Does the use of a Restrictive Technique, that may cause Discomfort and / or Pain, amount to Torture?

There has been a lot of emphasis in recent years regarding the use of pain-compliance techniques and quite a few myths and misconceptions have arisen regarding the use of such techniques, one being that the use of a pain-compliance technique amounts to an act of torture – especially if used on a vulnerable client / service user.

I have even actually heard speakers at events state that any technique that causes pain is a breach of Article 3 of the Human Rights Act 1998 as it would amount to an act of torture, especially if used on a vulnerable service user. This is even supported by the views of certain Government Inspectors – many not even trained in the legal aspects relating to the use of force!

BILD is also opposed to the use of techniques that may cause pain as the following extract from an e-mails received from them illustrates:

 “Morally and ethically BILD is opposed to the use of touching, guiding or holding techniques which might or are known to cause pain or discomfort, or techniques that are designed to use pain as an effective component to gain compliance and believes the presumption must be that they are not to be taught.”

Now, I must stress that I am not promoting the use of pain over non-pain compliance techniques, where a non-pain compliance technique will achieve control.  However, I am stressing that we act in the best interests of the service user and staff in reducing any unnecessary risk of death or serious injury, and if that means that a pain-compliance technique should be used to prevent a greater harm from occurring, especially where a non-pain compliance technique has, or is likely to fail, then yes, I am advocating that it should be used. Why? Because that is not only consistent with the requirements of law, including the Human Rights Act 1998, but it is also morally and ethically correct if it is in the best interests of the service user and staff.

The dichotomy that exists is that the avoidance of such techniques, due to management or even inspectoral duress, can, in some situations, increase the risk to service user and also staff. The operational paradox that front line staff face as a direct result of this imposed duress from above is do they act in the best interests of the service user in protecting them from harm, or in their own best interest in an attempt to avoid disciplinary or criminal prosecution?

This seems to echo the words written by a man called Upton Sinclair over 100 years ago: “It is difficult to get a man to understand something when his salary depends on him not understanding it.”

But what if someone died as a result of an intervention not working (because the holds used were ineffective, or possibly even dangerous), but that death could have been prevented by the use of a restrictive technique? Would that be a breach of Article 2 of the Human Rights Act? To understand this fully we need to know exactly what the Human Rights Act states.

Article 3 of the Human Rights Act 1998

When referring to 'Torture' we need to refer to Article 3 of the Human Rights Act 1998, which states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 3 concerns itself with freedom from torture, inhumane and degrading treatment and punishment. The protections of Article 3 cannot be derogated from in any circumstances, even during war or public emergency. For example prisoners of war cannot be tortured to obtain information because of the protection of Article 3. In short everyone is entitled to the protection of Article 3, regardless of their own conduct. Article 3 is provided to protect all individuals from physical and mental ill treatment and is relevant in a wide number of situations including conditions of detention, deportation or extradition, racial discrimination, corporal punishment and restraint.

The Government has positive obligations under Article 3 which mean that it is obliged to secure the rights guaranteed by it and to prevent breaches of the Article by one private individual against another, particularly against children and other vulnerable persons. As such there is a duty to investigate allegations of torture and to provide explanations for injuries - for example, where a prisoner or mental patient is found to have suffered physical injury.

To prove that torture has taken place the evidence has to reach a minimum level of determination. This minimum level is relative and the criteria to prove that torture has occurred will possibly involve: the duration of the harm, its physical and mental effects and, in some circumstances, the sex, age and state of health of the victim.