Going soft

Ahead of our October, Australian train the trainer courses, the regular September NFPS Soft restraint refresher and our new open Police Officer Safety Trainer courses through our centre of excellence, I wanted to share some information on Soft-cuffs to raise awareness of the product and associated training. Soft-cuffs or the ERC (Emergency Response Cuff) are an alternative being widely used by Police forces, trusts, educational establishments and patient transport services. Soft-cuffs offer an alternative to prolonged manual restraint or more restrictive means such as metal folding or rigid cuffs which may not always be a proportionate response option.

Legal, medical & tactical considerations

The legal implications of the individual members of staff using force and the legal obligations owed to them by the organisation to protect the staff are congruent factors. With the current international Law & Legislation, an organisation or individual must be able to evidence that they have considered the various options available, and that the option used was the least intrusive to all concerned. This is obviously difficult if the only option staff have available to them is the use of manual restraint or as an alternative, the use of metal handcuffs.

Are they legal?

Yes, and cuffs aren't weapons either as I keep being told by the ill informed even metal cuffs. Yes a set of cuffs could be used as a weapon but so could the chair I'm sat at now, the knife in the kitchen drawer or even this laptop (and believe me there have been times). Mechanical restraints are items of work equipment and are therefore subject to PUWER (The Provision and Use of Work Equipment Regulations). It is suggested that an organisation’s policy is written by someone who has an appropriate knowledge of all relevant legislation, and knowledge and understanding of the personal safety programme. How can you have someone writing the restraint policy that has no understanding of the law or the training package? This also applies to procurement, is due diligence being performed on trainers, the training organisations, their course content, equipment being used and awarding body qualifications?

PUWER

Mechanical items used to restrain are items of work equipment and as such are covered by PUWER (Provision and Use of Work Equipment Regulations) and the Health and Safety at Work Act. Staff must be appropriately trained in their use;

• Information
• Instruction
• Training
• Supervision

Subsequently we will not sell our products unless they are to people who have completed training to the necessary standard - this is in accordance with section 6 obligations. For more information on this please get in touch as it is so important that organisations purchasing mechanical or soft restraints understand not just what they are purchasing but that all other associated risks are taken into consideration.

Those of you who know me know how I feel about "absolutes" but here is one I will put out there and that is the rule that you can't apply mechanical restraint safely, unless you first have control of the person. So if a member of staff has only had basic physical intervention training that hasn't been pressure tested or which doesn't include strategies to deal with emergencies, for example restrictive holds or pain compliance to control someone who resists, then this wouldn't give a solid platform for using mechanical restraint to a non-compliant subject.

Organisations have a duty of care not only to the people that they are using force with, but also to the staff to provide them with the safest option when it becomes necessary to use physical force on another person. Any use of force must have a legitimate and lawful objective (e.g minimisation of injury to others or the person) It should also have a regard to the nature and gravity of the threat and be proportionate to the harm it is seeking to prevent.

The objective for use of force should preserve the safety of the subject, staff and others, by establishing and maintaining control. The basic proposition in law is that the use of force is unlawful unless it is justified. Therefore, in order to make an appropriate decision regarding an option for dealing with conflict a sound knowledge and understanding of the law on use of force is essential, and the equipment that is available to achieve this.

There are also organisations I have trained that have no options in place to deal with situations such as falling to the floor when trying to establish control of someone. This is a ‘foreseeable event’ when trying to establish control of a violent individual and one which carries considerable associated risks. If there was equipment which allowed staff to quickly get someone under control and out of a prone position, shouldn't they (an organisation or ind) consider it being available as an option?

Quite often during manual restraint, the person will struggle and try and get themselves off the floor and the staff, during the stress of the situation, to prevent this will press down and apply pressure to try and prevent them from getting up off the floor. Or, in extreme situations will resort to other methods such as neck holds. A piece of equipment that enables the staff to gain control more quickly, reduces the risk of injury and recovers the individual being restrained from the face down position as soon as possible, must be a viable option for staff to have available to them? 

Are we allowed to use them?

In the UK, there are guidelines that some of my clients who use mechanical restraints have found that they have had to in the interests of safety, go against. Regulations & guidance can often be misleading, ambiguous and yes, they can also be incorrect. "A point to note here is that you can't be prosecuted for not following guidance, you can however be prosecuted for not abiding by the law".*

Applying mechanical restraint is, as with any use of force, a question of necessity and proportionality.To completely ban civilians (as many people already believe the case to be) from using handcuffs or other mechanical restraints outside of certain job roles or establishments and only for one aspect of their task isn't consistent with promoting least restrictive practices. 

Eric Baskind framed this perfectly at the July 2015 NFPS national use of force seminar; 

“To say that mechanical restraint can only be used in certain high risk settings or to transport between medium and high is as if to say that people in high secure settings are born there.”

Eric Baskind was answering a question about the legitimacy of the recommendation by a guidance document which stated that mechanical restraints should only be used when transporting someone from medium to high secure. We don't live in a Lego world where people are placed in certain places,

Eric continued; 

“The use of any application or intervention should never be restricted that it is set out that it is only for use in A and not B”

Below are some references to the Law & Legislation that should be considered. There are also various pieces of Health & Safety Legislation applicable to this issue that I have not included in this article, but are extremely relevant when writing a policy that protects both staff and patients/subjects. As this will be used in the event of claim for injury by either the staff member of the person being handcuffed.

Common law

The use of restraint equipment is usually governed under Common Law. Common Law gives a person the right to use force to protect themselves or others should they perceive imminent danger. The force must be reasonable to the threat being offered, and therefore requires the need to be evidenced on the basis of the person’s belief.

Common Law principles could be interpreted according to the seriousness of the circumstances to be prevented and the right to self-defence, and the necessity to use force. The gospel of what is reasonable force for many is Section 3 (1) of the Criminal Law Act 1967.

Section 3 CLA is an ‘any’ person power, and there is no specific reference to Police. It gives a person the right to use force as is reasonable in the circumstances in the prevention of crime, or in the effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

It must be appreciated that what is ‘reasonable’ in one set of circumstances may well be unjustified in another. Therefore the use of restraint equipment could be lawfully excused provided that their use was reasonable in the circumstances.

Is the application of restraint equipment proportionate to the harm it is seeking to prevent? In my opinion an organisations’ use of force options should not be a hierarchy approach i.e if option A doesn’t work we go to option B. Staff should have suitable and sufficient training and a selection of options that they justify to use based on the information, threat assessment and the Law. No two circumstances of restraint are the same, so staff training and policy should reflect this.

Medical

The medical implications of using force; in this case handcuffs, should consider not only the medical implications of using the technique on the person, but also cater for the potential or known medical/injury implications to the staff member. It is also acknowledged that one of the main risks to life from physical restraint is the risk of death from positional asphyxiation, which can be brought on by many factors including a prolonged struggle and restraining a person for extended periods of time in the prone position, especially if pressure or weight is applied to the back. The fabric material and specialist "omni-velcro" creates an alternative that sits between prolonged manual restraint and the use of metal handcuffs.

Tactical

Any use of force is about ‘establishing and maintaining control’. The use of handcuffs should not be introduced until the person is under control. This would either be verbal control through compliance, or through restraint methods on an actively aggressive individual, and the cuffs are being used as an alternative to manual restraint, as a less intrusive option

As a result of data provided from various reporting processes it was possible to identify particular hazards with people who continued to offer violence during restraint, and also after the application of handcuffs. This resulted in injuries to themselves and staff and sometimes considerable damage to property.

Soft-cuffs Vs metal cuffs

It is acknowledged that the application of handcuffs does not in itself establish control. Whilst the majority of those placed in handcuffs do cease their resistance, there are a few who continue to fight and pose a risk to themselves. Soft-cuffs are an alternative to this and can reduce the risk of injury especially where they are used with vulnerable people as a least restrictive alternative where metal cuffs may not be appropriate.

From a potential complainant point of view, allegations that excessive force was used to apply handcuffs, that they were applied too tightly or that they were applied unnecessarily, are important factors to consider. Any intentional application of force to the person of another may be an assault, the use of handcuffs amounts to such an assault and is unlawful unless it can be justified. Justification is achieved through establishing not only a legal right to use handcuffs, but also good objective grounds for doing so in order to show that what the applicant did was a reasonable (necessary and proportionate) use of force.

About the author: Doug specialises in training needs analysis, construction of bespoke training course design and delivery, policy implementation and legal briefings on the use force get in touch for a free no obligation quote or for more information on our full range of products and services. Mark Williams explains more on the use of soft-cuffs in this NFPS interview here with Mark Dawes.

Doug and his team are headed down under in October to train trainers in the use of the soft-cuffs, the safer handling kit and the safe holding system. If you know of any organisations in any Australian territories or anywhere in the world that you feel could benefit from the kit? Then please let us know by email or by sharing our websites.

*Colan Ash 2014 NFPS seminar on the use of reasonable force