Two of your nonprofit’s clients were in a physical altercation at your facility. Your staff acted quickly and broke it up — but now you’re being sued by a client’s family, claiming your staff wrongfully restrained them. What do you do?
If your nonprofit works with vulnerable clients, such as children, the elderly, or people with disabilities, your mission depends on protecting them and ensuring their safety.
But sometimes that means protecting them from each other, as well.
People’s actions and behaviors aren’t always predictable — especially when factors like mental health, cognitive issues, or histories of trauma or abuse may be present — so you’ve got to be ready to respond appropriately, consistently, and effectively in the event of an altercation — and be able to defend those actions afterwards.
Let’s explore a scenario involving a nonprofit facing allegations of wrongful physical restraint and discuss some steps and practices your nonprofit might consider adopting to help protect yourself in a similar situation.
The Nonprofit:
A nonprofit operated an after-school program, providing middle-school-age children — some with behavioral issues — a safe, supervised place to do their homework, get educational support, and participate in enrichment activities. The nonprofit employed teachers, aides, and campus supervisors.
The Incident:
One afternoon, during an outdoor enrichment activity, two boys, aged 13 and 14, got into a heated argument over a game of tag, which quickly escalated into a physical confrontation.
Two campus supervisors quickly ran over and instructed the boys to stop. When the boys did not listen and continued fighting, one supervisor — noting that the older boy was significantly larger than the other boy — physically pulled the older boy away from the smaller one.
Aside from some bruising, neither boy was significantly injured. Both boys were suspended from the program, their parents were called in and given an incident report form to review and sign, which they did.
The Legal Action:
Soon after the incident, the parents of the larger child filed a lawsuit against the nonprofit, alleging that the campus supervisor had wrongfully used physical restraint against their child and had caused bruising and injuries when they pulled the boy away from the smaller child.
The Coverage:
As soon as the nonprofit was notified about the legal action, they alerted their broker, who began the process of making a claim on the nonprofit’s Improper Sexual Conduct and Physical Abuse (ISCPA) policy with Nonprofits Insurance Alliance (NIA).
NIA staff reviewed the lawsuit, retained a defense counsel for the nonprofit, and started an investigation.
The Result:
The defense reviewed of the events surrounding the incident, including the campus supervisor’s actions, the actions taken immediately after, witness statements, and the nonprofit’s policies and procedures around training, crisis management, documentation, and incident reporting.
After considering those factors — along with the potential for serious injury to the younger, smaller child if the campus supervisor hadn’t intervened — the defense felt the campus supervisor’s use of physical restraint had been appropriate, and the nonprofit had been in alignment with their legal obligations to their clients.
The circumstances, evidence, statements, and records enabled NIA to work with the plaintiff’s counsel to reach an appropriate settlement in mediation.
What Did the Nonprofit Do Right?
In this situation, there were several key things that helped this nonprofit be prepared to protect itself.
Strong Staff Training
Every staff member the nonprofit had was required to pass training, not only in first aid and CPR, but also in conflict resolution, de-escalation, safety, and how to approach those with empathy and understanding for children dealing with behavioral issues, mental health problems, and trauma.
Staff members were trained to understand that physical intervention was a measure of last resort only, the risks surrounding it, and to recognize the few circumstances in which it may be an appropriate action.
They were required to pass this training before they were allowed to interact with any children and were required to participate in regular refreshers as well.
The effect this had was that the campus supervisors knew to try to de-escalate the situation first, recognize the risk of injury to the smaller boy, and understand whether it met the criteria to warrant physical intervention.
Multiple Adults Present
The fact that two campus supervisors responded to the incident was a strong factor in the nonprofit’s defense.
The second staff member being present meant that there was a second, trained witness to the incident who was able to corroborate and confirm the sequence of events, the attempt at de-escalation, and the circumstances around the physical intervention.
Incident Reports & Documentation
The nonprofit had longstanding procedures in place around incident reports and recordkeeping. Staff members were trained on these procedures and the nonprofit regularly held refresher sessions.
This preparation paid off because, as soon they became aware something was wrong, the nonprofit’s staff knew to document the relevant times, dates, locations, witnesses, steps taken, and other details surrounding the incident.
This helped the nonprofit’s legal defense team get a clear timeline of events, identify potential witnesses whose testimony might be helpful, and to review the nonprofit’s actions and processes to spot any potential liabilities.
Quick Activation of the Claims Process
As soon as the nonprofit was notified it had been named as a defendant in the lawsuit, the first thing they did was to notify their insurance broker, who then activated the process of making a claim on their ISCPA policy with NIA.
Doing this quickly was important because it enabled NIA to be involved in the defense process from the early stages.
As a result, NIA was able to advise the nonprofit on appropriate strategy, not only to help them organize their legal defense, but also to help them avoid making missteps and statements that could potentially come back to haunt them later.
How Can Your Nonprofit Protect Itself?
Whenever your nonprofit’s mission brings people together in one place, there’s a chance — however slim — that a fight might break out, and you’ve got to have a plan ready.
You want to protect the people you serve and protect your mission, too: That means you’ve got to create an environment where you manage the risks that you can control — and ensure that you’re not liable for the risks that you can’t control.
Some steps you might consider include:
Safety Protocols & Procedures
When you’ve got vulnerable people in your care, the last thing you want is for a problem to catch you off-guard and unprepared — so what can help you keep everyone (and your mission) safe?
Here are just a few policies and procedures you might consider as part of your overall risk management plan.
- Proper Supervision: Any time clients are on-site, you need to be sure that they are supervised by members of your team that have been trained to meet their needs, and that all entrances and exits are monitored. After all, you can’t keep your clients safe if you don’t know where they are.
- ‘Three-Person’ Rule: Never allow a team member to be alone in a room with one client for any reason. If someone accuses you of wrongdoing, and there wasn’t a third person in the room — it’s your word against theirs.
- Incident Reports: Keeping detailed incident reports can help protect you in a variety of ways. Even for minor bumps and scrapes, be sure your team knows to record:
- What happened
- Who was involved
- Any and all care given
- Who was notified
- Any other relevant details
Review the incident report with the client’s parent, caregiver, or guardian, have them sign and acknowledge it, and give them a copy.
NIA Resource: All nonprofits insured by NIA get free access to My Risk Management Plan — online tools to help you create a risk management plan that reflects your organization’s unique needs, priorities, and culture.
Don’t Wait to Contact Your Broker
When something bad happens at your nonprofit, you don’t want to wait around to see if you get sued before you loop in your broker.
In the wake of an incident, it’s a good idea to file an incident report with your broker as soon as possible.
This timely approach can help your broker and your insurer determine appropriate responses ahead of time and can often result in claims being settled before they ever get to the lawsuit stage.
How do you know if an incident is severe enough to warrant alerting your broker and insurance? It’s always better to play it safe: If you have a question concerning whether to report an incident or claim, call your broker.
Screening Your Team
If an incident or altercation happens, you want to be confident that the people you’ve got on-site are going to be able to keep a cool head, follow procedures and protocols, and aren’t going to make a bad situation worse.
Every nonprofit should vet their potential employees and volunteers, but if your mission serves vulnerable people, your screening process must be especially thorough — you can’t afford to risk your clients’ safety by hiring someone who might put them in danger.
NIA Resource: To help you be sure you’ve got the right people in the right positions at your nonprofit, NIA-insured nonprofits get a significant discount on screening services from IntelliCorp.
(Note: Comprehensive criminal background checks are a requirement of coverage for ISCPA policies with NIA.)
The Right Training
When working with vulnerable people, it’s essential that you train your nonprofit’s staff and volunteers to respond appropriately to crisis situations.
Training courses you might consider include:
- Conflict resolution/crisis prevention training: This can help your team adopt practices to help prevent, de-escalate, and resolve disagreements before they boil over — and what constitutes an appropriate response if the situation escalates.
- Restraint training: Restraining a client is a measure of last resort.Doingit without training or certification risks injury to your clients and your staff, places your nonprofit at risk of a wrongful restraint lawsuit, and can be illegal (depending on your state).
Requiring restraint training can help your team understand:- The circumstances where physical restraint may be appropriateHow to restrain a client properly and safelyDe-escalation techniquesProcedures for parent/guardian notification
- How to be sure restraint is done in compliance with all applicable laws
- Abuse prevention training: Training to educate your team about abuse and how to responsibly address it, such as:
- Types of abuseRed flags to watch forSymptoms and signs of abuse
- How to respond effectively
- Mandated reporter training: All states have mandated reporter laws in place. While the details can vary, people that work with children, the disabled, or the elderly are generally required to report any suspected abuse.
Be sure to check and see what your state’s requirements are for training, and what your nonprofit’s responsibilities for providing training include.
Documentation & Recordkeeping
It’s relevant for all risks: If someone accuses your nonprofit of wrongdoing, and it’s your word against theirs, you’re going to have a hard time defending yourself.
That’s why it’s smart to document everything — your processes, your procedures, times, dates, decisions, attendance, every incident report, all security footage, and more.
Keeping good records not only helps your team stay more organized, but if your nonprofit ever needs to defend itself in court, your records can serve as proof that:
- You operated responsibly and in good faith
- Your policies, training, and procedures complied with the law
- Rules, policies, and procedures were consistently and equitably applied
- Everyone understood their responsibilities and duties
- Staff acted and responded appropriately
Strong recordkeeping practices can provide you with evidence to present in court, which can help put you in a much stronger position to defend your mission and your good name.
Are You in Compliance?
It’s always a smart idea to verify that your nonprofit is in compliance with all applicable regulatory or licensing requirements.
For example, there are specific requirements for facilities receiving Medicaid, there are state licensing requirements, certain statutory requirements on training and supervision for organizations such as group homes, and the list goes on from there.
Before your nonprofit accepts any clients, be sure to review with your legal representatives all federal, state, and local regulations that may apply to the type of mission work you do and make sure that your operations comply with them.
Remember, laws can vary from state to state, and they change and evolve all the time — so you’ll want to be sure to regularly review your policies, licenses, and procedures and update them as needed to stay in compliance.
Conclusion
When your nonprofit works with children, the elderly, disabled persons, or other vulnerable people, no matter what it says on your mission statement, your top priority is their safety.
Conflicts and altercations can happen any time you have people in the same space, and you have to be prepared to defuse crisis situations peacefully, appropriately, and in compliance with the law.
If you physically restrain a client — even if you believe it is justified — you have to be prepared to face the fallout: Has your team been properly trained to recognize when restraint is needed and how to do it safely? Did you try to verbally de-escalate the situation first? Can you defend the use of restraint in court? Do you have the documentation and witness statements to support you?
When parents, guardians, and families are trusting you with their loved ones, you owe it to them to make sure that your team understands that physical restraint is an intervention of last resort only — something to do when every other approach has already failed.
The risks are high, so whenever you can, resolving conflicts with words, respect, and empathy is always a better approach.
From the Claims Files stories like the one above are intended to be informational in nature. Coverage will vary depending on language specific to your policy and your specific facts and circumstances.
Please contact your insurance broker and/or agent for your specific coverage implications based on your specific situation and follow any claims reporting procedures from your policy with your broker if there might be a claim.
Nothing in this story should be considered as legal advice or opinion and you should seek independent advice or legal counsel.
