The Human Rights Commissioner is calling for the reduction, if not total elimination, of seclusion and restraint, following a critical new review. Laura Walters reports
The author of a new report into New Zealand government agencies’ ongoing use of seclusion and restraint says she feels a sense of “disappointment and despair”.
Dr Sharon Shalev, from Oxford University’s Centre for Criminology, was asked by the Human Rights Commission to carry out research on the use of seclusion, restraint and force across care and protection, justice, corrections, police and health facilities.
Time for a Paradigm Shift, which was released on Thursday, found there has been little improvement in the use of seclusion and restraint, and in some cases things have gotten worse, since Shalev released her initial research in 2017.
The review found in a number of facilities and agencies the use of seclusion, restraint and force had increased. The practices were used “too often and for too long”.
Māori and Pasifika people, as well as women, were secluded at higher rates. Shalev recommended further analysis on the existing bias within the decision-making process.
The report also noted fragmented, missing and out-of-date data made it difficult to build a full picture of the situation across the country, and to identify where changes needed to be made.
After the release of Shalev’s 2017 report, the relevant agencies, including Oranga Tamariki, Police, Corrections and Health, committed to implementing recommendations and improving practices.
Shalev said she was “perplexed” at the latest findings that showed apart for some shifts at the margins, the use of seclusion and solitary confinement often remained a “catch-all response”.
“I don’t quite understand the gap between declarations and what’s happening on the ground,” she said.
“To be honest with you, I had this big sense of despair, because so little has changed.”
Children
While Oranga Tamariki had reduced the amount of time children spent in the ‘secure care’ room at care and protection residences, the use of seclusion at youth justice facilities had more than doubled.
In one facility, children were held in a secure room for more than a week on 22 occasions, in a six-month period.
Shalev said this was a “mana-stripping environment” for children, which caused further harm and retraumatisation.
The use of seclusion on children and young people was also a breach of international human rights law.
Shalev recommended the elimination of the use of secure rooms, seclusion or solitary confinement in any form for people under the age of 18.
“These facilities and the legal basis of seclusion and restraint have their origins in the children’s homes and borstals of last century.”
This recommendation was supported by both Human Rights Commissioner Paul Hunt and Children’s Commissioner Andrew Becroft.
Becroft said the review also showed the urgent need for the phased closure of the four large care and protection residences, and the reduced use and eventual abolition of the four youth justice detention centres.
“These facilities and the legal basis of seclusion and restraint have their origins in the children’s homes and borstals of last century. They are outdated and have no place in the provision of compassionate, therapeutic care.”
Becroft said the report raised profound concerns about the treatment of children and young people in the country’s ‘secure residences’. He said they were retraumatising, and often provoked the distressed behaviour that the use of seclusion and restraint was supposed to manage.
“None of us would want our own children to live in these places, and we should demand the closure of large, institutional residences.”
As was the case across all detention facilities, Māori were disproportionately impacted.
Shalev said Oranga Tamriki (like other agencies) had made commitments to Māori values and culture on paper, but what was happening in practice was not in-line with those declarations.
Prisons
The report recognised Corrections’ improvements in some areas, but an increase in the use of restraint and force was noted as a cause for concern. As well as the “catch-all” way in which segregation and at-risk units were used.
There was a substantial increase in use of restraint, mostly handcuffs, from 423 over a six-month period in 2016, to 1488 over 12 months in 2019.
Pepper spray was used 118 times.
Meanwhile, there were discrepancies of both race and gender, with Māori and women being segregated more frequently.
There were 255 instances of segregation per every 100 women, compared to 147 instances per every 100 men.
And in women’s prisons, Māori women made up 78 percent of all stays in the most restrictive form of segregation (‘management units’) in 2019, and were segregated for longer than Pākehā or Pacific women.
The report also questioned the use of pepper spray, and whether it was used as a last-resort, and raised the issue of conditions for those in segregation, including exercise and access to family.
Chief custody officer Neil Beales said work was underway to address many of the issues raised in the report.
As well as the elimination of ‘tie-down beds’ in prisons, Corrections had implemented a pilot mental health service and support for people who were vulnerable to self harm or suicide; a purpose-built maximum security facility at Auckland Prison; and the introduction of the organisational strategy Hokai Rangi, which aimed to help Corrections achieve better outcomes with Māori and their whānau.
A 100-bed mental health and addiction treatment facility was being constructed at Waikeria Prison.
And frontline staff were undergoing skills training in identifying and managing people’s mental health needs.
But Beales said there was an ongoing need for segregation, restraint and force in order to keep prisoners and staff safe.
He spoke about an increase in the number of gang members, prisoners who had returned from Australia and methamphetamine users, which made for a dynamic and challenging environment, where violence was normalised.
Health and disabilities facilities
It was a similar story at the country’s health and disability facilities.
While the Ministry of Health has committed to a national initiative to reduce the use of seclusion and restraint, the data on force and restraint provided cause for concern.
Over a period of six months to February 2020, restraints were used 358 times.
More than half of these uses were with female service users, and 42 percent were Māori.
The majority of restraint uses involved personal holds, but close to a third (114) involved prone restraints, where the person was held chest-down.
One of these holds lasted 1463 minutes (more than 24 hours), others lasted 290 minutes (almost five hours), 100 minutes and 125 minutes in others.
“These, clearly, are incredibly long times, especially considering that because of the health risks associated with prone restraints, international good practice suggests that they should only be used in exceptional, emergency situations,” Shalev said.
And while the average number of seclusion events per person rose from 2.12 to 2.86, the average length of seclusion events slightly reduced.
“Space does not allow detailed examination or discussion of why seclusion and restraint practices persist despite efforts to limit and eventually eradicate them.” – Dr Sharon Shalev
The Ministry of Health deputy director-general of mental health and addiction Toni Gutschlag said there were a range of initiatives in place to reduce the use of seclusion and restraint in health and disability services.
As well as the “aspirational” goal to nationally eliminate the use of seclusion by 2020, there were also new standards, and the development of evidence-based tools, to minimise the use of restraint and implement standards for safe practice.
Meanwhile, the Government had invested about $435 million for new and upgraded mental health facilities, to ensure fit-for-purpose environments that supported contemporary models of care and created therapeutic environments for clients, whānau and staff.
Gutschlag said work was also underway to improve the reporting of mental health data, and to make sure the data was available in a more timely manner and was standardised across the country.
Shalev said while there was a genuine commitment to improve practices and reduce the use of restraint and seclusion, she believed the ministry and DHBs needed to dig a bit further to find out who or what was standing in the way of their zero seclusion goals.
“Space does not allow detailed examination or discussion of why seclusion and restraint practices persist despite efforts to limit and eventually eradicate them,” she said in the report. Institutional change is difficult to achieve, and staffing pressures undoubtedly make change even more difficult.”
Police
The report said the review did not examine the use of restraints by the police, “despite serious concerns about practices in Police custody suites in 2016/17”, because police did not cooperate in the provision of data.
Police said the data missing from the report was not a reflection of its commitment to improving custody safety for all.
“It is important to state that although a review of police’s custody improvements is not included in Dr Shalev’s report ‘Seclusion and Restraint – Time for a Paradigm Shift’, we are working diligently to improve how we care for people in our custody,” assistant commissioner of response and operations Tusha Penny said.
“If your state of mind is that the answer to a distressed person is to shut them in a small room, or cell, then it doesn’t matter how many staff members you have, you’re going to continue doing that.”
Penny said this work, which largely came about as a result of Shalev’s 2017 report, included a national programme to improve custody practices and facilities.
The programme included upgrading facilities, adapting policies and procedures, a focus on improved training, and developing a set of national standards to ensure police were providing a consistent level of care throughout the country.
In the statement to Newsroom regarding the provision of police data, a police spokesperson said while police complied with its obligations under the Official Information Act, “we appreciate that we could have proactively engaged more with the report’s author”.
Shalev said robust data collection was basic, and crucial – across all agencies.
“Without the data you cannot hope for change. You need to know what’s going on in order to know what needs to change.”
Culture change needed
Shalev said the heart of the problem was driven by cultural issues, rather than a lack of resourcing, as is often stated.
“If your state of mind is that the answer to a distressed person is to shut them in a small room, or cell, then it doesn’t matter how many staff members you have, you’re going to continue doing that.”
This was why Shalev and the Human Rights Commission were calling for a shift in the way detention agencies view the use of seclusion, restraint and force.
And ideally, a move towards phasing out these practices.
“You have a population which is highly traumatised, already – people with some really difficult life stories.
“And you take them, and you put them in a small room with nothing around. And it just actively triggers trauma. So we are doing harm by doing that.”
“Seclusion and restraint are used too often, for too long, often without a convincing justification and more frequently against Māori and Pacific peoples.” – Paul Hunt
Human Rights commissioner Paul Hunt said the report findings indicated that while there have been positive developments and strong commitments from the detaining agencies, seclusion and restraint continued to be embedded in their practices.
The fact that seclusion and restraint were used too often, for too long, often without a convincing justification and more frequently against Māori, Pasifika, women, children, young people and disabled persons had serious human rights and Te Tiriti implications, he said.
“However, the remedial pathway is clear: the use of seclusion and restraint can and should be reduced, if not eliminated altogether.
“Proactive, preventive alternatives, based on human rights and Te Tiriti and focused on de-escalation and trauma-informed practice, must be at the forefront.”
Hunt said the commission urged the government to prioritise the work required to address this issue.
Time for a Paradigm Shift by Laura Walters on Scribd
