This report examines the use of seclusion and restraint across different detention contexts in New Zealand. It is based on visits to seventeen different places of detention including prisons, health and disability units, a youth justice residence, a children’s care and protection residence, and police custody suites, which took place between 26 October 2016 and 11 November 2016,1 and on material provided before, during and after those visits, including some extensive data sets.
The majority of visits were conducted in the course of one day, and were centred around the areas where seclusion or segregation took place. Visits typically started with a brief meeting with the unit or institution’s manager and key staff, followed by a visit to the relevant unit where we took some time to inspect the physical facilities and daily routines, chat to staff and, where possible, service users. Staff in each of the units visited were asked to describe in detail the individuals housed in the unit at the time, why they were there, and when they were likely to leave. This gave us a sense of who, in practice, ended up in these units. In addition to physically visiting places of detention, each of the places visited was asked to make available, ahead of the visit, pertinent documentation dating back six months. This included, for example, registers of people held in the unit and a sample of personal files, registers of use of force and restraint incidents, daily observations and so on. We also asked for details of the institution’s complaint policies and registers of complaints made over the last six months prior to the visit. In prisons, we also asked for registers of disciplinary hearings (‘adjudications’) in order to better understand why and in different institutions. Finally, where this was available, we asked for data on incidents of assaults, self harm and staff injuries. when segregation was used as punishment, and to get a sense of how it was used 2
The visits and data provided a wealth of information which this report can only capture in brief. The report focuses exclusively on seclusion and restraint related practices, and does not address other aspects of conditions of detention and the treatment of people deprived of their liberty more generally. It describes the situation observed and necessarily therefore provides a snapshot of the use of seclusion and restraint at the time of the visits. Plans, aspirations and intentions to reduce the use of seclusion and restraint which were expressed at the time of visits are not reflected in the report, though I am heartened and encouraged to learn of progress towards this goal in recent months, and of the launch of the Department of Corrections' Transforming the Management of At-Risk Prisoners review, and look forward to its findings.
For the purposes of this report, ‘solitary confinement’ is defined as the social and physical isolation of individuals in a place of confinement for twenty-two to twenty-four hours a day.3 Though widely used in different places of detention all over the world, very rarely is this form of confinement called ‘solitary confinement’, as this term appears to be associated with undesirable practices of the past. Instead, depending on the detention context and their proposed aim, solitary confinement units are variously known as ‘segregation’, ‘isolation’, ‘seclusion’, ‘de-escalation’, ‘separation’, ‘high security’, ‘supermax’ and ‘special management’ units, to name but a few terms used in this context.
In New Zealand, the terms most commonly used in the different detention settings visited for the purpose of this review were: 'segregation' (of which there are several types, discussed in the following section) in prison settings; 'seclusion', 'de-escalation' or 'low stimulus' in health and disability settings; and, in children and young people's care and protection and youth justice residences, 'secure care' and 'time out'.
Notwithstanding any minor differences, this review uses the terms ‘isolation’, ‘segregation’, ‘separation’ and ‘seclusion’ interchangeably with ‘solitary confinement’, as defined above. It should be noted that in some health and disability facilities, confinement occurred in a physical setting that included more than one room, but in circumstances which still constituted isolation and segregation from other patients and members of the wider community and the usual routines of the facility. These circumstances have been considered for the purpose of this review.
c. Seclusion and restraint: health effects and human rights standards
Solitary confinement typically involves three elements: social isolation and limited, if any, 'meaningful human contact' (as defined in Mandela Rule 44); monotonous physical environment, offering reduced access to sensory stimulation; and, increased institutional control of all aspects of the individual's daily life, affording them limited personal autonomy. As social beings, each of these elements is potentially damaging to us. Together, they create a toxic mix which has been shown by studies dating back to the 19th century to adversely affect the health and wellbeing of those subjected to it. The reported psychological effects of solitary confinement range from acute to chronic and include anxiety, panic, chronic depression, rage, poor impulse control, cognitive disturbances including poor concentration and confused thought processes, perceptual distortions including depersonalisation and hallucinations, paranoia and psychosis.4 Studies have demonstrated physiological symptoms and effects too, including migraine headaches, heart palpitations, back and other joint pains, gastro-intestinal and genito-urinary problems, excessive sweating, insomnia, deterioration of eyesight, lethargy, dizziness, weakness and profound fatigue, feeling cold, poor appetite, weight loss, diarrhoea, tremulousness and aggravation of pre-existing medical problems. 5 Emerging research in the field of neuroscience demonstrates that solitary confinement disrupts brain activity, potentially leading to changes in the structure of the brain.6 Rates of self-harm and suicide, which are anyway higher in prison than they are in the general population, are even higher in solitary confinement units.7
If solitary confinement can be damaging to those with no previous history of mental health issues, individuals with pre-existing mental illness are at a particularly high risk of worsening psychiatric problems as a result of their isolation.8 Children and young people are also particularly vulnerable to the damaging effects of solitary confinement, as they are still in the process of developing physically, mentally and socially, and solitary confinement effectively ‘freezes’ their development.9
Not everyone will experience solitary confinement in the same way. Individual responses to the stresses of solitary confinement vary, “depending on the pre-morbid adjustment of the individual and the context, length and conditions of confinement. The experience of previous trauma will render the person more vulnerable, as will the involuntary nature of his/her solitary confinement and confinement that persists over a sustained period of time. Initial acute reactions may be followed by chronic symptoms if the regime of solitary confinement persists”.10 Some of these reactions may subside once the person is no longer in solitary confinement, but some individuals will carry with them the damage caused by solitary confinement long after their release from solitary confinement. The damaging effects of solitary confinement are therefore best mitigated by avoiding the placement of people in isolation altogether. Where people are held in solitary confinement, this should be limited to a short and pre-defined time, during which they should be housed in decent conditions, have access to meaningful human contact and to purposeful activities, and be able to exercise some personal autonomy.
Following three decades of what seemed like an unstoppable expansion in the use of solitary confinement, especially in the United States, in recent years the practice has been attracting increasing international attention. Human Rights and professional bodies, both international and regional, begun focusing their attention on its uses and consequences, seeking ways to minimise and better regulate its use, and in some cases eliminate it altogether.11
The use of restraint is similarly controversial, and the application of restraints is known to have significant adverse physiological effects on the individual. These effects and the risks associated with them are elevated by medical conditions such as asthma, obesity, intoxication and psychotropic medications, with the risk of death or injury appearing to be higher for children and adolescents.12 In addition, people who have a history of abuse can experience restraint as a re-enactment of their original trauma (ibid.) Individuals who were restrained reported feeling a loss of their dignity and sense of autonomy.13 Staff also reported feeling demoralised following the application of restraint.14 The physiological risks associated with restraint include death (most commonly from asphyxiation), and physical injuries such as lesions, blood clots, sprains, and fractured bones (Mohr et all, ibid).
The emerging consensus regarding restraints is that their use can and should be reduced if not eliminated altogether, and a growing body of research over the past decade documents the development of a range of effective alternatives to the use of restraint and further undermines its use.15
The current international consensus on minimum standards for the treatment of prisoners and detainees and on what constitutes prohibited treatment, as well as the position on solitary confinement and restraints, are expressed in the revised (2015) UN Standard Minimum Rules on the Treatment of Prisoners (now renamed the 'Mandela Rules', hereafter 'the Rules').16 The Rules make it clear that solitary confinement can amount to cruel, inhuman or degrading treatment or punishment, especially for children and people with disabilities, including mental health issues. The Rules stipulate that:
Mandela Rule 43
- In no circumstances may restrictions or disciplinary sanctions amount to torture or other cruel, inhuman or degrading treatment or punishment. The following practices, in particular, shall be prohibited:
(a) Indefinite solitary confinement;
(b) Prolonged solitary confinement;
(c) Placement of a prisoner in a dark or constantly lit cell;
(d) Corporal punishment or the reduction of a prisoner’s diet or drinking water;
(e) Collective punishment.
- Instruments of restraint shall never be applied as a sanction for disciplinary offences.
- Disciplinary sanctions or restrictive measures shall not include the prohibition of family contact. The means of family contact may only be restricted for a limited time period and as strictly required for the maintenance of security and order.
Mandela Rule 44
For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.
Mandela Rule 45
- Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority. It shall not be imposed by virtue of a prisoner’s sentence.
- The imposition of solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures. The prohibition of the use of solitary confinement and similar measures in cases involving women and children, as referred to in other United Nations standards and norms in crime prevention and criminal justice, continues to apply.
Addressing the use of instruments of restraint, the Rules stipulate that:
Mandela Rule 47
- The use of chains, irons or other instruments of restraint which are inherently degrading or painful shall be prohibited.
- Other instruments of restraint shall only be used when authorized by law and in the following circumstances:
(a) As a precaution against escape during a transfer, provided that they are removed when the prisoner appears before a judicial or administrative authority;
(b) By order of the prison director, if other methods of control fail, in order to prevent a prisoner from injuring himself or herself or others or from damaging property; in such instances, the director shall immediately alert the physician or other qualified healthcare professionals and report to the higher administrative authority.
Mandela Rule 48.1
When the imposition of instruments of restraint is authorized in accordance with paragraph 2 of rule 47, the following principles shall apply:
(a) Instruments of restraint are to be imposed only when no lesser form of control would be effective to address the risks posed by unrestricted movement;
(b) The method of restraint shall be the least intrusive method that is necessary and reasonably available to control the prisoner’s movement, based on the level and nature of the risks posed;
(c) Instruments of restraint shall be imposed only for the time period required, and they are to be removed as soon as possible after the risks posed by unrestricted movement are no longer present.
Mandela Rule 48.2
Instruments of restraint shall never be used on women during labour, during childbirth and immediately after childbirth.
Mandela Rule 49
The prison administration should seek access to, and provide training in the use of, control techniques that would obviate the need for the imposition of instruments of restraint or reduce their intrusiveness.
The Rules also reiterate that prisoners retain their basic rights and entitlements also in seclusion:
Mandela 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.
d. Key principles for the use of seclusion and instruments of restraint
Drawing on the Mandela Rules and on other international human rights law and professional guidance,17 I would set out the following key principles for assessing the use of solitary confinement:
- It must only be used to achieve a specific and well defined purpose; as a last resort when other avenues have been tried and failed; for a short a time as possible, and; in the least restrictive conditions possible.
- Where used, minimum requirements must be met and minimum standards adhered to (and preferably exceeded). Minimum entitlements include sufficient food, drinking water and health care,18 and daily access to at least 1 hour of fresh air and exercise, a telephone, and a shower. Material conditions of detention must also meet the minimum standards set in international instruments including those relating to natural and artificial light, ventilation and thermal comfort.
- Solitary confinement must not be indefinite or prolonged (longer than 15 days).
- Certain categories of people must be excluded from solitary confinement altogether, in particular children and young people, and people with disabilities, including mental health conditions.
- Decisions on the regime, material conditions and provisions that segregated people can access should be based on ongoing, individual risk and needs assessments; should ideally involve the individual concerned, and be taken by a multi-disciplinary team, and; be regularly and substantively reviewed by a different person to the one who authorised the initial placement.
- The institution’s need to maintain good order or discipline in prison or to prevent patients from acting in a harmful manner in health and disability settings must never be at the expense of the individual’s needs and right to be treated with respect for their inherent human dignity. The individual has a right not to be subjected to inhuman or degrading treatment or punishment. The burden is on the authorities to demonstrate that they have sought alternatives to seclusion/ restraint.19
- Finally, safeguards must be in place. These include access to legal counsel and to monitoring bodies, rights of appeal, and a robust, confidential and accessible system for making complaints.
Similar principles apply to the use of restraints, namely that their use must be lawful, necessary and proportionate. Restraint must only be applied in cases of emergency, when all other options have been tried and failed. The least restrictive form of restraint possible must be used and then for the shortest time possible necessary to achieve the specific aim which its use seeks to achieve. Instruments of restraint must never be used as punishment, and the manner in which restraint is applied must not be degrading or painful. Some forms of restraint, including chains, irons and or other instruments of restraint which are inherently degrading or painful (Mandela Rule 47(1)) are prohibited altogether.
Using these principles to assess whether the establishments visited met international standards on conditions of confinement and treatment of individuals secluded in them, the following issues were examined for this review:
- What is the legal basis for using solitary confinement and restraint in each of the settings examined? (see Appendix 3)
- How many people spent time in solitary confinement, and for how long?
- When and why was solitary confinement used in practice? Was it used only as a last resort?
- What were the material conditions, daily regime and in-cell provisions in solitary confinement cells? Were minimum human rights standards met?
- Were individuals belonging to vulnerable groups, as defined in the Mandela Rules, found in solitary confinement units?
- How often were placements reviewed and by whom? Were reviews substantive?
- How often was restraint used? Was it used only as a last resort?
- Was a robust system enabling confidential complaints in place?
NEXT: 2. Seclusion and restraint in New Zealand: findings from the data and visits.