in safe hands? MSP Briefing: S5M-19700 Members Business Debate – 25th February 2020, 5pm Motion S5M-19700: Jackie Baillie, Dumbarton, Scottish Labour, Date Lodged: 04/11/2019 ENABLE Scotland Campaign, In Safe Hands? That the Parliament welcomes the ENABLE Scotland campaign, In Safe Hands?, which seeks to end the inappropriate use of seclusion and restraint in schools against children and young people who have a learning disability and promote the rights of some of the country's most vulnerable pupils; recognises that the December 2018 report by the Children and Young People’s Commissioner Scotland, No Safe Place, identified 2,674 incidents of restraint and seclusion relating to 386 children in the school year 2017-18; notes the calls for the implementation in Dumbarton and across Scotland of the campaign's call for the Scottish Government to issue strong, dedicated guidance on the use of restraint and seclusion in schools, to roll out Positive Support in all schools with a minimum standard that each has at least two trained staff on site at all times, to introduce a duty of candour around restraint and seclusion for all schools and to strengthen transparency and accountability with powers of oversight resting with the appropriate body, and commends all the children, young people and families who have bravely shared their experiences of restraint and seclusion in the hope of change. Supported by: Iain Gray, Neil Findlay, Andy Wightman, Daniel Johnson, Jeremy Balfour, Colin Smyth, Sarah Boyack, Alex Rowley, Mary Fee, Angela Constance, Monica Lennon 1. Summary ENABLE Scotland launched its latest campaign – in safe hands? – in November 2019, calling for an end to unregulated, unsupported and unacceptable use of restraint and seclusion against pupils who have a learning disability in Scotland’s schools. The campaign calls on the Scottish Government to: o Issue stronger, dedicated guidance on the use of restraint and seclusion in schools. o Roll out Positive Support strategies in all schools through skilled staff, with a minimum standard that every school has at least two trained staff on site at all times. o Introduce a duty of candour around restraint and seclusion for all schools. o Strengthen transparency and accountability, with powers of oversight resting with the appropriate body. Whilst there has been positive movement on recommendation 1 since the launch of our campaign, we seek the support of the Scottish Parliament to ensure that the further recommendations are progressed in order to translate improved Guidance into improved practice, and improved promotion and protection of children’s human rights to be free from harm. ENABLE Scotland is grateful to Jackie Baillie MSP for lodging motion S3M-19700 as Convenor of the Cross Party Group on Learning Disability for debate as member’s business, and to cross party MSPs for offering their support. This briefing provides MSPs with information about each of the campaign asks and status updates since November 2019, as well as access to full background information about the campaign from a variety of sources to inform participation in the debate. A copy of the full in safe hands? campaign report is included in the email with this briefing, and can also be found here. Further information can be found on the ENABLE Scotland website at www.enable.org.uk/insafehands. Since launching in safe hands? in November 2019, 54 parents have shared their stories with ENABLE Scotland about their child’s experiences: “Whilst at nursery (aged 4 at the time) [my son was] regularly placed in a quiet room and ordered to sleep. He was terrified of this. He was also restrained regularly by staff. One time, he was restrained by a staff member sitting behind him and twisting his hands back and to his sides. This was done to prevent him case he lacked out we were told.” 2. Updates 2.1 Recommendation 1: Issue stronger, dedicated guidance on the use of restraint and seclusion in schools Since the launch of the in safe hands? campaign, the Scottish Government has committed to producing stronger, dedicated guidance on the use of restraint and seclusion in schools. A short life working group has been convened to develop this guidance, with an outline 12 month delivery timeline. ENABLE Scotland position: This guidance is very welcome, and we congratulate the Scottish Government in taking this action. ENABLE Scotland is now concerned with ensuring that: ➢ membership of the group developing the guidance reflects expertise from health, social care and mental health settings, and moves beyond education specialists to include the Mental Welfare Commission, the Care Inspectorate and others; ➢ the Guidance is embedded in practice, and supports practitioners to understand not only the circumstances around the use of seclusion and restraint as principles of last resort, but also that they understand the legislative and human rights context of restrictive practices; ➢ the monitoring of the Guidance post publication informs future decision making on whether statutory guidance is produced We direct MSPs to the equivalent draft guidance which has been produced by the UK Government and to the Mental Welfare Commission’s recently published guidance on seclusion and restraint, which give helpful examples of the complexity of the guidance required. 2.2 Recommendation 2: Roll out Positive Support strategies in all schools through skilled staff, with a minimum standard that every school has at least two trained staff on site at all times. The health and wellbeing of children and young people is the responsibility of all staff. There are a variety of established positive support techniques which support adults and children who have additional support for learning needs to be included safely alongside their peers, such as CALM, Positive Behaviour Support, and other approaches such as the Communication Passport. The Scottish Government has been clear that education authorities are responsible for identifying and meeting the additional support needs of their pupils, including the employment and provision of appropriate support, including teaching and support staff to meet children’s needs. Whilst we agree that it will ultimately be a decision for education authorities on deployment and resourcing, we are still calling for a clear direction on the availability of trained staff to support children and young people who have complex additional support for learning needs in all settings as a safeguarding, wellbeing and human rights issue. ENABLE Scotland acknowledges that this is not necessarily a training issue for teachers, and indeed should be considered around the whole school workforce. ENABLE Scotland position: ➢ The Scottish Government made a welcome investment in 2019/20 of an additional £15m in ASL Assistants. We believe that this is a critical opportunity to align these posts with a training programme in positive support strategies ➢ We direct MSPs attention to a parallel work programme which is in progress following the publication of Coming Home in December 2018 – identifying adults who have learning disabilities who are living outwith the community of their choice due to lack of appropriate locally based community support. One key element of the resultant work has been in the development of a Positive Behaviour Support community of practice to consider how to upskill the health and social care frontline workforce. We believe that this work could usefully be expanded to include the education workforce to support the implementation of the new guidance. 2.3 Recommendation 3: Introduce a duty of candour around restraint and seclusion for all schools This is a well-established principle in health and social care which became law in 2016 via the Public Bodies Act – placing an expectation on organisations to be open, honest and supportive when there is an unexpected or unintended incident resulting in harm. Given that parents often report not finding out about incidents of seclusion and restraint at school until their child tells them, or they observe changes in their appearance or behaviours, a duty of candour would provide an important tool in upholding rights. 2 The Scottish Government has indicated that it does not believe that the introduction of such a duty would be appropriate. ENABLE Scotland position: ➢ We urge the Scottish Government to reconsider its position on the principle of a duty of candour to alert parents to any incident of seclusion or restraint as it develops its new Guidance on the same issue over the next 12 months Since launching in safe hands? in November 2019, 54 parents have shared their stories with ENABLE Scotland about their child’s experiences: 2.4 Recommendation 4: Strengthen transparency and accountability, with powers of oversight resting with the appropriate body At present, accountability around the use of seclusion and restraint in all school settings is unclear. The Mental Welfare Commission, Care Inspectorate, and Education Scotland all potentially have a role to play, but this is not well defined. The Scottish Government has confirmed that it will develop and introduce a shared data set across all local authorities to enable local and national monitoring of the issue, which is welcome. However, ENABLE Scotland still believes that: ➢ There is a gap in terms of accountability and upholding the rights of children and young people who are subject to seclusion and restraint, even within a context of improved guidance and better trained staff. ➢ We urge the Scottish Government to give consideration to defining this role as part of the remit of either the Mental Welfare Commission, the Care Inspectorate, Education Scotland, or any other body it deems suitable. 3. Background In 2016, ENABLE Scotland’s #IncludED in the Main?! campaign recommended more training on learning disability and Positive Behaviour Support for teachers and other school staff, along with a call to record and reduce instances of pupils who have a learning disability being excluded from class time.