is that some agencies think it is better for them to have a ‘no touch’ policy so that their staff are not accused of acting inappropriately if they have physical contact with a child or vulnerable adult. This however, should not be the case. With regards to them being legally bound to share their policy, I am not sure about the legality of that but why wouldn’t they if they have nothing to hide? If someone got injured as a result of not being restrained, then that could be classed as a ‘negligent omission’, especially where it can be demonstrated that the use of restraint would have prevented the harm from occurring.
67. With the new guidance in relation to the use of physical interventions and other restrictive practices how are organisations going to ensure they meet health and safety requirements in managing violence and aggression and ethical considerations are met in relation to self-injurious behaviours?
The simple answer is to undertake a suitable and sufficient assessment of risk which should highlight who is at risk, what from, the degree of risk and what control measures should be put in place to eliminate or reduce the risk. You can find out more for free here: http://www.hse.gov.uk/risk/fivesteps.htm
68. Can physical restraint be used on adults and children under duty of care without physical intervention training of staff?
Anyone can restrain another person under common law, and common law applies to any citizen in the UK. So legally any citizen can use force on another person and restrain them within the constraints provided by common and even criminal law. However, if, by condition of contract there is a duty of care owed, and an employer places a member of staff in a position whereby they are more likely to have to use restraint, then the employer is required to train their staff because the risk of having to do it becomes more foreseeable as part of that employee’s role. This is a requirement under section 2(2)(c) of the Health & Safety at Work etc. Act 1974 and is further enhanced by Regulation 13 of the Management of Health & Safety at Work Regulations 1999. The short answer is that no employer should avoid their legal obligation in extending a duty of care to their staff and the service users in their care by not training staff and rely on a member of staffs’ common law rights.
69. Who can deliver physical intervention training and what qualifications should they hold to do so?
Any competent person can deliver physical intervention training. They do not necessarily need to have a qualification per se (with the exception of the Security Industry where a trainer must hold a Level 3 for Deliverers of Physical Intervention for the Private Security Industry Award) but they must be able to evidence and justify what they are proposing to teach as any commissioning agency becomes liable for whoever they employ to teach physical intervention to their staff. It is also imperative that the person teaching is insured to do so. However, today there are Awarding Body qualifications in restraint and it would be best practice if a trainer held a qualification as it is evidence that they have undertaken a structured method of learning and assessment that has been written and assessed to a National Vocational Standard.
70. When can Restraint be used?
Restraint is generally used to prevent harm to oneself, to others, to prevent serious damage to property, to prevent a person fleeing after committing a crime and /or to affect a lawful arrest or to prevent a person from escaping from custody.
71. When does restraint become excessive?
Restraint becomes excessive when the force we are using becomes disproportionate to the harm that we are using force to prevent, or when it becomes unnecessary to use any more force because the person has already been controlled. For example, if someone has someone restrained and they cannot move, but the restraint team continue to apply a degree of force which is unnecessary and is causing pain or discomfort, then that could be viewed as being excessive.
72. Who is responsible for the selection of restraint procedures / techniques within an organisation?
Ultimate responsibility will always lie with the chief executive or senior director/ manager, but if they do not have the competence or capacity to do the selection, then they may pass that responsibility onto someone who has more knowledge then they do in the area of restraint to advise them and make that decision on their behalf. In that case the person who is given the responsibility will have the responsibility, accountability and liability.
73. What information is necessary to inform the organisation of the correct selection of the necessary techniques / procedures. Who makes the final decision?
Techniques should be used that are fit for purpose and that work, considering the demographic make up and differences between staff and service user. The techniques should also be taught within the correct legal context and in line with any specific guidance or legislation that relates to that specific industry sector. The techniques should also be medically reviewed to make sure that they are medically fit for purpose for the context in which they will be applied and to whom. The final decision as to what system or selection of techniques are to be used will rest with the chief executive or senior director/ manager or to the person who has been given that responsibility within the organisation.
74. If I teach physical restraint techniques to others and they use them. … and it all goes a bit wrong… how liable am I? Can this liability be passed to those who authorised me to teach the techniques?
If you have been trained to deliver training in a specific system that has been chosen for use in your organisation, then the organisation has ultimate liability (vicarious liability) for what you teach and deliver. Of course you are responsible for ensuring that you deliver it safely and in line with they way the organisation wants it delivered, and providing you do that, you have a very limited liability. This would only increase if you added techniques that hadn’t been approved or agreed by your organisation or removed techniques that should have been taught. However, if you knew that what you were being asked to deliver wasn’t fit for purpose then you have an obligation under Regulation 14 (Employee’s duties) of the Management of Health & Safety at Work Regulations 1999, which states:
“Every employee shall inform his employer or any other employee of that employer with specific responsibility for the health and safety of his fellow employees, (a) of any work situation which a person with the first-mentioned employee’s training and instruction would reasonably consider represented a serious and immediate danger to health and safety; and (b) of any matter which a person with the first-mentioned employee’s training and instruction would reasonably consider represented a shortcoming in the employer’s protection arrangements for health and safety.”
75. A legal definition of the “prone” position, acceptable to all service groups?
I think it would be highly unlikely to ever get a legal definition of the prone position, as it has no level relevance per se in terms of a legal application of rules or principles. There is a medial definition of prone which re-enforces what we all hopefully understand prone to be which is someone lying with the front of his or her body facing the floor.
76. How to get a level of understanding that using pain compliant techniques are sometimes appropriate in given circumstances?
This requires education and a better understanding of the law in relation to the use of force, combined with the ‘best interest criteria’ and how the use of pain compliant techniques, in some circumstances, can be a practical and pragmatic way of reducing risk to staff and service user.
77. Safety versus legality. What are the repercussions of not intervening, for client, staff, and general public?
I have covered this answer in previous questions, but basically an organisation has a duty of care to it’s staff and service users / members of the pubic and if not intervening results in a harm or injury or death occurring, then that breaches the duty of care owed to the person harmed or killed and the organisation can be investigated and prosecuted under the Health & Safety at Work Act etc. 1974 and the Corporate Manslaughter & Corporate Homicide Act 2007.
78. “What can I do?” (In general, across the board).
This is a very general question and a general answer to that would be that you can do anything that is legally justified.
79. The Health and Safety Executive is a very well respected agency with powers of investigation and enforcement far exceeding everyone else in matters relating to safety in the workplace. My question is ‘why is more work not done in relation to prevention of accidents (sect 37?) rather than just being the body that investigates after the fact? There are many organisations unaware of legislation and training or even where to look for training. Perhaps RIDDOR accidents could be reduced in relation to PI with more EMPLOYER awareness of their obligations and responsibilities.
All employers have a legal responsibility under the Health & Safety at Work etc. Act 1974 to identify risk and put controls in place to eliminate and reduce that risk in line with suitable and sufficient risk assessments. Therefore there has always been a requirement to prevent accident, but that is the responsibility of every organisation and it’s management team, and that shouldn’t, in my opinion, be a HSE responsibility because if we choose to be in business then we must comply with what is required and one area is the health, safety and welfare of staff and others in the workplace. The HSE website has lots of advice and information that can be accessed and downloaded to help prevent a range of work related accidents. The problem that the HSE has, is not having the staffing resources to pro-actively go out and provide advice, so it is primarily focussed on undertaking investigations.
80. How and when are we going to have a set of national standards for trainers and training?
I don’t think this will ever happen unless all training is nationalised. It would be a huge task and require a vast amount of reform and restructuring and then there would have to be an agreement on what the national standard would comprise. Also, would the standard be expected to be applied in different areas; such as education, childcare, adult services elderly services, security, and the police and prison service? Due to the wide and diverse range of differing needs, disciplines, staffing resources and the individual motivations and demographics involved, I would think that this would be a mammoth task and very difficult to achieve.
There is a way forward, and that is in adopting a set of working principles that could be applied, such as: legal, manual handling, health and safety, motor learning and performance, medical, etc. Then a framework set of principles could be set up by which training providers from differing sectors would have to work to and meet to deliver training in those sectors based on an agreed set of principles.
81. I’d like to know what your considered opinion is on the use of mechanical restraints in a therapeutic healthcare environment?
Mechanical restraints, if required, should be considered, and where it can be demonstrated that they will reduce risk, used. This would ensure compliance with the Manual Handling Operations Regulations 1992, and which is further highlighted by section 43 of the Guidance on the Regulations which states: “If, so far as is reasonably practicable, handling of the load cannot be avoided, then can the operation/s be either:
(a) automated; or
82. What are your views on moving someone under restraint down stairs?
Restraint is a manual handling activity and one of the most common injures at work is a slip, trip and a fall. Therefore, when moving a person under restraint down a flight of stairs you have a ‘load’ (the person being restrained), on an incline that could become unstable at any time. This presents a real risk to the staff and the person being restrained. Also, there are the risks associated with the stairs and the environment to consider too, for example, is it outside, dark, wet, sloppy, are the stairs metal, concrete, wooden, are there handrails, how many steps are there, how severe is the incline, etc? My advice is a) don’t do it unless it is absolutely necessary, and if you do have to do it make the load (person being restrained) more secure by using handcuffs to give the staff more control. See question 81 above.
83. Living in Scotland, I often wonder if there are any practical differences in relation to restraint / self defence between the Scottish and English legal systems? I know we don’t have the Criminal Law Act 1967 up here but we do have Common Law which covers basically the same parameters but it would be good to know what differences there are if any.
Scottish Law works under very similar principles to English Law as can be seen from examples of the following Scottish case laws:
Fenning vs HM Advocate:
“There must exist an imminent danger to life”
“The actions must be necessary”
“There must be no cruel excess of violence”
“There must be no other means of escape”
Maher vs HM Advocate:
“You do not need an exact proportion of injury and retaliation; it is not a matter that you weigh in too fine scales, as has been said. Some allowance must be made for the excitement or the state of fear or the heat of blood at the moment of the man who is attacked … “.
“Self defence, ladies and gentlemen, is a complete or absolute defence. In other words, if you accept that Mr Maher was acting in self-defence you must acquit him. And that’s for the simple reason, ladies and gentlemen, that each and every one of us is entitled to defend ourselves from attack.
However, in order for a defence of self-defence to succeed you would need to accept firstly that Mr M perceived himself to be in danger, under onslaught. Second that he had no means of escape and third, that the force used in order to defend him was reasonable and not what we lawyers call cruel excess.
You see, ladies and gentlemen, if a person finds himself in a vulnerable situation he is obliged to get away from it if he can. He’s obliged to take advantage of a means of escape if such is open to him.
But if he can’t get away he is entitled to use force against his assailant or assailants provided that that force does not amount to cruel excess. To put it in colloquial terms he mustn’t go over the top.”
Maher vs HM Advocate:
“That is the first thing I have to say to you about self defence, that in law it’s a complete defence provided there is imminent danger, no means of getting away from it and reasonable force is used to ward off the attacker or attackers.
84. Is there a Personal Safety course, suitable for female medical staff, for example, available to deliver under the NFPS banner… that can be certificated?
We have delivered a number of personal safety courses for staff which have been designed to meet the different needs between males and females and if you wish to contact me directly with a more specific outline of what you are looking for I am sure we can help you.
85. Eric was extremely knowledgeable and I enjoyed his input very much. I would however like to confirm my understanding of when he said: – The courts say one can arm oneself in order to effectively defend against unlawful violence (e.g. the petrol bomb case) but this would be in breach of offensive weapons act. So regarding self defence law, a taxi driver could legitimately arm himself with a small rounders bat in the driver pocket of his door for self protection, but as soon as he does he breaches offensive weapons act (intended weapon) and is therefore guilty of an offence.
In response to that question, which is a great question, I have put together the following answer to help clarify the situation, drawing reference to the Attorney General’s reference and Lord Lane’s comments from the Court of Appeal.
Attorney General’s Ref No 2 of 1983  QB 456 Court of Appeal
The defendant was a shopkeeper. His shop was in the centre of extreme riots, which were taking place. On the night of the 11th/12th July 1981, £600 worth of damage was caused to his shop and £400 worth of his goods were stolen.
After this attack he remained in his shop without sleep and in fear of further attack from 1:30 a.m. until the morning of 14th July because he was in fear that he and his property might be the subject of further attack.
To protect himself, in case he was the subject to further attacks he made 10 petrol bombs.
As a result he was subsequently charged with offences under section 4 of the Explosive Substances Act 1883.
His defence to the charge was the defence of self-defence and the jury acquitted him (found him not guilty).
As a result of his acquittal the Attorney General referred a question on a point of law to the Court of Appeal as to whether the defence of self-defence could be used to cover preparing for attack.
The Court of Appeal held that:
The defence could be allowed for offences based on possession of weapons (in this case home-made bombs) in preparation of attacks provided the possession ceases when the danger of attack is no longer imminent.
In this case, Lord Lane CJ commented on this point stating:
“The defendant in this case said that his intentions were to use the petrol bombs purely to protect his premises should any rioters come to his shop.
It was accordingly open to the jury to find that the defendant had made them for the reasonable protection of himself and his property against this danger.
The fact that in manufacturing and storing the petrol bombs the defendant committed offences under the Act of 1875 [The Explosives Act] did not necessarily involve that when he made them, his object in doing so was not lawful.
The means by which he sought to fulfil that object were unlawful, but the fact that he could never, without committing offences, reach the point where he used them in self-defence, did not render his object in making them for that purpose unlawful.
The object or purpose or end for which the petrol bombs were made was not itself rendered unlawful by the fact that it could not be fulfilled except by unlawful means. The fact that the commission of other offences was unavoidable did not result in any of them becoming one of the defendant’s objects.
In our judgment a defendant is not left in the paradoxical position of being able to justify acts carried out in self-defence but not acts immediately preparatory to it. There is no warrant for the submission on behalf of the Attorney General that acts of self-defence will only avail a defendant when they have been done spontaneously. There is no question of a person in danger of attack “writing his own immunity” for violent future acts of his. He is not confined for his remedy to calling in the police or boarding up his premises.
He may still arm himself for his own protection, if the exigency arises, although in so doing he may commit other offences. That he may be guilty of other offences will avoid the risk of anarchy contemplated by the Reference. It is also to be noted that although a person may “make” a petrol bomb with a lawful object, nevertheless, if he remains in possession of it after the threat has passed which made his object lawful, it may cease to be so. It will only be very rarely that circumstances will exist where the manufacture or possession of petrol bombs can be for a lawful object.”
Section 31 of the Offences Against the Person Act 1861
And it would seem that this case is predominately related to the defence of one’s self in one’s own home, and interestingly this is supported by the law as we can see from the final paragraph of Section 31 of the Offences Against the Person Act 1861 which states:
“Provided also, that nothing in this section shall be deemed to make it unlawful to set or place, or cause to be set or placed, or to be continued set or placed, from sunset to sunrise, any spring gun, man trap, or other engine which shall be set or placed, or caused or continued to be set or placed, in a dwelling house, for the protection thereof.”
In plain English what this means is that:
- The defendant broke the law when he made and stored petrol bombs.
- However, due to the extreme nature of the rioting that was taking place at the time, he was in fear for his safety based on the fact that his shop (which he lived above) had already been broken into and looted.
- It was also probably unlikely that he could have relied on an immediate police response in the circumstances due to the extreme nature of the rioting taking place at the time.
- As a result he was entitled to rely on the defence of self-defence, given the circumstances at the time, his degree of fear and his honestly held belief, which extended to allowing him to arm himself pre-emptively to ward off a probably attack on him or his premises.
- This means that in exceptional and extreme circumstances any member of the public does not have to wait to ‘act spontaneously’ but may make preparations for a potential threat that is likely to occur.
- Therefore, although in this case the defendant committed other offences by making and storing the petrol bombs, he was found not guilty of having committed a crime because his primary objective was self-defence, provided of course that once the threat had ceased he removed the weapons and no longer had them in his possession.
- This case is however an exceptional case given the circumstances and should not be viewed as an arbitrary means by which people may arm themselves in lesser circumstances based on a “something may happen one day” perception, especially where there is the option to leave the vicinity and call the police.
Therefore, in answer to the following question:
“So, with regard to self defence law a taxi driver could legitimately arm himself with a small rounders bat in the driver pocket of his door for self protection, but as soon as he does, he breaches the offensive weapons act [intended weapon] and is therefore guilty of an offence.”
This is true, unless of course he is working in circumstances of exceptional and extreme danger at the time or he is placed in a situation of exceptional and extreme violence. In such a case the driver will be ‘breaking the law’ by carrying the bat, but if he / she had to use it in self-defence in such extreme circumstances, the carrying of the offensive weapon will not be detrimental to their right to defend themselves. The key to this of course would be the exceptional or extreme nature of the circumstances that people may find themselves in.
However, it would be wrong to allow any citizen to simply carry a weapon ‘just in case’ they could become the victim of an attack in carrying out their normal daily job, especially when they may have safe working practices and contingencies in place such as being able to call the police and leave and go to a place of safety.
Some Points of Interest for Consideration:
- Interestingly however, given the current fact that the police are now refusing to attend calls from certain hospital trusts (unless of course it is a life threatening situation – see this blog post: , it does raise the point as to how far hospital management should go in providing additional training and equipment for its staff who are clearly going to be faced with a foreseeable high level of risk and violence from certain patients that they will admit.
- We also know that prolonged restraint and other factors increase the risk of positional asphyxia and serious injury during restraint, yet many agencies will not let staff carry and use handcuffs because they believe (wrongly so) that they are ‘offensive weapons’. Even the police in some areas tell staff that they cannot carry handcuffs and that they will arrest them if they see them with them.
They key to all of this in an occupational setting is a suitable and sufficient assessment of risk.