4Systemic issues contributing to restraint and separation
Availability and suitability of placements
62.The complexity of many children’s situations is such that they cannot simply be pigeon-holed into a particular categorisation of need. This in turn has implications for where they are placed (if at all) in detention. Some children with learning disabilities or autism also have mental health issues, but they are not necessarily well-served by either ATUs or CAHMS, or indeed any sort of institution.136 Other children have an uncommon diagnosis, such as a specific form of autism for which an ATU might be poorly suited. As Jeremy told us: “ATUs are full of very distressed people, so Beth witnessed self-harm, she heard screaming, she heard people distressed and shouting. With Bethany’s condition, she has massive sensory issues. She cannot cope with that environment … Their answer to that was to lock Bethany away.”137 He contrasted this with a potential placement that did not resort to separation: “If you have the right people doing the right thing—distracting, diverting, offering choices instead of placing demands—this will be negated. The potential placement does not have a seclusion room. It does not need one, because there are properly trained staff.”138
63.On the fundamental question of whether any form of detention is appropriate for some children, Julie Newcombe quoted from the Mental Health Act Code of Practice: “Compulsory treatment in a hospital setting is rarely likely to be helpful for a person with autism … People with autism should be detained for as short a period as possible.”139 She added that, even though living in a community is often better for children with autism,140 her son, Jamie, “spent 19 months in five different in-patient settings, one after the other. He kept being rocked on to the next one, because they did not know what to do to help him.”141 The Transforming Care programme was supposed to end detention of people with autism or learning disabilities,142 but the number of children detained in ATUs has more than doubled since March 2015.143 In our ongoing work on ATUs we are considering the reasons for this failure to allow more children with autism or learning disabilities to live in communities.
64.Most children who are in contact with the criminal justice system have multiple needs: they are among the most disadvantaged and vulnerable children in the country, with high rates of Adverse Childhood Experiences (ACEs), strong correlations with the Indices of Multiple Deprivation,144 and high incidences of mental health issues,145 learning difficulties and autism,146 as well as speech, and language and communication needs (SLCN).147 As Francis Boylan of the British Association of Social Workers told us:
“The children held in secure settings are some of the most difficult, damaged children in the country … the majority have been known to health, education and social services, if not throughout their lives, for a great proportion of that time. Crudely speaking, the majority of these children have been failed both by their families, and the state, which has been unable/unwilling to provide the necessary foundation to enable them to live happy, untroubled lives.”148
65.It can be difficult to manage these complex issues in custodial settings as currently operated, and some of these children warrant care in healthcare institutions. Indeed, when sentencing children, courts have some latitude: YOIs are used for most offenders aged 15–17years, and STCs for those aged 15–17 years whose offending is less serious or less persistent; but children aged 10–14 years will be placed in SCHs, and courts can request a hospital placement for a child of any age who has serious mental health issues. Some judges, however, have commented on lack of places in SCHs and hospital units. For example, in October 2018 Judge Lazarus noted:
“I am keenly aware of the notable frustration and outrage … at the lack of appropriate placements for extremely troubled children … I am grateful to the social workers for their repeated and persistent efforts spending significant time and energy attempting to contact dozens of units in their attempts to find a single available placement prepared to take O. In August there were 31 children waiting for a placement, and on 5.9.18 there were 35 children for whom a placement in secure accommodation was being sought. Today there were at least 25 children, and likely to rise to 26, needing a placement.”149
66.Data provided by the Ministry of Justice for our inquiry150 showed that there are just over 200 places available in 14 SCHs in England in 2018, down from almost 300 in 16 SCHs in 2010. Local authorities are responsible for providing the places, but the Government told us that the policy sits under the Department for Education, which is increasing funds to provide more places.151 Of these places, 114 were allocated to the Ministry of Justice in 2018 (down from 176 in 2010), and the rest were allocated for children referred under welfare orders. These figures illustrate the complex interplay between the responsibilities and resources of Government departments and agencies working with young offenders, which is even more complex when the resourcing of the health sector is factored in. The Government drew our attention, however, to the establishment of a Critical Case Panel to co-ordinate across Government and across disciplines regarding the care of young people with complex needs.152
67.We have also considered the spread of institutions around the country. In the case of hospitals, sometimes children are not placed in the unit nearest to their home because specialist care is only available at certain sites. Jeremy told us that the distance to Beth was “just short of 70 miles … We have been far farther away in the past.”153 Initiatives such as New Care Models seek to bring people in hospital closer to home.154
68.In the case of custodial settings, Edward Argar MP noted that in almost all cases it is beneficial for children to be located near to their families.155 However, this is not always easy for families, as William said: “When I was closer [to home], when I first went in I could get visits twice a week, then I would get two or three a month. When I went up [to another YOI], it was whenever they could, because it’s like a day trip for them—it’s the whole day.”156 This problem has been exacerbated by the closure of several sites in recent years, leaving only five YOIs in England and Wales (plus one site in each of Scotland and Northern Ireland). Furthermore, sometimes children are not placed in the institution nearest to their homes, for example with the aim of separating gang members. We note that the Government’s plans for Secure Schools in the custodial sector could lead to smaller units, spread more widely across England and Wales.157
69.The detention of children in institutions that are inappropriate to their needs contributes to the unacceptably high rates of restraint and separation. This includes children who have mental health issues but are detained in custody for criminal convictions, and children who are autistic or have learning difficulties who could be better cared for in community settings. The Ministry of Justice, the Department of Health and Social Security, and the Department for Education all have responsibilities for children in detention, and must increase their efforts to coordinate and reconfigure resources, to ensure that there are enough specialised placements (including in SCHs and CAMHS), so that each child can be placed in the most appropriate setting and as near as possible to home.
Staffing levels, training and specialisms
70.Evidence to this inquiry highlighted staff shortages in all settings, due both to deliberate reductions in staff-to-child ratios (as in YOIs) and to recruitment problems, factors that are exacerbated by absences and the need to use agency staff who are not familiar with the children. The following examples illustrate that staff shortages increase the number of incidents (for example, by inhibiting a good routine or therapeutic activities); increase the likelihood that an incident will be addressed by restraint or separation without recourse to better alternatives; and increase the likelihood that restraint or separation will be conducted improperly.
71.Rosie told us that when she was on ward restriction, individual staff would be with her “for maybe six hours straight … it became very mundane and routine”.158 She continued: “I had not been out for four or five months straight. There was always a glimmer of hope that I would be let outside, but a lot of the time those plans would fail because they did not have enough staff.”159 She also said that “because of the lack of staff … that person would have to restrain me by themselves, which obviously was not allowed as it was never the safest restraint … I witnessed situations where there were not enough staff to safely restrain someone and people would come out of their rooms eventually with bruises and things like that.”160 Jeremy told us: “When Bethany was returned to the unit, they did not have sufficient trained staff available to enable her to stay out of being secluded, so they put her back in a room and they locked the door.”161
72.William told us about the impacts at YOIs: “There were two officers for 30 young people. If there is a big fight, there are two officers and all they can do is press the bell and wait for help. By the time that happened, though, it could be a bloodbath. I do not think that there are enough officers.”162 William also highlighted the issue of weekend routines in YOIs:
“Weekends are always like a restricted regime, so it would be like, if you’re lucky enough to get a gym, you might get a gym. If not, it’s an association for maybe one hour or two hours and then that’s it … For two hours a day. Saturday might be from 10 to 12, then you’re banged up until 4.30, you get your dinner and then you’re banged up again. Then, on Sunday, you might have an association from 2 to 4, but it depends. Different jails have different regimes. The older I got, the more time I got out of my cell. As a juvenile, I spent a lot of time behind my door.”163
73.The Children’s Commissioner agreed: “We know that weekends are a trigger to really bad levels of violence on Monday and Tuesday because the kids are locked up in their rooms from two or three in the afternoon. They literally wind each other up shouting at each other through the windows for 12 hours and that all spills out on a Monday or Tuesday.”164 The Youth Custody Service told us that these issues were now being addressed by a drive to increase the number of staff in YOIs by 20%.165
74.As well as having sufficient staff, there needs to be an appropriate range of skills. Julie Newcombe’s evidence suggested that some staff at ATUs lack the appropriate training to help autistic people;166 and Dame Christine Lenehan, Director, Council for Disabled Children told us that some private providers have replaced experienced staff with inexperienced staff.167 Rosie told us that: “Things were going well for maybe a month or two, but then they started to deteriorate because I was not getting the psychological help that I needed through therapy and things like that. … So I ended up on 24-hour observations for six and a half months straight.”168 In YOIs and STCs there is a need for more staff in non-discipline roles such as medics, social workers, psychiatrists, communication therapists and peer supporters or role models, all of whom can help to relate to de-escalate situations and hence reduce the use of restraint and separation.
75.Staffing levels are too low in YOIs, CAMHS and ATUs, and the mix of skills is insufficient, preventing the appropriate care of children and the optimal management of difficult situations, and contributing to the unacceptably high rates of restraint and separation. We urge the Government and agencies to take steps to increase the numbers of staff qualified to manage children across the Youth Custody Service, NHS England and their respective estates and contractors. The objective should be to ensure that there is an appropriate mix of skills, so that staff can manage difficult situations without recourse to restraint and separation.
Rights, appeals and redress
76.There are several factors that prevent children from exercising their rights. Firstly, while children are told of their rights when they first arrive in any type of detention,169 these discussions do not necessarily register with children, thanks to combinations of trying to adjust to their new situations, mental health issues, communication issues, and (in some cases) a mistrust of authority. While advocates work in detention settings to raise children’s awareness of their rights, the Children’s Commissioner commented:
“I would like to see them have a much more proactive role … being built in from the start … talking about the trends … getting youth councils set up … that is about confidence in them being able do that, and about the governors taking that aspect seriously, and making sure that it is not only happening but seen to be happening, and is seen as important.”170
77.Secondly, there is unwillingness to report incidents. William told us that he did not see any point in complaining about separation: “By the time the complaint had come back, I had already served my time … I was not going to get it back.”171 Similarly, he told us that he did not see the point of complaining about restraint: “I do not see how it was going to happen for me getting a restraint. What was going to happen? They were going to say, ‘We believe that reasonable force was used because of X, Y and Z’. Then, what next? Even if they uphold it, what am I going to get? A ‘sorry’. It is too late.”172 The Children’s Commissioner told us that this was a common attitude in custodial settings: “All the young people tell me that they would not bother complaining, because either it will get worse or no one will listen.”173 Furthermore, witnesses told us that they had not told their parents about issues, William because he did not wish to worry his mother,174 and Rosie because she was not in a good relationship with her parents at that time.175 If children are reluctant to complain to staff or to tell their families, the onus is on staff (especially advocates) to build confidence in the complaints process. Glyn Travis, of the Prison Officers’ Association, said that a return to the system of senior officers being visible on units in YOIs and STCs would give children someone to approach about their concerns.176 The Howard League for Penal Reform also argued that children and their representatives needed access to better quality evidence to support complaints, describing paperwork that lacked sufficient detail.177 The Children’s Commission for England and UK National Preventive Mechanism called for comprehensive CCTV monitoring (including body-worn cameras) in hospitals,178 the Howard League for Penal Reform sought the same monitoring in custodial settings.179
78.Thirdly, where an institution does acknowledge that staff acted wrongfully, the ‘restorative’ remedies are often seen as inadequate. William commented that a child cannot regain time lost in segregation or undo the distress of a restraint;180 so compensation must be of worth to the children. Fourthly, there is often a lack of ‘resolution’ for the child, such that they can lose confidence in the systems. In contrast, Dr Heidi Hales, of the Royal College of Psychiatrists, told us:
“A complaint could be a good opportunity to show good adult behaviour in how to resolve a situation and think it through. You could use that for the benefit of a treatment or rehabilitation package. The request would be to have a driver to make sure that we use such opportunities. Nobody will ever be perfect, but if you show that you can admit your imperfection, learn from it and change, and acknowledge faults in their procedures, or to take action against staff who have breached children’s rights work with the young person to help them think it through, it will also help them to think about it when those situations arise.”181
79.Fifthly, if children and their families are to have confidence in the complaints systems, there needs to be clear evidence of change in response to previous errors, including changes to processes and resources. Rosie told us that she was repeatedly restrained by single members of staff (in breach of the guidelines), but that the issue was not addressed:
“Depending on which member of staff had carried out the restraint, they would apologise if they had hurt me. But a lot of the time it was brushed over. The ward manager would come and speak to me and say, ‘This is why that happened’, and people had to do incident reports. I heard a couple of times that people did not know what to write on the incident reports. If they said that they had carried it out by themselves, they would be in trouble, but what else could they have done? Something even worse, even fatal, could happen to the patient they did not restrain.”182
80.Julie Newcombe told us that, after her son’s arm was broken by hospital staff, disciplinary action was taken, but she encountered difficulties when making complaints about wider governance issues: “The person who did it was suspended immediately and later dismissed from his job. I do not recall ever getting an apology … We have since complained about the ineffectiveness of the safeguarding, because that was no accident … It is you against the hospital, you against the local authority, you against the commissioners. It is just you, the parent, trying to fight for your child.”183
81.We have heard compelling evidence that institutions are not doing enough to ensure that children in detention are made sufficiently aware of (and understand) their rights; or to ensure that children can have trust in the complaints system and the staff disciplinary system; or to ensure that parents and other representatives are made aware of the problems faced by children in detention. Even when children, their parents and representatives are made aware of their rights, they face obstacles when challenging decisions. We recommend that parents or other representatives should be informed of incidents and consulted about the appropriateness of interventions; that independent advocates should be given responsibility for proactively helping children to understand their rights; that debriefs about restraints and separation should allow the child to discuss the incidents with the staff who were involved; and that staff who have acted in breach of the rules must face disciplinary action that must be communicated to the child. There must be annual publication of statistics for each institution about appeals and their outcomes, including about disciplinary action against staff.
82.This is an area in which the Independent Monitoring Boards are well placed to play a role. Any concerns they raise with respect to these issues should be seriously considered.
136 For a detailed study see: Dame Christine Lenehan, Council for Disabled Children, These are our children, a review, January 2017, commissioned by the Department of Health
139 Department of Health, Mental Health Act 1983: code of practice, (2015), chapter 20, paragraph 20
142 Department of Health, Transforming care: A national response to Winterbourne View Hospital, Final Report, 2012
143 NHS Digital Learning Disability Services Monthly Statistics - AT: October 2018, MHSDS: August 2018, November 2018
149 Between London Borough of Bromley and Mrs. O and O (Case Number: ZE18C00536)
154 Department of Health, New Care Models
155 There are some children in custody whose families are harmful influences, and hence being near to them is not necessarily a priority, but this is the exception. Q67 [Edward Argar MP]
157 Ministry of Justice, Secure Schools
167 Detention of children and young people with learning disabilities and/or autism inquiry, Q14 [Dame Christine Lenehan]
169 Children are also reminded of their rights thereafter in some institutions.
175 Q13 [Witness B: Rosie]
Published: 18 April 2019