What is the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“SPT”)?

The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“SPT”) is a treaty body in the United Nations human rights system. It has a preventive mandate meaning that it is focused on an innovative, sustained and proactive approach to the prevention of torture and ill treatment. The SPT started its work in February 2007.

The SPT is made up of 25 members who are independent human rights experts drawn from around the world, who visit the countries that have signed up to the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). During these visits the SPT may visit any place where persons may be deprived of their liberty including police stations, prisons, detention centres, mental health and social care institutions. The SPT will examine the treatment of people held there.

 

Why are they in the UK?

From the 8th to the 19th of September a six-member delegation from the SPT are making their first visit to the visit to the UK. During this visit the SPT delegation will hold discussions with government officials, and civil society, and visit places where persons are deprived of their liberty. The delegation will also work closely with the UK National Preventive Mechanism (NPM). The NPM was set up in 2009 to ensure regular visits to places of detention in order to prevent torture and other ill-treatment, as required by OPCAT. It is made up of 21 statutory bodies that independently monitor places of detention.

 

What are our Concerns?

Last week we got to meet with the SPT and raised some key concerns.

Given that there are significant issues right now in the UK around ATUs and the treatment of people with a Learning Disability and/or Autism in mental health settings it is essential that the SPT examine this issue as it can amount to inhuman or degrading treatment.

This year’s Learning Disabilities Mortality Review Report (LeDeR)  found that in just under half of the reviews completed in 2018 the person who died had received care which met, or exceeded, good practice. In other words, in more than half of the deaths reviewed, the person did not receive care which met good practice standards, and in 8% of reviews, care fell so far below expected good practice that it either significantly impacted on their well-being, or directly contributed to their death. The CQC interim report on restraint found that in the 89 registered care providers contacted, at least 62 adults and children have been living in segregation in mental health hospitals for long periods of time, 16 people for a year or more. You can read more about these reports in our blog.

The Whorlton Hall scandal (you can read our blog on this here) made headlines this year, but sadly this wasn’t a one off, the issue of abuse and neglect is repeated. The Winterbourne View scandal happened eight years ago, and Transforming Care programme was set up in 2015, yet essentially the same scenario happened at Whorlton Hall.

 There are concerns that discussions around mental health and mental capacity are too separated, not enough attention is given to where these issues intersect. This is especially problematic as our mental health law isn’t capacity specific, it allows forced treatment, and this isn’t based on a person’s capacity to consent. Problems can also arise when a person has both mental health and mental capacity issues as there can be a perceived conflict between the legal frameworks and what applies.

Regarding restraint, there have been some positive developments such as Seni’s law (Mental Health Units (Use of Force) Act 2018) which requires Mental Health hospitals to actively take steps to reduce the use of force against patients and record of incidents of use of force. In February there was the launch of the Restraint Reduction Network Training Standards 2019. BIHR were involved in the development of this framework which has human rights at its very core. The Standards aim at addressing the fact that too frequently the focus is on restraining and not protecting people’s human rights.

However there is still many areas of concern. There is a lack training and implementation by health and social care staff of human rights. There is often even a lack of some understanding of the Mental Health Act and the Mental Capacity Act, the two key pieces of legislation in this area. Human rights is not a mandatary part of most mental health (or capacity) professionals training, yet these are the people whose decision’s and practices will determine whether a person in detention has their human rights breached or risked.

In the UK we have some amazing advocacy services, the fact we have a system of Independent Mental Health and Capacity Advocates is really positive. But there are huge issues around resources and funding and how many people one advocate is supposed to support. The commissioning processes can also make it very difficult for advocates to maintain their critical role. Advocates also lack support and training on using human rights to challenge decision making in detention (but when they have that it can be very successful in securing people’s rights).

There is also a lack of good consistent data. As mental health hospitals (and other places of detention/deprivation of liberty) don’t use a human rights framework as standard, they aren’t recording human rights related incidents or issues. Thus means that how and what gets recorded is very variable and patchy, which leads to considerable work in having to gather and analyse the data to see what it is telling us about HR in these settings.

On the NPM, the main concern is that it is so under resourced, a small staff team to coordinate 21 different agencies that are part of the NPM. There is no legislative footing for the NPM. All 21 agencies have their own statutory frameworks and for the most part their focus is on monitoring against those frameworks, this can make the levers for the NPM more challenging. NPM legislation setting out its mandate and frameworks could help address this.

 

What Will Happen Now?

Following each of its visits, the SPT communicates its recommendations and observations to the country visited (in this case the UK) and, if necessary, to the NPM, in a confidential Report. The report will recommend action to be taken to improve the treatment of detainees in the UK and take into account all the evidence gathered during the visit.

If the country asks the SPT will publish its report and recommendations.  However, if the country makes part of the report public, the SPT may publish all or part of the report.

If the UK refuses to co-operate or fails to take steps to improve the situation in light of the SPT’s recommendations, the SPT may request the Committee against Torture to make a public statement or to publish the SPT report.