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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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?

11. 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?

12. 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?

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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)

23. 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

24. 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?