Could we see more unlawful killing conclusions in inquests involving restraint and is your organisation’s training on restrictive intervention compliant with CQC-approved standards?

On 31 March 2022 the Mental Health Units (Use of force) Act 2018 (‘Seni’s Law’) came into force. The Act is the culmination of many years’ campaigning following the death of Seni Lewis, an IT graduate who died aged 23 after being restrained on a mental health unit by 11 police officers. At the inquest into his death, the jury found Seni died as a result of excessive, disproportionate and unreasonable restraint and force.

The Act extends to physical, mechanical or chemical restraint and so includes the use of sedating medication. The Act applies to all patients being assessed or treated for a mental health disorder in a mental health unit. This applies equally to both NHS and independent hospitals. The full guidance can be found at Mental Health Units (Use of Force) Act 2018.

What about patients that are not on mental health units?

Alongside this new Act, an independent charity, the Restraint Reduction Network (RRN) has worked with Health Education England to produce a set of ethical training standards for the prevention and, where necessary, use of restrictive interventions.

These training standards therefore apply not only to mental health units but to all CQC regulated activity. Most healthcare providers have policies in place for planned restraints for patients that lack capacity, but what about policies for patients that do not lack capacity? Or policies for unplanned and emergency restraints? These situations usually involve security officers and clinical staff. 

Security officers should undergo intense training to obtain a licence for a Level 2 door supervisor qualification. There has always been an expectation from the security industry authority that organisations will provide specific training within their industry given the wide-ranging work completed by security officers from supervising derelict buildings to providing security to hospitals. Most healthcare providers require security officers to have at least a Level 2 security licence to carry out security services within a hospital. It was not until April 2021 that clear national guidance on restrictive intervention training within a hospital setting was mandated.

Could we see more unlawful killing conclusions in inquests involving restraint? 

At a recent inquest where we were instructed, the role of clinical staff during an unplanned emergency restraint, such as carrying out checks and observations on the patient, additional training provided to security staff within a hospital setting and clinical staff training on de-escalation and restraint training was explored in detail.

The inquest considered how the additional training required by staff involved in restrictive intervention needed to be tailored to a hospital setting. This was further cemented by the take-home message during training that any type of restraint, no matter how reasonable, is dangerous and should only be used as a last resort. The jury returned a narrative conclusion including a finding that the patient had been unlawfully killed.

Both security officers and clinical employers learn as part of their training that restraining someone can be dangerous and therefore all de-escalation techniques should be utilised and exhausted before any restraint (if necessary) takes place. The Supreme Court decision of R (on the application of Maughan) -v- HM Senior Coroner for Oxfordshire (2020) confirmed the standard of proof on all inquest conclusions is the civil standard of proof (ie the balance of probabilities). The coroner or jury only need to be satisfied on the balance of probabilities that one of the homicide offences (homicide, unlawful act manslaughter, gross negligence manslaughter and corporate manslaughter) have been met.

Whilst the inquest conclusion must not name the individual or organisation who has unlawfully killed the deceased, this will in many cases be obvious, especially given the fact that these cases are usually high profile and will attract media attention. Whilst an unlawful killing conclusion is not a criminal verdict, it quite clearly has a significant impact on an organisation and an individual reputationally, from a regulatory perspective and may trigger a (further) police investigation (to include a potential corporate manslaughter investigation). 

What do healthcare providers need to do?

It is therefore important for organisations to ensure that their training on restrictive interventions, whether that be to security officers or clinicians, complies with the RRN training standards, that all training is up to date and any incidents are thoroughly investigated. Healthcare providers should consider whether:

• Training in restrictive intervention is being provided by an approved organisation certified to provide training in line with the RRN standards
• Any internal training has been certified as complying with the RRN training standards and continues to be reviewed
• There is a system in place to ensure that all staff, whether employed by the provider or contracted security services, have had all the necessary approved training before completing security roles 
• Security and clinical staff are up to date with their training in de-escalation and restraint
• Policies clearly define the role of security officers in both planned and unplanned restraints
• There is good communication between clinical and security staff about the patient and what level of help the clinical team require, ensuring security staff are not being used to fulfil clinical roles such as observing a patient
• Clinical staff are clear about their role in an unplanned restraint, for example what their role is in ensuring the patient’s safety at all times – do they need to communicate with the patient verbally?

Our team can assist your organisation reviewing policies and procedures in place for restraining patients and provide advice on how to best prepare for upcoming inquests involving restraint.