Scotland's largest teaching union calls for national guidance on restraint and seclusion

10 June 2019

Scotland’s largest teaching union, the EIS, called for national guidance on the use of restraint and seclusion in schools at its AGM this weekend.

The call came as a result of the Commissioner’s investigation into restraint and seclusion in Scotland’s schools , which was published in December of last year.

The investigation found that restraint and seclusion were at risk of suffering serious human rights breaches due to inadequate, inconsistent or non-existent policies and guidance at national and local level.

Across Scotland restraint and seclusion was largely unmonitored by local authorities, so that it was impossible to know with any degree of certainty:

  • how many incidents of restraint and seclusion take place in Scotland each year,
  • which children are most affected,
  • how frequently children are affected, and
  • how serious these effects are.

Nick Hobbs, Head of Advice and Investigations for the Children and Young People’s Commissioner, said:

“The Scottish Government must heed the call from the EIS, as well as the longstanding pleas from parents and children, to put in place robust national policy and guidance on restraint and seclusion in schools.
“It is clear that this is essential to protect children, support staff and meet the Government’s obligations under international law. After the First Minister’s welcome announcement that she will move to incorporate the UNCRC by 2021, this is a perfect opportunity for her Government to show what a commitment to children’s human rights means in practice.”

Restraint and Seclusion Investigation: Local authorities respond

EIS’s call comes as the Commissioner's office prepares to publish responses from Scotland’s local authorities into his investigation on restraint and seclusion.

The investigation report made 22 recommendations to improve matters and to ensure that children’s rights are respected, protected and fulfilled in schools.

The local authority responses display widespread agreement with the Commissioner’s recommendations. Half of authorities indicated in their response that they had already begun action to address the shortcomings identified in the report by reviewing, revising and redrafting their policies.

Four authorities who were identified in the original investigation as having no policy in place are now working on remedying that failing.

Head of Advice and Investigations Nick Hobbs said:

“We are pleased that local authorities have responded positively and constructively to the office's recommendations. We await the detailed response to our recommendations from the Scottish Government, and a clear indication of a timescale for national policy and guidance to be put in place to ensure children are protected, staff are supported and Ministers can be confident that they are discharging their legal obligations.”

Our investigation into restraint and seclusion

Among the findings of our investigation into restraint and seclusion were that:

  • 4 out of 32 local authorities had no policies or guidance in place to govern the safe and lawful use of restraint and seclusion.
  • Even where policies did exist, children and young people were rarely, if ever, directly involved in their development.
  • Children’s rights are referenced in many policies but not given meaningful expression in terms of how they should impact on practice.
  • Scottish Government has not produced adequate national policy or guidance on these issues. The current guidance is only two pages long.
  • Only 18 local authorities record all incidents of restraint and seclusion within their area. Four local authorities do not record any incidents at all.
  • Children’s views are not routinely recorded by most local authorities following an incident where restraint and/or seclusion is used.
  • Scottish Government does not record data on restraint and seclusion, despite calls from the United Nations for it to do so.
  • Restraint is inconsistently defined across local authorities, with some referring to the use of force, while others define it more broadly.
  • Only 18 of the 32 local authorities state clearly that restraint should be used a last resort when the child or another person is at immediate risk of harm.
  • Some local authorities permit the use of restraint to prevent damage to property.
  • Local authority guidance on seclusion generally does not reflect the legal tests to ensure compliance human rights standards. This creates significant risks for local authorities, teachers and children.

Local authority responses

Individual local authority responses will be available on our website soon, but a summary of these responses is below.

National guidance and human rights

82% of local authorities who expressed a view agreed it would be helpful for the Scottish Government to produce national policy and guidance to support teachers and ensure a consistent approach to the protection of children’s rights. The need for national policy to be grounded in the human rights framework was also strongly supported, with 13 local authorities specifically commenting on this point.

Those few who disagreed with the call for national guidance argued that the existing ‘Included, Engaged and Involved Part 2’ guidance (IEI2) was sufficient.

The Commissioner’s office does not consider IEI2 to be adequate, as it inappropriately locates restraint and seclusion within a behaviour management framework as opposed to the broader context of safeguarding and Additional Support Needs.

It also lacks sufficient detail on the extent to which human rights are engaged by restraint and seclusion. It does not meet the Scottish Government’s positive obligations under international human rights law to protect children’s human rights.

The Government will be publishing its detailed response to the Commissioner’s recommendations in June and it is imperative that in doing so Ministers recognise their legal obligations to put in place a robust and effective human rights-based legal and policy framework.

Recording

There was strong agreement about the need for all incidents to be recorded, with 83% of authorities expressing this view. However, one local authority (East Dunbartonshire) disagreed with the need to report the data on a national level and another (South Ayrshire) felt that existing local recording mechanisms were sufficient.

The Commissioner’s office continues to believe that recording and publication of national data, as called for by the United Nations, is necessary to ensure proper scrutiny and accountability of practice.

Definitions

Local authorities strongly agreed with the need for clear definitions of restraint and seclusion to help ensure consistency of approach and practice.

View of the Child

There was widespread agreement about the importance of seeking, recording and reflecting children’s views in all planning, risk assessment and post-incident reviews.

What happens next?

We are pleased that local authorities have responded positively and constructively to the office's recommendations. We await the detailed response to our recommendations from the Scottish Government, and a clear indication of a timescale for national policy and guidance to be put in place to ensure children are protected, staff are supported and Ministers can be confident that they are discharging their legal obligations.

Learn more

Learn more about our Investigation into Restraint and Seclusion.

Learn about the Commissioner’s power to investigate.