Physical restraints

From 20 January 2013 to 12 March 2013 detainees were mechanically restrained (hand-cuffs) for any movements within the detention centres. It was said that ‘for all Youth Detention Centres the use of mechanical restraints can be deemed necessary by the Shift Manager during any occasion which may threaten the wellbeing of the young person and/or Youth Custodial staff. The decision is made to ensure the security and good order of the Youth Detention Centre’.

International Standards discourage the use of restraints against detainees except in extreme circumstances. Rule 64 of the Havana Rules provides that ‘instruments of restraint and force can only be used in exceptional cases, where all other control methods have been exhausted and failed, and only as explicitly authorised and specified by Law and Regulation. They should not cause humiliation or degradation, and should be used restrictively and only for the shortest possible period of time’.

The Australasian Juvenile Justice Administrators (AJJA) Standards draw upon the Havana Rules and provide as follows:

7.7 Use of Force

Standard

Force or instruments of restraint are used on a young person only in response to an unacceptable risk of escape, immediate harm to the young person, or immediate harm to others, and are used for the shortest possible period of time, and in such a way as to avoid or minimise feelings of humiliation or degradation.

Reflecting these standards, ss 11C and 11D of the Youth Offenders Act (YOA) authorise the use of force and the use of restraints by youth custodial officers on detainees. Section 11C(1) and (2) provide that the use of force must be no more than ‘prescribed force’ in the management, control and security of a detention centre and it must only be used in the ‘prescribed circumstances’.

ln this regard, r 71 of the Regulations provides that ‘prescribed force’ means the degree of physical force which is the minimum required to control a detainee’s behaviour in the circumstances. Regulation 72 provides that ‘prescribed circumstances’ means an immediate period when a detainee is imminently presenting a risk of physical injury to himself or herself, other detainees or staff. Regulation 72 further provides that:

as soon as the imminent risk has passed and the detainee has been ‘stabilised’ then the prescribed circumstances for the use of force no longer exist;
if prescribed force is used the detainee must be examined by medical staff as soon as practicable after the incident; and
written reports are to be provided by the staff involved in the use of force and by the medical staff who conduct the examination.

Section 11D(1) of the YOA authorises the use of restraints by youth custodial staff. It provides that the CEO or a Superintendent may authorise and direct the restraint of a young offender where, in his or her opinion, such restraint is necessary:

(a) to prevent the young offender injuring himself or herself, or any other person; or

(b) upon considering advice from a medical practitioner, on medical grounds; or

(c) to prevent the escape of a young offender during his or her movement to or from a facility or detention centre, or during his or her temporary absence from a facility or detention centre.

Appendix 2 of Juvenile custodial services rules 102 set out Standards for Juvenile Custodial Facilities based on the AJJA Standards. Clause 7.7 of Appendix 2 in relation to the use of force states:

Juvenile custodial services rules 207 (‘Use of Force) and 208 (‘Use of Restraints’) governed the use of force and restraints at Banksia Hill and Hakea on detainees until their replacement by the publication of revised of Youth custodial services rules in March 2013. JCS rule 208 defines the term ‘use of restraints’ for the purposes of the rule as referring ‘to the use of an appliance or device (mechanical restraint) but may also include the use of medication used to assist in controlling the behaviour of a detainee’. YCS Rule 208 refers to section 11D(1) of the Act and cites the three circumstances in which the restraint of a detainee may be authorised.

Restraint to prevent injury – s 11D(1)(a) of the YOA

With reference to the authority to restrain so as to prevent a detainee injuring himself or any other person, JCS Rule 208, Clause 2, contained notes that provided:

Note (i) The application of mechanical restraint shall be limited to that immediate period when the detainee is imminently presenting a risk of physical injury to themselves, other detainees or staff. As soon as the imminent risk has passed, and the detainee has stabilised, then the use of mechanical restraint shall cease.

Note (ii) In the event that mechanical restraint being [sic]required, then only that degree of restraint which is deemed to be the minimum required to control a detainee’s behaviour shall be applied.

JCS rule 208 also provided as follows:

Where a detainee is held in mechanical restraints he or she must be checked as soon as practicable but within one hour by a nurse or medical officer, and at half hourly intervals thereafter (Clause 3);
A detainee held in mechanical restraints must be under continuous supervision of an Officer to ensure that injury is not being caused (Clause 5);
A detainee held in mechanical restraints for the purposes of section 11D(1)(a) or (b) (to prevent injury or on medical grounds) shall be considered to be ‘at risk’ as outlined in Rule 703 (Clause 6);
The restraints applied must be approved for use in Juvenile Custodial Services facilities (Clause 7);
ln all cases the use of restraints must be authorised by the Superintendent. In the event of an emergency, restraints may be used without prior authority provided the authority of the Superintendent is sought as soon as practicable after the event (Clause 8);
The Superintendent (or delegate) must be notified verbally as soon as is practicable when restraints are used and a written record (including the reason for using such restraint) must be provided (Clause 9);
The Superintendent (or delegate) must ensure that written records are kept of the use and circumstances when restraints are employed (Clause 10);
All persons present who witness or are directly involved when the restraints are applied must complete a report detailing their personal involvement or their personal descriptive observations of what occurred (Clause 10.1); and
The restraints must be applied in such a manner that they are effective, but care must be taken to ensure that the restraints do not cause physical injury (Clause 11).

Restraint on medical grounds – s 11D(1)(b)of the YOA

JCS Rule 208 confirmed that the use of restraints on these grounds (as for their use to prevent injury) shall be used as a last resort and that restraint involving the use of medication must not be used unless it is first approved by a medical practitioner (s 11D(2)).

Restraint to prevent escape – s 11D(1)(c) of the YOA

Standing Order 18 provides additional guidance for custodial officers in relation to JCS rules 207 and 208. Clause 2 of Standing Order 18 provides that mechanical restraints could be utilised in the following circumstances:

When the use of prescribed force is required to restrain a detainee;
To maintain the custody of a detainee;
To prevent injury to the detainee or another person;
On medical grounds; or
On external escorts from the centre.

The second dot point above appears to separately authorise the use of mechanical restraints so as ‘to maintain the custody of a detainee’ within the confines of the detention centre. However, there is no authority for this in s 11D of the YOA or in JCS Rule 208.

Section 11D(1)(c) allows the use of restraints ‘to prevent the escape of a young offender during his or her movement to or from a facility or detention centre, or during his or her temporary absence from a facility or detention centre’ (emphasis added). The word ‘facility’ is not defined in the YOA or Regulations. When used in this context it appears to refer to a building or complex of buildings designed for a specific purpose (such as a court complex) and not to a detention centres which is facility declared as such under section 13 of the Act. It seems clear therefore that s 11D(1)(c) is intended to apply to external escorts of detainees only.

Improper use of restraints

In February 2103, in The State of Western Australia v JAB, Judge Reynolds made reference to the management issues arising from detainees being located at Banksia Hill and Hakea JF and the conditions for the detainees at both facilities. He referred to the use of restraints on detainees who were not involved in the incident and said:

The material provided by DCS includes a directive given to staff at BHDC on 1 February 2013 that ‘the escorting of detainees within the centre will continue with restraints except in the circumstances listed above’. One of the circumstances listed above in that directive is that ‘detainees within a secure room during interview (psych, legal etc) are not to be restrained unless requested to do so by the interviewer’.

I have already referred to the fact that after the incident at BHDC restraints were used on detainees who were not involved in the incident on 20 January 2013.

Section 11D(1) of the YO Act provides as follows:

11D. Use of restraints

(1) The chief executive officer, or a superintendent, may authorise and direct the restraint of a young offender where in his or her opinion such restraint is necessary —

(a) to prevent the young offender injuring himself or herself, or any other person; or

(b) upon considering advice from a medical practitioner, on medical grounds; or

(c) to prevent the escape of a young offender during his or her movement to or from a facility or detention centre, or during his or her temporary absence from a facility or detention centre.

Section 11D(1) clearly requires the chief executive officer or superintendent to be satisfied that restraint is necessary in the case of the particular individual restrained. A separate consideration is required for each particular individual. In my view the direction to which I have just referred is not authorised by s 11D(1) of the YO Act. The particular circumstance referred to is also unlawful because it purports to give authority to someone who does not have any under the YO Act to decide whether a young detainee is restrained. I do not think that a psychologist would want to interview a detainee when the detainee was restrained but interviews would not necessarily be limited to psychologists.

The use of mechanical restraints is only authorised in the circumstances provided by s 11D(1) of the YOA. Those circumstances concern the application of restraints during an immediate period when the detainee is imminently presenting a risk of physical injury to himself or others, on medical grounds and during external escorts. Currently, there appears to be no authority for the CEO or Superintendent to authorise the routine mechanical restraint of one or more detainees as part of a management regime designed to maintain order and custody within the detention centre. The routine handcuffing of detainees as a security measure during escorts within the detention centres both before and after 20 January 2013 was unlawful and contrary to the Department’s own procedures in JCS Rule 208.

Aside from the legal position, the practice of routine restraint of detainees every time they were escorted within Banksia Hill and Hakea JF between 20 January 2013 and 12 March 2013 lacked justification. In the closed environment of a detention centre and in circumstances where escorts are made in the company of youth custodial officers, the routine use of restraints on detainees was neither reasonable nor proportionate.

Additional concern

As mentioned above, during the course of this inquiry the JCS Rules were amended and replaced by the newly named YCS Rules. The former JCS Rules 208 (‘Use of Restraints’) no longer exists. The renamed YCS Rule 208 deals with ‘Major Detention Centre Disturbances’. The former JCS Rule 207 has been renamed YCS Rule 204 and is now restricted for publication to staff only. YCS Rule 204 now applies to both the use of force and restraints and demonstrates a lack of understanding of the relevant legislative provisions as well a careless approach to review. YCS Rule 204 defines the ‘use of force’ as meaning:

…the application of any personal (physical) contact or other device (referred to in s.3.2.1), imposed (forced) on a detainee, other than where required under a routine escort or management regime described in s. 5. Principally relates to unplanned events that require immediate response (emphasis added).

The reference to clause 3.2.1 should clearly be a reference to clause 2.1 of YCS Rule 204 which sets out the types of approved instruments of restraint. The words emphasised above appear to be an attempt to authorise the use of force and restraints for routine escort within the detention centre and as part of a management regime. This is contrary to section 11D of the YOA. In any event, as it is drafted, YCS Rule 204 is incomplete. YCS Rule 204 concludes at clause 3 and does not include the mentioned clause 5 relating to a ‘routine escort or management regime’.

In addition, the elaborate but important provisions of JCS Rule 208 relating to the reporting and recording of the use of mechanical restraints in each case (see 6.29 above), seem to have disappeared.

Banskia Hill Directed Review: Legal and Administrative Context Review Paper