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Chamber and committees

Meeting date: Tuesday, February 25, 2020

Meeting of the Parliament 25 February 2020 [Draft]

Agenda: Time for Reflection, Topical Question Time, Proposed Scottish Parliament (Assistance for Political Parties) Bill, Period Products (Free Provision) (Scotland) Bill: Stage 1, Business Motion, Parliamentary Bureau Motions, Decision Time, Seclusion and Restraint in Schools


Contents


Seclusion and Restraint in Schools

The final item of business is a members’ business debate on S5M-19700, in the name of Jackie Baillie, on Enable Scotland’s “in safe hands?” campaign. The debate will be concluded without any question being put.

Motion moved,

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.

17:04  

Let me declare that I am proud to be the convener of the cross-party group on learning disability. I am grateful for the opportunity to talk about Enable Scotland’s latest campaign, “in safe hands?”. The campaign seeks to end inappropriate restraint and seclusion of children and young people who have a learning disability, and to promote the rights of some of the country’s most vulnerable pupils.

I pay tribute to Beth Morrison, who is a member of Enable Scotland’s Scottish council and its families committee, and is the founder and chief executive officer of Positive Action and Behaviour Support Scotland. Some time ago, she lodged a petition and collected stories from more than 400 families whose children had experienced seclusion and restraint at school. Without doubt, she is the inspiration for the campaign, for the refreshed Scottish Government guidance of 2017 on supporting children and young people with healthcare needs in schools, and for the Children and Young People’s Commissioner Scotland’s investigation, which was the first time that the commissioner used statutory investigative powers to shine a light on the issue and to demand change. Let Parliament celebrate the contribution of Beth Morrison, who is a determined campaigner for change.

Parents tell stories that are, frankly, shocking. I will quote from primary research that was conducted by Enable Scotland. One parent said of their child’s experience that

“Her arm was forced up her back and she was put on the floor and held there whilst the teacher counted.”

Another said that their child

“was grabbed by the neck by a classroom assistant”,

and yet another said that their

“child spent most of his sporadic time at primary school alone in the medical room due to no support staff being available for him.”

Those stories are the tip of the iceberg—there are hundreds of similar stories. We are failing children with special needs, and use of restraint and seclusion is completely unacceptable.

It is clear that the guidance that was issued by the Scottish Government in 2017, however well-intentioned it was, does not work. Local authorities are required to have in place policies on physical intervention, but as the Children and Young People's Commissioner Scotland has established, little has been implemented at local authority level. Only 18 out of 32 local authorities record all incidents of restraint and exclusion, which means that 14 simply do not. Four local authorities do not bother to record anything at all; neither does the Scottish Government, although none other than the United Nations has encouraged it to do so.

The commissioner’s investigation came up with 22 recommendations, which I will not recall in detail. Suffice it to say, frankly, that we need to make urgent progress. The issue is, fundamentally, one of human rights. The rights of children and young people with learning disabilities are breached day in and day out because of the practice of inappropriate seclusion and restraint.

I recognise, as we all do, that teachers are overworked, starved of resources and struggling in their classrooms. I have seen in my constituency the reduction in numbers of classroom assistants and the lack of specialist support for pupils with additional support needs. That is the case not only in my constituency, but across the country. That must not be an excuse for failing those children and letting them down so badly. All children in Scotland have the right to be safe, healthy, nurtured, active, respected and included. All children have the right to expect that they will be in safe hands when they go to school for the day.

For many children with additional support needs, including those with a learning disability or autism, verbal communication can be extremely difficult, so they sometimes use different behaviours and actions to tell us that something is wrong, which can present challenging situations for the children, their peers and their teachers.

Therefore, it is really important that, both in mainstream and in specialist settings, schools understand how to support children to communicate their feelings, how to avoid distress, and how to put in place systems that keep children safe and respected.

Enable Scotland’s “in safe hands?” campaign makes four simple recommendations, which I commend to the Deputy First Minister and Cabinet Secretary for Education and Skills. First, we need stronger dedicated guidance. I welcome the short-life working group that the Government has set up, but we need monitoring of the guidance post publication to ensure that, this time, it is properly implemented. Perhaps—dare I suggest it?—we need statutory guidance to make people sit up and pay attention. We also need to ensure that the membership of the working group is fully inclusive. I invite the cabinet secretary to work with Enable Scotland to make sure that that is the case.

Secondly, we need strategies that can be applied in the classroom, positive support techniques, dedicated specialist staff and training for the whole school workforce, because this is not about only teachers.

Thirdly, there is a need for all schools to have a duty of candour in respect of restraint and seclusion, Parents have a fundamental right to know what is going on with their child; I am genuinely surprised that the Scottish Government does not agree. I urge the cabinet secretary to revisit the matter and to include that duty in the guidance that the Government is preparing.

Finally, we need to strengthen transparency and accountability. Who is responsible for overseeing this area of policy? Should it be the Mental Welfare Commission for Scotland, the Care Inspectorate or Education Scotland? If we do not identify clearly who should watch over and own this area, children will continue to fall between the gaps, as we have seen happen, so far.

Seclusion and restraint are against the human rights of children and young people. Frankly, use of them is appalling. Every day, children are subjected to inappropriate use of seclusion and restraint in Scotland’s schools. That is not just appalling—it is embarrassing. There is no time to waste: the practice must end now.

17:12  

I thank Jackie Baillie for bringing this important debate to the chamber. I also thank Enable Scotland for its “in safe hands?” campaign and its briefing about it.

All behaviour is a form of communication. For many children, particularly those with additional support for learning needs, it can be really tough to communicate how they are feeling verbally. A child’s challenging or inappropriate behaviour is a sign that he or she is upset and that something is not right.

Adults and children are communicating something through their behaviour during every moment of every day, even if they are not aware of it. Therefore, communicating through behaviour and actions should be expected and understood. When it is not understood, that can present a challenging and upsetting situation for everyone—for the child who is trying to express their needs, for their peers and for the teachers and staff who are doing their best to support them.

To keep children and young people safe, healthy, achieving, nurtured, active, respected, responsible and included, it is crucial that all schools—mainstream and specialist—are crystal clear about how to support them to communicate how they are feeling, particularly when difficult feelings are involved, and how to support them to avoid feeling distressed. When that is not possible, all schools must have in place clear guidance and protocols to keep children safe and respected.

I support Enable Scotland’s asks from the “in safe hands?” campaign. Jackie Baillie mentioned them, and they probably bear repeating. It is asking for stronger, dedicated guidance on the use of restraint and seclusion in schools; the roll-out of 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 introduction of a duty of candour on restraint and seclusion for all schools—I support Jackie Baillie’s comment that it is not only right but helpful that parents understand how their child’s school day has been, so that they can have a happy home time; and a strengthening of transparency and accountability, with powers of oversight resting with the appropriate body.

It is important to acknowledge, as Enable does in its briefing, the positive movement that has been made on the issuing of guidance. I support Enable’s ask that the further recommendations be progressed. It is important that the guidance translates into improved practice that makes a difference for children.

Our Parliament will soon incorporate the United Nations Convention on the Rights of the Child. The UNCRC makes it clear that restraint and seclusion might violate a child’s rights, including their right to be free from cruel, inhuman or degrading treatment or punishment, their right to respect for bodily integrity and their right not to be deprived of their liberty. I said at the beginning of my remarks that all behaviour and action is a form of communication. As a Parliament, we can communicate clearly by our actions that children in Scotland are in safe hands. Let us therefore do what Enable asks of us and communicate clearly that children’s rights to be safe, healthy, achieving, nurtured, active, respected, responsible and included are not only upheld but promoted.

17:16  

I, too, thank Jackie Baillie for bringing this important debate to the chamber.

I recently had a meeting with a professional worker in the third sector who referred to learning disability as the Cinderella of the disabilities. He explained that children and adults with learning disabilities are often unable to communicate verbally and, as a result, do not receive the attention that they deserve. Bearing that in mind, I thank Enable, the charity that is responsible for producing the report that we are debating, for its on-going work to improve the lives of people with learning disabilities. By listening and acting on the issues that are important to its members, Enable has produced a number of important reports, including “In safe hands? A campaign to regulate the use of seclusion and restraint in Scotland’s schools” and “#IncludED in the Main?! 22 steps on the journey to inclusion for every pupil who has a learning disability”, that show that inclusive education is still far from a reality for many young people with a learning disability.

Parts of the “In safe hands?” report make for uncomfortable reading. I found it distressing to read parents’ accounts of their children’s experience of situations that led to the need for restraint and seclusion and of incidents when an inability to communicate verbally led to behaviours and actions that were not understood by staff, which resulted in terrible situations for the child, their peers and staff that, in the worst cases, breached the rights of the child.

In 2018, the Children and Young People’s Commissioner Scotland published the report “No Safe Place: Restraint and Seclusion in Scotland’s Schools” to establish how the use of restraint and seclusion is governed in schools across all 32 local authorities in Scotland. The commissioner identified significant variance in the availability and content of local education authority guidance on seclusion and restraint, and similar concerns related to the training standards for supporting children who have verbal communication challenges to avoid escalations and with regard to their rights.

Enable’s “In safe hands?” report makes a number of recommendations, which I hope the Scottish Government and the cabinet secretary can get behind and support. Recommendation 2 is:

“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”.

I believe that the issue of access to appropriately trained staff is paramount if we want to protect the rights of vulnerable children and prevent the need for restraint—we must ensure that that happens. We have a presumption for mainstreaming in education, but I hear repeatedly from families and parents, and even from local authorities and teachers, that there is simply not the help and practice to make mainstreaming happen.

That feedback supports the findings of Enable’s “#IncludED in the Main?!” report, which revealed that 62 per cent of teachers who were spoken to said that they had experienced stress and professional anxiety due to not having the right support to meet the needs of pupils with learning disabilities. When asked about training, 98 per cent of the education workforce felt that teacher training did not adequately prepare them for teaching young people with learning disabilities. If we truly want to be inclusive and to support those children properly and protect their rights, we must ensure that teachers and support staff have the appropriate skill set. Yet, currently, the General Teaching Council is not required to assess teachers’ ability to demonstrate a specialism in that regard.

If the Scottish Government is serious about getting it right for every child and wants to avoid the use of restraint and seclusion, it must ensure that appropriate numbers of specialist trained staff are available to support children with additional support needs. In turn, local authorities must ensure that no restraint or seclusion takes place in their schools.

Enable Scotland has listened to its members and is acting on the issues that are important to them. I encourage the Parliament and the Scottish Government to continue to listen to key stakeholders, children and parents and to make sure that our schools are safe for everyone.

17:21  

I begin by thanking my colleague Jackie Baillie for securing the debate. We must keep shining a light on the issue. It is important that we do, because it is very easy when talking about such a subject to get trapped in terminology and statistics, to talk of policies and guidelines, and to look at behaviours, when in essence we are talking about experience—the experience of children and young people in school, whom we should be providing with an education.

If I could urge people to do one thing, it would be to look at the “In safe hands?” report, and to read the first page, which asks us to

“Imagine what it is like to be 6 years old.”

Imagine that you have a learning disability and find it difficult to communicate. You really struggle when you see the colour red, but the teacher takes you to one side and asks you to sit on a red cushion. You get agitated, but cannot explain why. You get so agitated that you get angry and lash out, so the teacher puts you in a room on your own. Can members imagine what that is like?

We all know what it is like to get agitated about things that trigger us and that upset us in ways that we cannot explain. In essence, that is what we are dealing with. All too often, we look at the behaviour, but we are not thinking about the experience and how we can engage with it.

We must pay tribute to the people who have put so much effort into giving the issue the focus and attention that it deserves. Beth Morrison, above all others, has done phenomenal work; it is brilliant that she is in the gallery this evening. I have been fortunate to speak with her in recent days. She deserves huge credit for lodging her petition, which led to the work that the Scottish Government is already doing, and has led to other work and, ultimately, to Enable Scotland’s campaign “in safe hands?”, which was launched in December last year.

Although progress has been made, it is not enough; there is still a lot of work to do. The Children and Young People’s Commissioner Scotland was clear in the report that he produced in 2018. It included 22 recommendations that focus on reporting, the need for better guidance and better training, and the need to implement a rights-based approach.

We then had “Not included, not engaged, not involved: A report on the experiences of autistic children missing school”, which involved more than 1,400 responses, and which I found harrowing and troubling. That was the point at which I became truly aware of the issue, and felt the need to highlight it.

We have to look at the numbers. The “In safe hands?” report highlights the fact that, in 2018, there were 2,674 incidents of restraint, involving 386 children. That is an average of just under seven instances of restraint per child. If that is the average, that means that, for some children, it happens on a monthly, if not weekly and perhaps even daily, basis. That puts the scale and importance of the matter in the correct perspective.

However, this is also about terminology, because it is easy to use terms such as “restraint” and “seclusion”, “safe places”, “isolation booths” and “soft booths”. However, as Lady Hale put it in the Supreme Court,

“a gilded cage is still a cage”.

As the children’s commissioner has said, if we are going to have those practices, we must make sure that the spaces are being used as part of a “planned response”, and not as something that is being imposed on the child.

This is a matter that can be dealt with. I was recently at a meeting of an organisation that works with adults with learning disabilities. In the past year, it has managed to reduce use of restraint by 50 per cent, and is targeting 0 per cent use of restraint through better training of its people.

The calls of the “in safe hands?” campaign are so important and so relevant because we need better guidance and we need strategies and training, if for no other reason than that only 12 per cent of teachers feel that they have adequate training. We also need to have a duty of candour and, above all else, we need transparency and accountability. As Jackie Baillie pointed out, 14 local authorities are simply not recording information on seclusion and restraint; unless we know what is going on, we cannot tackle it. That, quite simply, is not good enough.

17:26  

I, too, thank Beth Morrison for her contribution and for the fact that we are debating the issue this evening. I also thank Jackie Baillie for bringing the debate to the chamber. I must say that I need to leave immediately after I make my speech because I have another commitment.

I think that we would all agree that our schools are places where all our children and young people play, learn and grow. However, for those with a learning disability, who perhaps sometimes find it harder to communicate how they feel or what they are worried about, their school is not always a friendly and nurturing place. We hear that the behaviour of young people with a learning disability can sometimes be interpreted as being challenging. Physically restraining or secluding them, sometimes in locked rooms, is clearly too often seen as being the solution.

With there having been just under 2,700 recorded incidents of restraint and seclusion in 2017-18, we need urgently to examine whether there is clear enough guidance and regulation on the practices, and whether staff are being properly supported. Just as concerning is the fact that the 2,674 incidents that were identified by the Children and Young People’s Commissioner involved 386 children. Daniel Johnson made the point that that means that some children are being restrained or secluded seven times a year, and that, for some children, the number will be much higher than that. Something is going badly wrong if practices that are supposed to be the very last resort are being used on some children almost once a month in the school year.

This is fundamentally a children’s rights issue. In 2018, the Scottish Children and Young People’s Commissioner, who is the guardian of children’s rights here, became so worried about the impact of restraint and seclusion on children and their rights that he invoked his investigatory powers for the first time. The UN Committee on the Rights of the Child expressed concern about use in schools of restraint and seclusion on disabled children, including children with autism. It recommended that restraint be

“used against children exclusively to prevent harm to the child or others and only as a last resort.”

However, it is not clear in all those almost 2,700 instances that it really was the last resort and that no harm was involved. Indeed, the Challenging Behaviour Foundation and Positive and Active Behaviour Support Scotland found that 58 per cent of the families whom they surveyed said that restraint had, in fact, led to injury. In addition, 91 per cent of CBF survey respondents reported a negative emotional impact on their child.

Given the seriousness of using physical restraint against and secluding pupils, I find it absolutely astonishing that there is no proper system for recording it. The children’s commissioner’s “No Safe Place” report noted that, as well as some local authorities lacking guidance on the practices, not all instances are recorded and that local authorities record seclusion and restraint in inconsistent ways, with 10 local authorities failing to record all instances and four recording none at all. As such, it is almost certain that the 2,700 instances referred to in the motion is an underestimate. I welcome the Scottish Government’s intention to develop a standard reporting system to ensure consistent recording and monitoring of incidents, and I look forward to learning more about the timescale.

Part of the problem is lack of resourcing of our teaching and support staff. My colleague Ross Greer has drawn attention to the precipitous decline in the number of additional support needs staff over the past decade. Between 2010 and 2016, there was a 145 per cent increase in the number of pupils with additional support needs. At the same time, the number of ASN teachers and ASN support staff in our schools has decreased. The ratio of ASN pupils to ASN teachers has gone from 18 pupils to one teacher in 2010, to 58 pupils to one teacher in 2018.

Enable Scotland’s earlier “#IncludED in the Main!?” report revealed that fewer than 12 per cent of the education workforce felt satisfied that they could meet the educational and developmental needs of a child or young person who has a learning disability. A variety of established techniques support children who have additional support for learning needs to be included safely alongside their peers. Those are standard in health and social care settings; it is important that school staff also have access to training in those techniques. Greens welcome Enable Scotland’s call for positive support strategies to be rolled out to all schools, such that there are two trained staff on site all the time.

Last year, my colleague John Finnie was successful in providing children with equal protection from physical assault. It was a landmark step towards protecting the rights of Scottish children in law, but we cannot claim to be the safest place and the best place in the world for children to grow up when children—overwhelmingly, children with ASN—are subjected in school to practices that the UN and our children’s commissioner say contravene their rights.

17:31  

I thank Jackie Baillie for highlighting the important and sensitive issue of physical intervention and seclusion in schools, which is rightly a matter of the utmost concern to each and every member in Parliament today. I also join with others, including Jackie Baillie and Daniel Johnson, in paying tribute to Beth Morrison, the petitioner who has campaigned tirelessly on the issue for a number of years. Her tenacity and devotion are much to be admired, and the progress that she has made is a tribute to the effectiveness of the public petition system in taking forward issues that are drawn to the attention of members of the Scottish Parliament by that route. Mrs Morrison’s success in navigating her way through that process and making progress with the issue is to be widely commended.

Ruth Maguire made the point that all behaviour is a form of communication. I agree entirely with that sentiment. It reminds me of the important work of my constituent, Kate Sanger, in the development of a communication passport, which is utilised as a productive and positive aspect of supporting young people to enable them to express themselves and to be able to be well supported in an educational setting. I commend that work, in addition to that of Mrs Morrison.

I recognise the Enable Scotland’s “in safe hands?” campaign, which seeks to end the inappropriate use, with children and young people who have a learning disability, of physical intervention and seclusion in schools and which promotes the rights of some of the country’s most vulnerable pupils. I also recognise that the Children and Young People’s Commissioner’s report made a range of recommendations following its investigation into the area—I will return to that report shortly.

I have been, and continue to be, clear that physical intervention and seclusion should only ever be used as a last resort and when in the best interests of the child or young person, and only when all other forms of positive early intervention have been unsuccessful in resolving a situation. The use of any unlawful physical intervention or seclusion is completely unacceptable, and I reaffirm my determination that the inappropriate use of physical intervention or seclusion with any child or young person in Scottish education must end.

The “In safe hands?” report calls on the Scottish Government to take a number of actions. I pay tribute to the bravery of the children and young people, and their families, who shared their experiences of physical intervention and seclusion in our schools. I absolutely recognise the concerns that have been raised about the inappropriate use of physical intervention and seclusion. In addition to the Enable Scotland report, the Children and Young People’s Commissioner Scotland report “No Safe Place” made a number of recommendations for the Scottish Government. Although the Scottish Government agreed with many of those recommendations, we were unable to agree with them all.

I have actively engaged with the Children and Young People’s Commissioner and the Equality and Human Rights Commission to find a way forward. In December, I announced that we had made significant progress: we reached agreement that the Scottish Government will produce new national guidance that will provide a clear human rights and children’s rights-based policy on physical intervention and seclusion in Scottish schools.

In our discussions, which echoed many of the issues that Enable Scotland raises, it was clear that, by listening and engaging with key stakeholders, the guidance can be delivered in a way that meets everyone’s needs. I include in that respect the issues and points raised by Enable Scotland.

Following the agreement with the Children and Young People’s Commissioner and the Equality and Human Rights Commission, a working group of key stakeholders was formed. The working group met for the first time on 20 January and I am pleased that the commissioner and Enable Scotland representatives have agreed to join it.

The working group has agreed to focus on three specific areas: the key definitions; the new guidance; and the recording and monitoring of incidents of physical intervention and seclusion. Our approach to the new guidance and its review will be informed by the views of children, young people and their families. It is the intention of the Scottish Government to consult on the draft guidance in October 2020, with publication of the final guidance in January 2021.

That approach has been fully endorsed by the Scottish advisory group on relationships and behaviour in schools, which, crucially, includes representatives of the Convention of Scottish Local Authorities, the Association of Directors of Education in Scotland and all the main teaching unions. The representatives of those organisations are responsible for the delivery of education at the local level, and it is vital to engage and involve them in our efforts to ensure that we tackle the issue.

We will ensure that any significant revision of our current guidance on physical intervention and seclusion is clear that the issue of physical intervention and seclusion is set within an approach that places positive relationships and behaviour at its core, with a continued focus on de-escalation and prevention.

A key aspect of a whole-school approach to intervening early and reducing the need for physical intervention is for staff to have an understanding and awareness of de-escalation techniques. All staff should be offered professional learning opportunities to learn about early intervention, prevention and de-escalation techniques and to understand different types of challenging and distressed behaviour.

The working group that has been established to take forward the work to revise the physical intervention and seclusion guidance has also committed to developing and introducing a standard dataset across all local authorities. That will ensure improvements in consistency of approach to recording and monitoring as part of developing a system that enables a streamlined method of recording.

It is my view that statistical data should not be analysed in isolation at a national level. By recording and monitoring incidents at a local level, schools and authorities—as the appropriate bodies—can identify emerging trends or themes and implement improvements to support the wellbeing of all children and young people.

When we worked to reach the agreement, I agreed that the working group would also review the effectiveness of the guidance. In conjunction with the working group, Scottish Government officials will develop a plan and delivery for that review, which will begin 12 months after the publication of the guidance. If, following the review, it is found that the guidance does not have the desired impact, I will at that time consider other options, including statutory means, to ensure that the guidance reaches our agreed goal.

I believe that the actions that I have agreed to take forward and have set out before Parliament today will ensure that, with our partners, we can deliver an approach in Scotland that places at its core positive relationships and behaviour as well as solutions that are focused on restorative approaches within the context of children’s rights and human rights more generally. I am absolutely committed to ensuring that an effective approach is adopted in Scotland’s schools when considering the use of physical intervention and seclusion—in its correct place as a last resort and never for the purposes of punishment.

I thank Jackie Baillie for raising this important and sensitive issue, Enable Scotland for championing it and Beth Morrison for advancing the arguments that have brought us to this point. I believe that the measures that the Government is putting in place—in concert with a range of stakeholders and after dialogue with the Children and Young People’s Commissioner and the Equality and Human Rights Commission—provide us with a robust approach to ensuring that we tackle this important issue and improve the climate that surrounds children and young people in such circumstances. It reaffirms our commitment and our intent to ensure that all our children and young people are able to grow, learn, develop and reach their full potential in Scotland.

That concludes the debate.

Meeting closed at 17:40.