Nick Hardwick HM Chief Inspector of Prisons EPSO European Partnership for Supervisory Organisations in Health and Social Care Brussels, April 18-19 2013 INSPECTING THE USE OF FORCE AND RESTRAINT IN SECURE ACCOMMODATION Nick Hardwick HM Chief Inspector of Prisons

Inspecting the use of force and restraint HM Inspectorate of Prisons OPCAT and the UK National Preventative mechanism Why independent inspection is necessary Use of force and restraint in social care settings Inspection principles www.justice.gov.uk/about/hmi-prisons www.justice.gov.uk/about/hmi-prisons

About HM Inspectorate of Prisons Independent, human rights based with the experience of the detainee at the heart of our work A long history – dating back to C18 Role: To report on the treatment of prisoners and the conditions in prisons Remit: prisons, youth custody, police and courts custody, immigration detention, military custody www.justice.gov.uk/about/hmi-prisons

OPCAT (1) ‘Optional Protocol to the UN Convention Against Torture and other cruel, inhuman or degrading treatment or punishment’ – 2002 Some overlap with the Council of Europe Committee for the Prevention of Torture (CPT) OPCAT requires an independent ‘National Preventative Mechanism’ NOT a regulator, auditor or complaints handler Adequately resourced with diverse and expert personnel www.justice.gov.uk/about/hmi-prisons www.justice.gov.uk/about/hmi-prisons

OPCAT (2) Regular independent inspection of all places where people are detained Freedom to choose where and when to go Complete access and opportunity for private interviews Access to information Public reporting Make recommendations and free to comment on legislation www.justice.gov.uk/about/hmi-prisons www.justice.gov.uk/about/hmi-prisons

The UK NPM (1) OPCAT ratified 2003 NPM established 2009 18 existing bodies inspecting or monitoring criminal justice, immigration, health/social care and children England, Scotland, Wales and Northern Ireland Co-ordinated by HMI Prisons http://www.justice.gov.uk/about/hmi-prisons/preventive-mechanism www.justice.gov.uk/about/hmi-prisons

The UK NPM (2) ENGLAND AND WALES SCOTLAND NORTHERN IRELAND HMI Prisons Independent Monitoring Boards Independent Custody Visitors HMI Constabulary Care Quality Commission Office for the Children’s Commissioner for England Office for Standards in Education, Children’s Services and Skills Care and Social Services Inspectorate Wales Healthcare Inspectorate Wales SCOTLAND HMI Prisons for Scotland HMI Constabulary for Scotland Scottish Human Rights Commission Mental Welfare Commission for Scotland Care Inspectorate NORTHERN IRELAND Independent Monitoring Boards Criminal Justice Inspectorate Regulation and Quality Improvement Agency Independent Custody Visitors www.justice.gov.uk/about/hmi-prisons

OPCAT in Europe www.justice.gov.uk/about/hmi-prisons NPM ESTABLISHED Albania Armenia Austria Croatia Cyprus Czech Republic Denmark Estonia France Germany Hungary Liechtenstein Luxembourg Macedonia, FRY Malta Moldova Montenegro Netherlands Poland Serbia Slovenia Spain Sweden (NPM established) Switzerland Ukraine OPCAT RATIFIED, NPM TO BE DESIGNATED Bosnia and Herzegovina Bulgaria Georgia Italy Portugal OPCAT STILL TO BE RATIFIED Belgium Finland (treaty still to be ratified) Greece Iceland Ireland Norway (treaty still to be ratified) Romania Turkey www.justice.gov.uk/about/hmi-prisons

Why independent inspection is necessary? The power imbalance between the detainee and custodian The closed nature of the institution and the supposed lack of credibility of the detainee The normative effects of custody The ‘virtual prison' Low morale and poor training of staff www.justice.gov.uk/about/hmi-prisons www.justice.gov.uk/about/hmi-prisons

What is detention? Prisons, police cells etc People with dementia in a care facility who are prevented from leaving for reasons of safety? People in hospital with mental health problems who are not formally detained but are ‘detainable if wishes to leave’? People in community settings who are locked in at night or for part of the day? Children detained in community settings with the consent of their parents? www.justice.gov.uk/about/hmi-prisons

Is it detention? (1) Is the person confined in a restricted space for more than a very short time? Has the person given valid consent to the confinement? Is the state responsible? For example, independent care homes may breach article 5 of ECHR if they unlawfully detain an individual who has been placed there by, or with the permission of, a state authority. Is the person free to leave? Duration of the measure? www.justice.gov.uk/about/hmi-prisons

Is it detention? (2) Physical restraint? Sedation? Contact with outside world? What is the overall purpose of measures to control or restrict the individual’s movements? Is there a relevant comparator? www.justice.gov.uk/about/hmi-prisons

Types of restraint (1) physical – using physical force without equipment mechanical – using equipment such as handcuffs or leg restraints chemical – using medication to restrain a detainee environmental – for example, using seclusion to restrict a detainee’s movement www.justice.gov.uk/about/hmi-prisons

Types of restraint (2) technological – for example, using electronic tagging, pressure pads or alarms to alert staff to a detainee’s movements psychological – for example, repeatedly telling someone, especially a vulnerable person, that they are not allowed to do something or that it is dangerous, or depriving a detainee of something that is necessary for what they want to do, such as a walking aid www.justice.gov.uk/about/hmi-prisons

Restraint concerns in health and social care settings (1) Mental Welfare Commission Scotland (MCWS): 113 incidents/20 required restraint 3 ‘floor restraint’/others seated or guidance 6 restrained regularly (fortnightly to daily) Staff trained 1 inappropriate incident 1 institution with no records www.justice.gov.uk/about/hmi-prisons

Restraint concerns in health and social care settings (2) MCWS concerns cont. People with different security needs on same ward Inappropriate use of chemical restraints Lack of restraint – failure to assist a mentally ill patient with terminal cancer to die with dignity www.justice.gov.uk/about/hmi-prisons

Restraint concerns in health and social care settings (3) Regulation and Quality Improvement Agency (RQIA) Range of restraints found: rapid tranquilisation, bed rails, lap straps, arm splints, specialist sleepwear Inadequate training and polices Patients complained of injury www.justice.gov.uk/about/hmi-prisons

Restraint concerns in health and social care settings (4) RQIA concerns cont. In non-secure settings: Locked internal doors, locked external doors and gates, use of exclusion Lack of understanding services were restrictive, failure to assess impact on individuals, poor assessment processes and little consultation with services users and/or their representatives Absence of safeguards www.justice.gov.uk/about/hmi-prisons

CPT standards for the use of restraint in adult psychiatric establishments Subject to clearly defined policy Last resort and usually restricted to manual control Trained staff Physical restraints only used with medical authorisation, for the minimum time possible and never as a punishment Professional supervision of medication and sedation Seclusion should be avoided All incidents fully recorded to facilitate management and oversight www.justice.gov.uk/about/hmi-prisons

UK inspection and monitoring framework ‘Expectations’ (1) Monitoring bodies should be independent of the authorities visited/ inspected and of the government. OPCAT Articles 17, 18(1) Monitoring bodies should be impartial. SPT Guidelines 18, 19, 30 Monitoring bodies should have the right to publish their findings and to make recommendations for the purpose of preventing ill-treatment and improving standards in detention. OPCAT Articles 19(b), (c); SPT Guidelines 36 www.justice.gov.uk/about/hmi-prisons

UK inspection and monitoring framework ‘Expectations’ (2) Monitoring bodies should have unfettered access to places of detention. Access should be granted even where monitoring bodies arrive unannounced. OPCAT Articles 20(c), (e); SPT Guidelines 25 Monitoring bodies should have unfettered access to all detainees and to information about them. OPCAT Article 20 The voice of the detainee is an essential component of any monitoring of places of detention. OPCAT Article 20(d) There must be a focus on the prevention of ill-treatment. OPCAT Articles 1, 3 www.justice.gov.uk/about/hmi-prisons

UK inspection and monitoring framework ‘Expectations’ (3) All places of detention should be monitored regularly. OPCAT Articles 1, 19(a) Monitoring bodies should set their own criteria against which they monitor the treatment of and conditions for detainees. SPT Guidelines 12 Criteria for monitoring should be firmly grounded in human rights standards and should be transparent. OPCAT Article 19(b) Monitoring bodies should be sufficiently resourced to perform their role. OPCAT Article 18(3) www.justice.gov.uk/about/hmi-prisons

UK inspection and monitoring framework ‘Expectations’ (4) The remit of monitoring bodies should be set out in statute. SPT Guidelines 7 The staff of monitoring bodies should be recruited and appointed in an open and fair manner. SPT Guidelines 16 Monitoring bodies should promote and encourage respect for diversity, both in their own workforce and when monitoring places of detention. OPCAT Article 18(2); SPT on Prevention 5 www.justice.gov.uk/about/hmi-prisons

Summary Is it detention? Is the person restrained? Can they move where they wish? Is any restraint necessary, proportionate, safe, authorised, recorded? Is there a human rights based, regular, independent, preventative inspection and monitoring framework? www.justice.gov.uk/about/hmi-prisons