1.1.1 Defining Physical Intervention
1.4 National Policy and Legal Context
1.5 Other Organisations and Consistency
This policy and associated procedures relate to the use of physical interventions in Devon County Council Social Services, for the purpose of:
The book "Physical Interventions: A Policy Framework" (British Institute of Learning Difficulties, 1996) underpins this policy and the practice that will be adopted. Main factors underpinning the British Institute of Learning Difficulties framework are to ensure that physical interventions are used as infrequently as possible, are only employed in the best interest of the service user, and when physical interventions are used everything possible is done to prevent injury and to maintain dignity for all concerned.
There is a common misconception that any restrictive physical contact during the course of your work is in some way unlawful. The reality is that where necessary, reasonable force can be used to control or restrain people at risk or posing a risk to others, in a pre-agreed manner. However the law does forbid a member of staff from using any degree of physical contact which is deliberately intended to punish, or primarily intended to cause pain, injury or humiliation. Members of staff, and service users and their families should know what is acceptable and what is unacceptable.
1.1.1 Defining Physical Intervention
In this document, the term 'Physical Intervention' refers to a range of physical actions used as techniques for responding to challenging behaviour and involving some degree of direct physical force to limit or restrict movement or mobility, which can include removal of an aid to mobility, normally used by that person.
There are three main types of physical intervention:
Physical intervention implies restriction of a person's movement maintained against resistance. It is, therefore, qualitatively different from forms of physical contact such as manual prompting, physical guidance or simply support. Further information on the above relevant to Adult Residential Services, regarding the Restriction of Liberty, is in the 'Restriction of Liberty and Preventive Support for Adults in Residential Care' addendum to this document.
Over time, the term 'restraint' has acquired a number of negative connotations. It is also a term that is closely linked with a particular kind of approach to the management of aggressive and violent behaviour - 'Control and Restraint', or 'C and R'. For this reason, this document uses the more neutral term 'physical intervention', to indicate a continuum between touching, holding and restraint, and the link with other approaches of de-escalation to be used in conjunction with physical interventions at all times.
Implementation of this policy will help services to address important outcomes for service users - choice, rights, independence and inclusion - as outlined in policy principles and in other key documents, such as the Learning Disability Strategy. It will contribute to joint working with other agencies, particularly joint care planning, joint investment plans and risk assessments. The guidance reflects new standards on the use of physical interventions, which form part of the implementation of the Care Standards Act (2000).
The safety of staff during physical interventions is of equal importance to the best interests of service users, and both take priority over the care of property which can be replaced. Other sanctions can be implemented for property destruction which may be less risky than physical intervention at the time.
The British Institute of Learning Disabilities policy framework and Devon County Council Social Services stipulate certain principles and values. Hence use of physical intervention needs to be consistent with the approach that service users:
The policy applies to all Devon County Council employed staff and managers in the use of physical interventions for adults, people with learning disabilities, and children. There are specific provisions relating to training and competency, for each service area, that is, Adults, Learning Disabilities and Children. These provisions are in the Training and Competency Procedure and Guidelines, and only apply to the service for which they are specifically written. The main policy and related guidance relates to all service users that could be subject to a physical intervention. It is to be made operational by:
This policy and guidance may also be helpful for:
1.4 National Policy and Legal Context
The use of physical interventions involves important legal and ethical considerations, which need to be fully explored by the service concerned. Any physical intervention must employ the minimum level of force, for the least amount of time needed. It cannot be used solely to force compliance with staff instructions, unless refusal to comply would lead to safety being seriously compromised and probable injury. This goes against guidance from Sir Herbert Laming, 1997, in 'The Control of Children in Public Care: Interpretation of the Children Act 1989'.
It is a criminal offence to use physical force, or to act in a way that leads another person to apprehend the use of force (for example, by raising a fist or issuing a verbal threat), unless the circumstances give rise to a 'lawful excuse' or justification for the use of force. Such justification may be to prevent an injury to oneself or to others or to prevent serious damage to property. In these circumstances, a reasonable amount of force may be used.
The use of any degree of force is unlawful if the particular circumstances do not warrant such use. Therefore physical force could not be justified to prevent a service user from committing a trivial misdemeanour, or in a situation that clearly could be resolved without force. The degree of force employed must be in proportion to the circumstances of the incident and the seriousness of the behaviour or the consequences it is intended to prevent. The degree of force and the duration of its application should always be the minimum needed to achieve the desired result. Often it is a matter of patience and time; and our job is to give that patience and time, instead of reflecting back negative patterns of resolving issues that children in particular have seen elsewhere, and using violence. Trust will take time to build.
Justification also includes the right of every citizen to 'self defence', which applies for all situations for all staff and service users. The force used in any instance must be appropriate for the circumstances, to be justifiable in court.
It is an offence to lock an adult or child in a room without a court order (even if they are not aware that they are locked in) except in an emergency when the use of a locked room as a temporary measure while seeking assistance would provide legal justification. However there are instances where an adult or child could be at risk due to lack of awareness of danger, which could provide a reason for restriction to a room or area. This use needs to be part of a care plan and risk assessment, not an 'ad hoc' solution. To the extent that seclusion involves restricting a person's freedom of movement, it can be considered a form of physical intervention. The use of seclusion for people detained under the Mental Health Act (1983) is set out in the Code of Practice published in 1999.
Under The Children Act (1989) restriction of liberty of children being looked after by a local authority is only permissible in very specific circumstances - for example, when the child is placed in secure accommodation approved by the Secretary of State or where a court order is in operation.
Justification (as a legal defence) for using physical interventions needs to address these questions:
Under health and safety legislation, employers are responsible for the health, safety and welfare of employees and the health and safety of persons not in employment, including service users and visitors. This requires employers to assess risks to both employees and service users arising from work activities, including the use of physical interventions. Employers need to establish and monitor safe systems of work, and to ensure employees are suitably trained. Use of physical intervention may give rise to an action in civil law for damages if it results in injury, including psychological trauma, to the person concerned, making proper training and use imperative.
Providers of health and social care services owe a duty of care towards service users which requires that reasonable measures to prevent harm are taken. Hence, in some circumstances, it may be appropriate to employ certain kinds of physical intervention to prevent a significant risk of harm. Physical interventions ought only to be used when other strategies have been tried and found to be unsuccessful, or when the risks of not employing an emergency intervention are outweighed by the risks of using one. The physical intervention needs to use the minimum force to prevent injury or to avert serious damage to property, and be applied for the minimum amount of time.
Use of physical interventions needs to be consistent with the Human Rights Act (1998) and the United Nations Convention on the Rights of the Child (ratified 1991). These are based on the presumption that every person is entitled to:
Physical interventions need to be service user specific, integrated with other less intrusive approaches, and clearly part of a care plan approach to reduce risk, when needed. They must not become a standard way of coping, as a substitute for training in people related skills.
1.5 Other Organisations and Consistency
Linking with the book "Physical Interventions: A Policy Framework" (British Institute of Learning Disabilities 1996), and this policy framework, should ensure that Devon County Council is in line with NHS Partnership Trusts.
Furthermore, the Directorate recognises its general duty of care as well as its duties under the Health and Safety at Work etc Act 1974 to ensure that it safeguards the health, safety and welfare of its staff and others affected by its work, whilst meeting its other legal responsibilities.
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