Australia’s OPCAT ratification signals a shakeup in SA’s youth detention oversight

26 June 2017

The oversight of the South Australia’s Youth Training Centre will be energised by the Australian Government’s ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).

This coincides with work in South Australia on Youth Justice Administration Act 2016 initiatives such as the Training Centre Visitor program.

Recent revelations of the abuse of young people in the Don Dale Youth Detention Centre and the treatment of other young people in detention centres across Australia, are likely to have been a catalyst for the Government’s decision to ratify.  Last year Australian citizens were shocked to view footage showing young men being tear-gassed, spit-hooded and shackled in the Northern Territory’s youth detention system. This triggered the Royal Commission into the Protection and Detention of Children in the Northern Territory and Commonwealth Attorney General George Brandis suggested the scandal may not have occurred if better oversight bodies had been in place.[1] 

Human Rights Commissioner, Ed Santow, said;

“When a person is detained in prison, a mental health facility, anywhere, they remain human…Protecting their basic dignity is just as important as it was before their detention.”[2] 

In 2009, Australia became a signatory of OPCAT, the aim of which is to prevent mistreatment and promote humane conditions in detention by establishing systems for independent monitoring and inspection.

But ratification is a much greater commitment.

Ratification will make the treaty binding on Australia, and will apply to all places of detention including prisons, police cells, juvenile and immigration detention and secure mental health and disability facilities.

Australian Children’s Commissioner Megan Mitchell said, ‘We must ensure that we foster a culture of care in our youth justice systems, that is grounded in respect for human rights and the best interests of children and young people.’

Implementing OPCAT will require Australian governments to permit visits from the United Nations Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to any place of detention within Australia.  It will mandate the establishment of an independent National Preventative Mechanism and identify suitable independent inspecting bodies to conduct inspections of all places of detention.

Ratification will include a requirement in law to undertake regular preventive visits to specified places of detention.

The Commonwealth Ombudsman in collaboration with the states, territories and other relevant parties, will be in charge of coordinating inspections and oversight in Australia.

South Australia has already made a start in looking at protections for young people in youth detention with the passage of the Youth Justice Administration Act 2016 in and the adoption of the Youth Justice Administration Regulations 2016.  Among other things, the Act provides for additional sentencing options for young offenders, a charter of rights for young people in youth justice detention and directs the establishment of an official Training Centre Visitor scheme.

Taking on the role of Training Centre Visitor, Guardian Amanda Shaw says that the Guardian’s Office will be very involved with the OPCAT process in this state.

‘The Office is looking forward to working with the State and Commonwealth Governments over the next few months to ensure that the full range of OPCAT protections are extended to young South Australians,’ she said.

For a detailed look at OPCAT in Australia read the recently released discussion paper published by the Australian Human Rights Commission.

[1] Oversight may Have prevented Don Dale: AG, SBS 9 February 2017

[2] OPCAT:Australia makes long-awaited pledge to ratify international torture treaty, Alexandra Beech, ABC 9 February 2017

The use of seclusion to manage the behaviour of children

picture of young person in isolationTime-out, isolation and seclusion are used as a response to challenging behaviour, and children are particularly likely to be subjected to it.  However, there is a world of difference between a two minute slow-down in a child’s bedroom and an hour’s detention in a bare room.  As more has become known about the detrimental effects of isolating people and depriving them of social contact, the use of seclusion as punishment or control has been discouraged in many institutional settings.  However, more can be done to minimise its use.

Seclusion is the involuntary placement of a person in a room, exit from which is not permitted (Ferleger 2008).  Physical and mechanical restraint often precedes or accompanies seclusion.  Isolation in prisons and other detention facilities ranges from solitary confinement away from any human contact except for staff, to prohibition on joining others in scheduled activities including the sharing of meals.

Regulations for the provision of residential care for children in South Australia include instruction about the use of force and isolation.  Detention in a room is prohibited in residential care but not in training centres.  Training centre residents aged under 12 must not be detained in a detention room and there are time limits for others.

The Office of the Guardian monitors its use at the sites the advocates visit though there have been difficulties in getting accurate information about the use of seclusion.  In the one residential facility where it had been used, the practice was discontinued as a result of the visit.  In the training centre, where its use is more common, the Office has agreement with the Department on what is expected and how this will be measured.  Most detention periods are now under one hour which is a huge change from when monitoring commenced in 2006 when long periods of detention were common.

There is no evidence to suggest that restraint or seclusion effectively reduces either the frequency or the intensity of challenging behaviours, though restraint may temporarily protect the child or others from immediate and serious harm. Contemporary guidelines and policies on managing behaviour in service settings say that restrictive practices should only be used as part of a treatment plan and that its use must be reduced by positive behaviour supports, appropriate physical environments and individualised planning (Australian Psychological Society 2011; Office of the Public Advocate of SA 2012).

A treatment-based approach recognises that the causes of challenging behaviour have to be addressed and new ways of behaving introduced and learned.  It is not simple but it is effective.  It requires expertise from those working with the young people and energy and enthusiasm in its application.  Those who work with children need support and supervision but most importantly training to give them a range of responses to challenging behaviours, and a common language and understanding with the therapists providing the advice.

References

Australian Psychological Society 2011 Evidence-based guidelines to reduce the need for restrictive practices in the disability sector.  http://www.psychology.org.au/practitioner/resources/restrictive/

Ferleger D 2008 ‘Human Services Restraint: Its Past and Future’ Intellectual and Developmental Disabilities Vol 46 No 2

Office of the Public Advocate of South Australia (2012) Guardian Consent for Restrictive Practices in Disability Settings http://www.opa.sa.gov.au/resources/restrictive_practices

Reducing the use of restraint or seclusion requires:

  •  Leaders who set an organisational culture change agenda;
  •  Systematic collection of seclusion and restraint data;
  • Use of data to inform staff and evaluate incidents;
  • Improvement in environmental conditions;
  • Individualised treatment and responsiveness to clients;
  • De-escalation tools;
  • Debriefing to both analyse seclusion events and to mitigate their adverse effects; and
  •  Staff training.

(Ferleger 2008)

link to GCYP twitter

Physical restraint in residential care

In April 2009 the Guardian initiated an inquiry into the use of restraint in residential care facilities following reports from some youth workers and residents that physical restraint was used too often and young people were suffering injuries.  The inquiry was conducted by Associate Professor Andrew Day and Dr Michael Daffern and the inquiry report, Policy and Practice in the Use of Physical Restraint in SA Residential Facilities for Children and Young People, was released on 13 January 2010.  The full report is available for download and a summary.

Use-of-Restraint-Report-2010

Use-of-Restraint-Report-summary-2010

The inquiry found that the use of physical restraint has been falling since 2007 but that it could be reduced still further.  Restraint should only ever be used where the young person is at risk of immediate and serious harm to themselves or to another person nearby.  It is a ‘last resort’ intervention.  It should not be used because a young person is cheeky, refuses instructions, is shouting or throwing things around.  It should only ever be used by people trained to restrain safely.

The vast majority of residential staff are extraordinary people and are doing a great job under very difficult circumstances.  The failures identified in the inquiry report are systemic failures and should not reflect on the many dedicated workers and managers, nor on the young people who act out their distress. The failures were with inconsistent policies and practices, too many residents housed together, not enough on-the-job training and reflection on incidents, and not enough specialist support for young people with high needs.

There were different rates of use of restraint in different places and generally there was lower use in non-government houses.  This was a function of the size and design of the facility and higher investment in training and support. We could not answer the question about whether South Australia had higher rates of use than elsewhere because the data is too inconsistent to make any comparisons meaningful.  Instead the researchers could say that the rate of use could be reduced further.

To minimise the need to use physical force five recommendations were made.  In summary these were to replace the large residential units with smaller home-like houses of three or four young people, provide more on-the-job training and support for staff, change the regulations in the Family and Community Services Act 1972 so that restraint is never sanctioned for non-compliance, have specialist advice more readily available for children with the highest needs and have more rigorous external monitoring so that patterns are picked up early.

So much goes well in our residential care sector and we learn as much from what works well – see our report What works best in residential care – as what doesn’t. We do though tend to review things that we are concerned about and that we want to do better at.  As one young interviewee said, ‘I know it takes a lot out of them emotionally,’ referring to youth workers.  Compassion and understanding is a great place to start.

Report on the physical restraint of children in South Australian residential facilities

[This article was first published in The Advertiser 13 January 2010.

The Use-of-Restraint-Report-2010 on which it is based and the Use-of-Restraint-Report-summary are both available in PDF.

Using force to hold, immobilise or move a child who is in danger can be a normal protective response.  Pushing, pulling and lifting may be necessary to protect the child or others nearby from immediate and serious harm.

I have just completed an inquiry into the use of physical restraint of children in South Australian residential facilities.  Residential facilities for children and young people in state care are run by government and non-government organisations.  Children stay for periods of a few days to a month.

Included in the inquiry were the youth training centres at Magill and Cavan.

I started the inquiry because we had heard from some young residents and staff that restraint was used often and children were suffering injuries as a result of being restrained.

In other countries children and young people have died in schools and residential facilities from asphyxiation as a result of physical restraint. Some methods of restraint are very dangerous, particularly when they involve neck holds, obstruction of the nose or mouth, or holding a child face down on the ground.

Thankfully, we did not hear of any incidents of children dying recently in children’s services in Australia as a result of a physical restraint. However injuries were confirmed, reinforcing the evidence that restraining a child can be dangerous.

Restraint also has a considerable psychological effect on both the child and the staff involved.

We found that the use of restraint is decreasing and awareness of its dangers is rising.

Nevertheless restraint was not uncommon and was sometimes used inappropriately, such as when a young person refused repeatedly to comply with an instruction and emotion was high.

Restraint is more common in the facilities which accommodate higher numbers of children; not because the staff are any less skilled than others but because it is so difficult to keep everyone safe in a home with ten young people compared to four. Some young people were restrained often and undoubtedly had extremely challenging behaviour.

Fortunately, the background research and findings make us confident that we can make all children’s residences safer.

First, we would have no more than four young people in any one house, maybe up to six in some circumstances.  Second, we would have a consistent positive approach to bad behaviour, and restraint would never be sanctioned for non-compliance or punishment.

Third, care staff would be well-trained and well-supported to act professionally, warmly and calmly.

Fourth, specialist advice would be provided for the care of children with extremely challenging behaviour and a review of all incidents would be done routinely.  And fifth, there would be rigorous external monitoring of use of restraint so that patterns could be picked up early.

The inquiry found that there are inconsistent procedures and practice in children’s residential facilities and a number of situations in which it was unclear how staff should manage difficult behaviour.   For example, plucking children from harm’s way is easy to defend as necessary but is it right to haul  a 14 year old boy out of bed on a third attempt to get him to school?  And is it right to immobilise with an arm hold a distressed 13 year old girl who is lashing out at anyone who comes near her?

It is these types of difficult situations that residential care workers routinely face, and they have to decide whether or not and when restraint is required.

Residential staff want the best for children in their care.  They need our support and government’s commitment to achieve this.

Within the next few years I hope to see the larger residential facilities replaced with home-like residences, specialist advice for children with high need and consistent guidance to staff on dealing positively with problem behaviour.

Numbers add up to cause concern

  • On an average day in SA there are 345 children and young people in some form of residential care, including those in secure custody.
  • Over a 27 month period (Jan 2007 – March 2009) there were 19 confirmed cases of injury of children in residential care as a result of physical restraint.
  • Most of those restrained are male.
  • Many residents will never experience a restraint but some are repeatedly restrained, usually over a short period of time.
  • Residential facilities for children and young people in state care are run by government and non-government organisations and children stay for periods of a few days to a few years.
  • In the past decade in Australia there have been incidents of serious injury of children in formal settings which have triggered inquiries, such as a 2006 WA Ombudsman’s investigation, a 2007 review by the WA Inspector of Custodial Services and a 2001 NSW Community Services Commission review.

link to GCYP twitter

Physical restraint – what the literature tells us

In April 2009 the Guardian commenced an inquiry into the use of physical restraint of children in SA residential facilities. As part of the inquiry the researchers, Associate Professor Andrew Day and Dr Michael Daffern, reviewed the written evidence and theory on the effectiveness and safety of restraint.
Restraint can take several forms. Most think of ‘hands-on’ restraint, where one or more people take hold of the person to control them.
Restraining devices to limit movement are sometimes also used, as is seclusion in a room and chemical restraint with drugs to manage extreme behaviour. This inquiry focused only on ‘hands-on’ restraint.
The use of restraint on children or young people is regulated to some extent by conventions, legislation and procedures which, if not actually contradictory, come from different perspectives. The UN Convention on the Rights of the Child, the Charter of Rights for Children and Young People in Care, regulations to the 1993 Children’s Protection Act and government and non-government procedures all have implications for practice and the legality of practice. The tension lies between the rights of a child to freedom from coercion or force and the right to safety from harm.
There is little empirical basis to determine when restraint is appropriate. There is no evidence to support the view that physical restraint assists children or young people to learn self-regulation or that it helps them to acquire useful and appropriate interpersonal skills. Physical restraint is a potentially dangerous practice and discussion on its use is highly charged. Restraint can appear to a child like abuse, frightening them and alienating them from care givers who administer it. Restraint can lead to serious injury and death, and the evidence from overseas confirms the high risk and the adverse psychological impact on staff and residents. However restraint can, and is, used to prevent immediate and significant harm.
Attitudes to the use of restraint are divided among the young people in residence. In a recent Scottish study, for example, residents agreed with staff that physical restraint would ensure young people’s safety in some circumstances. They advocated the use of non-physical alternatives to de-escalate situations and reserving the use of physical restraint to a last resort.
Some researchers have noted a major reduction in the use of restraints when the behaviour management practices of care staff are examined and modified. Training and ongoing support for workers and carers in applying behavioural techniques has been shown to produce major reductions in the need for physical intervention in several settings accommodating young people. This suggests that regular review of practice is needed to ensure that restraint is only used when all else has failed and where there is a high risk of serious harm.
The inquiry is due to conclude in early 2010 and further information will be available in future newsletters.