Restraint and Training Legislation in Scotland

28 June 2023
Two pairs of hands clasped together.

At CPI, we talk a lot about the Restraint Reduction Network (it’s hard not to when we set it up!) English legislation and the RRN Training Standards.
 
But across the UK, this isn’t the whole picture...
 
With help from Dr Brodie Paterson, Consultant Nurse Psychotherapist and Trustee of the RRN, we have gathered some information, references and links for if you need to find out more about what you need to consider and be aware of regarding training and use of restraint in Scotland.

Learning Disabilities and Autism

Towards Transformation is a strategic plan for people with learning/intellectual disabilities and autism in Scotland was published in 2021.
 
This two-year plan sits alongside the existing Keys to Life Strategy and the Scottish Strategy for Autism which is a partnership document with COSLA  (Convention of Scottish Local authorities) and a range of key stakeholders.
 
There is also the report Out-of-Area Placements and Delayed Discharge for People with Learning Disabilities and Complex Needs.

This report raised major concerns about the misuse of restraint; only a third of those placed outwith their Local Authority area because of challenging behaviour had a PBS support plan.
 
Key reasons identified for out of area placements included a lack of staff trained in PBS in local authorities and voluntary / not-for-profit providers.
 
This has led to the development of a PBS Community of Practice in Scotland and the development of Post Grad qualifications offered by the University of Glasgow. These complement existing free provision offered by NHS Education Scotland.

Health & Social Care Standards

The Scottish Health and Social Care Standards 2018 are generic.
Section 3.24 states:

“If I might harm myself or others, I know that people have a duty to protect me and others.
 I am protected from harm, neglect, abuse, bullying and exploitation.”

 

Regulations made under the Public Services Reform (Scotland) Act 2010 deal with care providers’ potential use of restraint in all forms.
 
These regulations apply to care home and day care services, but not NHS hospitals.
 
The regulations stress the importance of respecting the dignity of clients. They state:

“No client is to be restrained other than in exceptional circumstances. Staff should use restraint only if this is the only practicable means of securing the welfare of the individual or other service users.”

The key sectoral guidance around restraint is produced by the Mental Welfare Commission for Scotland and is Rights Risks and Limits to Freedom which was heavily revised in 2021.
 
It requires that care providers have a policy about the use of restraint where it is a foreseeable eventuality.
 
That they must spell out in the person’s  individual care plan why and when restraint might be appropriate based on an individual risk assessment and ensure any staff called upon to restrain someone have proper training and qualifications.

Restraint techniques need to be taught effectively

With specific reference to training, the guidance states:

“Restraint techniques require to be taught effectively with regular refresher courses. Incorrect use of restraint techniques can lead to injuries. Recognised training in such techniques should, therefore, be an essential part of all nursing and care staff education.
 
Support staff in care homes and in the community should recognise however, that their duty to provide effective care and not to put others at unnecessary risk is not dissimilar to the duty of nursing staff to care for patients in hospital.”

If it is foreseeable that someone with a learning disability or autism may need restraint on a regular basis as part of an overall care package, those involved must consider applying for specific powers in a Welfare Guardianship Order either under the Adults with Incapacity Scotland Act or seek a compulsory treatment order under the Mental Health (Care and Treatment) Scotland Act.
 
Regular and consistent restraint (although the specific conditions are important) may amount to detention a Deprivation of Liberty and must be authorised under Adults With Incapacity (Scotland) Act or the Mental Health Care and Treatment Scotland Act.
 
The MWCS have also produced guidance on Covert Medication, that is when the administration of medication may be disguised, and on Seclusion.
 
While the focus is primarily on adult in-patient mental health it is the only Scottish seclusion guidance and is used in social care as a source of advice.\

 It states:

“Seclusion in health settings refers to the supervised confinement and isolation of a patient or resident, away from other patients or residents, in an area from which the patient or resident is prevented from leaving, where it is of immediate necessity for the purpose of the containment of severe behavioural disturbance which is likely to cause harm to others.
 
"It does not matter whether the place of isolation is an enclosed room (rather than, for example, a part of a larger space), or whether the door to such a space is closed or open, locked or unlocked.”

Be mindful also there is a distinct Scottish body called Restraint Reduction Scotland (which is not a subcommittee of the UK’s Restraint Reduction Network).
 
This is a multisectoral group (with police and prison service as well as health, education and social care membership) and is hosted by the Scottish Centre for Learning Disabilities.
 
It is in the process of producing Scottish guidance on culture and on workplace training and staff development but is actively collaborating with the RRN on the development of the revised Training Standards.
 
See some recent Scottish case law.
And for more info on Scottish guidance for those working with Children & Young people, click the link to go our blog focusing on that.

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