Hair today

Imagine a TA bending down to tie little Johnnie’s shoe laces. His small hand reaches out and grips her hair, fingers locking tight. Eyes watering in pain, she asks for help while trying to keep her voice calm so as not to alarm him.When is it acceptable to use reasonable force, and what is ‘reasonable’? Doug Melia explains how to keep everyone safe as well as within the law

This article featured in the March edition of Special children magazine published by Optimus education.

Safety first

While it is bad enough having your hair pulled, it is worse when it is being done by someone towards whom you have a duty of care, and worse still when you know they do not mean to hurt you and do not understand the consequences of their actions.

Risk management

Managing risk is not about using bureaucracy to cover your back. It is there to enable settings to take sensible, practical steps to protect employees and pupils from serious harm or even death. The days when it was considered that injury ‘went with the territory’ are long past.

When someone physically intervenes, breaks up a fight or stops someone self-harming, they may decide to use force. Guidance from the Crown Prosecution Service[1] says a person may use such force as is ‘reasonable in the circumstances’ for:

• self-defence
• defence of another
• defence of property
• prevention of crime
• lawful arrest.

In assessing ‘reasonable’, prosecutors ask two key questions:

• Was the use of force necessary in the circumstances?
• Was the force used proportionate to the harm (or honestly perceived harm) avoided?

The dangers of restraint

Over the last 10 years, contributory factors in deaths caused by restraint include people being held face down on the floor, taking someone to the floor or holding them in a basket hold.

Staff attending training sessions often ask me to teach them floor restraints, and I reply: ‘Where is the necessity in an education setting?’ If a child is lying on the floor on their own, the chances of harming them are slim. When you introduce another person into the equation to hold them down, the risk of positional asphyxia rises fast. So if a child drops their weight and it is safe to let go of them, do so and treat them as if they are having a seizure: move things away from them and, if they start self harming, place a cushion between their head and the floor for example.

Legally, you must avoid any intervention that restricts someone’s airways or breathing. This is highly likely when holding them face down on the floor, during prolonged struggling or in a basket hold.

Meanwhile, manual handling regulations limit what people can lift without a separate risk assessment when standing, (25kg for men; 18kg for women). When kneeling, this drops dramatically to 3kg. Physical intervention is a manual handling activity and is subsequently subject to comply with relevant legislation.

When it went terribly wrong

Gareth Myatt, 15, choked on his own vomit as he was held down on his bed by three members of staff during an argument: he had refused to clean a toasted sandwich maker. They ordered him to his room where he lunged at them when they began confiscating personal items, one of which turned out to be a piece of paper containing his mother's new mobile phone number, which had been thrust into his hands by his solicitor as he left court three days earlier. The three officers told the police that they were attacked and that they therefore used the appropriate and approved restraint techniques. Gareth was a vulnerable teenager who was 4ft 10in and weighed less than seven stone. The coroner said that if he had simply been secured in a room on his own, he would be alive today.

Adam Rickwood, 12, hanged himself after he had been restrained by five male officers, one of whom used the nose distraction technique (the edge of the hand slammed sharply against the base of the nose). Adam’s crime? He had allegedly cheeked an adult. He found his treatment intolerable and wrote in his suicide note: ‘What right have they got to hit a child?’

While both these incidents did not take place in an educational setting, they illustrate how quickly things can get out of hand when perspective is lost and people decide to use force. Meltdowns happen. Children become violent and there are times when staff need to intervene. However, both these incidents were about compliance rather than life or death. Did these members of staff need to react immediately, or could they have managed the boys’ behaviour better when everyone had had a chance to cool down?

Staff also need to consider other factors when reacting physically, including dignity, the maturity of the child and how the child perceives things. Consider how a child who has been abused in the past might react to physical restraint. For them, such treatment will border on torture. Torture includes degrading treatment, or treatment that arouses fear, anguish or inferiority in the victim. How will it make a child feel to be pinned on the floor in front of his peers? Containment is usually a better option than restraint because the impact of restraint may not just be physical but emotional, as with Adam.

ERIC PD or Eric prevents death

The HSE has a hierarchy of risk assessment that goes by the acronym ERIC PD. This stands for: eliminate, reduce, isolate, control, personal protective equipment, and discipline, and can apply to any situation. Here I will focus on using just ERIC for challenging behaviour.

Eliminate

If staff are taking part in an activity which could cause harm to them or their pupils, the first question is: ‘Can that activity be eliminated altogether?’

Reduce

If you can’t eliminate a risk, you may be able to reduce it.

Making adaptations may be as simple as changing your stance. For example, if you must tie a child’s laces, is it necessary to squat down to do this, thereby offering the top of your head to latch on to? In some situations this may be unavoidable. In most cases, a better strategy is to sit the child in a chair and get them to rest their foot on your knee, where the most they can reach is your hands.

You can also reduce risk by reducing its frequency. This could be through behaviour management (nipping things in the bud so they don’t escalate), using experienced staff, understanding the child’s needs, and having manageable class sizes and adequate staffing. 

Isolate

If a pupil is having a meltdown, isolation involves either removing the child from the area (where it is safe, necessary and appropriate to do so), or removing the other children from the room and allowing the one child to remain. This may be less traumatic and is often safer than physically holding the child.

When considering whether to contain a child, many teachers are concerned that they may be ‘breaching a child’s human rights’ in some way. There are two types of Human Rights that concern teachers: absolute and qualified. Absolute rights include:

• the right to life, which places a positive duty on state authorities, including schools, to preserve life
• prohibition of torture.

Qualified rights can be taken away depending on the circumstances. For example, every child has a right to an education and freedom of expression, but if they don’t qualify for it by putting one of the absolute rights at risk, it can be taken away. So if a child in a classroom is hurting other children, using inappropriate sexual language or acting irresponsibly around Bunsen burners, you may exclude them from the classroom, which is managing the right to life and the prohibition of torture. 

Everyone also has the right to liberty, but not every child may go out at breaktime. For instance, if a child keeps absconding, then the school may restrict their liberty to prevent them being knocked over by a car or being abducted.

The Joint Committee on Human Rights Report on Deaths in Custody 2004[2], says:

‘For a physical intervention to be considered proportionate, it must be the least intrusive measure possible in the circumstances. Proportionality therefore requires both that any form of restraint should be a last resort only; and that where there must be recourse to restraint it is the minimum necessary, and applied for the shortest time necessary, to ensure safety.’

This does not however limit force being used as a first resort where it is absolutely necessary to do so and no safer alternative exists.

What is less intrusive: being held or being contained in an area? Therefore if containment is deemed necessary and provided the harm caused (emotional as well as physical) is less than the harm (or perceived harm) avoided, then it would be consistent with being reasonable. Of course, being contained may not always be appropriate and there are times where children do need to be managed physically either for their own safety or for the safety of others.

Control

Let us return to our TA who is being held by her hair. She has three courses of action open to her.

Wait for the child to calm down. If the TA can stabilise the child’s hand by holding both her hands over the child’s, preventing the grip from getting tighter, if there is no imminent threat or other attack likely, and if she or a colleague are confident and comfortable reassuring the child and negotiating with them to let go, this may be the best way forward, although it may take some time.

Unfurling the hand. If the hand can be unfurled without causing unnecessary pain or discomfort, I am sure this would be the option that most people will take. On the other hand, what was a manageable situation may deteriorate rapidly if the child becomes seriously alarmed and starts trying to fight their way out.

Use force to make the child let go. This is certainly possible, provided that the forced used is ‘reasonable in the circumstances’. Again our two questions have to be asked to help us decide if the use of force was reasonable:

• Was it necessary (or honestly believed to be necessary)?
• Was it proportionate to the evil to be avoided? I.e. is the harm caused less than or equal to the harm avoided?

One of the tests for using force is whether it is necessary at all in the circumstances. This means you cannot cite past behaviour, how big the child is, or whether they were armed because, if you did not need to put you hands on them, then you should not be doing it at all. Questions to ask yourself include:

• Do you need to get involved in the first place?
• Is the risk of harm likely to rise if you intervene?
• If the child’s behaviour is considered hazardous, are they in the right setting and do you have adequate support?

Managing physical intervention on your own

Unless it is an absolute emergency, single person interventions should be avoided. Single person, restrictive, physical interventions carry a greater risk to all parties for several reasons. There is the risk of injury to yourself or to the child, the risk of litigation (your word against the child’s) and the fact that restrictive holds are manual handling activities. This means that, in the event of an injury, your risk assessment could be brought into the spotlight. If this isn’t consistent with The Management of Health and Safety at Work Regulations 1999 and the accompanying Approved Code Of Practice, there could be a case for negligence if the breach caused injury.

Lack of adequate staffing is never acceptable in an environment where the likelihood of the need for physical intervention is high, because the subject of cost isn’t consistent with the law – risk vs cost. Besides, providing adequate staffing levels is cheaper than an investigation.

Sometimes, however, situations may arise due to lack of staff availability. Ways around this include having systems in place to allow staff to get help from colleagues using buttons, alarms, signals or, where appropriate, sending a child for help.

The use of force

The other litmus test is: will force work? It might, but marks the child’s hand or the child complains that they were injured. Or the technique used by the intervening member of staff might not work and one or other of the adults is injured.

All these scenarios could end in court, a tribunal or a safeguarding hearing. In these situations, most staff start their defence with C – control. They start explaining what technique they used, that they were shown to do it and that they have a piece of paper showing they did a course. However, the senior leadership team must also address what it has done to eliminate and reduce before this situation ever arose.

In the case of hair grabs, let me reframe the issue. If you worked in an environment where there were chemicals, flames or open machinery, would you tie your long hair up before entering the work place and avoid dangling your head near flames, vats or machines?

Of course you would. If you work with small, grabby hands, everyone needs to think about how they move, sit and interact with those in their care to avoid hair grabbing situations and worse.

About the author: Doug Melia who is pictured here with his "work-wife" as he refers to him and fellow trainer Stuart Cutty, is an expert witness on the use of force and director of the specialist training provider Safer Handling.

Tweet him @saferhandling or email [email protected].

More information on reducing the risks of workplace hazards can be found on the HSE website, Safer Handling are currently at stand F131 the Birmingham NEC exhibiting at The Education Show spreading the word on sensible procurement, fit for purpose training - oh and they also have free pens...

[1] https://www.cps.gov.uk/legal/s_to_u/self_defence/

[2] https://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/15/15.pdf