PREV: Appendix 1: Facilities visited.
International human rights law on solitary confinement and restraint
(compiled with the assistance of New Zealand Human Rights Commission staff)
It is well accepted that the absolute prohibition on torture and other forms of ill-treatment has the highest standing in customary law and is so fundamental it supersedes all other treaties and customary laws.
The absolute prohibition against torture is set out in the Universal Declaration of Human Rights (UDHR), which was adopted by the United Nations in 1948 following the horrors of World War II.
Article 5 states that:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
This ban on torture and other ill-treatment has subsequently been incorporated into international and regional human rights treaties. New Zealand has ratified seven of the nine core international human rights treaties including the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment (CAT).
Article 7 of the ICCPR states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
This is one of the few absolute rights in the ICCPR. No restrictions are permitted. It is also a non-derogable right, which means that states can never derogate from it even in times of public emergency that threaten the life of the nation. The Human Rights Committee, the United Nations body that monitors the implementation of the ICCPR, has stipulated that use of prolonged solitary confinement may amount to a breach of Article 7 of the ICCPR.
Article 7 of the ICCPR is complemented by the positive requirements of Article 10(1) which states:
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person Ð the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.
The Human Rights Committee has interpreted Article 10 to mean that detainees may not be “subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons”.56
The Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment (CAT) was adopted by the UN in 1984.
Article 1 of the CAT stipulates that:
For the purpose of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person....
The Committee Against Torture, a body of experts charged with monitoring the implementation of the Convention, has recommended that the use of solitary confinement be abolished, particularly during pretrial detention, or at least that it should be strictly and specifically regulated by law. Solitary confinement, when used for punishment, cannot be justified for any reason. The Committee has stated the need to “strictly regulate the use of physical restraints in prisons, (…) juvenile prisons and detention centres for foreigners with a view to further minimizing its use in all establishments.”57
The Optional Protocol to the Convention against Torture (OPCAT), to which New Zealand is also a party, is an international human rights treaty designed to strengthen the protection of people deprived of their liberty. The OPCAT does not set out additional standards or create new rights, but assists States to implement their existing obligations at international law to prevent torture and ill-treatment in places where people are deprived of their liberty. It embodies the idea that prevention of ill-treatment in places where people are deprived of their liberty can best be achieved by a system of independent and regular visits that monitor conditions and treatment.
OPCAT creates the Sub-Committee on the Prevention of Torture (SPT). The SPT has pointed out that prolonged solitary confinement may amount to an act of torture and other cruel, inhuman or degrading treatment or punishment. They recommended that solitary confinement should not be used in the case of minors or the mentally disabled. The SPT has also recommended that a medical officer should visit prisoners held in solitary confinement every day, on the understanding that such visits should be in the interests of the prisoners’ health. Furthermore, prisoners held in solitary confinement for more than 12 hours should have access to fresh air for at least one hour each day and that beds and mattresses be available to all, including those in seclusion. Following their visit to New Zealand SPT said the use of physical restraints is legitimate only if lawful, necessary and proportionate.
The Special Rapporteur on Torture noted circumstances where the physical conditions and the application of solitary confinement can cause severe mental and physical pain or suffering, when used as a punishment, during pre-trial detention, indefinitely, prolonged, on juveniles or persons with mental disabilities, can amount to cruel, inhuman or degrading treatment or torture.58 The Special Rapporteur had also made clear that “there can be no therapeutic justification for the prolonged use of restraints and that such use may constitute ill-treatment”.59
In addition to international human rights law, a considerable range of other rules and standards have been developed to safeguard the right of all people to protection against torture and other forms of ill-treatment. Although not of themselves legally binding, they represent agreed principles which should be adhered to by all States and can provide important guidance. Some of the key relevant provisions are discussed below.
The Nelson Mandela Rules
The Standard Minimum Rules for the Treatment of Prisoners were first adopted in 1957. In 2015 these rules were revised and adopted unanimously by the United Nations General Assembly as the Nelson Mandela Rules (Mandela Rules).
The Mandela Rules are non-binding.60 Rather, they “set out what is generally accepted as being good principles and practice in the treatment of prisoners and prison management.”61 Furthermore, the Rules are often regarded by states as the primary source of standards relating to treatment in detention, and are the key framework used by monitoring and inspection mechanisms in assessing the treatment of prisoners. Rule 1 provides:
All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.
The centrality of the Mandela Rules is reflected in New Zealand in the Corrections Act 2004. Section 5 of the Act sets out the purpose of the corrections system and makes explicit reference to the Mandela Rules. It states:
(1) The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by -
(b) providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners;
The Rules cover aspects of life in prisons, such as accommodation, food, bathing, and exercise. Rule 13 provides accommodation “shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.” Rule 14 specifies how the need for natural light and air. Rules 15 and 16 discuss sanitary and bathing requirements, installations must allow prisoners to go to the toilet in a clean and decent manner and at a minimum have a bath or shower once a week at a suitable temperature. In regards to food rule 22 states food is to be provided at the usual hours and be of adequate nutritional value. Under rule 23 a minimum of one hour exercise daily in the open air, weather dependent, is to be provided. Appropriate installations and equipment shall be provided. Prisoners must be able to make complaints. These must be promptly dealt with and in a confidential manner if requested (Rule 57). Prison administrations are encouraged to use conflict prevention, mediation, and other alternative dispute mechanism, and if a prisoner is separated measures must be taken to alleviate the detrimental effects (Rule 38).
The Rules uphold that solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible, subject to independent review, and only pursuant to the authorisation by a competent authority. Rule 43 prohibits indefinite solitary confinement, being seclusion in excess of 15 consecutive days. Rule 45 provides solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures. Rule 46 outlines the role of healthcare personnel including paying particular attention to those in seclusion and report to the prison director about any adverse effects of restrictive measures. They shall have the authority to review and recommend changes to the involuntary separation of a prisoner to ensure separation does not exacerbate the medical condition or mental or physical disability of the prisoner. In accordance with rule 35, the detained person must receive this information in plain language that he or she understands. This information must additionally be provided to any legal representative of the detained person.
In regards to restraints, Rule 45 also prohibits the use of restraints as a sanction for disciplinary offences. Rule 47 prohibits the use of chains, irons or other instruments of restraint which are inherently degrading or painful. Other restraints shall only be used as a precaution against escape during transfer or to prevent a prisoner injuring themselves or other or damaging property and only if other methods have failed. These can only be used by the direction of the prison director and they shall immediately alert qualified health-care professionals and report to the higher administrative authority. Under Rule 48 when restraints are used they shall be the least intrusive method that is necessary and reasonably available to control the prisoner’s movement and imposed only for the time required and removed when the risk is no longer present. Instruments of restraint shall never be used on women during labour, during childbirth, and immediately after childbirth.
Human rights standards designed for the protection of specific groups and individuals
The numerous treaties, statements, and rules that cover solitary confinement and restraints emphasis the serious nature of this practice and the very serious negative effects it can have. The standards and rules need to be adhered to in order to ensure the negative effects do not occur or are minimal. Recognising the particular vulnerability of individuals belonging to certain groups, a number of human rights standards specifically address the rights and needs of these individuals, including children, women, and people with disabilities.
Children (aged under 18 years) are identified as being as particularly vulnerable to the ill effects of solitary confinement, for whom solitary confinement may constitute cruel, inhuman or degrading treatment. Human rights standards and international human rights bodies call for an end to the practice of isolating children. Rule 67 of the 1990 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules) specifically states that:
All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health of the juvenile concerned. The reduction of diet and the restriction or denial of contact with family members should be prohibited for any purpose.
The UN Special Rapporteur on Torture noted that:62
United Nations treaty bodies consistently recommend that juvenile offenders, children or minors should not be subjected to solitary confinement (CAT/C/MAC/CO/4, para. 8; CAT/OP/PRY/1, para. 185; CRC/C/15/Add.151, para. 41; and CRC/C/15/Add.232, para. 36 (a)). Juveniles are often held in solitary confinement either as a disciplinary measure, or to separate them from the adult inmate population, as international human rights law prohibits the intermingling of juvenile and adult prison populations. Regrettably, solitary confinement as a form of punishment of juvenile detainees has been prevalent in States such as Jamaica (A/HRC/16/52/Add.3, para. 211), Paraguay (A/HRC/7/3/Add.3, appendix I, para. 46) and Papua New Guinea (A/HRC/16/52/Add.5, appendix). In regard to disciplinary measures, a report has indicated that solitary confinement does not reduce violence among juvenile offenders detained in the youth prison.
The United Nations Committee on the Rights of the Child, the body that monitors the implementation of the UN Convention on the Rights of the Child (CRC), stated that any disciplinary measure must be consistent with the inherent dignity of the juvenile and with Article 37 of the CRC. 63
Article 37 prohibits torture or other cruel, inhuman or degrading treatment or punishment on children. Detention of a child must conform with the law and be used only as a measure of last resort and for the shortest appropriate period of time. Every child who is detained “shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.”
Both solitary confinement and restraint are directly addressed by the CRC in its General Comment No 10 (2007) on Children’s rights in juvenile justice, where the CRC reiterates that64 :
Restraint or force can be used only when the child poses an imminent threat of injury to him or herself or others, and only when all other means of control have been exhausted.
The use of restraint or force, including physical, mechanical and medical restraints,should be under close and direct control of a medical and/or psychological professional.
It must never be used as a means of punishment. Staff of the facility should receive training on the applicable standards and members of the staff who use restraint or force in violation of the rules and standards should be punished appropriately;
Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care; disciplinary measures in violation of article 37 of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned.
Persons with disabilities, including mental health issues
The negative effects of solitary confinement are particularly profound for those with mental health disabilities. Solitary confinement can result in the exacerbation of an issue, and at an extreme some engage in self-harm and even suicide.
The principle of ‘reasonable accommodation’ requires detaining agencies to appropriately modify the procedures and physical facilities of places of detention to ensure that persons with disabilities, including mental disorders and other psychosocial disabilities, can enjoy or exercise their human rights on an equal basis with others. Article 2 of the Convention on the Rights of Persons with Disabilities defines “reasonable accommodation” as:
necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
The Special Rapporteur on Torture has noted the denial or lack of reasonable accommodations for persons with disabilities may create detention and living conditions amounting to ill-treatment and torture.65
The CRPD also reinforces the prohibition on torture and cruel, inhuman or degrading treatment or punishment. Article 15 requires States to “take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”
The Subcommittee on the Prevention of Torture has said that solitary confinement must never be used in health care settings as it segregates persons with serious or acute illness and leaves them without constant attention and access to medical services. In regards to restraints, both physical or pharmacological, the SPT regards them as forms of deprivation of liberty and should be considered only as measures of last resort for safety reasons. Their use must be subject to a strict framework as there is a high potential for abuse. Restraints must never be used for convenience. 66
The UN Special Rapporteur on Torture further elaborates:67
The mandate has previously declared that there can be no therapeutic justification for the use of solitary confinement and prolonged restraint of persons with disabilities in psychiatric institutions; both prolonged seclusion and restraint may constitute torture and ill-treatment (A/63/175, paras. 55-56). The Special Rapporteur has addressed the issue of solitary confinement and stated that its imposition, of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment (A/66/268, paras. 67-68, 78). Moreover, any restraint on people with mental disabilities for even a short period of time may constitute torture and ill-treatment. It is essential that an absolute ban on all coercive and non-consensual measures, including restraint and solitary confinement of people with psychological or intellectual disabilities, should apply in all places of deprivation of liberty, including in psychiatric and social care institutions. The environment of patient powerlessness and abusive treatment of persons with disabilities in which restraint and seclusion is used can lead to other non-consensual treatment, such as forced medication and electroshock procedures.
Therefore, the Special Rapporteur calls on all State Parties to
Impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs such as narcoleptics, the use of restraint and solitary confinement, for both long- and short-term application.
The United Nations Rules for the Treatment of Women Prisoners and Noncustodial Measures for Women Offenders ( known as “the Bangkok rules” ) were adopted by the UN General Assembly in December 2010. The rules68 were developed to supplement and complement, as appropriate the Standard Minimum Rules for the Treatment of Prisoners and the United Nations Standard Minimum Rules for Non-Custodial Measures (“the Tokyo rules”) in relation to the treatment of women prisoners and alternatives to prison for women offenders. The rules take into account the gender specific requirements of women prisoners, including those that arise through pregnancy and childcare.
Of relevance in the present context, rule 22 states that punishment by close confinement or disciplinary segregation shall not be applied to pregnant women, women with infants and breastfeeding mothers in prison. Rule 23 states that disciplinary sanctions for women prisoners shall not include a prohibition on family contact, especially with children. Rule 24 prohibits the use of instruments of restraint on women in labour, during birth and immediately after birth.
Rule 41 requires gender sensitive risk assessment and classification of prisoners to take into account the generally lower risk posed by women prisoners to others as well as the harmful effects that high security measures and increased isolation can have on women prisoners. Other rules, including 6 and 16, cover requirements related to gender specific health care and mental health care assessment and treatment.
Uncharged and untried detainees
Provisions of the Mandela Rules as discussed above apply to all prisoners and detainees, including people held in police custody, be it prior to being charged or as untried detainees. Of particular relevance is Rule 42:
General living conditions addressed in these rules, including those related to light, ventilation, temperature, sanitation, nutrition, drinking water, access to open air and physical exercise, personal hygiene, health care and adequate personal space, shall apply to all prisoners without exception.
Part II, section C of the Mandela Rules addresses untried detainees specifically and includes some of the following provisions:
Untried prisoners shall be kept separate from convicted prisoners, and young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions (Rule 112); Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate (Rule 113);
An untried prisoner shall be allowed to wear his or her own clothing if it is clean and suitable (Rule 115); An untried prisoner shall be allowed to procure at his or her own expense or at the expense of a third party such books, news papers, writing material and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution (Rule 117).
NEXT: Appendix 3: The legal and administrative framework for the use of seclusion, segregation and restraint in New Zealand.