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Are the Use of Pain Compliance Holds Illegal?

I was recently contacted about the fact that a pain compliance technique was being taught during a training cause.


The point from the caller was that they felt that the technique should not have been taught because they are not legal and therefore banned. Particularly for staff not employed in law enforcement or security roles!


Whilst the philosophy behind any physical contact, holding, or restraint course should be about reducing the need for the use of any physical intervention. The circumstances/situation will be a key factor regarding the appropriateness of any force used.


Below is a blog post, which was originally sent out in 2014 but is still relevant today


Causing pain to a Child is Illegal

I have recently met with a Government-appointed panel of 'experts' who told me, quite enthusiastically, that it is illegal for anyone to use a physical technique with a child that may intentionally or unintentionally cause pain.


Not only do I believe that the statement is wrong (contrary to what is provided by law or contained in statute law), but such a statement is fundamentally dangerous, because the potential collateral fallout could be far greater than the statement is intended to prevent - namely the prevention of harm to a child consistent with what is commonly called the 'best interest criteria', and you can read some of my thoughts below.


The 'Best Interest' Criteria

Under Children's legislation, the 'best interests of the child' is the paramount consideration, and the doctrine is used by all family courts to determine a wide range of issues relating to the well-being of children. The most common of these issues generally concern questions that arise upon the divorce or separation of the children's parents.


This doctrine also extends beyond these general issues into other areas of a child's welfare when considering the wider context of how we must all act in the best interests of the child, and this can be achieved by adopting a more universal approach to the 'best interest criteria' as opposed to simply the more general approach.


For example, in relation to the use of force on a child, it must be in the best interest of the child to avoid any technique that we know could increase the risk of possible death, such as the prone position and also in avoiding wherever possible, the need to cause intentional or unintentional harm or pain to a child.


However, when considering the issue of 'intentional or unintentional' pain caused by the use of a physical technique to control a child, who is at risk of harming themselves or others, a broader scope within the context of reasonable force must be considered, which means having a clear understanding of what the law actually states as opposed to any individual subjective opinion.


What "Illegal" Means

To start with, for something to be "illegal" it must be clearly prohibited by statute law. For example, Section 1 of the Prevention of


Crime Act 1953 prohibits the possession in any public place of an offensive weapon without lawful authority or excuse.


So in legal pragmatic terms a police officer may stop and challenge someone who is found to be in possession of a screwdriver whilst walking down the road. If it transpires that the person had a 'lawful excuse' because they had just bought it from a hardware store and they were on their way to their grandmothers house to fix a piece of furniture or a light fitting for example, then no criminal offence would have been committed.


However, if the person was arrested and charged by the police then a court would have to find, beyond reasonable doubt, that the defendant was 'intending' to use the screwdriver offensively. To do that the court would have to be satisfied (beyond reasonable doubt once again) that the reasons given by the defendant for possessing the screwdriver found in his or her possession were not true.


Innocent Until Proven Guilty

This is because the law states that you are innocent until proven guilty.


Therefore, if a physical technique that intentionally or unintentionally caused pain to a child, prevented a greater harm from occurring, then that falls within the scope of reasonable force provided in statute and common law and if that was the genuine intent then that must surely be consistent with the best interest of the child doctrine.


To simply state that any technique that causes pain to a child, be it intentional or unintentional, is illegal, is, in my opinion a naive and incompetent perspective that highlights a genuine lack of understanding of what the law provides.


In addition, however, it also raises the issue of whether or not the panel concerned are 'biased' towards any thinking that doesn't agree with their beliefs and whether or not they are actually willing to look at the evidence.


These are the basic fundamentals upon which English law is built.


English Common Law: The Bias and Evidence Rules

In English Law the Bias Rule states that investigators and decision‐makers must act without bias in all procedures connected with the making of a decision.


To this extent a decision‐maker must be impartial and must make a decision-based on a balanced and considered assessment of the information and evidence before him or her, without favouring one party over another.


Even where no actual bias exists, investigators and decision‐makers should be careful to avoid the appearance of bias.


Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation.


The Evidence Rule

The 'Evidence' rule is that any administrative decision must be based upon logical proof or evidence material.


Investigators and decision-makers should not base their decisions on mere speculation or suspicion.


I am of the opinion that the statement made is nothing more than a subjective opinion of the Chair of the panel as opposed to a clear understanding of the law.


The Human Rights Act

Article 2 raises specific issues with regard to the use of physical force with regard to the right to life. Article 2(1) [the first part of Article 2], is an ‘Absolute Right’ and so cannot be derogated against.


This requires that all public authorities (whether direct or quasi) take positive steps to promote and preserve the right to life - especially where a risk to life is known to exist, such as prone positions, supine positions, seated double-embrace holds and also basket holds and ‘wraps’, etc.


In addition, where a technique can be used that could eliminate or greatly reduce the risk to life, that has to be considered.


Therefore, if a more restrictive technique / pain-compliance technique / or a technique that is likely to cause harm, can eliminate or reduce a much greater harm - the risk to life - it is a legal requirement under Article 2(1) to use it, if an organisation is to ensure compliance with the Act.


Article 3

Now the panel has raised concerns regarding the fact that the causation of pain to a child may be a breach of Article 3 of the Human Rights Act, and this would be true if the intent was to act in an inhumane, degrading or torturous manner.


However, if this is their primary argument then we are back to the issue of 'bias' once more.


The Health & Safety at Work etc Act 1974

In addition, the Health & Safety at Work etc Act 1974 requires all organisations to take 'reasonably practicable' steps to ensure the health safety and welfare of staff and others whilst at work.


Therefore, if a restrictive physical technique, which may cause 'intentional or unintentional harm', can prevent a greater harm from occurring, then it has to be a considered as a 'reasonably practicable' control measure.


In fact, the absolute failure to provide such an option could also be seen as a negligent omission that could lead to an individual or an organisation being sued if it was proved that the omission of such a technique, was a factor in the failure that led to a harm occurring, that could have been prevented by the incorporation of such a technique.


In addition, I believe that the panel's position on this could amount to a 'knowledge-based' or 'rule-based' mistake under a Health & Safety Model called HSG48 that could, in turn, lead to someone being seriously injured or killed.


I am also pretty sure that an ECFA Analysis would also highlight the position of this panel in relation to this absolute statement as a 'systematic' or 'causal' factor in a set of events that may lead up to a failure resulting in serious injury or even death.


The Law of Unintended Consequences

So, let us say that this Government appointed panel gets their way and any technique that is likely to cause harm is banned from use.


Well, this could mean that in some circumstances staff will be unable to control the children in their care if they are to be limited by the omission of such techniques.


In addition, if staff are only allowed to rely on the lower end 'less-intrusive' or 'non-harmful' option, it is also highly likely that the techniques will fail in certain circumstances.

The real paradox is that if this is done in an attempt to reduce the risk of injury to the service user, who may be seriously harming themselves or someone else and therefore to reduce the overall liability of the organisation, this view is very short-sighted indeed.


In fact, this is actually known as the law of 'Unintended Consequences' which basically means that in an attempt to reduce risk by teaching more appropriate' or ‘less intrusive’ techniques, the employer actually ends up creating more collateral damage due to increased injuries to staff and service user because the techniques are limited in effectiveness.



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