The following report has been produced by Dr Sharon Shalev, who has completed an independent review of seclusion and restraint practices in a number of New Zealand detention settings.
Dr Shalev is an international expert in the field of solitary confinement and seclusion. She is a research associate at the Centre for Criminology at the University of Oxford and a Fellow of the Mannheim Centre for Criminology at the London School of Economics and Political Science. She completed her doctorate on American Supermax Prisons, is the author of the influential Sourcebook on Solitary Confinementi and has recently completed a comprehensive study of segregation units and close supervision centers in England and Wales.ii
Dr Shalev is well qualified to comment on the practices in place in our country. We are very grateful to her for accepting the commission to undertake this work and for providing an independent perspective on New Zealand practice. This report sets out her observations and recommendations based on her visits to selected New Zealand detention facilities during October and November 2016.
The views expressed by Dr Shalev do not necessarily represent those of the Human Rights Commission or the individual National Preventive Mechanism partners. However, they provide an important catalyst for further discussion and action.
Dr Shalev’s report highlights a number of serious issues. These include:
- A high use of solitary confinement and restraint
- Overrepresentation of ethnic minority groups in solitary confinement and restraint incidents
- A small but persistent number of ‘chronic’ cases where solitary confinement and restraint were used for prolonged time
- The placement in solitary confinement of people belonging to vulnerable groups
- Impoverished physical environments for people who are secluded, segregated or isolated
- Indications that seclusion and restraint are not always used as options of last resort
- Concerns regarding the record keeping associated with seclusion and restraint in various settings
- Limited access to basic provisions
- Limited access to confidential complaint mechanisms
Dr Shalevs’ report is focussed on facilities that are subject to monitoring under the Optional Protocol to the Convention Against Torture (“OPCAT”). The Crimes of Torture Act 1989 designates four organisations as “National Preventive Mechanisms” or “NPMs” responsible for OPCAT monitoring. These agencies are the Office of the Ombudsman, the Office of the Children’s Commissioner, the Independent Police Conduct Authority and the Inspector of Service Penal Establishments.iii The New Zealand Human Rights Commission is designated as the Central National Preventive Mechanism (or “CNPM”). As CNPM the Commission acts as a coordinator for the joint activities of the NPMs and is responsible for liaison with the Subcommittee on the Prevention of Torture.
The facilities that the NPMs are responsible for monitoring include prisons, health and disability units, police cells, Child, Youth and Family care and protection units and youth justice residences. There are other environments in which forms of seclusion or restraint or similar practices can occur such as schools or rest homes. Dr. Shalev’s report is confined to those environments currently covered by the OPCAT framework and does not consider seclusion or restraint in other situations.
Funding for this report was obtained by the Human Rights Commission from the United Nations Office of the High Commissioner for Human Rights (“OHCHR”) through the UN Subcommittee on the Prevention of Torture Special Fund.
The fund supports projects designed to assist with the implementation of recommendations made by the Subcommittee during country visits.
The Subcommittee on the Prevention of Torture visited New Zealand in 2013. In relation to seclusion and restraint practices, the Subcommittee recommended the immediate cessation of the practice of holding prisoners in prolonged detention in disciplinary cells based on perceived security risk and that the protection of vulnerable detainees should not be achieved at the cost of their own detention conditions.
Many of the agencies responsible for monitoring New Zealand detention facilities have had longstanding concerns about the use of seclusion and restraint in different settings. The issue has also been addressed by the United Nations Committee against Torture, most recently in concluding observations made following New Zealand’s 6th periodic review in 2015. The Committee recommended that New Zealand:
- limit the use of solitary confinement and seclusion as a measure of last resort, for as short a time as possible, under strict supervision and with the possibility of judicial review; and
- prohibit the use of solitary confinement and seclusion for juveniles, persons with intellectual or psychosocial disabilities, pregnant women, women with infants and breastfeeding mothers, in prison and in all health-care institutions, both public and private.iv
In 2014 the United Nations Committee on the Rights of Persons With Disabilities, also recommended in its concluding observations, that immediate steps be taken to eliminate the use of seclusion and restraints in medical facilities.v
The report was commissioned to provide an independent perspective on seclusion and restraint practices in several different detention contexts and to identify examples of good practice as well as areas that require improvement to inform future NPM activities.
Cooperation and Engagement
Dr Shalev, the Commission and the NPMs have received a very high degree of cooperation from the staff at relevant detention facilities, and the respective responsible government ministries, departments, and district health boards. It is heartening to see an openness and willingness to identify areas for improvement to enhance compliance with human rights standards.
People who have experienced seclusion and restraint practices have also shared their thoughts and views. Gaining a better understanding of the impacts of being restrained or isolated has been identified as something that the NPMs need to look into further. That will provide important information about the impact of these practices on people who are directly affected.
We are grateful to those who took the time and made the effort to participate in this work and look forward to exploring these issues further.
There was also a high level of engagement from clinical professional bodies and associations, many of whom were troubled by a perceived tension between ensuring the safety and well-being of service users while simultaneously making sure that facility staff, or others, were protected from harm. The decisions and actions required from staff, sometimes on a daily basis, were clearly a source of concern and anguish for those involved. Dr Shalev has noted from her visits that there appeared to be high levels of risk aversion and that staff safety could sometimes take precedence over the comfort or rights of patients and prisoners. Again, this area needs attention. It is important to get this difficult balancing act right and to consider the perspectives of staff as well as service users.
The relevant domestic legislation and regulations were examined. The more significant of these are reproduced in the appendices to Dr Shalev’s findings. Some statutory provisions are more consistent with the principles upheld in international human rights laws and standards than others. There also appears to be scope for greater alignment of legislation to provide more coherency across different sectors in relation to seclusion and restraint related frameworks and safeguards. Further work needs to be undertaken to assess these requirements in more detail and to advocate for positive change.
Dr Shalev noted the work being undertaken by Te Pou o te Whakaaro Nui (“Te Pou”) to reduce the use of seclusion and restraint.vi Te Pou is a national centre of evidence based workforce development for the mental health, addiction and disability sectors. It is funded by the Ministry of Health and the organisation has taken a lead in developing a range of tools to support inpatient mental health services to reduce seclusion and restraint. These activities include workforce training programmes such as SPEC (Safe Practice Effective Communication), use of sensory modulation tools and the development of a local version of the Six Core Strategies. The latter framework incorporates evidence based approaches that have been proven effective in reducing seclusion and restraint events. Dr Shalev suggests that the knowledge and resources developed by Te Pou could be further developed for application in other settings, such as corrections facilities, police custody and child and youth environments.
Consideration of Dr. Shalev’s recommendations
The report is based on visits carried out by Dr Shalev in late 2016. As such, it represents a snapshot of what was observed and noted by her at that time. While this report was being finalised a number of agencies advised that they had already implemented, or were in the process of implementing, some of Dr Shalev’s recommendations. For example, Corrections advised that the “silver rooms” had been decommissioned on 1 March 2017 and improvement initiatives that are underway include a review of “at risk” prisoners and a strategic plan to provide a greater level of mental health, alcohol and drug support to prisoners. This is encouraging. The NPMs applaud these efforts.
The NPMs will now consider each of Dr. Shalev’s recommendations and use this report to inform future work with detaining agencies, including the development of appropriate monitoring and follow up activities. The NPMs will also continue to work with the relevant authorities and agencies to try and reduce the prevalence of seclusion and restraint in different settings and to improve the way that it is carried out in those circumstances where it is necessary.
Human Rights Commission
Inspector of Service Penal Establishments,
Office of the Judge Advocate General
Judge Andrew Becroft
Office of the Children’s Commissioner
Judge Sir David Carruthers
Chair, Independent Police Conduct
Judge Peter Boshier
Office of the Ombudsman
NEXT: Executive Summary.