PREV: Appendix 2: International human rights law on solitary confinement and restraint.
The legal and administrative framework for the use of seclusion, segregation and restraint in New Zealand
(compiled by New Zealand Human Rights Commission staff)
Much of New Zealand’s domestic law incorporates the international human rights standards.
The long title of the New Zealand Bill of Rights Act (NZBORA) states that it is “An Act to affirm, protect, and promote human rights and fundamental freedoms in New Zealand, and to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights”. Under section 9 of NZBORA every person has the right not to be tortured or ill-treated. Section 23(5) protects the right of every individual in custody to be treated with “humanity and with respect for the inherent dignity of the person”.
The Crimes of Torture Act 1989 (COTA) enables New Zealand to meet its international obligations under the UN Convention Against Torture. This Act makes it a criminal offence for a public official or person acting in an official capacity to commit an act of torture, or to aid, incite, abet or procure an act of torture. Law enforcement officers and Corrections officers are included within the statutory definition of a “public official” for the purposes of the legislation. COTA defines an “act of torture” as including any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as obtaining information or a confession, punishing that person or coercing or intimidating them, or for reasons based on discrimination of any kind.
Under the Crimes Act 1961 anyone who “has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty to provide that person with necessaries and to take reasonable steps to protect that person from injury.” (Crimes Act s 151). A ‘vulnerable person’ is defined as “a person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person.” (Crimes Act s 2). Anyone who fails to discharge this legal duty may be held criminally responsible if, in the circumstances, the omission is “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies.” (Crimes Act s 150A(2)).
These laws apply to people detained in all types of detention facilities. Other legislation applies more specifically to particular types of detention environments and facilities, and to practices within them, including the segregation and seclusion practices and the use of restraints.
The Corrections Act 2004 establishes New Zealand’s corrections system, and is administered by the Department of Corrections.
The Corrections Act uses the term ‘segregation’, and defines it as an event where “[t]he opportunity of a prisoner to associate with other prisoners may be restricted or denied in accordance with sections 58 to 60” (Corrections Act s 57). The Corrections Act provides for the segregation of prisoners for the purpose of security, good order or safety (Corrections Act s 58), protective custody (Corrections Act s 59), or medical oversight (Corrections Act s 60).69
Security, good order, or safety
A prisoner may be placed in segregation if the prison manager is of the opinion the security or good order of the prison would otherwise be endangered or prejudiced, or the safety of another prisoner or another person would otherwise be endangered.70 If a prisoner is segregated in this way, they must be given the reasons for their segregation in writing and the chief executive of the Department of Corrections must be promptly informed. The decision to segregate someone may be revoked at any time by the chief executive or a Visiting Justice (Corrections Act s 58(3)(b)), and it must be revoked by the prison manager if there ceases to be any justification for continuing to restrict or deny the opportunity of the prisoner to associate with other prisoners (Corrections Act s 58(3)(a)). A decision to segregate expires after 14 days unless the chief executive directs for it to continue, in which case the decision must be reviewed by the chief executive at least every month (Corrections Act sections 58(3)(c) and 58(3)d)(i)). It then expires after three months unless renewed by a Visiting Justice, who must then review it in intervals of not more than three months (Corrections Act sections 58(3)(d)(ii) and 58(3)(e)).
The prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if a prisoner requests this and the manager considers that it is in the best interests of the prisoner, or if the prison manager is satisfied that the safety of the prisoner has been put at risk by another person; and there is no reasonable way to ensure the safety of the prisoner other than by giving that direction. (Corrections Act s 59(1)). A prisoner asking to be segregated must give consent in writing and can withdraw consent at any time (Corrections Act s 59(2)(a)). If the prison manager has decided that the prisoner is at risk, the segregation may continue and the decision must be given promptly in writing to the prisoner, and the chief executive informed ((Corrections Act s 59(3)). The direction to segregate must be revoked by the prison manager if there ceases to be any justification for continuing to restrict or deny the opportunity of the prisoner to associate with other prisoners (Corrections Act s 59(4)(a)). It may also be revoked, at any time, by the chief executive, and expires after 14 days unless, before it expires, the chief executive directs that it continue in force, in which case the decision must be reviewed by them at intervals of not more than 3 months (Corrections Act s 59(4)(b)-(d)).
Segregation may also be ordered if the health centre manager of the prison recommends it to assess or ensure the prisoner’s health (both physical and mental health, including the risk of self-harm). (Corrections Act s 60(1)). Again, this decision must be given promptly in writing and the chief executive must be informed (Corrections Act s 60(2)). This segregation continues until revoked by the prison manager or chief executive (Corrections Act s 60(3)). The prison manager may not revoke the segregation unless advised to do so by the health centre manager (Corrections Act s 60(4)). The health centre manager must ensure a registered health professional visits the prisoner at least once a day, or twice a day if the prisoner is at risk of self-harm (Corrections Act s 60(5)).
Corrections Regulations 2005
Regulations 53-64 (‘Segregation of Prisoners’) of the Corrections Regulations 2005 detail the day to day application of sections 58-61 of the Corrections Act. The Regulations state that prisoners in segregation “must be detained, so far as is practicable in the circumstances and if it is not inconsistent with the purposes of the segregation direction, under the same conditions as if he or she were not subject to a segregation direction.”71
The Regulations further prescribe the standards of accommodation for each ‘type’ of segregation, and make specific provision for the treatment of segregated prisoners.72
The use of force, non lethal weapons and mechanical restraints is addressed in Sections 83-88 of the Corrections Act 2004, and regulations 118-129 of the Corrections Regulations 2005.
Section 83(1) of the Corrections Act stipulates that:
No officer or staff member may use physical force in dealing with any prisoner unless the officer or staff member has reasonable grounds for believing that the use of physical force is reasonably necessary—(a) in self-defence, in the defence of another person, or to protect the prisoner from injury; or (b) in the case of an escape or attempted escape (including the recapture of any person who is fleeing after escape); or (c) in the case of an officer,— (i) to prevent the prisoner from damaging any property; or (ii) in the case of active or passive resistance to a lawful order.
Only force which is “reasonably necessary in the circumstances” (Corrections Act s 83(2)) must be used, and may include non-lethal weapons and mechanical restraints (sections 85 and 83(3) respectively) .
Restraints must not be used for disciplinary purposes and must be used in a way that minimises harm and discomfort to the prisoner (Corrections Act s 87(4) ). Mechanical restraints can only be used for more than 24 hours if authorised by the prison manager and in the opinion of a medical officer the restraints are necessary to protect the prisoner from self-harm (Corrections Act s 87(5) ). This authorisation must be in writing, specify the type of restraint, specify the time, and include a record of the medical officer’s opinion section (Corrections Act s87(5A)).
The Corrections Regulations further specify the types of weapons and restraints, and conditions and restrictions, and reporting on their use. Restraints which can be used include hand-cuffs, tie-down beds, wrist bed restraints, torso restraints, head protectors, and spit hoods.73 Regulations specify how these are to be used and not used, for example a waist restraint may only be used around a prisoner’s waist and in conjunction with handcuffs74 . Reports about the use of restraints must be made to the manager, and then to the chief executive and Visiting Justice. (Regulation 127)
Health and disability facilities
Both the Mental Health (Compulsory Assessment and Treatment) Act 1993 (the Mental Health Act) and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the IDCCR Act) provide authorised health and disability care providers with significant powers to detain and treat patients and care recipients on a compulsory basis.
The Mental Health Act
The Mental Health Act provides health care providers with the power to compulsorily detain and treat any individual who is determined to be “mentally disordered” as defined in the Act and is considered to constitute a danger to themselves or others.
Section 71 of the Mental Health Act sets out the conditions that apply when a mental health patient is placed in seclusion. These include a requirement that seclusion only be used where, and for as long as, it is necessary for the care and treatment of the patient, or the protection of other patients. Section 71(2) provides conditions for placing a patient in seclusion. These are:
- seclusion shall be used only where, and for as long as, it is necessary for the care or treatment of the patient, or the protection of other patients
- a patient shall be placed in seclusion only in a room or other area that is designated for the purposes by or with the approval of the Director of Area Mental Health Services
- except in an emergency, seclusion shall be used only with the authority of the responsible clinician
- in an emergency, a nurse or other health professional having immediate responsibility for a patient may place the patient in seclusion, but shall forthwith bring the case to the attention of the responsible clinician
- the duration and circumstances of each episode of seclusion shall be recorded in the register.
Seclusion is not specifically defined in the Mental Health Act, however the New Zealand Health and Disability Service Standards75 define seclusion as circumstances where “a consumer is placed alone in a room or area, at any time and for any duration, from which they cannot freely exit”.76
The Mental Health Act does not contain specific provisions permitting the use of restraint. However, section 122B of the Mental Health Act permits the use of force in certain emergency situations and allows the use of “such force as may be reasonably necessary in the circumstances”. If force is used pursuant to this provision, then section 122B (4) requires that the circumstances in which the force was used must be recorded and a copy of the record must be given to the Director of Area Mental Health Services as soon as practicable.
The Intellectual Disability (Compulsory Care and Rehabilitation) Act
The Intellectual Disability (Compulsory Care and Rehabilitation) Act, similar to the Mental Health Act, provides the state with powers to deprive people with an intellectual disability of their liberty in certain circumstances where they have been charged with, or convicted of, an imprisonable offence.
Section 60 defines seclusion as the “placing of the care recipient without others in a room or other area that provides a safe environment for the care recipient throughout the care recipient’s stay in the room or area but does not allow the care recipient to leave without help.” A care recipient may be placed in seclusion to prevent them endangering the health or safety of the care recipient or of others and/or seriously compromising the care and well-being of other persons. (Section 60(2)) Seclusion must comply with guidelines and must be no longer than necessary to achieve the purpose of placing the person in seclusion (Section 60(3)).
Care recipients may be restrained to prevent them endangering the health or safety of the care recipient or of others or seriously damaging property or seriously compromising the care and well-being of the care recipient or of other care recipients. When a care recipient is restrained the following conditions apply:
- a person exercising the power of restraint may not use a greater degree of force, and may not restrain the care recipient for longer, than is required to achieve the purpose for which the care recipient is restrained
- a person exercising the power of restraint must comply with guidelines issued under section 148 that are relevant to the restraint of the care recipient
- in an emergency, a care recipient may be restrained by a person who, under a delegation given by the care recipient’s care manager, has immediate responsibility for the care recipient, but that person must immediately bring the case to the attention of the care manager
- the duration and circumstances of each episode of restraint must be recorded in a register kept in accordance with guidelines issued under section 148.
All service users under both these Acts have access to District Inspectors. District Inspectors are independent lawyers appointed to protect the rights of service users, investigate alleged breaches of these rights, address the concerns of family/whänau, and monitor service compliance with the Acts. District Inspectors have powers to conduct inquiries into suspected failings in a person’s treatment or management of services. They report their activities to the Director of Mental Health and the Director IDDCR. The Ministry of Health issues guideline on the activities of District Inspectors The most recent were published in 2012.77
Standards and Guidelines
Standards for the use of seclusion and restraint are set out in the Health and Disability Services (Restraint Minimisation and Safe Practices) Standards 78 (the Standards). The stated intent of the Standards is to reduce the use of restraint in all its forms and to encourage the use of least restrictive practices. The Standards also make it clear that restraint is not a treatment in itself, but is one of a number of strategies used by service providers to reduce or eliminate a clinical risk. Restraint should only be used in the context of ensuring, maintaining or enhancing the safety of the consumer, service providers or others.79
The Ministry of Health has also issued guidelines on “Seclusion under the Mental Health (Compulsory Assessment and Treatment) Act 1992” (the Guidelines). The Guidelines reflect the developing focus on strategies to reduce, and eventually eliminate, the use of seclusion in mental health settings. Prefacing the Guidelines, the Director General of Mental Health affirmed the role of seclusion as a last resort and the Ministry’s commitment to reducing seclusion: 80
“Seclusion may be legally implemented under the conditions set out in the Mental Health (Compulsory Assessment and Treatment) Act 1992, but only during situations in which other methods of clinical management cannot safely be used, or as a last resort when other interventions have been used without success. … Seclusion should be used for as short a time as possible. The decision to seclude should be an uncommon event, subject to strict review … These guidelines reflect an ongoing Ministry of Health commitment to promote a culture wherein, over time, seclusion usage by the mental health sector will gradually decrease. I endorse these guidelines.“
The emphasis on the need for seclusion to be a tool of last resort, used only when other interventions have failed and for a short a time as possible, is very much in line with current thinking and international human rights law standards identified in this report. Much of the substantive work in this area has been led by Te Pou o te Whakaaro Nui (“Te Pou”) a national centre of evidence based workforce development for the mental health, addiction and disability sectors.
Child, Youth and Family residences
The Children, Young Persons and Their Families Act 1989 determines how the state intervenes to protect children from abuse and neglect, and to prevent and address child and youth offending, including the use of CYF residences. 81
Seclusion is known as ‘secure care’. 82 A child or young person may only be placed in secure care to prevent them from behaving in a manner likely to cause physical harm to themselves or someone else, or to prevent them from absconding from the residence. If a child or youth is placed in secure care notice must be given within 24 hours to their parent, guardian, or someone previously having care of that child, and their lawyer or youth advocate (court appointed-lawyer). This notice must specify the reasons why secure care is being used and include information on the right to apply for a review care and the procedure for doing this.
A child or youth cannot legally be in secure care for more than one day unless approval has been granted by the court. The chief executive may apply to a court for approval of continued detention. A registrar may authorise continued detention in secure care until the application is determined. The hearing of the application is to be held at the residence if practicable. The court may grant an approval authorising the continued detention of the child or young person in secure care. It is valid for 14 days, then it must be renewed. The child or youth, their parent or guardian, or their lawyer/youth advocate may apply for a review of the use of secure care at any time.
The Children, Young Persons, and Their Families (Residential Care) Regulations 1996 provides further detail on the rights of children and young people in residences, and operational matters such as discipline, inspections, grievance procedures, secure care and records. 83
Corporal punishment and torture, cruelty, and inhuman, humiliating or degrading discipline and treatment are prohibited. The Children, Young Persons and Their Families (Residential Care) Regulations 1996 prohibits any member of staff of a residence from using physical force in dealing with a child or young person unless that member of staff has reasonable grounds for believing that the use of physical force is reasonably necessary in self-defence or defence of someone else, to protect the child, to prevent the child damaging property, prevent the child leaving, to secure the child in secure care, or for carrying out a search. The staff member must use no more force than is reasonably necessary in the circumstances, and only applied for as long as necessary to prevent an individual harming themselves or others.
A staff member at the residence must review daily whether a child should be kept in secure care. At this review the child is entitled to be present. A child or youth cannot be confined to their room between 8am and 8pm unless it is necessary because of illness, injury, extreme emotional disturbance, or in case of emergency. A child can be confined in their room between 5pm and 8pm to enforce a sanction under a specific behaviour management programme.
New Zealand Police are provided with specific powers to use force under various enactments. These include powers under the Search and Surveillance Act 2012, the Policing Act 2008, the Mental Health (Compulsory Assessment and Treatment) Act 1992, the Misuse of Drugs Act and many others. 84 Each piece of legislation sets out the extent of the powers that the Police have and the circumstances in which they may be exercised. In addition, the Crimes Act 1961 contains more general legal provisions that permit the police to use force in certain circumstances. For example, section 39 of the Crimes Act covers the degree of force that may be used when executing any sentence, warrant or process or making an arrest. Section 40 covers the force that may be used when preventing an escape from lawful custody.
Sections 41 and 48 of the Act are very wide and apply to “everyone” including (but not limited to) police officers. Section 41 of the Act stipulates that everyone is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he or she believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence. Section 48 of the Act states that “everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.”
Section 62 of the Act makes any person authorized by law to use force, “criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess.”
The use of restraints by police is not specifically provided for in legislation. The practices are covered by the general legislative provisions relating to use of force referred to above and the relevant sections of the Police Manual. The manual includes specific chapters on “People in Police Detention”, “Use of Force” and “Mechanical Restraints”. These chapters provide detailed guidance and set out the operational requirements. The “Mechanical Restraint” chapter states that restraints must be used safely and humanely, and not for the purpose of cruel, inhumane or degrading treatment or punishment. When considering whether to use mechanical restraints, officers are required to first carry out an operational threat assessment using the TENR tool. This requires an assessment of the threat ( eg considering the person’s behaviour, whether he or she is under the influence of drugs or alcohol) , an assessment of the exposure ( the safety of the person and others, factors that may elevate risk, such as mental health condition, age, weight) the necessity to act ( assess threat and exposure and determine if it reasonable, necessary and proportionate to use a mechanical restraint) and then develop a response (ensuring that the use of the restraint is necessary and proportionate given the circumstances known at the time).
Those who are restrained must be subject to monitoring. The stipulated level of monitoring is dependent on the type of restraint. Particular attention must be given to the person’s airway clearance, respiration, skin colour, circulation, range of movement/discomfort, pressure areas, hydration, changes in the person’s state which could indicate a need to review their status, swelling of the body area adjacent to the mechanical restraint, and statements by the person in respect of their condition. There is a specific section in the “Mechanical Restraint” chapter on the risk of positional asphyxia. All mechanical restraints must be removed from a person as soon as it is believed that the need for using them ceases, and in some instances, time limits on their use apply.
Only mechanical restraints approved by the National Manager: Response and Operations can be used. These are currently limited to metal handcuffs, plastic handcuffs, waist restraint belt, vehicle leg restraint, restraint chairs, and spitting hoods. The manual contains a section on each restraint; photos of the restraint, how to apply them, risk factors when deciding to use the restraint, risk factors to the person being restrained, safety rules, and tactical considerations.
For mechanical restraints deemed intrusive (spitting hood, restraint chair, and a combination of either a rear wrist and ankle restraint, or a waist restraint belt and ankle restraint, linked by plastic ties) a supervisor’s authority must be obtained before use.
Tactical Options Reporting (TOR) forms must be submitted when using a spitting hood, restraint chair, a combination of either a rear wrist and ankle restraint, or a waist restraint belt and ankle restraint, or when using pain compliance. Pain compliance is defined as “the direct and intentional use of force by a constable that causes pain to the subject, usually evidenced by the subject showing and/ or verbalising pain.” The use of these restraints must be recorded in the police officer’s notebook and custody module along with the time the restraint was used and removed. TOR forms are reviewed by a supervisor and an Inspector. Once signed off, the TOR form is ‘completed’ and stored in the TOR database for research and analysis purposes.
A person restrained by a spitting hood, a restraint chair, or a combination of either a rear wrist and ankle restraint, or a waist restraint belt and ankle restraint linked by plastic ties, must not be in the restraint for more than two hours unless they have been assessed by a Police Medical Officer. If a Police Medical Officer is not available a registered health professional or ambulance officer is sufficient. A POL 705 Health and Safety Management Plan for Person in Custody must be completed.