by Joanne Caffrey, Expert Witness & Specialist Training Provider Safer Custody, use of force and managing challenging behaviour in custody, education, care and mental health sectors 2012 British Excellence in Performance Winner 2018 Forensic & Expert Witness award Winner – outstanding legal services to safer custody
As an Expert Witness I am engaged on approximately 2-3 new legal cases per month where either staff or service users are injured, or die, as a result of failures to manage foreseeable risk with challenging behaviours and failure to provide suitable and sufficient assessment and control measures to either eliminate, or reduce to a minimum, the likelihood of harm to staff or service users.
Service user in schools are children, in care settings the patient, and in custody settings the detainee/ prisoner.
The cases I work on tend to be from schools, prison or police custody or mental health units and are a mixture of either staff or service users being injured. This short paper is to highlight just some of the issues for all sectors to consider and discusses some of the myths and pitfalls which service providers fall into.
“All de-escalation and restraint training is the same, and we just need to show the tick in the box that staff have completed it”
WRONG. All employers have a legal obligation to conduct their due diligence checks to ensure that any training commissioned, and provided to staff, is suitable and sufficient for the performance needs of the service. (Performance needs analysis). Standard packages are just that – ‘standard’ and are suitable for a standard service user, provided by a standard employee in that sector. However, what adaptations have been considered as relevant and suitably implemented to ensure the safe care of the service user? For example, a person with Downs Syndrome may have hyper- mobile joints, respiratory disorders and heart defects. What specialist adaptation, by a suitably qualified consultant/trainer has been implemented?
It’s not uncommon for us to be involved with staff working with adults or children with Downs Syndromes and discover that the ‘standard’ techniques they are using are actually placing the person at high risk of injury or death, and the staff have little or no idea of the risks.
The phrase ‘Behaviour Plan’ should be replaced with the terminology of ‘Behaviour & Care Plan’ to ensure the care aspect is covered. Typically ‘care’ factors such as medical implications, are missed from the plans we review.
All service providers need to think more about ‘Person Centred Care’ rather than generic management plans of 1 size fits all, as this can be considered a restrictive practice and discriminatory to a person’s legal entitlements and safety.
The more complex or challenging a service user is, then you should expect to have more complex and lengthy assessments and training for dealing with the person.
We also see that little mention is made of the risks to staff who have to deal with challenging service users. The staff members individual demographics of gender, age, underlying health conditions are all relevant as a methodology may be fine for one member of staff to implement but due to the personal demographics of another, it makes it an unsafe practice exposing both the staff and service user to foreseeable risk.
“What risk assessment?”
A general risk assessment about slips, trips and falls is not suitable, or sufficient, to safeguard staff or service users. A common issue we are dealing with is that of service users who bite, scratch and/or spit.
The bottom line is – STAFF DO NOT HAVE TO ACCEPT THAT IT’S THEIR JOB TO BE BITTEN, SCRATCHED and SPAT AT.
A detailed assessment must be conducted to establish risk levels to the staff and the service user, as staff failing to act appropriately to such behaviour puts the service user at risk e.g. staff member slaps child/adult, interferes with the respiratory system and causes a respiratory arrest or dislocates the person’s jaw.
The staff member being bitten or scratched etc has an increased risk of infection, sepsis, and mental health anxiety disorders.
Saliva is toxic in the eye. One risk is regarding managing blood-borne virus exposure which may be in the saliva, such as hepatitis, but also many people are unaware that saliva in the eye can cause blindness. In 2016 a 32-year-old care worker had to have a corneal transplant in her eye after a spitting incident at Low Moor Resource Centre in Bradford left her with only 20% vision in the eye. Her solicitors argued that Bradford District Care NHS Trust failed to risk assess the risk of spitting when dealing with this patient. The union rep stated “The Trust knew this service user had a tendency to spit and should have protected staff ”. She agreed a settlement of £110,000. The cost to have prevented this incident would have been much less.
A member of staff must be protected in such a circumstance under both Health & Safety at Work Act requirements and general safeguarding duties to the client.
Safe systems of work are essential to keep both staff and service users safe from physical and emotional harm. Failure to implement safe systems of work for client services could in itself be an abusive practice contravening safeguarding responsibilities.
Additional training is required in addition to any general training PLUS what are you doing to work longer term on managing down the incidents of biting, spitting and scratching? Why is it happening? Is it a manifestation of unseen abuse which is occurring to the person?
It is not acceptable to make up your own practices to reduce biting e.g. placing things in the mouth of the biter based on a staff member’s decision in conjunction with an appropriate adult. What needs to be remembered is that if the person had respiratory failure or died is the appropriate adult or staff member suitably ‘expert’ in that area of intervention to stand in a witness box for a manslaughter case and explain to the jury their expertise to diagnose the intervention method and explain all the underlying medical and legal implications of the decision?
Plus, from a safeguarding perspective we need to be thinking about fabricated & induced illness and abuse by the appropriate adult, in addition to the fact they lack knowledge regarding the subject matter, and despite their best intentions may be putting the person at increased risk of harm.
Many employers are unaware of the availability of bite/scratch sleeves and clothing which are available for staff to wear as PPE (Personal Protective Equipment). This clothing can prevent penetration and laceration of the skin in addition to safe systems of work and longer term analysis and management strategies. This clothing is British Standard and EU kite marked for safety of the client and staff members. An issue to consider is the price of a civil claim against your company by a staff member who is harmed when the risk was foreseeable, and a range of reasonable control measures were available. Bite/scratch clothing is PPE and just one part of your management plan to keep staff and clients safe.
“What actually is reasonably foreseeable?”
It is reasonably foreseeable that all service provision sectors will at some time have clients / service users who are challenging or displaying unwanted behaviours. Therefore, it is reasonably expected that an employer should consider what level of conflict management training is necessary, reasonable and proportionate. If the likelihood of an incident occurring is rare then the decision may be to offer e learning solutions as the only method, and keep it under review. If the likelihood of occurrence is possible, but if it did happen the anticipated impact is considered low injury then a blended approach may be reasonable such as e learning and supplemented with some face to face training and consultancy.
If the likelihood is regular and the impact is injury, then a more proactive management approach would be considered reasonable. This may include blended learning and development of staff based upon performance needs and training needs analysis; thorough assessments of risk conducted by suitably trained personnel; detailed behaviour and care plans; detailed safer systems of work; detailed assessments of risk and PPE availability; enhanced training by suitably qualified companies; whole workplace awareness training, and post training assessments/ reviews.
“Surely it’s all common sense?”
Any liability case (civil or criminal) looks at facts of law – not ‘common sense’. As what is common sense to one person may be ludicrous to another.
The law is simple – any work-related task needs to be assessed for risk and its risk eliminated or managed down to the lowest level.
Anything which is necessary, reasonable and proportionate should be considered and accurately assessed and documented before being discounted on the basis that there is no money available.
Person centred care means considering thoroughly that the person’s unique health, education, and disability needs etc have been taken into consideration and that the best interests of the service user is the primary focus – not what is in the best interests of the business alone. This also means looking at the demographics of the staff providing the care so that decisions do not put them at unreasonable risk.
“We are good communicators and we try to de-escalate them”
In a 1 day course it is impossible to make staff competent at de-escalation for all situations. General de escalation skills courses are just that – general one size fits all and do not necessarily take into consideration the complex needs of the service user and the capabilities of the staff member.
For example, occupations such as education or care tend to attract personality styles of people to talk about feelings with comments such as “how do you tohink they feel about what you just did?” BUT if the service user is in crisis they are unable to process such a large volume of words AND if they are an activist in crisis they may tend to respond more to factual comments such as “what happened?”. The first comment can be viewed as a judgemental attack and escalate the situation further. Comments such as “why is it always you?” are highly unlikely to calm someone down.
If the service user then has mental ill health, educational needs or disabilities these all impact upon which communication style works best for them. Moving closer to the person in a caring manner could actually escalate the situation as the person may need more space around them.
It is essential that any service user’s behaviour and care plan also covers the communication strategies based upon objective assessment and in conjunction with the service user. Typically, if communication is covered in the plans we review it’s common that the business dictates how the staff will communicate to the person, with little, or no, mutual prior agreement, and consultation, with the service user. This could therefore be detrimental to de-escalation and be a catalyst for escalation of unwanted behaviours and the implementation of physical restraints. This could be considered as abuse from the service provider.
It is essential that all service providers work to minimise the injury to both staff and service users as a result of unwanted / challenging behaviours. Just because many work places have a right to use force, does not mean it is the right thing to do. The ‘best interest’ test is about the best interests of the client, not of the business, plus using any force can put staff at an increased risk of harm.
Challenging behaviour / unwanted behaviours is a work place activity and therefore must be assessed for the level of risk posed to employees, the service user themselves and any other person affected by it. These are basic principles of Health & Safety at Work Act & Regulations.
Safer systems of work always exist, and individualisation of plans for both service user and staff is required to accurately manage risk.
Challenging & unwanted behaviours in all sectors is a complex speciality. Joanne Caffrey has specialised in this field for over 30 years and works at national levels and within coroner, civil and criminal court cases. Her expertise is sought throughout the UK and Ireland.
She is an appointed Director of the national company Freedom From Abuse and has received multiple awards for her work in this field, which include:
• 2018 Forensic & Expert Witness Award – Outstanding legal services for safer custody
• 2012 British Excellence in Performance Award
• 2008 & 2009 National Training Awards for Professionalising Investigations for investigation of sexual and violence offences committed against vulnerable people.
The information contained within this report is generic and not provided as legal advice. Specific advice relevant to your situation should be obtained.