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
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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/hmiprisons
About HM Inspectorate of Prisons
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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/hmiprisons
OPCAT (1)
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‘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/hmiprisons
OPCAT (2)
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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/hmiprisons
The UK NPM (1)
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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/hmiprisons/preventive-mechanism
www.justice.gov.uk/about/hmiprisons
The UK NPM (2)
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ENGLAND AND WALES
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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
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SCOTLAND
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HMI Prisons for Scotland
HMI Constabulary for Scotland
Scottish Human Rights
Commission
Mental Welfare Commission for
Scotland
Care Inspectorate
NORTHERN IRELAND
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Independent Monitoring Boards
Criminal Justice Inspectorate
Regulation and Quality
Improvement Agency
Independent Custody Visitors
www.justice.gov.uk/about/hmiprisons
OPCAT in Europe
NPM ESTABLISHED
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Albania
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Armenia
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Austria
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Croatia
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Cyprus
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Czech Republic
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Denmark
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Estonia
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France
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Germany
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Hungary
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Liechtenstein
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Luxembourg
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Macedonia, FRY
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Malta
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Moldova
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Montenegro
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Netherlands
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Poland
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Serbia
Slovenia
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Spain
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Sweden (NPM established)
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Switzerland
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Ukraine
OPCAT RATIFIED, NPM TO BE DESIGNATED
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Bosnia and Herzegovina
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Bulgaria
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Georgia
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Italy
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Portugal
OPCAT STILL TO BE RATIFIED
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Belgium
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Finland (treaty still to be ratified)
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Greece
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Iceland
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Ireland
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Norway (treaty still to be ratified)
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Romania
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Turkey
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www.justice.gov.uk/about/hmiprisons
Why independent inspection is
necessary?
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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/hmiprisons
What is detention?
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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/hmiprisons
Is it detention? (1)
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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/hmiprisons
Is it detention? (2)
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Physical restraint?
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Sedation?
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Contact with outside world?
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What is the overall purpose of measures to control or
restrict the individual’s movements?
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Is there a relevant comparator?
www.justice.gov.uk/about/hmiprisons
Types of restraint (1)
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physical – using physical force without equipment
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mechanical – using equipment such as handcuffs or
leg restraints
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chemical – using medication to restrain a detainee
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environmental – for example, using seclusion to
restrict a detainee’s movement
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www.justice.gov.uk/about/hmiprisons
Types of restraint (2)
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technological – for example, using electronic
tagging, pressure pads or alarms to alert staff to a
detainee’s movements
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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/hmiprisons
Restraint concerns in health and social
care settings (1)
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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/hmiprisons
Restraint concerns in health and social
care settings (2)
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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/hmiprisons
Restraint concerns in health and social
care settings (3)
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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/hmiprisons
Restraint concerns in health and social
care settings (4)
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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/hmiprisons
CPT standards for the use of restraint
in adult psychiatric establishments
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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/hmiprisons
UK inspection and monitoring
framework ‘Expectations’ (1)
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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
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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
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www.justice.gov.uk/about/hmiprisons
UK inspection and monitoring
framework ‘Expectations’ (2)
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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
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Monitoring bodies should have unfettered access to
all detainees and to information about them. OPCAT
Article 20
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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 illtreatment. OPCAT Articles 1, 3
www.justice.gov.uk/about/hmiprisons
UK inspection and monitoring
framework ‘Expectations’ (3)
All places of detention should be monitored
regularly. OPCAT Articles 1, 19(a)
9. Monitoring bodies should set their own criteria
against which they monitor the treatment of and
conditions for detainees. SPT Guidelines 12
10. Criteria for monitoring should be firmly grounded in
human rights standards and should be transparent.
8.
OPCAT Article 19(b)
11. Monitoring
bodies should be sufficiently resourced to
perform their role. OPCAT Article 18(3)
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www.justice.gov.uk/about/hmiprisons
UK inspection and monitoring
framework ‘Expectations’ (4)
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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
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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
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www.justice.gov.uk/about/hmiprisons
Summary
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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/hmiprisons