Investigations

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Investigation: Restraint and seclusion

We have published the report of our first formal investigation— into restraint and seclusion in Scotland’s schools. We used the Commissioner’s legal powers to investigate this issue.

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Restraint means holding a child or young person to stop them from moving.

Seclusion means shutting a child somewhere alone and not allowing them to leave.

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Physical intervention happens when someone limits another person’s movement by force. Restraint and seclusion are both forms of physical intervention.

What did this investigation focus on?

Our investigation focused on:

  • whether Scotland’s 28 local authorities had policies on restraint and seclusion that were good enough, and
  • what local authority procedures were on recording incidents of restraint and seclusion.

We required local authorities to provide us with their policies on:

  • physical intervention in schools – including when restraint and seclusion had been used – and
  • recording of physical interventions (if these were separate from their policies on physical intervention in general.)

They were also required to provide evidence on the data they held around restraint and seclusion and what they did with it.

What did this investigation recommend?

Our investigation found that use of restraint and seclusion on pupils across Scotland is largely unmonitored, with glaring inconsistencies across local authorities.

It recommended the Scottish Government produce effective and human rights compliant national guidance, which would direct local authorities, schools and staff in the lawful use of restraint and seclusion.

The Equality and Human Rights Commission (EHRC) and the Commissioner warned the Government that without new guidance it was in breach of its human rights obligations to children, as laid out in the United Nations Convention on the Rights of the Child (UNCRC) and the European Convention on Human Rights (ECHR).

Although the Government agreed to refresh their existing two-page guidance, this was not enough to safeguard children’s rights.

Intervention by EHRC Scotland

The Equality Act gives the EHRC the power to take legal proceedings on matters that are relevant to its functions, as long as the Scottish Human Rights Commission agree to it.

Matters relevant to the EHRC’s functions include supporting the development of a society in which there is, among other things:

  • respect for – and protection of – the human rights of each individual, and

In August 2019, EHRC Scotland worked with our office and used this power to support a Judicial Review raised in the Scottish courts.

Following this intervention – and after a series of productive meetings between our office, EHRC Scotland and the Deputy First Minister and Cabinet Secretary for Education and Skills, John Swinney MSP – the Scottish Government has agreed to:

  1. Produce human rights-based guidance on restraint and seclusion and review the effectiveness of that guidance,
  2. Involve children, young people and their families in the drafting and review of the guidance,
  3. Consider statutory action should the guidance prove to be ineffective, and
  4. Develop and introduce a standard dataset to be implemented across Scotland to ensure consistent recording and monitoring of incidents of restraint and seclusion.

It is expected that the guidance will be developed and available by mid-2020.

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A rule is statutory when it’s been officially written down in a law.

When someone doesn’t follow a statutory rule, then they are breaking the law.

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A judicial review happens when judges examine if a public body has followed the law when it made a certain decision. If the judges find that it didn’t, they can make that public body take a different decision instead.

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