• i
    http://www.solitaryconfinement.org/sourcebook


  • ii
    Deep Custody: the use of segregation and close supervision centres in England and Wales (2015)(http://solitaryconfinement.org/uploads/DeepCustodyShalevAndEdgar.pdf)


  • iii
    https://www.hrc.co.nz/your-rights/human-rights/our-work/opcat/


  • iv
    https://www.hrc.co.nz/files/2814/3192/5666/CAT_Report_May_2015.pdf


  • v
    http://docstore.ohchr.org/SelfServices/FilesHandler


  • vi
    http://www.tepou.co.nz/initiatives/reducing-seclusion-and-restraint/102


  • 1
    . See Appendix 1 for a list of all the facilities visited.


  • 2
    Unfortunately, this data was not readily available from all the detaining agencies, and is therefore not reviewed here. Once obtained, the data on staff assaults should be examined in more detail.


  • 3
    This definition is based on the Istanbul Statement on the Use and Effects of Solitary Confinement (2007) (Full text available at: www.solitaryconfinement.org/Istanbul) and the Mandela Rules. It is intended to include instances where individuals are not held in a room or a cell for 22-24 hours, but are still separated from others. For example, as was the case regarding regulations in children and young people’s residences which required those who were held in the Secure unit to spend the majority of the day outside their Secure room (but still within the confines of the Secure unit and in separation from others).


  • 4
    Shalev, S. (2008) A Sourcebook on Solitary Confinement, Mannheim Centre for Criminology: London; Grassian S. (2006) Psychiatric effects of solitary confinement. Journal of Law and Policy, 22:325‹383; Haney C. (2003) Mental issues in longterm solitary and supermax confinement. Crime & Delinquency, 49(1):124–156.


  • 5
    Shalev, S. (2014). ‘Solitary Confinement as a Prison Health Issue’. In: Enggist, S., Moller, L., Galea, G. and Udsen, C., (Eds.) Prisons and Health: a World Health Organisation (WHO) guide to the essentials in prison health (2nd edition), Copenhagen: WHO Regional Office Europe. pp27-35; Grassian S. (2006) Psychiatric effects of solitary confinement. Journal of Law and Policy, 22:325–383.


  • 6
    Pappas, S. (2012) Mystery of How Social Isolation Messes with Brain Solved. Life Science, September 13, 2012.


  • 7
    Kaba, Fatos et al (2014) Solitary Confinement and Risk of Self-Harm Among Jail Inmates. American Journal of Public Health 104.3 (2014): 442–447; Fazel S et al. (2011) Prison suicides in 12 countries: an ecological study of 861 suicides during 2003–2007. Social Psychiatry Psychiatric Epidemiology, 46:191–195.


  • 8
    United Nations General Assembly, Report of the Special Rapporteur on Torture A/HRC/22/53 1 February 2013, par. 67-68. See also: Kupers T. (1999) Prison madness: the mental health crisis behind bars and what we must do about it. San Francisco: Jossey Bass; Reid W.H. (2000) Offenders with special needs. Journal of Psychiatric Practice, 6(5):280–283.


  • 9
    American Civil Liberties Union (ACLU) (2013) Alone and Afraid: Children Held in Solitary Confinement and Isolation in Juvenile Detention and Correctional Facilities. ACLU: Washington DC.


  • 10
    Shalev, S. (2014). ‘Solitary Confinement as a Prison Health Issue’. In: Enggist, S., Moller, L., Galea, G. and Udsen, C., (Eds.) Prisons and Health: a World Health Organisation (WHO) guide to the essentials in prison health (2nd edition), Copenhagen: WHO Regional Office Europe. pp27-35.


  • 11
    For a fuller discussion of the professional and human rights instruments relating to solitary confinement see Sourcebook on Solitary Confinement (cited above).


  • 12
    Mohr, W.K., Petti, T.A., and Mohr, B.D. (2003), Adverse Effects Associated with Physical Restraint, 48 Canadian Journal of Psychiatry 5 (2003) at 330-337.


  • 13
    Barnett, R., Stirling, C., Pandyan, A.D. (2012) A review of the scientific literature related to the adverse impact of physical restraint: gaining a clearer understanding of the physiological factors involved in cases of restraint-related death. Med Sci Law. 2012:52(3):137-42.; See also National Association of State Mental Health Program Directors Position Statement on Seclusion and Restraint. (https://www.nasmhpd.org/content/position-statement-seclusion-and-restraint), accessed 10 February 2017.


  • 14
    Wynn, R. (2003). Staff’s attitudes to the use of restraint and seclusion in a Norwegian university psychiatric hospital. Nordic Journal of Psychiatry, 57(6), 453-459.


  • 15
    Haimowitz, S., Urff, J.D., Huckshorn, K. A. (2006) Restraint and Seclusion – A Risk Management Guide. National Association of State Mental Health Program Directors Report. Virginia. (Online: https://www. power2u.org/downloads/R-S%20Risk%20Manag%20Guide%20Oct%2006.pdf, accessed 10 February 2017); American Psychiatric Nurses Association (APNA) Position Statement on Seclusion and Restraint (http://www.apna.org/i4a/pages/index.cfm?pageid=3728) ), both accessed 10 February 2017.


  • 16
    For a guide on interpretation of the revised Mandela Rules see: Penal Reform International and Human Rights Centre, University of Essex (2017) Essex paper 3: Initial guidance on the interpretation and implementation of the UN Mandela Rules. (https://www.penalreform.org/resource/guidance-on-implementation-the nelson-mandela-rules/), accessed March 15, 2017.


  • 17
    See Appendix 3 for additional human rights texts and A Sourcebook on Solitary Confinement (2008) (cited above) for further discussion and referencing.


  • 18
    Due to time constraints, health-care provisions for secluded/segregated individuals were outside the scope of this review, but these should be looked at and assessed.


  • 19
    World Health Organisation (2005) Resource on Mental Health and Human Rights. WHO Europe: Copenhagen.


  • 20
    Some of the data examined here is not regularly collated by detaining agencies and was put together especially for this report, using different data sets from different resources, and should accordingly be viewed with caution.


  • 21
    For further discussion of disparities in mental health and strategies to reduce the use of seclusion for Mäori see Te Pou’s website: http://www.tepou.co.nz/initiatives/reducing-seclusion-and-restraint/102, and the Mental Health Foundation https://www.mentalhealth.org.nz/.


  • 22
    Including, inter alia, the UN Special Rapporteur on Torture (2011) and the Istanbul Statement on the Use and Effects of Solitary Confinement (2007).


  • 23
    It is worthwhile noting that many of the concerns raised in this report have been previously raised by, among others, the UN Subcommittee on the Prevention of Torture following their 2013 visit (see SPT report of 28 July 2014, UN DOC CAT/OP/NZL/1), and successive reports by New Zealand's NPM bodies, indicating slow progress.


  • 24
    Using the same definitions and measurements, in England and Wales, between 1/1-31/3/2014, there were  7,889 segregation events with an average total prison population of 85,509 (National Offenders Management data, cited in Shalev, S. and Edgar, K. (2015) Deep Custody: segregation units and close supervision centres  in England and Wales, London: Prison Reform Trust p148). Note that, as with the New Zealand data, these segregation events included stays of less than 24 hours, usually while the prisoner was waiting for their adjudication hearing.


  • 25
    See discussion in Shalev & Edgar, Deep Custody (2015).


  • 26
    Analysis of data provided to this review by Corrections, though the number of instances recorded compared to the total number of segregations instances set above suggests that these datasets are incomplete.


  • 27
    For detailed examples of the use of restraints in Corrections and some case studies see the Chief Ombudsman OPCAT finding report, A Question of Restraint, 1 March 2017, online at: http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/1885/original/a_question_of_restraint_march_2017.pdf?1488315220 ( Accessed 15 March 2017).


  • 28
     Some limited comparative data on the use of seclusion internationally is available in: Steinert, T., Lepping, P., Bernhardsgrütter, R. et al. Incidence of seclusion and restraint in psychiatric hospitals: a literature review and survey of international trends. Soc Psychiat Epidemiol (2010) 45: 889. Online at: http://www.imhcn.org/wp-content/uploads/2015/03/Lepping-2010-seclusion-3.pdf (Accessed 15 March 2017). 


  • 29
    The Office of the Director of Mental Health Annual Report for 2015, Seclusion data. We were unable to gather all the data needed for this review, and have therefore decided, for the sake of consistency, to focus on nationally recorded data instead.


  • 30
    The term 'child' is used here to describe any person below the age of 18 (as defined in Article 1 of the UN Convention on the Right of the Child). This definition differs from that of New Zealand's Children, Young Persons and their Families Act 1989, which defines 'child' as 'any boy or girl under the age of 14' and a  'young person' as 'a boy or girl of or over the age of 14 years but under 17 years' (Section 2 of the Act). At the Care and Protection residence visited, at the time of the visit the youngest child was 11 years old, and the oldest was 15 years old.


  • 31
    Specifications for each cell type are listed in Part 6 (‘Segregation of prisoners’) and Schedule 6 of the Corrections Regulations 2005 (SR 2005/53).


  • 32
    Some of the good practice we observed in this regard is discussed further in the following section.


  • 33
    Prisoner-staff relationships and human interactions more generally are an important factor in mitigating the negative effects of solitary confinement (see Deep Custody, 2015, Chapter five).


  • 34
    We were pleased to learn from that, following our visit to Rimutaka prison, staff were instructed to “ensure that punishment cells are not used as a matter of course and if circumstances present themselves where they are being considered to be used authorisation needed to be sought from the prison’s Director or Deputy Director”(email communication). 


  • 35
    See for example: Kaba, F., Lewis, A., Glowa-Kollisch, S., Hadler, J., Lee, D., Alper, H., Venters, H. (2014). Solitary Confinement and Risk of Self-Harm Among Jail Inmates. American Journal of Public Health, 104(3), 442–447. http://doi.org/10.2105/AJPH.2013.301742; Shalev 2008.


  • 36
    These are essentially barren cells with nothing but a concrete slab and a mattress. Some have no sharp corners, hence the term ‘round’. Round cells (also called ‘strip cells’) are typically monitored by CCTV and some also have a glass wall, or large glass windows to facilitate observation of the prisoner. 


  • 37
    I have been informed by the Human Rights Commission's Cultural Advisor that this practice is particularly problematic from a cultural perspective, as in Mäori culture food occupies a specially sacred place and the area where it is prepared, and the area where it is consumed, must be kept strictly separate to avoid and danger of cross contamination.


  • 38
    It is worth noting though that some custody suites were used as an overflow to house remanded prisoners. This was inappropriate and had meant that detainees could not access even very basic provisions such as outdoor exercise and were effectively held in conditions of strict solitary confinement. 


  • 39
    The ‘People in Police Detention’ policy manual stipulates that telephone calls and visits be provided if practicable, but this is not a requirement. Showers are guaranteed after 24 hours but we were told during the site visits that this does not always happen in practice when custody suites are full. 


  • 40
    UN Committee against Torture, for example, 23rd and 24th Sessions, Report of the Committee against Torture: Consideration of reports submitted by States Parties under article 19 of the Convention: United States of America, May 2000, A/55/44 , para. 180(c). Article 16(1) of the CAT reads: “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I”.


  • 41
    Committee on the Rights of Persons with Disabilities, Guidelines on article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities. Adopted during the Committee’s 14th session, held in September 2015. Geneva: September 2015


  • 42
     It should be noted that we were told by staff that prisoners from the lower tier could access exercise yards in the upper tier during their allotted exercise period.


  • 43
     A mechanism to limit the number of time a prisoner could flush their toilet appeared to be the norm in the prisons visited for this review. I should note that I have not encountered a similar mechanism in any of the many solitary confinement units I have visited over the years, including those in the so-called ‘supermax’ prisons in the US. Instead, most prisons have a mechanism which allows them to turn off the water supply to cells if prisoners attempt to flood their cells.


  • 44
    In some cases extreme risk aversion led to what can only be described as excessively punitive treatment, for example the management plan for one young woman who was a prolific self harmer, made use of her hearing aid and access to family visits dependent on her behaviour and compliance. We were told that this is because, in the past, she swallowed the batteries from her hearing aid, but this effectively meant that her disability was used as a tool, and we were not clear how, with two to three members of staff with her at all times, such action was practically possible. 


  • 45
    Additional good practice examples and advice on strategies to reduce the use of seclusion and restraint can be found on Te Pou’s excellent website. Though specific to mental health settings, these can be adapted to other detention settings: http://www.tepou.co.nz/initiatives/reducing-seclusion-and-restraint/102


  • 46
    For recommended design features and minimum size requirements see: International Committee of the Red Cross (ICRC): Water, Sanitation, Hygiene and Habitat in Prisons, ICRC, Geneva https://www.icrc.org/eng/assets/files/publications/icrc-002-4083.pdf; UNOPS (2015) Technical Guidance for Prison Planning: Technical and operational considerations based on the Standard Minimum Rules for the Treatment of Prisoners; UNOPS HQ Copenhagen, Denmark https://www.unops.org/SiteCollectionDocuments/Publications/TechnicalGuidance_PrisonPlanning_2015.pdf


  • 47
     We were informed, however, that in some residences children and young people had to ask for the complaint form.


  • 48
    We were pleased to hear from the Department of Corrections, following the drafting of this report, that  a decision had been taken to decommission the ‘silver cells’ on 1 March 2017. This is a very welcome development. We were also pleased to learn that the ‘pound’ cells were now under active review and rarely used in the interim.


  • 49
    As noted earlier, Te Pou, the Mental Health Foundation and others are already engaged in work to analyse discrepancies in the use of seclusion across DHBs and the over-representation of Mäori in seclusion, and to develop culturally sensitive alternatives. Such strategies could be expanded and adjusted to other detention contexts.


  • 50
    These and other recording requirements are helpfully listed in NZS8134.2.2: 2008  Standard 2.3 Criteria 2.3.4 of the Restraint Minimisation and Safe Practice Standard (2008), and could be adapted from health and disability settings to other detention contexts.


  • 51
    Department of Corrections, Prison Operations Manual, section F.O1 Minimum Entitlements. http://www.corrections.govt.nz/resources/policy_and_legislation/Prison-Operations-Manual/Prisoner-finance-activities/F.html


  • 52
    Ministry of Health. 2010. Seclusion under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Wellington: Ministry of Health. February 2010. The Guidelines stipulate that:

    • 7.1 If the goals for seclusion have been achieved, a decision to end seclusion should be taken by two suitably qualified clinicians, in agreement with the responsible clinician. If the decision is made to end seclusion after hours, the delegated authority must be notified at an appropriate time. 
    • 7.2 Each episode of seclusion is deemed to have ended if the patient leaves the conditions of seclusion without expectation of return, and in any case, is deemed to have ended if the patient has been out of seclusion for more than one hour. The purpose of this is to allow a short period of evaluation out of seclusion.

  • 53
    Department of Corrections, Prison Operations Manual, section F.O1.02 Prisoners denied minimum entitlements. http://www.corrections.govt.nz/resources/policy_and_legislation/Prison-Operations-Manual/Prisoner-finance-activities/F.html


  • 54
    In England and Wales all prisons are now required to complete a monthly record of their use of segregation to the Deputy Director of Custody as well as a quarterly review of their use of force and segregation. See PSO 1700 (Segregation) https://www.justice.gov.uk/offenders/psos


  • 55
    For one example of a successful joint approach see the UK NPM’s Annual Report for 2014/15 (section on solitary confinement). Online at: http://www.nationalpreventivemechanism.org.uk/wp-content/uploads/2015/12/NPM-Annual-Report-2014-15-web.pdf, and the UK NPM’s Guidance: Isolation in Detention, January 2017. Online at: http://www.nationalpreventivemechanism.org.uk/wp-content/uploads/2017/02/NPM-Isolation-Guidance-FINAL.pdf


  • 56
    Human Rights Committee, General Comment 21, Article 10 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994)


  • 57
    Report of the UN Committee against Torture to the UN General Assembly – 47th/ 48th session, A/67/44, p47


  • 58
    United Nations General Assembly, 2011. Interim report prepared by the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, in accordance with General Assembly resolution 65/205 (A/66/268). See also Human Rights Committee, general comment No. 20, HRI/GEN/1/Rev.9 (Vol. I).


  • 59
    Reports of the Special Rapporteur on torture: A/63/175, paras. 40, 47 and 48, and A/HRC/22/53, para. 63; and A/68/295, para. 58


  • 60
    The Rules explicitly state “the preliminary observations to the Nelson Mandela Rules, underscores the non-binding nature of the Rules, acknowledges the variety of Member States’ legal frameworks, and in that regard recognizes that Member States may adapt the application of the Rules in accordance with their domestic legal frameworks, as appropriate, bearing in mind the spirit and purposes of the Rules;”


  • 61
     UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), Preliminary observation 1.


  • 62
    United Nations General Assembly, Report of the Special Rapporteur on Torture A/HRC/22/53 1 February 2013


  • 63
    CRC/C/GC/10, 25 April 2007. (section 89). See for example United Nations Convention on the Rights of the Child Committee on the Rights of the Child, Concluding Observations on the combined third and fourth periodic reports of Luxembourg, adopted by the Committee at its sixty-fourth session (16 September–4 October 2013). Vienna: United Nations; October 29, 2013. Report No.: CRC/C/LUX/CO/3-4


  • 64
    CRC/C/GC/10, 25 April 2007. (section 89). see for example United Nations Convention on the Rights of the Child Committee on the Rights of the Child. Concluding observations on the combined third and fourth periodic reports of Luxembourg, adopted by the Committee at its sixty-fourth session (16 September–4 October 2013). Vienna: United Nations; October 29, 2013. Report No.: CRC/C/LUX/CO/3-4


  • 65
    United Nations General Assembly, Interim Report of the Special Rapporteur on Torture A/63/174 28 July 2008


  • 66
    Approach of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment regarding the rights of persons institutionalized and treated medically without informed consent, adopted at the 27th session of the SPT (16-20 November 2015), pars. 9- 10.


  • 67
     www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf. 


  • 68
     http://www.ohchr.org/Documents/ProfessionalInterest/BangkokRules.pdf


  • 69
    Corrections Act 2004 (http://www.legislation.govt.nz/act/public/2004/0050/latest/DLM294849.html)


  • 70
    S 58 Corrections Act


  • 71
    Regulation 62(1) of the Corrections Regulations (2005). http://www.legislation.govt.nz/regulation/public/2005/0053/latest/DLM315417.html#DLM315897


  • 72
    Regulations 57-64 of the Corrections Regulations (2005)


  • 73
    Schedule 5 Corrections Regulations 2005


  • 74
    Schedule 5, clause 15A Corrections Regulations 2005


  • 75
    Section 9 of the Health and Disability Services (Safety) Act 2001 requires certified health and disability service providers to meet all relevant service standards when providing health and disability services.


  • 76
    NZS 8134.0:2008 p 30


  • 77
    http://www.health.govt.nz/publication/guidelines-role-and-function-district-inspectors


  • 78
    http://www.health.govt.nz/system/files/documents/pages/81342-2008-nzs-health-and-disability-services-restraint-minimisation.pdf


  • 79
    Ibid, page 5


  • 80
    Ministry of Health. 2010. Seclusion under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Wellington: Ministry of Health. 


  • 81
    The Children, Young People and their Families Act (http://www.legislation.govt.nz/act/public/1989/0024/ latest/DLM147088.html)


  • 82
    Sections 367-383A, Children, Young Persons and their Families Act 1989


  • 83
    The Children, Young People and their Families (Residential Care) Regulations 1996   http://www.legislation.govt.nz/regulation/public/1996/0354/latest/DLM225697.html


  • 84
    A full list of enactments authorizing use of force are included in the Police Manual.

 


 

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