Challenging Behaviour Law and Guidance with thanks to Teamteach © Talog 20121

Legal Framework  Offences Against the Person Act 1861  The Children and Young Persons Act 1933  Health & Safety at Work Act 1974  Violence at Work 2003  Manual Handling Regulations 1992  The Children Act 1989  United Nations Convention on the Rights of the Child (ratified 1991)  Human Rights Act 1998  Disability Rights Act 2001  The Children Act 2004  Section 93 Education & Inspection Act 2006  Section 45 Violent Crime Reduction Act 2006  ASCL Act 2009 Section 246 (Reporting to Parents)  Use of Force Guidance April 2010 © Talog 20122

Legal Defences  As a general rule nobody has the right to touch, move, hold or contain another person  However, people with a duty of care operate in exceptional circumstances where it is sometimes necessary to act outside the norm  Whenever they do so they should be clear about why it is NECESSARY  The best legal defence would be to show that any actions taken were in the client’s BEST INTEREST and that they were REASONABLE AND PROPORTIONATE © Talog 20123

Negligence has three main elements:  An established Duty of Care that is owed,  A breach of that duty,  Any ensuing damage/injury related to that breach. To take no action, where the outcome is that a child injures himself, or another, including staff, could be seen as negligence. (Omission ) We must do something © Talog 20124

Guidance Use of Force (04/10 ) All school staff members have a legal right to use reasonable force to prevent pupils – Committing offence – Injuring themselves or others – Damaging property – To maintain good order and discipline amongst pupils The focus should be on preventing, as far as possible, the need for the use of force on pupils © Talog 20125

Guidance Use of Force (04/10) Strong emphasis on staff training in de-escalation strategies alongside physical intervention skills Strong emphasis on staff training in de-escalation strategies alongside physical intervention skills Documentation that underpins practice, such as positive handling plans Documentation that underpins practice, such as positive handling plans Specific areas to cover in policy construction and the recording and reporting of incidents. Specific areas to cover in policy construction and the recording and reporting of incidents. Strengthened advice on when to use force, a power not a duty. Strengthened advice on when to use force, a power not a duty. © Talog 20126

Guidance: Use of Force Key Messages: The guidance acknowledges the potential for injury to both pupils and staff involved in physical intervention responses. The guidance acknowledges the potential for injury to both pupils and staff involved in physical intervention responses. Schools should have a policy on the use of reasonable force to control or restrain pupils Schools should have a policy on the use of reasonable force to control or restrain pupils The Policy should be approved formally by the governing body and made known to staff, pupils and parents. The Policy should be approved formally by the governing body and made known to staff, pupils and parents. © Talog 20127

 Seclusion -Forced to spend time alone against will -(requires statutory powers other than in an emergency)  Time out -Restricting positive reinforcement as part of a planned behavioural programme -(requires written agreed plan)  Withdrawal -Removed from the situation but observed and supported until they are ready to resume Important Definitions © Talog 20128

 High or double handles in classrooms as a safety measure  Locking outside doors or other security measures  Children/Services Users must be supervised by an adult whenever locked doors are used without specific statutory powers  Use of devices for therapeutic purpose, and those that are designed specifically to prevent problem behaviours should be considered a form of restrictive physical intervention  Requires written rational (Care Plan – PHP)  Involvement of multi-disciplinary team Important Clarifications © Talog 20129

Search for Weapons & Prohibited Items Reasonable force may also be used in exercising the statutory power, introduced under section 45 of the Violent Crime Reduction Act 2006 (and re-enacted by Section 242 of the ASCL Act 2009), to search pupils without their consent for weapons. Reasonable force may also be used in exercising the statutory power, introduced under section 45 of the Violent Crime Reduction Act 2006 (and re-enacted by Section 242 of the ASCL Act 2009), to search pupils without their consent for weapons. This search power may be exercised by head teachers and staff authorised by them, where they have reasonable grounds for suspecting that a pupil has a weapon. This search power may be exercised by head teachers and staff authorised by them, where they have reasonable grounds for suspecting that a pupil has a weapon. © Talog

From September 2010, the power to search pupils without their consent will be extended to include alcohol, illegal drugs and stolen property (‘prohibited items’). From September 2010, the power to search pupils without their consent will be extended to include alcohol, illegal drugs and stolen property (‘prohibited items’). Reasonable force may be used by the searcher. Where resistance is expected school staff may judge it more appropriate to call the police or if they have one, their Safer School Partnership (SSP) Officer. Reasonable force may be used by the searcher. Where resistance is expected school staff may judge it more appropriate to call the police or if they have one, their Safer School Partnership (SSP) Officer. Search for Weapons & Prohibited Items © Talog

Guidance: Use of Force Change in the Law (effective 09/10): Ensure that a procedure is in place for recording, and reporting to parents, significant incidents where a member of staff has used force on a pupil. Ensure that a procedure is in place for recording, and reporting to parents, significant incidents where a member of staff has used force on a pupil. If it is likely that reporting an incident to a parent will result in significant harm to the pupil, significant incidents should be reported to the local authority. If it is likely that reporting an incident to a parent will result in significant harm to the pupil, significant incidents should be reported to the local authority. © Talog

Criteria for “Significant Incident” An incident where unreasonable use of force is used on a pupil would always be a significant incident.An incident where unreasonable use of force is used on a pupil would always be a significant incident. Any incident where a significant degree of force has been used (e.g. physically pushing a pupil out of a room) would be significant.Any incident where a significant degree of force has been used (e.g. physically pushing a pupil out of a room) would be significant. The use of a restraint technique is significant.The use of a restraint technique is significant. An incident where a child was very distressed (though clearly not over reacting) would be significant.An incident where a child was very distressed (though clearly not over reacting) would be significant. © Talog

“Significant Harm” The Secretary of State’s view is that, significant harm is where a child is chastised inappropriately and/or excessively. The Secretary of State’s view is that, significant harm is where a child is chastised inappropriately and/or excessively. A school might already be aware that a particular parent is likely to respond inappropriately in response to an incident involving their child and the school may have already instigated safeguarding procedures. The risk of significant harm in these circumstances would be heightened for pupils who are vulnerable because of their special educational needs, disability or other medical reasons. A school might already be aware that a particular parent is likely to respond inappropriately in response to an incident involving their child and the school may have already instigated safeguarding procedures. The risk of significant harm in these circumstances would be heightened for pupils who are vulnerable because of their special educational needs, disability or other medical reasons. © Talog

Elevated levels of risk are associated with: Elevated levels of risk are associated with: the use of clothing or belts to restrict movement; the use of clothing or belts to restrict movement; holding someone who is lying on the floor or forcing them onto the floor; holding someone who is lying on the floor or forcing them onto the floor; any procedure which restricts breathing or impedes the airways; any procedure which restricts breathing or impedes the airways; seclusion, where an adult or child is forced to spend time alone in a room against their will; seclusion, where an adult or child is forced to spend time alone in a room against their will; extending or flexing the joints or putting pressure on the joints; extending or flexing the joints or putting pressure on the joints; pressure on the neck chest abdomen or groin areas. pressure on the neck chest abdomen or groin areas. Elevating the risk © Talog

No Touch, Power, Duty and Risk Assessment. Schools should not have a policy of “ No physical contact” All staff, need to understand the powers at their disposal and the duties they owe, plus the choices open to them. Staff actions should be framed within the context Employers owe employees a duty of care that involves the requirement to carry out a risk assessment in order to reduce harm that could be caused by foreseeable risk. © Talog

Guidance- Staff Training Promoting accredited holistic whole staff training, all staff having a responsibility for pupil behaviour. Promoting accredited holistic whole staff training, all staff having a responsibility for pupil behaviour. Advising that all schools should have at least one member of staff who has received recent training by accredited providers in physical intervention and restraint techniques (in larger schools this might be two or more) Advising that all schools should have at least one member of staff who has received recent training by accredited providers in physical intervention and restraint techniques (in larger schools this might be two or more) © Talog

Parents and PHP’s Schools need to develop Positive Handling plans for Individual pupils assessed as being at greatest risk of needing restrictive physical interventions in consultation with the pupil and his or her parents. Schools need to develop Positive Handling plans for Individual pupils assessed as being at greatest risk of needing restrictive physical interventions in consultation with the pupil and his or her parents. Such plans would include strategies to prevent and deal with any recurrence of behaviour that could lead to the use of force. Such plans would include strategies to prevent and deal with any recurrence of behaviour that could lead to the use of force. © Talog

Records Schools should keep an up to date record of staff who are authorised to use force Schools should keep an up to date record of staff who are authorised to use force School leadership teams are advised to assess the frequency and severity of incidents requiring the use of force School leadership teams are advised to assess the frequency and severity of incidents requiring the use of force It is good practice for governors to monitor incidents where force has been used. Head teachers have an important role in reporting such incidents to the governing body. It is good practice for governors to monitor incidents where force has been used. Head teachers have an important role in reporting such incidents to the governing body. An incident report form involving the use of restrictive physical intervention is likely to form part of the pupil’s educational record. Schools should retain records of such incidents until the member of staff involved has reached normal retirement age or for 10 years from the date of allegation if that is longer. An incident report form involving the use of restrictive physical intervention is likely to form part of the pupil’s educational record. Schools should retain records of such incidents until the member of staff involved has reached normal retirement age or for 10 years from the date of allegation if that is longer. © Talog

Definitions: Restraint D.O.H “Permissible Forms of Control in Children’s Residential Care” (April 1993) “Physical control is the positive application of force with the intent of over powering the client.” “The proper use of physical control requires judgement, skills and knowledge of non-harmful methods of control Restraint: © Talog

THAT’S ALL FOLKS! Thank you for listening © Talog