FXS v The Mulberry Bush Organisation Limited

A specialist school’s use of physical restraint must comply with its governing policy and applicable guidance. A face-down restraint was unlawful where the policy expressly prohibited it, the staff member lacked relevant training, and the child’s known behaviour did not justify treating the intervention as an unforeseen emergency. Planned restrictive interventions also required appropriate assessment, consultation, documentation and supervision.

The towel method, used to prevent a child leaving his room, constituted unlawful imprisonment. The school was not negligent in its wider management of the child, however, because its overall therapeutic and multidisciplinary approach fell within the range of reasonable professional practice.

The claimant, a child when placed at the defendant’s residential special school, alleged negligence, battery and false imprisonment arising from the management of his challenging behaviour. The allegations concerned repeated physical restraints, including three face-down restraints, and the use of a towel to keep his bedroom door ajar while preventing him from leaving.

The trial concerned liability and quantum. The principal issues were whether the restraints were lawful and reasonable, whether the towel method amounted to imprisonment, whether the defendant’s management of the claimant breached its duty of care, and whether any loss resulted.

1. Battery. The court found that the three restraints on 16 June, 29 June and 15 September 2009 involved physical force applied while the claimant was face down. The defendant’s policy expressly prohibited face-down restraint. It contained no exception for dynamic risk assessment or emergency circumstances. The claimant’s behaviour was well known and therefore could not properly be characterised as unforeseen.
2. The restraints were also unreasonable because the staff member had no training in face-down restraint, applying such a restraint without appropriate training increased the risk of harm, and the claimant’s age, size and known behavioural profile required proper staffing. The battery claim therefore succeeded in respect of those three incidents.
3. The court rejected the claim concerning four other restraints. In the context of a specialist school dealing with vulnerable children who could behave unpredictably and dangerously, due respect was owed to carers’ contemporaneous decisions. The remaining restraints were used as a last resort to protect the claimant or staff, prevent property damage or maintain classroom order.
4. False imprisonment. False imprisonment required proof of confinement and absence of lawful authority. The towel method was a physical intervention and a planned strategy, rather than an unforeseen response. It was not recorded in the claimant’s individual plan, was not shown to have been agreed with his parents, and lacked the required arrangements for supervision and training. Preventing the claimant from leaving his room in this way constituted unlawful imprisonment.
5. Negligence. Applying the Bolam and Bolitho principles, the court held that the claimant had not shown that the defendant’s wider management fell below the standard of a reasonably competent body of practitioners. The multidisciplinary and holistic approach was reasonable, and the fact that alternative strategies or earlier external assistance might have been attempted did not establish negligence. The negligence claim was dismissed.
6. The parties were directed to agree an order addressing consequential matters, including damages and costs. The judgment’s concluding reference to the battery and false-imprisonment allegations as not made out was inconsistent with the detailed findings establishing those claims.