Month: November 2018

Government document tells councils they can bypass legal obligations

A document recently published by the Department for Education tells councils what they are allowed to do in respect of the care and protection of children and young people. It is published on the Children’s Social Care Innovation site.

As we wait for responses to our freedom of information (FOI) requests – see below – we have produced a table showing what’s wrong with the document:

What’s wrong with the ‘myth busting’ document Nov 2018

As can be seen, the ‘myth busting’ document claims to be focused on statutory guidance, though it also concerns primary and secondary legislation.

Acts of Parliament are primary legislation. Secondary legislation is also approved by Parliament though with much less scrutiny and debate. Other terms for secondary legislation are regulations and statutory instruments.

Both primary and secondary legislation must be followed.

In addition to complying with the law, local authorities must follow statutory guidance (issued by government departments) unless there is very good reason not to.

Through a series of so-called ‘myth busting’ questions, the Department for Education document claims to summarise the obligations in statutory guidance and then proceeds to set out what the guidance allows. The document states “all of the responses [that is, the ‘what does the guidance allow’ content] have been agreed by the Department for Education and their lawyers in consultation with Ofsted”.

Action to date
Article 39 co-ordinated a letter (with 50 signatories) to the Children’s Minister setting out the legal inaccuracies in the ‘myth busting’ document. We asked him to withdraw the parts of the document which are inaccurate. Six days later we received a response from the Minister. Very regrettably, the Minister did not agree to withdraw the inaccurate content.

Minister's response to joint letter of concern 10 September 2018

After seeking further legal advice, and convening a meeting of concerned organisations, Article 39 submitted the following FOI questions to the Department for Education and Ofsted. Answers to these FOI questions are due tomorrow (16 November).

Our questions to the Department for Education
1) Please provide a copy of the equality impact assessment completed in respect of the Children’s Social Care statutory guidance myth busting document published by the Department for Education (attached with this request).
2) Please provide copies of correspondence between local authorities and the Chief Social Worker for Children and Families, and any other officials within the Department for Education, in connection with the Children’s Social Care statutory guidance myth busting document published by the Department for Education.
3) Please state the date of publication of the Children’s Social Care statutory guidance myth busting document.
4) Please state the date or dates agreement from Department for Education lawyers was sought on the content of the Children’s Social Care statutory guidance myth busting document, and by whom.
5) Please state the date or dates agreement was provided by Department for Education lawyers on the content of the Children’s Social Care statutory guidance myth busting document.

Our questions to Ofsted
1) Please provide copies of correspondence between Ofsted and the Chief Social Worker for Children and Families, and any other officials within the Department for Education, in connection with the Children’s Social Care statutory guidance myth busting document (attached with this request).
2) Please state the date or dates Ofsted was asked to agree the responses to the ‘myth buster’ questions contained within the Children’s Social Care statutory guidance myth busting document.
3) Please state the date or dates Ofsted gave its agreement to the responses to the ‘myth buster’ questions contained within the Children’s Social Care statutory guidance myth busting document.

Royal Assent given to first restraint Act of Parliament

Article 39 is delighted that Royal Assent has been given to the UK’s first Act of Parliament dedicated to protecting children and adults from abusive restraint.

The Mental Health Units (Use of Force) Act 2018 is known as Seni’s Law, after 23 year-old Seni Lewis who died after being restrained by 11 police officers called to the Bethlem Royal hospital in London on 31 October 2010. Seni, an IT graduate, had been admitted to the hospital as a voluntary patient.

  • Last year, 9,296 people were subject to physical restraint in a mental health, learning disabilities or autism service in England; the total number of physical restraints was 53,188 – giving an average of 6 restraints per person.
  • There were 19,078 incidents of physical restraint among 1,198 children and young people (under the age of 20 years) – giving an average of 16 restraints per child and young person. This is nearly three times the overall average.
  • Prone restraint is when a person is held face down onto a surface. There were 3,405 incidents of prone restraint on children and young people (under 20 years old) in England in 2016/17. For all ages, the figure was 10,071, meaning that 34% of face-down restraint were used on children and young people.

With YoungMinds, INQUEST and others, we have been working on the legislation as it made its journey through Parliament.

Carolyne Willow, Article 39’s Director, states:

“This Act of Parliament will massively strengthen child protection within mental health units. Children in these settings are, by definition, extremely poorly and vulnerable, and restraint continues to be used much too frequently and not as a last resort. We offer our utmost respect to the family of Seni Lewis whose courageous fight for justice has ensured child and adult patients have legal rights to dignified, respectful and safe care.” 

Three provisions in the legislation which Article 39 specifically pushed for:

  • Section 5(2)(i) requires that staff training relating to the use of force includes the impact of restraint on a patient’s development. We would have preferred the wording ‘child’s development’ but the meaning is the same – training must specifically include the effects of use of force on children’s development.
  • Section 6(5)(m) requires a description of the outcome of the use of force to be recorded – this means that any injuries and/or psychological harm suffered by children (and adults) will be noted.
  • Section 6(5)(p) requires that records about the use of force indicate whether parents (or others in a patient’s care plan) were notified after each use of force. This is a vital safeguard for vulnerable children who may not tell their parents (or the local authority if they are in care) if they have been restrained. This duty will also benefit adult patients.

Article 39 wanted more protections to be included in the primary legislation but we are very reassured that the Department of Health has agreed that the statutory guidance will specifically – and separately – address the rights and needs of children in mental health units.

We look forward to working on the guidance over the next 12 months, and hope the Government will commence the legislation at the earliest opportunity. (Once an Act of Parliament gains Royal Assent, unless it states otherwise, it is up to Ministers to decide when it will come into force).