2Restraint of children
Human rights framework for restraint of children
9.This inquiry has focused on manual restraint of children (i.e. using hands). The UN Committee on the Rights of the Child recognised in 2007 that there are “exceptional circumstances” in which dangerous behaviour by children may justify the use of “reasonable restraint to control it”: “Restraint or force can be used only when the child poses an imminent threat of injury to him or herself or others, and only when all other means of control have been exhausted.”15 It continued: “The principle of the minimum necessary use of force for the shortest necessary period of time must always apply. Detailed guidance and training is also required, both to minimize the necessity to use restraint and to ensure that any methods used are safe and proportionate to the situation and do not involve the deliberate infliction of pain as a form of control.”16 It has stated: “Staff of the facility should receive training on the applicable standards and members of the staff who use restraint or force in violation of the rules and standards should be punished appropriately.”17
Experiences and impacts of restraint
10.We heard evidence from a range of witnesses, some of whom spoke about several different types of restraint (we focused on manual restraint of children i.e. using hands), and some of whom spoke about either hospitals or custody (we found that many of the points apply to both settings). The Ministry of Justice provided us with anonymised case files from YOIs and STCs that illustrate some of the reasons for using restraint and the processes that should be followed.18 Other witnesses relayed examples of when the processes had not worked properly.19 It was not possible for the Committee to see anonymised case files for hospital settings, but witnesses did relay examples to us.20 The main points from the evidence are summarised as follows.
Note: see corrigendum regarding the below paragraph
11.Restraint can be painful. Rosie told us of her experience of being restrained in a CAMHS unit: “I remember it being painful, but for me personally never for an extended period of time, because for me the idea of further restraint was just so uncomfortable and distressing that I would just stop and comply with whatever from there.”21 William told us of his experience of being restrained in a YOI: “I do not have scars or bruises to show for it, but I was in pain.”22 Staff in YOIs (but in no other children’s institutions) are permitted to deliberately inflict pain on children, but the Standing Committee for Youth Justice told us that: “Whether inducing pain is officially sanctioned or not, children will experience restraint as painful, so it is important to avoid a proposition that ‘pain free’ restraint is possible.”23
12.Restraint can cause injuries.24 Julie Newcombe described the result of a restraint on her son, Jamie, who is autistic, when he was kept in a hospital unit as a child: “He had his arm broken in a restraint, the right humerus bone. His arm was wrenched up behind his back until the bone snapped.”25 Academics from the University of Essex told us: “Children often report getting physical injuries from restraints, from carpet burn to bruising to broken bones, and there is ample evidence to support these claims.”26 As the Howard League for Penal Reform told us, restraint can also exacerbate existing physical conditions such as breathing difficulties;27 to account for this, staff are supposed to follow handling plans specific to the child.28 Smallridge and Williamson, in their 2008 report on the use of restraint in youth custodial settings, wrote that “there is no such thing as ‘entirely safe’ restraint”.29
13.Restraint can be distressing and psychologically harmful, both at the time and afterwards. Rosie said that the “idea of further restraint” was itself “uncomfortable and distressing”;30 William spoke of being “in shock” after the event;31 and Julie Newcombe relayed a parent’s account of their child being “hyper-alert … to the staff who have used restraint on him”.32 The report by Smallridge and Williamson stated that restraint was “intrinsically unsafe”, as even where it did not end in physical injury it could be “profoundly damaging psychologically”.33 The impacts serve to reinforce mental health issues and behavioural issues, underlining the importance of taking such issues into account in handling plans.34 According to the British Medical Association:
“Lord Carlile’s review found that children and young people felt ‘violated and abused’ following restraint, while patients with a history of mental disorder linked to abuse often associated restraint with earlier traumatic experiences … evidence which emerged during the inquests of the deaths of some of those in custody points to the severe distress caused by the use of force against vulnerable children, particularly those who have suffered physical or sexual abuse.”35
14.Restraint can make a child’s time in detention counterproductive. It adds to the pressures felt by people with autism, learning disabilities or communication issues.36 Julie Newcombe shared with us an account from a parent of an autistic child who wrote: “He has started banging his head in frustration and I can see how hyper-alert he is to the staff who have used restraint on him.”37 Referring to accounts by children in custody, the Howard League for Penal Reform wrote: “Calls to the Howard League suggest that children are both harmed by the use of force and it can have a counter-therapeutic and brutalising effect.”38
15.Restraint harms relationships between children and staff, inhibiting the provision of care and the modelling of normal relationships.39 Restraint can also be distressing and psychologically harmful for staff, as explained by Glyn Travis of the Prison Officers’ Association: “It is very traumatic for staff, because a lot of them are young mums and young fathers who have to deal with young children of their own. … Whenever you use control and restraint, whether it is required as a hold or a physical restraint, it is never a pleasant experience.”40 We are concerned that the use of force can suggest to children that violence is an acceptable means of solving problems.
16.Professor Raymond Arthur summarised studies that found that restraint of young people caused “… perceptions of unfairness, a broken spirit and re-traumatisation” and that “[m]any of the girls … felt that the procedure impacted on them negatively in terms of their mental health and well-being, and they disliked it intensely; boys in contrast reported feelings of anger.”41 Academics from the University of Essex summarised the issue as follows: “… physical and mechanical restraints not only compound and reproduce the harms associated with early childhood exposure to abuse, neglect and violence, but they also intervene in children’s lives in a way that treats their challenging behaviour as something to be managed rather than dealt with through care, empathy and respect.”42
17.There is substantial medical evidence of the physical and psychological impacts of restraint, particularly when used upon children. This evidence was brought into stark relief by the evidence of young people who had experienced these impacts, and parents who relayed the impacts upon their children. While restraint might seem to solve an immediate problem in custody or hospital, it causes harm in the short term and the longer term: it harms children, it harms staff, it undermines the objectives of detention, and contributes to a vicious circle of problems that can continue into the future including inhibiting life chances into adulthood. The use of restraint upon children can amount to inhuman or degrading treatment which is a breach of children’s rights.
Rates of restraint of children
18.NHS England regularly publishes datasets about restraint of people in hospitals as part of its Mental Health Bulletin for in-patient units that provide mental health, learning disability and autism services. The data for 2017–18 states that there were 3,338 child (under-18) inpatients (6% rise from 2016–17); that 818 patients under-20 were subject to 17,476 physical restraints excluding prone (21.4 per patient affected on average); and that 399 patients under-20 were subject to 2,994 prone restraints (7.5 per patient affected on average).43 NHS England also published data in 2018 in response to a Freedom of Information request about people with learning disabilities in hospital in-patient units, showing that there were 22,000 restraints on people with learning disabilities in 2017 (up 50% from 2016). Of these, 3,100 (14% of the total) were prone restraints (up 50% from 2016).44
19.For the Youth Custody Estate, the Ministry of Justice and the Youth Justice Board jointly publish annual reports about YOIs, STCs and SCHs, most recently for the year ending March 2018.45,46 This states that there were nearly 6,600 ‘use of force incidents’ in YOIs and STCs on around 300 children, i.e. about one third of children experienced use of force almost twice a month on average; and that MMPR techniques were applied in almost 4,200 incidents.47 There were 100 injuries to children in 2017.48 We note that the total number of Restrictive Physical Interventions (including restraints) was 20% higher than in the previous year, but the population increased by only 3%. The report notes that this is “the largest year-on-year increase seen over the last five years. While the number of RPIs in the latest year is still lower than five years ago, the number of these incidents has been increasing over the last couple of years.” These datasets also show that the rates of restraint are higher for BAME children. Where we have presented averages per child, it follows that some of these children experience even higher numbers of restraints and separations.
20.The data published about restraint in custodial settings and hospitals is not complete, and is hard to interpret. Each sector (health and custody) has datasets about restraint that are at once incomplete and also overlapping, making it difficult to obtain a clear picture of the issues. Furthermore, the different terminology used by each sector to describe essentially the same practices simply serves to complicate the making of comparisons.
21.Despite the shortcomings in data collection, it is clear that in YOIs, STCs and hospitals a large minority of children experience restraints and separations; the average number of restraints and separations that these children experience is high. BAME children are particularly affected. From the evidence that we have heard, it is clear that some restraints are not justified on the grounds of ‘last resort’ to prevent harm. The available data about numbers of reported restraints suggest that potentially thousands of unjustified restraints are conducted each year. We conclude that rates of restraint of children in the custody estate and in hospitals are unacceptably high, and children’s rights are being commonly breached.
22.There also appear to have been increases in the use of restraint over recent years. The Youth Custody Service and the Department for Health and Social Care considered that these increases were in part due to improved reporting and the different categorisations in new regimes in custody settings and in hospitals. Even so, they acknowledged that this was not the only factor.49 In particular, it is notable that the increased use of restraint in YOIs has occurred alongside a fall (by two thirds since 2010) in the number of children detained. Peter Gormley of the Youth Custody Estate, suggested that this reduction in the custody population was in fact one cause of the increased rates of restraint and separation.50 This “concentration of need” argument essentially states that new sentencing policies result in custodial sentences for only the most violent or persistent child offenders, who are likely to have more difficulties,51 and there are fewer “moderate” children in custody, hence affecting the statistics. Other witnesses, including the Standing Committee for Youth Justice, were cautious about this argument, on the grounds that it had not yet been evidenced.52 Similar arguments have been made about a changing population of children in hospital.53 Whatever the truth of the matter, institutions need to ensure that they use approaches to care that are suited to the children and that reduce the need for restraint and separation.
23.We believe that the reported increases in the use of restraint in custody and hospitals are a combination of better reporting (showing that the problems are worse than previously thought) and actual increases (illustrating that the problems are becoming worse still). The issue must be tackled from both angles, with continued improvements in reporting in order to see the true scale of the issues, and action to reduce the need for restraint and separation, in all secure settings.
Pain-inducing restraints in YOIs
24.The MMPR guidance for YOIs permits the use of restraint techniques that deliberately inflict pain on children.54 These techniques are supposed to be a last resort, in order to protect the child or other people from “an immediate risk of serious physical harm”.55 They are sometimes called “pain distraction techniques”, the theory being that a momentary sharp pain will be sufficiently unpleasant to cause the child to desist from physical resistance and comply with instructions. The Youth Justice Statistics report that pain was deliberately inflicted around 260 times in the year ending March 2018,56 up from around 110 in the year ending March 2017.57 HMIP reported that pain-inducing techniques were used “frequently”,58 which seems contrary to the threshold of ‘last resort’.
25.The Howard League for Penal Reform relayed a child’s experience of a wrist hold designed to induce pain: “… he was then escorted back to his room by several members of staff and while they were walking this member of staff ‘bent my wrists all the way back’ … he said to them, ‘what are you doing to my wrists, it’s hurting, stop that’ … the staff members said nothing but pushed his wrists back harder … his wrists ‘hurt a lot’, and ‘still hurt’ at the time of the call.”59 The Standing Committee for Youth Justice wrote that the mandibular angle technique (applying pressure to a point at the base of the jaw) “delivers a sharp and very unpleasant pain, recallable at several years distance”.60 These methods are more than a distraction, having the potential for significant distress at the time, in subsequent hours and even in the longer-term.
Note: see corrigendum regarding the below paragraph
26.The deliberate infliction of pain on a child is incompatible with international human rights law. Article 37(a) of the UNCRC states unconditionally that: “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.” The Committee on the Rights of the Child has interpreted this as meaning that restraints must be conducted such that they “do not involve the deliberate infliction of pain as a form of control”.61 After calls from numerous organisations, including this Committee in a report in 2008,62 the Government banned the use of pain-inducing techniques in STCs. The Government developed the MMPR regime which, while introducing some welcome distinctions between the adult and child regimes, specifically allowed the continued use of pain-inducing techniques on children in YOIs. Calls have been ongoing to bring YOIs into line with other children’s institutions, including by the EHRC in 2011,63 the UN Committee against Torture (UNCAT) in 2013,64 and most recently by the Independent Inquiry into Child Sexual Abuse in February 2019.65 The Government published in 2012 a version of the MMPR training manual, but with 182 redactions,66 and has resisted ongoing calls (notably by the charity Article 39) to publish the full details of the manual, making it impossible to fully evaluate the practices. We note that, during our inquiry, the Ministry of Justice launched a review of pain-inducing techniques in YOIs, which is expected to report in summer 2019.
27.There is clear evidence that the use of pain-inducing techniques (which are designed to cause pain and work by deliberately inflicting pain) on children inflicts physical distress and psychological harm in both the short and longer term, and it is clearly not compliant with human rights standards. We recommend that the use of specific pain-inducing techniques in Youth Offenders’ Institutes should be prohibited. We also recognise the right of prison officers to act in self-defence and we are aware that these issues are currently subject to review.
Restraint for “good order and discipline” in YOIs
28.In YOIs, restraint is permitted for the purposes of “good order and discipline”.67 In the year ending March 2018, this was the reason for 233 restraints in YOIs is England and Wales (4% of the total).68 We heard compelling evidence that the use of restraint was a blunt instrument, giving a poor example to the child about how to resolve disputes. As the BMA told us, it serves to inhibit children’s trust in the staff who are supposed to care for them: “Even witnessing the use of restraint led to a divisive ‘us and them’ attitude between staff and children.”69 Furthermore, we believe that there can be a blurred line between the use of restraint for “good order or discipline” and the use of restraint for punishment (which is not allowed in YOIs, or in any other settings), particularly in the perception of the children who are restrained, hence adding to mistrust of the processes and staff.
29.The use of restraint for “good order and discipline” has been addressed by the Committee on the Rights of the Child, which has stated: “Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care; disciplinary measures in violation of article 37 of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned.”70 In its latest report about the UK, the CRC repeated that it was concerned about “the use of physical restraint on children to maintain good order and discipline in young offenders’ institutions”.71
30.In its 2008 report on The Use of Restraint in Secure Training Centres, this Committee stated that the criterion of “good order or discipline” would “pose the very real danger of entrenching in legislation ambiguity for staff and detained young people … The phrase ‘good order and discipline’ is imprecise, overbroad and inherently subjective.”72 It is our view that this ambiguity is an issue not just in STCs, but in any setting, including YOIs. The ‘good order and discipline’ criterion was removed from the guidelines for STCs after a successful legal challenge, as Professor Raymond Arthur outlined: “The government had failed to show that such a dangerous practice is necessary purely for the purpose of enforcing good behaviour.”73 Professor Arthur gave the example of another case, of potentially wider application, in which the judge said that the power to use force “is not a free-standing right to use force whenever a staff member thinks it necessary or appropriate … the limits on the use of force on children in custody was driven by the core principles set out in the UN Convention on the Rights of the Child”.74
31.The use of restraint in YOIs for the purposes of ‘discipline and good order’ is not compliant with human rights standards, and is counterproductive for children’s rehabilitation and the development of beneficial relationships with staff. We recommend that the use of restraint for the purposes of ‘discipline and good order’ in Young Offenders’ Institutes be prohibited in all but the most exceptional circumstances, and that the guidelines produced by the Ministry of Justice and its agencies be updated accordingly.
Prone (face-down) restraint
32.Staff in ATUs, CAMHS, YOIs and STCs are permitted to put children “to the floor” in restraint, either supine (face-up) or prone (face-down).75 There are particular concerns about the dangers and distress of prone restraint,76 although The Royal College of Psychiatrists noted that “there is mixed evidence about the use of prone (face down) over supine (face up) restraint”, and that the “duration of any restraint appears to be a more significant factor than prone v supine with regards to safety”.77 There is a general consensus that prone restraint should be used only in “very exceptional circumstances”,78 but The Royal College of Psychiatrists was concerned that “banning prone restraint would mean that some patients and staff are put at increased risk and emotional distress if options for appropriate restraint positions are limited.”79 Witnesses explained that examples where prone restraint could be justified in preference to supine restraint include people who have “a problem with their back or some other physical ailment that means holding them on the ground on their back is either more uncomfortable or more dangerous”,80 and people who have “suffered physical and/or sexual abuse associated with a particular restraint position (e.g. rape)”.81 The Royal College of Psychiatrists highlighted the need for a “comprehensive review of the evidence for supine over prone restraint”,82 and its Professional Practice and Ethics Committee has merged its review with work by NHS England to produce official guidelines that are expected to be published in late 2019.83
33.Without wishing to pre-empt the details of the upcoming guidelines, we note the scale of the issue. The data presented earlier show that prone restraint accounted for around 15% of all incidents of restraint (for under-20s in mental health units, and for inpatients of all ages with autism or learning disabilities). NHS England told us that it “would be very keen to see significantly reduced usage”.84 We do not know how many patients have personal needs that make supine restraint inappropriate, but 15% of cases does not appear congruent with the threshold of “very exceptional circumstances”.
34.The use of prone (face-down) restraint is distressing and can be dangerous, and its use as anything but a last resort is not compliant with human rights standards for children. We believe that prone restraint is used too often. While we acknowledge that there may be exceptional circumstances in which prone restraint is preferable to alternatives, it must be more rigorously regulated by governing health bodies and regulators, including by annual publication of statistics for each institution (broken down by patients’ diagnoses, age and justification for not using an alternative method).
15 UN Committee on the Rights of the Child (UNCRC), General Comment No. 10 on Children’s rights in juvenile justice, April 2007, paragraph 89
16 UN Committee on the Rights of the Child (UNCRC), General Comment No. 8 on Children’s rights in juvenile justice, April 2007, paragraph 15
17 UN Committee on the Rights of the Child (UNCRC), General Comment No. 10 on Children’s rights in juvenile justice, April 2007, paragraph 89
18 These case files were provided to the Committee in confidence and have not been published.
24 In extremis, some forms of restraint previously permitted for use on children have resulted in death; Gareth Myatt died in 2004 when restrained at an STC in a manner that is no longer permitted.
29 P. Smallridge and A. Williamson, Independent review of restraint in juvenile secure settings, 2008
33 P. Smallridge and A. Williamson, Independent review of restraint in juvenile secure settings, 2008
35 British Medical Association British Medical Association (BMA) (YDS0018); the reference is to Lord Carlile of Berriew QC (2006) An independent inquiry into the use of physical restraint, solitary confinement, and forcible strip searching of children in prisons, secure training centres and local authority secure children’s homes. London: The Howard League for Penal Reform, p. 62
43 NHS Digital, Mental Health Bulletin: 2017–18 Annual Report Reference Tables, Table 7.1. All of these figures were around 5–10% higher than in 2016–17.
44 Table 2 of NHS Digital, LDA Monthly Statistics from AT - October 2018: Reference Tables, November 2018. This dataset covers ATUs and mental health units, so there is overlap with the figures above; it does not include autistic people; and it is not split into adults and children. The number of people with autism or learning disabilities held in inpatient units in England was around 2,350 in October 2018, of whom around 250 were children (compared to 110 in March 2015).
45 Youth Custody Board and Ministry of Justice, Youth Justice Statistics 2017/18, January 2019
47 The Youth Justice Statistics seeks to explain the definitions: “Within MMPR, any physical intervention is counted as a ‘use of force’, unlike the RPI system which only counts those physical interventions deemed restrictive.” “Owing to the different definitions of Use of force, MMPR and RPI a particular use of force may be classed as MMPR, RPI, both MMPR and RPI, or neither”. “All uses of MMPR or RPI must be counted as a use of force: It is not possible for either a use of MMPR or an RPI to be not classed as a use of force, although it is possible for a use of force to be neither MMPR or RPI.” In addition, the data only records the highest level of MMPR technique used in an incident, so some uses of MMPR techniques are not recorded.
48 Youth Justice Board and Ministry of Justice, Youth Justice annual statistics: 2016–2017, January 2018
51 Bateman, National Association for Youth Justice, The State of Youth Justice 2017, 2017; Royal College of Psychiatrists (YDS0004) and Q28 [Glyn Travis]
53 Detention of children and young people with learning disabilities and/or autism inquiry, Q14 [Dame Christine Lenehan]
54 Ministry of Justice, Youth Justice Board, National Offender Management Service and Young People’s Estate, Minimising and managing physical restraint: safeguarding processes, governance arrangements, and roles and responsibilities 2015
55 Ministry of Justice, Youth Justice Board, National Offender Management Service and Young People’s Estate, Minimising and managing physical restraint: safeguarding processes, governance arrangements, and roles and responsibilities, 2015
56 Youth Justice Board and Ministry of Justice, Youth Justice Statistics 2017/18, England and Wales, 31 January 2019, Table 8.28
57 Youth Justice Board and Ministry of Justice, Youth Justice Statistics 2016/17, England and Wales 25 January 2018
61 UN Committee on the Rights of the Child (UNCRC), General comment No. 8 (2006): The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment (Arts. 19; 28, Para. 2; and 37, inter alia), March 2007
62 Joint Committee on Human Rights, 11th Report of Session 2007–08, The Use of Restraint in Secure Training Centres, HC 378 HL 65
63 Submission by Equality and Human Rights Commission to Lord Carlile of Berriew QC’s Public Hearing on 11 May 2011 into Use of Force on Children in Custody
64 UN Committee Against Torture, Concluding observations on the fifth periodic report of the United Kingdom, adopted by the Committee at its fiftieth session, May 2013
65 Independent Inquiry into Child Sexual Abuse, Sexual Abuse of Children in Custodial Institutions: 2009–2017, February 2019
66 Ministry of Justice, Minimising and Managing Physical Restraint—2012—Volume 5—Physical Restraint, 2012
67 The Young Offender Institution Rules 2000 (SI 2000/3371)
68 Youth Custody Board and Ministry of Justice, Youth Justice Statistics 2017/18, January 2019, Table 8.24
70 UN Committee on the Rights of the Child (UNCRC), General Comment No. 10 on Children’s rights in juvenile justice, April 2007, paragraph 89
71 Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, 2016
72 Joint Committee on Human Rights, Eleventh Report of Session 2007–2008, The Use of Restraint in Secure Training Centres, HC 378 / HL Paper 65
73 Professor Raymond Arthur, Northumbria University (YDS0002) referencing R(C) v Secretary of State for Justice (2009)
74 Professor Raymond Arthur, Northumbria University (YDS0002) referencing R (on the application of Pounder) v HM Coroner for the North and South Districts of Durham and Darlington (2010)
75 Prone restraint is often referred to as “face-down”, whereas the clearest feature is “chest-down” and the face can be pointing downwards or sideways.
76 Detention of children and young people with learning disabilities and/or autism inquiry, Q13 [Caoilfhionn Gallaher QC]
83 Correspondence with Royal College of Psychiatrists (unpublished) stated that: “The Royal College of Psychiatrists was asked by NHS England to work with them on the official guidelines on restraint in mental health. These guidelines will review the evidence of the safety of different types of restraint and provide a new set of standards, along with standards on reducing restrictive practices in clinical settings. The College Professional Practice and Ethics Committee decided to focus on supporting NHS England with their official guidelines rather than duplicate their work with their own position statement. We expect the NHS England guidelines to be published in late 2019.”
Published: 18 April 2019