Legislation in Scotland – Recent Case Law

June 28, 2023
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Recent Scottish case law

A recent case was decided by The Health and Education Chamber of Scotland (The Additional Support Needs Tribunals for Scotland - ASNTS) transferred into the Health and Education Chamber of the First-Tier Tribunal for Scotland on 12 January 2018, and became the Additional Support Needs jurisdiction within the Chamber.
The H&ECoS consider two types of appeals: those regarding the provision of educational support under the 2004 Act and those in respect of disability discrimination in school education, under the 2010 Act.
In this case the tribunal found that a young girl with ASD had been unlawfully restrained.
The tribunal stated that they:

"were not persuaded that restraint was used as a last resort."

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.”

They concluded in this case that this amounted to unlawful discrimination under the 2010 Equalities Act.
What the judgement means is that residential and education services who cannot robustly demonstrate that they have taken all reasonable steps to avoid the use of restraint may face legal challenges.

Good practice would suggest that reasonable steps would include.

  • Policy development with regular audit and an annual review

  • Senior Leadership with named accountability for restraint minimisation

  • A whole service training needs analysis linked to a training strategy

  • Individual integrative functional assessments

  • Individual person-centred programme plans (with primary, secondary, tertiary and recovery elements) subject to regular review

  • Regular clinical supervision

  • Structured de-briefs following every episode of restraint

Potential touch points in services are therefore numerous, including awareness of the tribunal hearing noted above which is the first case in which restraint was found to be unlawful and its potential implications for organisations in reputational risk, etc.
For more information on that case see the Restraint Reduction Network website.
See our blog on Restraint and Training Legislation in Scotland.

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