PREV: 2. Seclusion and restraint in New Zealand: findings from the data and visits.
The right of prisoners, patients, detainees and residents to be treated fairly and with respect for their human dignity, and not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment, does not end at the doors of seclusion rooms and segregation cells.
To all detaining agencies
- Force and all forms of restraint, including seclusion or segregation, must only be used when absolutely necessary, as last resort and for as short a time as possible. Decisions to use seclusion or restraint should be based on an individualised and proportionate risk-needs based approach, and be regularly reviewed.
- Minimum standards for decent living conditions and essential provisions as set out in the Mandela Rules and other human rights instruments must always be met. Specifically, cells and rooms must be of a reasonable size, clean, safe, well ventilated, well lit and temperature controlled. Basic requirements regarding access to fresh air and exercise, food and drinking water must always be adhered to across all detention contexts.
- Internal rooms cannot be considered an appropriate substitute to an outdoor exercise yard; access to fresh air and natural light should be provided in all the institutions which do not currently provide it.
- All cells/rooms must be equipped with a means of attracting the attention of staff, and these must be regularly checked to ensure that they are in good working order.
- Measures to enable detainees and patients to exercise more personal autonomy inside their solitary cells should be implemented. Examples include removing restrictions on the use of the toilet flush in prisons or control of light switches and room blinds in health and disability facilities.
- Facilities which are not fit for purpose should be decommissioned as soon as practicable. These include the Wellington police custody suite; the ‘silver cells’ in Auckland Men’s Management Unit, and the Free standing ‘pound’ units in all prisons.48
- Confidential and accessible complaint mechanisms must be closely safeguarded in all places of detention, and even more so in units where people are separated from others and thus potentially more vulnerable to mistreatment. All prisoners, detainees, patients and residents should have unlimited and unmonitored access to written complaints forms and means to submit these in a confidential manner, ideally using a secure complaints box which can only be accessed by a nominated member of staff, preferably someone who is not part of the treatment or custody team. People with disabilities and anyone who may have difficulties in accessing the complaints system should be provided with assistance to enable them to do so.
- Oversight mechanisms need to be strengthened, in particular with regard to placement in, and ways out of, seclusion and segregation units. These should be made proportionally more exacting as time in seclusion/segregation progresses. In the case of the ‘chronic’ stays in solitary confinement (in prisons and in health and disability settings), a national multidisciplinary oversight body which includes expertise from outside the detaining agencies, should be considered.
- Data on the use of seclusion/segregation/secure care units and the application of restraints should be recorded more fully and analysed for trends and protected characteristics such as age, gender and ethnic origin. The apparent overrepresentation of ethnic minorities, in particular Mäori, in seclusion and segregation units in prisons and health and disability units should be investigated further as a matter of urgency.49 Similarly, the apparent overrepresentation of women in prison segregation units needs to be investigated and addressed.
- Records should clearly and prominently: indicate the reason for the placement in solitary confinement or the application of restraint; the start and end times of the application of seclusion or restraint; record efforts to use less restrictive practices, and; record any injuries sustained in the process (to both detainees and staff), and any other interventions and observations regarding the person.50
- Detaining authorities should consider cross-sectoral collaboration aimed at the reduction of seclusion and restraint practices, sharing learning and good practice identified across other detention contexts. For example, the Ministry of Health’s seclusion reduction policies could be adapted to the prison context, and the Department of Corrections’ Minimum Entitlements could be adapted for use in health and disability units and in police custody suites.
- Future research should seek the views and experiences of service users-patients, prisoners and residents- during their time in seclusion, segregation, or restraint. For example, did they experience their treatment as good and caring, or as degrading and punitive? Which aspects of their confinement did they find most difficult to deal with? What could be done to improve these experiences? Similarly, more work needs to be done to understand staff perceptions and concerns about the potential consequences of reducing and eventually eliminating seclusion practices. While these concerns must not take precedence over patients’, prisoners’ and residents’ health and wellbeing, they do need to be acknowledged and addressed.
To the Ministry of Health /District Health Boards
- The Ministry of Health and individual DHBs should be applauded for their commitment to policies aimed at the reduction, and eventual elimination, of seclusion. This commitment must be supported by a reassertion of why seclusion needs to be minimised in the first place: i.e. because it is damaging, inappropriate, not conducive to the therapeutic relationship between the patient and their care givers, and because it has no therapeutic value. This can be done through further training which may also help to address staff concerns about policies to eliminate the use of seclusion.
- The physical environment of seclusion units and rooms needs to be improved. ‘Low stimulus’ need not mean barren and drab. Basic furniture can and should be introduced to rooms, especially where patients may spend longer than a few hours in seclusion. This can be special ‘safe furniture’ designed from tamper-proof materials aimed specifically for high risk patients. Patients should be allowed to keep some personal belongings and provided with something to do inside seclusion rooms.
- Call bells should always be located inside the room so that the patient always has means of communicating with staff. Light switches and blind controls should be located inside seclusion rooms unless there are compelling and temporary reasons not to do so. Mechanisms which enable staff to override patients’ control can be installed to allay any safety concerns. This will help to normalise the environment and will afford the patient/client a degree of control over their environment.
- All regular seclusion rooms should have drinking water. Where water is not provided, better arrangements for providing it need to be made to ensure ongoing access to drinking water without requiring the detained individual to have to ask for it or already stretched staff to provide it on request.
- Outdoor yards should be made more accommodating and contain, as a minimum, somewhere for the patient to sit down, and ideally also stationary exercise equipment.
- The Ministry should consider the introduction of ‘Minimum Entitlements’ for patients in a seclusion unit, including exercise time, access to a shower, a telephone, and family visits, similar to those issued by the Department of Corrections.51 This would enhance consistency throughout the system and, importantly, it would help to ensure that secluded individuals are able to access basic provisions which may also help to mitigate the harms of seclusion.
- Consideration should also be given to the amendment of sections 7.1 and 7.2 of the Ministry’s Seclusion Guidelines52 which may result in the unintended consequence of prolonging stays in seclusion and reducing time out of room. The requirement in Section 7.1 for three clinicians to authorise the termination of seclusion may lead to a delay in such termination due to lack of appropriate staff, whereas the stipulation in section 7.2 that where the patient has been out of seclusion for longer than an hour their seclusion would be deemed to have ended, may inadvertently lead to staff reluctance to allow secluded patients spend longer than an hour outside their rooms, because doing so would trigger a new seclusion event with its associated paperwork. Fresh air, exercise and engagement with staff are key elements in mitigating the adverse effects of solitary confinement and as such should be encouraged, for as long as possible. The guidelines should reiterate that this is the case.
- More work should be carried out to better understand the variation in practice between the different DHBs.
To the Department of Corrections
- Individual prisons and the Department more widely need to ensure that At Risk units are not merely another form of segregation. Prisoners in these units should be offered some form of a daily regime, and health staff should be more involved with prisoners in the units, and work with them to address the issues which resulted in their placement at the unit.
- Efforts to prevent self harm should include assurance that cells are safe and free of ligature points. We observed unsafe cells with broken fittings which could be used for self harm and potential ligature points in At Risk units. This was unacceptable. As well as ensuring that the physical environment is safe, efforts should also include offering those considered to be at risk an individualised programme of treatment and support.
- The Corrections Act allows for basic regime provisions, for example education, visits, and telephone calls, to be denied to people serving a disciplinary punishment.53 This runs contrary to international human rights law and should be amended. Basic provisions must always be provided.
- In my view, restraint beds are inherently degrading, and there is no justification for their continued use in prison settings. This extreme form of restraint should be removed from the menu of options available in prisons, just as it has been in health and disability settings.
- Mental health staff should engage more closely with segregated prisoners, and ensure that these prisoners are closely monitored for signs of deterioration (cf. Mandela Rule 46, requiring health staff to pay particular attention to the health needs of segregated prisoners).
- All prison staff working in Management units, At Risk units and any other unit where prisoners are segregated, should receive regular mental health awareness training. This will help them to recognise warning signs of distress and deteriorating mental health of segregated prisoners, and to better manage prisoners who are experiencing such difficulties.
- Prison managers should consider the introduction of food serveries in Management and Separates units, and enabling prisoners to leave their cell to collect their food tray from the servery. This will allow the prisoner another short time outside their cell, and a degree of control over this one activity. Serveries could be staffed by prisoners from the unit, providing them with an opportunity to demonstrate improved behaviour and staff with an opportunity to assess their behaviour and ability to appropriately engage with one another.
The Department must ensure that all forms of segregation and restraint are appropriately documented in an electronic register which is regularly quality assured and examined for trends, issues, and protected characteristics including ethnic origin, disability, age and gender. Monitoring should be done on the institutional and national levels.54 Registers should also include a clear indication of when the segregation or the restraint had been applied and when they ended, as well as a clear summary of why it was deemed necessary to use segregation or restraint in any one case.
- Segregation documentation / forms should be less cumbersome and more focused, and review mechanisms must be strengthened to ensure that placements in a segregation unit are regularly and robustly reviewed. All documentation must be regularly quality assured for compliance with procedures and guidelines.
- The Department should consider replicating the Ministry of Health’s ‘ seclusion reporting template’, which requires documentation of alternative measures attempted, events, reasons for seclusion and so on.
To the Ministry of Social Development (Child, Youth and Family)
- Secure Care unit rooms, as observed on visits, were inappropriate for housing children and young people in a Care and Protection residence or in a Youth Justice residence. The Ministry should consider alternatives.
- All rooms where children and young people can spend any length of time locked up (including ‘time out’ rooms) should be equipped, as a minimum, with call bells or other means for the young person to communicate with staff, and these should be checked regularly to ensure that they are in good working order.
- Where the Secure Care Unit is used, children and young people should be allowed to have some personal belongings with them including the means to study and/or do some writing.
- The ‘time out’ rooms at the youth justice residence are identical to Secure Care rooms and should be identified as such. These rooms must not be used as overflow due to shortage of beds.
To the police
- Though it is only intended for short stays, the physical environment in the custody suite at Wellington police meant that it was not fit for purpose, and should be decommissioned as soon as possible. Until that time, cell walls should be cleared of graffiti, ventilation and temperature control improved, and internal practice changes put in place as per the recommendations below, to ensure that minimum standards are met for all detainees.
- Detainees should be offered, as a minimum, a shower and an opportunity to get one hour of fresh air and exercise each day, and an opportunity to make a personal telephone call. Detainees should also be offered reading and writing materials, appropriate to their needs and abilities.
- Detainees should be provided with a sufficient quantity of clean bedding, including a sufficient number of blankets to keep them warm. Where necessary, these can be tear-proof.
- The number of people with mental health issues amongst those subjected to the application of restraints and the apparent prevalence of the use of restraints with people of ethnic minority groups need to be looked into in more detail as a matter of urgency.
- Restraint chairs are inherently degrading and their use could be considered to breach the prohibition against cruel and inhuman or degrading treatment or punishment. Their use should be abolished and alternative, less restrictive methods used.
- The use of force and the application of restraint should be proportionate to the risk or threat posed, and reserved as a last resort. If, as we were told, the use of more restrictive forms of restraint is symptomatic of difficulties dealing with detainees in crisis who require urgent psychiatric assistance, but this is not available, then the systemic reasons for this need to be urgently addressed by the relevant authorities. As a general rule, police cells are inappropriate for the mentally unwell and the emphasis needs to be put on the provision of adequate facilities and services for them, rather than using police custody as a place of safety, just because it is there and there is an absence of anything more appropriate.
- Records of the use of restraints should include the use of high-risk (strip) cells, and clearly state the start and end time of the application of restraint and/or placement in a high-risk cell.
- Body searches must be carried out in private, and not conducted on the general CCTV feed which can be viewed by anyone in the control room.
- Police cells are inappropriate for longer stays and should only be used as overflow for housing remanded prisoners in exceptional circumstances. Where stays are longer, conditions and access to activities need to be substantially enhanced.
To the NPMs
- The bodies who make up New Zealand’s National Preventative Mechanism are crucial for ensuring that all those deprived of their liberty are treated with respect for their human dignity and free from torture and cruel, inhuman or degrading treatment or punishment. As such, they have a particularly important role to play in monitoring places of detention. Nowhere is this role more important that in the most hidden part of all places of detention, namely, solitary confinement units. Training on monitoring places of detention should be better coordinated and harmonised. All NPM bodies should have refresher training in how to monitor places of detention.
- NPM members should consider the adoption of a joint approach to monitoring the use of seclusion and restraint across their different areas of responsibility55 and promoting an agenda of reducing, and eventually eliminating, the use of seclusion and restraint across the board, in line with current international thinking.
- All NPM members should consider making their monitoring reports public.
- Further work is needed to better understand the views and experiences of those subjected to seclusion or the application of restraint and those of staff working in solitary confinement units, and their perceptions of each other. Further work is also needed to gain a better understanding of the apparent overrepresentation of Mäori among secluded populations as well as cultural aspects of seclusion and restraint.
NEXT: Appendix 1: Facilities visited.