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
222
Ribbich v Austria [1995] 21 EHRR 573 Back
223
(2001) 33 EHRR 38, para. 112 Back
224
Herczegfalvy v Austria App No 10533/83 24/09/1992 Back
225
ibid., para. 83 Back
226
Ireland v UK [1979-1980] 2 EHRR 25 Back
227
Munjaz v Mersey Care NHS Trust [2003] ECA Civ 1036 Back
228
Adopted by General Assembly Resolution 46/119 of 17 December 1991 Back
229
Ev 41, para. 5.10 Back
230
ibid Back
231
See Ev 116-121 (Mental Health Act Commission), Ev 161 (MIND) and
Ev 147 (INQUEST) Back
232
First Report of Session 2003-04, op cit., Ev 41 Back
233
Mental Health Act 1983 Code of Practice, Chapter 19, Patients
presenting particular management problems Back
234
[2003] ECA Civ 1036 Back
235
Q 198 Back
236
Mental Health Act Commission (Q 187) and MIND (Ev 161) Back
237
10th Biennial Report 2001-2003, op cit Back
238
Ev 161 Back
239
Section 12 of the Seclusion Policy Back
240
Ev 119, para 3.9 Back
241
National Institute for Clinical Excellence, Draft Guidelines
on the short term management of disturbed (violent) behaviour
in in-patient psychiatric settings and accident and emergency
settings, July 2004 Back
242
ibid., para. 1.8.7 Back
243
Report in to the Death of Mr Roger Sylvester, op cit., Section
3, p. 5 Back
244
ibid., Section 3, p. 10 Back
245
Q 136 Back
246
United Kingdom Central Council for Nursing, Midwifery and Health
Visiting, Report on the Recognition, Prevention and Therapeutic
Management of Violence in Mental Health Care, February 2002 Back
247
National Institute for Clinical Excellence, Draft guidelines
on the short term management of disturbed (violent) behaviour
in in-patient psychiatric settings and accident and emergency
settings, July 2004, para. 1.8.7 Back
248
Ev 95 Back
249
Q 419 Back
250
Ev 147 (INQUEST) and Q 134 (MIND) Back
251
Q 180 Back
252
Q 203 Back
253
Written Ministerial Statement of Rosie WInterton MP, HC Deb.,
12 February 2004, cols. 77-78WS Back
254
National Institute for Clinical Excellence, Draft guidelines
on the short-term management of disturbed (violent) behaviour
in in-patient psychiatric settings and accident and emergency
settings, July 2004, para. 1.3.5 Back
255
Ev 95-96 Back
256
Home Office Circular 17/2004 Back
257
Q 255 Back