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Tribunal decision finds the use of restraint at a residential school amounted to unlawful discrimination

Whilst attending a Scottish Residential School a young, vulnerable autistic female diagnosed with ADHD and a learning disability was restrained numerous times by school staff.

The young girl’s additional physical health needs meant that any restraint could cause breathing difficulties and be life threatening. Evidence presented to the tribunal shows she was restrained frequently in the prone position (on one occasion for 25 minutes), which is known to be extremely dangerous and traumatic.

The tribunal concluded that restraint had been used as a mechanism for managing the claimant’s behaviours and that it was a continuing course of conduct.

The Health and Education chamber of Scotland found the use of restraint in this instance amounted to unlawful discrimination. The tribunal “concluded that [restraint] had been used as a mechanism for managing the claimant’s behaviours and that it was a continuing course of conduct”. (The full decision of the tribunal can be read here>)

Four years ago, the UN Committee on the Rights of the Child (2017) urged the UK to “adopt appropriate measures to eradicate the use of restraint for reasons related to disability within all settings” noted by the UN Committee on the Rights of Persons with Disabilities in 2017”.

Educational settings should be safe places

We are left frustrated and wondering how many more children we are going to allow to be subjected to such abusive practices before real and meaningful action is taken.

Educational settings should be safe places where children who are ‘different’ are accepted, not abused and where young peoples’ needs are identified and strategies used to enhance opportunities for growth and development. 

The young girl in this report is one of hundreds of children who have been inappropriately and unnecessarily injured both physically and mentally by restrictive practices in education settings. Her crime? Exhibiting behaviours that are directly associated with autism, learning disabilities and other mental health conditions. The tribunal stated that they “were not persuaded that restraint was used as a last resort”.

It is time that these harmful practices, which breach human rights, disproportionately used on children and young people with learning disabilities, autistic people or both, are seen as discrimination, abuse and outlawed.

We call for the elimination of all unnecessary restrictive practices.

Beth Morrison from Positive and Active Behaviour Support Scotland, says, “For too long, we have been calling for ‘reduction’ and it’s not working. By asking for a ‘reduction’ we appear to be saying that this manhandling is ok. Let’s be clear… it’s not restraint. It’s abuse”.

The Restraint Reduction Network are committed to changing the language we use around restrictive practices and we call for the elimination of all unnecessary restrictive practices.

The Restraint Reduction Network recognises that restraint may on rare occasions be necessary to keep people safe (RRN Training Standards 2019), yet highlighted once again is the fact that staff institutional cultures are unable or unwilling to understand what constitutes a ‘last resort’ and take meaningful actions to keep the young children they care for safe.

Urgently needed is statutory law that prohibits the unnecessary use of restrictive practice. 

Urgently needed is statutory law that prohibits the unnecessary use of restrictive practice.  Staff need to be given the right skills in understanding behaviours that challenge as communication. We must make sure that staff and parents have the same proactive approach in meeting young people’s needs and ensure that all involved with the child respond correctly to distressed behaviour. Emphasis must be put on the child’s capabilities as they grow in freedom and come to lead the kind of lives they value and have reason to value. 

This is the first tribunal case in Scotland which has found that the restraint of the child or young person amounted to unlawful discrimination.

Scotland are leading the way in safeguarding their children with higher support needs, as demonstrated by the publication of the Children’s Commissioner report ‘No Safe Place: Restraint and Seclusion in Scotland’s Schools’, amongst other encouraging developments.

We are heartened that this tribunal case has set a precedent for future rulings, but much still needs to be done.

You may also be interested in:

Equality and Human Rights Commission Inquiry: how schools are monitoring the use of restraint>

Case study: Reducing Restrictive Intervention of Children and Young People> – PABSS and Challenging Behaviour Foundation

“Abolish the use of isolation rooms” – 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)>

Restraint and seclusion: Resource document> – US Department of Education

Guidance published on Reducing Restrictive Interventions for Children (2019)>