Joint Committee On Human Rights

Joint Committee On Human Rights Third Report

8 Physical restraint and seclusion

Restraint and seclusion in detention

224. Although deaths in custody resulting from control and restraint appear to be relatively rare, they are a cause for serious concern. A reliable, comprehensive assessment of the number of deaths attributable to control and restraint in custody is difficult, in particular in relation to psychiatric detention. The MHAC estimates that one patient per annum over the last seven years died whilst control and restraint was being administered.[212] However, there is no national database of figures for patient deaths connected to the use of restraint, and the cause of death of detained patients is often unclear, as the use of restraint may lead, for example, to heart failure.[213] There is therefore concern that some deaths recorded as being from natural causes may in fact be attributable to restraint. INQUEST state that: "the existing internal systems for examining and reporting these deaths are so poor that we believe some contentious deaths could escape any public scrutiny".[214]

225. In police custody, although the evidence of both the PCA and the Home Office suggest that deaths directly attributable to control and restraint are relatively rare, the PCA stressed that such deaths were preventable, and as such were a matter of serious concern. The PCA noted that 10% of complaints to them of assault in custody were upheld.[215] INQUEST reported that their casework showed an increase in the number of restraint-related deaths in police custody in recent years.

226. There has recently been one death following restraint in a young offenders' institution, following a number of years without any such deaths in prisons.[216]

227. Despite the dearth of statistics in this area, it is clear that the unsafe use of restraint is an ongoing problem across all forms of detention. Evidence from the MHAC and INQUEST cites a number of recent deaths involving control and restraint.[217] The report of the Inquiry into the Death of David ("Rocky") Bennett, a detained psychiatric patient who died after having been restrained in a prone position for 25 minutes, contained strong criticism of control and restraint procedures,[218] as did the Report of the Inquest into the Death of Roger Sylvester, who died in police custody following the use of restraint.[219]

The human rights framework

228. The use of physical restraint by State employees raises an acute issue of Article 2 compliance. Used excessively or inappropriately so as to cause the death of a detainee, restraint may breach the State's most fundamental duty not to deprive the individual of life. Any death that occurs during or following restraint places a heavy onus on the responsible authorities to justify their action as Article 2 compliant. Where they fail to do so satisfactorily, not only is public confidence in the health or criminal justice systems seriously undermined, but the responsible authorities are likely to be held in breach of their obligations under the Human Rights Act.

229. Article 2 is violated not only where deliberate or negligent acts of police, nurses or prison officers involved in restraint lead to the death of a detainee, but also where systemic failings, in management, instruction and training, may combine to lead to an unnecessary or excessive use of force.[220] Planning and control of action which may endanger life, information provision regarding the threat to which there must be a response, and the training of officials in the use of physical force which may endanger life may, in combination, lead to a breach of Article 2, where they are not tailored to minimise risk to life.[221] We consider the particular issues involved in the training of staff in control and restraint in Chapter 9 below.

230. A number of other Convention rights provide a framework in which Article 2 rights must be protected in the use of restraint. Use of physical restraint engages Article 8, the right to physical integrity, and Article 3, the freedom from inhuman and degrading treatment. Article 3 provides particularly strong protection for people in detention, and there is a presumption that unnecessary physical force against a detainee reaches the otherwise high threshold required to establish inhuman and degrading treatment.[222] In Keenan v UK, the European Court of Human Rights set down this general principle—

223

231. As a general rule, a measure which can be convincingly established to be a therapeutic necessity cannot be regarded as inhuman and degrading treatment in contravention of Article 3.[224] The onus is on the applicant to disprove any assertion that medical necessity justified the use of restraint against him in the particular circumstances of the case.[225] Whether restraint amounts to inhuman and degrading treatment under Article 3 may also depend on the characteristics of the person concerned. Age, sex and health will be relevant, as will the physical and mental effects on the person restrained.[226] Particular vulnerabilities of which the detaining authorities knew or ought to have known, such as a history of past physical abuse, may therefore contribute to a finding of an Article 3 violation in the use of restraint.

232. Article 8, which protects the right to physical integrity, requires that action that interferes with physical integrity should be in accordance with established law and guidelines, that it should be for a legitimate purpose, and that it should be necessary for and proportionate to that purpose. For a physical intervention to be considered proportionate, it must be the least intrusive measure possible in the circumstances. Proportionality therefore requires both that any form of restraint should be a last resort only; and that where there must be recourse to restraint it is the minimum necessary, and applied for the shortest time necessary, to ensure safety.

233. Finally, and significantly given the issues of racial bias that have been raised in this inquiry, Article 14 ECHR, which requires that there must be no discrimination in the protection of Convention rights, makes the principle of equality central to the obligations to protect life and physical integrity under Articles 2, 3, and 8 in the use of restraint against detained persons. Where any of these rights are engaged, a difference in treatment which cannot be objectively and reasonably justified in the circumstances, will breach Article 14.

234. Human rights standards and the principle of proportionality require that any form of physical restraint should be a last resort. Staff should therefore be equipped with a range of skills to deal with and de-escalate potentially violent situations, as well as a range of restraint techniques that will allow for use of the minimum level of force possible. Restraint in detention should be a rare event, and should never be used as a matter of routine.

235. Alternatives to physical restraint, comprehensively explored in research and policy in mental healthcare, include techniques of de-escalation and the use of seclusion. Seclusion—the supervised confinement of a patient for the protection of others—engages Articles 3 and 8 ECHR. Where it is used in respect of a patient at risk of suicide, it may also engage Article 2. A recent decision of the Court of Appeal has confirmed that, in order to protect the Convention rights, the provisions in the MHA Code of Practice limiting its use must be complied with unless there is a good reason to depart from them.[227]

236. The principles of necessity and proportionality in the recourse to restraint and seclusion are echoed, in the mental health context, in principle 11 of the UN Principles for the protection of persons with mental illness and the improvement of mental health care.[228] It provides—

Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose.

Restraint and seclusion in Mental Health Act detention: The regulatory framework

237. Powers of control and restraint in Mental Health Act detention are exercised in accordance with the Mental Health Act 1983 Code of Practice, as well as other non-binding guidelines.[229] The Code of Practice requires that use of control and restraint should be used only as a last resort, that it should be considered in each patient's care plan, and that incidents of control and restraint should be recorded in patients' notes. The Mental Health Act Commission's written evidence observes that there is a "raft" of guidance on the use of control and restraint, and lists eight different sources of guidance.[230] The Mental Health Act Commission, MIND and INQUEST amongst others have raised concerns about excessive or unregulated use of control and restraint, contrary to the terms of the Code of Practice.[231] There is concern that Code of Practice requirements that restraint should be used only as a last resort are not implemented in practice; that those who have died in custody as a result of restraint are disproportionately from ethnic minority groups; and that there is insufficient recording and monitoring of the use of control and restraint.

238. The evidence we received consistently maintains that this body of guidance is not effective in preventing the misapplication of restraint in practice, potentially in breach of Article 2 and other ECHR rights. The MHAC considers that this "requires consolidation and official sanction, so that detailed guidance with formal status and legal weight underlies statutory regulation".[232]

239. There is no provision for powers of seclusion in the Mental Health Act 1983, but such powers are provided for under the 1983 Code of Practice which requires that seclusion should only be used as a last resort and should be used for the shortest possible time. It should not be used as a punishment, as a means of coping with staff shortages, or where there is a risk of suicide or self-harm.[233] The status of the Code of Practice, in relation to both seclusion and control and restraint, has been elevated by the recent case of R v Ashworth Hospital, ex parte Munjaz,[234] where the Court of Appeal found that it was unlawful for Ashworth Special Hospital to use seclusion contrary to the Code of Practice. It found that, in order to protect rights under Article 8 and Article 3 ECHR, departure from the code of practice in relation to seclusion was only lawful where it could be shown to be necessary in a particular case, in the best interests of the patient. The Department of Health, responding to the judgment, stated that good practice required any departure from the Code to be recorded, and noted that the Mental Health Act Commission's policy is to treat unsubstantiated departures from the Code to be prima facie evidence of poor practice. The case is currently under appeal to the House of Lords.

Compliance with the Code of Practice

240. Whether, following Munjaz, the Code of Practice is now satisfactorily complied with in relation to seclusion, and control and restraint, is disputed. Mr Ladyman told us in his oral evidence that he was "broadly content" that it was.[235] Both the MHAC and MIND contested this, maintaining that the Code of Practice was being departed from, not incidentally, but as a matter of policy, in a number of hospitals.[236] The MHAC's review of seclusion practice in its recent Biennial Report in particular found that 68% of hospitals surveyed did not provide safe seclusion facilities for detainees.[237] MIND pointed out that it was very difficult to be certain that the Code of Practice was complied with, given the dearth of central data on compliance. [238]

241. Practice on seclusion appears to vary significantly. Seclusion policy at Broadmoor, for example, does envisage departure from the Code of Practice through the use of long-term seclusion for "a small number of patients" who remain "extremely resistant to all currently available treatments and present a continuing high risk of significant harm to others".[239] To be Convention-compliant, long-term seclusion in contravention of the Code of Practice must be used in the most exceptional cases only, where it can be shown to be necessary, and not in response to difficulties of management or staffing. By contrast, at the Caswell Clinic, a medium-secure unit which we also visited, seclusion is not used at all. This suggests a high onus on those units which do use seclusion to justify it closely as human rights compliant.

242. Failure to justify a departure from the Code of Practice as a necessary and proportionate response to the exceptional circumstances of a specific case is likely to lead to the responsible health authority being found in breach of the Human Rights Act. We remain concerned at the evidence we have received, including from the statutory body responsible for review of mental health services, attesting to the low level of compliance with guidelines on the use of seclusion and of physical force against vulnerable people who have been deprived of their liberty. This situation carries a serious risk of breach of rights under Article 2, Article 3 and Article 8 of the Convention. We recommend that the Department of Health should take further steps to ensure that health authorities are aware of their responsibilities under the Human Rights Act following the Munjaz case, and that health authorities should implement the necessary changes to seclusion policies and apply them in practice.

243. The MHAC argues that, whilst considerations of flexibility mean that the Code of Practice as a whole should remain non-binding, clear statutory requirements should be set in relation to a number of matters: staff training on control and restraint; staff and patient debriefings following the use of restraint; and record-keeping of control and restraint incidents. Within this framework, guidelines, fortified by the Convention requirements as applied in Munjaz, could continue to regulate control and restraint. The MHAC pointed out that "such regulation could provide real benefit to patients and staff alike, particularly in relation to ensuring and promoting human rights based practice and removing the current uncertainties over legal powers and practice".[240] The draft Mental Health Bill provides the opportunity to bolster the Code of Practice, by giving elements of the Code statutory force. However, Mr Ladyman indicated that he was not minded to give statutory force to any elements of the Code, while stressing that no final decisions had been taken.

244. The forthcoming draft NICE guidelines on the Short-Term Management of Disturbed/Violent Behaviour in Psychiatric In-patient settings and accident and emergency settings are designed to provide a firmer foundation for good practice in this area.[241] The Guidelines set out detailed standards for risk assessment, training, patient liaison, application of de-escalation techniques, patient observation, and the use of physical restraint and seclusion. They also set out procedures for recording and review of violent incidents. The Draft Guidelines provide that where physical force is used, the level of force applied must be justifiable, appropriate, reasonable and proportionate to a specific situation and should be applied for the minimum possible amount of time.[242]

245. We welcome the enhanced standards and transparency that these guidelines will bring. We also note that, as discussed above, following the Munjaz case, there is a legal duty on health authorities to comply with guidelines or justify any departure from them in exceptional circumstances. Positive initiatives have also followed the publication of the David Bennett report. The Secretary of State for Health announced the establishment of a Cross-Government Group on the Management of Aggression and Violence, and a programme of work in conjunction with the National Patient Safety Agency (NPSA) to improve the organisation and quality of training for staff. Nevertheless, we remain concerned at the under-enforcement of guidance in this highly human rights-sensitive area. We are not confident that Convention compliance can be effectively and comprehensively ensured without some statutory obligations in this area. This should include statutory obligations on all health authorities to keep comprehensive records of all violent incidents.

Restraint in the prone position

246. Restraint in the prone position has been particularly controversial because of the dangers it carries to the patient, and it has been implicated in a number of deaths. At present there is no guidance on a maximum time for restraint in this position, in either police or Mental Health Act detention. The NICE guidance currently in draft form does not prescribe a time limit for prone restraint, but the Report into the Death of David Bennett, who died following prolonged prone restraint, recommended that detainees should not be restrained in a prone position for longer than three minutes. The Rule 43 Report of the Inquest into the Death of Roger Sylvester also favoured a time limit following which a detainee held in prone restraint would have to be repositioned: "If a mandatory repositioning after 10 minutes was accepted as well as dangers inherent in repositioning after 10 minutes then this would encourage a focus upon obtaining the necessary medical assessment and intervention within that 10 minutes".[243] The report, although noting that there may be dangers involved in mandatory repositioning of a detainee at a fixed time limit, concluded that: "risks of any injury or harm as a result of repositioning are undesirable results which however avoid a worse one if an apparently mentally ill person dies suddenly during prolonged resistance against prone restraint".[244]

247. In our visits to secure hospitals, it was confirmed to us that staff did not observe any fixed limit, such as three or ten minutes, on the amount of time a patient could be restrained in the prone position, but that their training emphasised the risks of asphyxiation in this position, and the aim was to raise the patient as quickly as possible.

248. Reliance on prone restraint is a matter of concern for compliance with Article 2, given the known dangers of this position, evidenced by previous deaths. Whilst we appreciate that an inflexible time limit may cause difficulties in practice, we emphasise that Article 2 requires that patients and detainees should not be placed at risk by use of this position unless absolutely necessary to avert a greater risk to themselves or others, and that they should be restrained in this position for the shortest possible time necessary. In our view use of the prone position, and in particular prolonged use, needs to be very closely justified against the circumstances of the case, and this should be reflected in guidance. There is a case for guidance prescribing time-limits for prone restraint, departure from which would have to be justified by individual circumstances. Equally importantly, those restraining a detainee should be capable of minimising the risks to him or her, through techniques to ensure, amongst other things, that airways are not blocked. They should be appropriately trained to do so.

Pain Compliance

249. The purpose of restraint is to bring a dangerous situation under control, and restraint will only be justified as human rights compliant to the extent that it is necessary to achieve that. Restraint which deliberately causes pain to the person under restraint in order to bring them under control is particularly difficult to justify in human rights terms.

250. MIND cited "anecdotal evidence of people within mental health settings being given restraint training which relies on the use of pain rather than on de-escalation techniques".[245] This is confirmed by a survey carried out by the UK Central Council for Nursing, Midwifery and Health Visiting, which found that 61% of those trained in control and restraint had received training on the use of pain to induce compliance.[246] On visits to secure hospitals, we were told that training was provided on the use of pain to induce compliance with restraint, but that this was on the understanding that pain compliance would be used only as a last resort, and to the minimum degree necessary to defuse a dangerous, violent situation.

251. Our understanding is that where pain is used to induce compliance, it is minimal and non-life threatening (for example, bending back a thumb). Such methods are unlikely to engage Article 2, additionally to any use of control and restraint. However, it is not clear that this is the case in every instance where pain compliance is used. Furthermore, the use of pain in restraint, even where the pain is minimal, risks amounting to inhuman and degrading treatment in breach of Article 3.

252. Draft NICE guidance suggests that such techniques should be permitted only in exceptional circumstances where no other means of control are available.[247] We support the draft NICE guidance that pain compliance should only be used where necessary in exceptional circumstances, but consider that, in order to be human rights compliant, it will need to be very narrowly construed. In the most exceptional circumstances where the use of pain is considered necessary to avoid a threat to the life of or threat of serious injury to the person being restrained, or others, it would need to be very carefully justified, and be used to the minimum degree necessary. Training should emphasise these points, and should draw attention to the human rights aspects of this technique.

Discriminatory use of control and restraint

253. A serious concern expressed in relation to restraint, in police as in mental health custody, is that it is used in a racially discriminatory way, in potential breach of both Article 14 ECHR (read with Article 8 or Article 3 ECHR) and of the Race Relations Acts. However, a systemic problem of race-related restraint deaths in any custodial setting is difficult to establish. In the case of police custody, for example, the PCA told us that, although rates of deaths in police custody were higher for those from ethnic minorities, discrimination was very difficult to prove in individual cases. They did not discount the possibility of it, but considered that more detailed research was needed. The PCA also pointed out that, for the future, the increased transparency in the new IPCC system of investigations should assist in exposing any discrimination in individual cases. The Home Office cited independent research which it recently commissioned which found no issues of discrimination against ethnic minorities or racial stereotyping in relation to deaths in police custody.[248] ACPO confirmed that there is no consistent monitoring across all police forces for ethnicity in the use of control and restraint.[249]

254. In relation to Mental Health Act detention, the Report on the Death of David Bennett supported evidence from INQUEST and others of the discriminatory use of control and restraint against ethnic minorities.[250] The MHAC told us that 28% of restraint-related deaths in the last seven years had been of ethnic minority patients, in contrast to an ethnic minority patient population of about 5-6%. The Commission found it difficult to draw conclusions from this research, however, as the numbers were so small.[251] Mr Ladyman told the Committee in oral evidence that there was a lack of research in this area to clearly establish race discrimination.[252] This may shortly be addressed: the MHAC referred to its ongoing research, carried out in conjunction with the National Institute of Mental Health in England, to assess mental health services for minority patients. Furthermore, the Department of Health's response to the David Bennett inquiry accepted the need to address racism in the NHS and announced a programme of work, to be directed by the MHAC, to combat this.[253] Draft NICE guidance, soon to be finalised, recommends training for all staff in cultural awareness.[254]

255. The positive duty to promote race equality, under the Race Relations (Amendment) Act 2000, places a substantial obligation on the Home Office, and on individual police forces, to proactively ensure that human rights intrusive powers such as control and restraint are not used in a discriminatory way. The government drew attention to a number of initiatives taken in light of this responsibility to promote equality.[255] Each police force is required to have a Race Equality Scheme in place, and CENTREX, the organisation responsible for police training, has introduced a training programme designed to meet this obligation. ACPO's Race Diversity Strategy also provides guidance to forces on race equality issues. The Home Office also told us that Guidance had been issued in response to the findings of the David Bennett inquiry[256] and assured us that "every police force will be expected to develop local protocols that reflect the kinds of concerns highlighted in the report". [257]

256. The possibility that racial stereotyping has been a contributory factor in at least some deaths in custody resulting from restraint should be taken seriously, by both police forces and NHS trusts, as an alert to the risk of a breach of Article 2 ECHR, of Article 14 ECHR read with Articles 2, 3 and 8, and of the obligations of police forces under the Race Relations Acts. The perception of discriminatory use of restraint is supported by what is generally acknowledged to be patchy compliance with ACPO guidelines on restraint, and variation in the training in restraint techniques provided to police officers. Race equality schemes under the Race Relations (Amendment) Act need to provide for measures to prevent discrimination in the use of restraint. We emphasise the need for training of all staff who may be involved in control and restraint, to include cultural awareness in its use. This obligation arises both under the Human Rights Act and under the positive duty to promote race equality in the Race Relations (Amendment) Act 2000. Such training should be to national standards and delivered by accredited trainers, as recommended above.

Detainee Involvement

257. One means by which appropriate and proportionate use of restraint can be ensured is by involving a patient or prisoner who may become violent, in advance, in deciding on the responses to be taken to such violence, for example as part of a care plan in Mental Health Act detention. This can assist in establishing a culture which is not solely or primarily one of control or force, but one in which a detainee's human rights and the safety of others are balanced and respected. A Mental Health Act detainee might, for example, express an advance preference to be dealt with by seclusion, control and restraint, or rapid tranquillisation if he or she were to become violent. A personal choice expressed by a detainee would not of course absolve prison or mental health staff from the duty to apply measures proportionately and in a human rights compliant manner if the situation arose.

212 Q 169 Back

213 Ev 190 Back

214 First Report of Session 2003-04, op cit., Ev 93 Back

215 Q 383 Back

216 The death of Gareth Myatt at Rainsbrook secure training centre. See Ev 143 Back

217 See Ev 121 and Ev 142-146 Back

218 Norfolk, Suffolk and Cambridgeshire Health Authority, Independent Inquiry into the Death of David Bennett, December 2003, pp. 28-29 Back

219 Inquest into the Death of Mr Roger Sylvester, Report under Rule 43 of the Coroner's Rules 1984, April 2004, HM Coroner's Court St. Pancras Back

220 McCann v UK [1996] 21 EHRR 97, where the planning and control of an operation to arrest terrorist suspects, which led to the death of the suspects, was held to breach Article 2, though no blame was attached to the officers operating on the ground. Back

221 ibid Back