There are no exceptions to Article 3, regardless of the conduct of a person and the State and all public authorities have a positive obligation to prevent torture from occurring. This ‘positive obligation’ includes taking positive steps by monitoring and reviewing practices and procedures for example, in line with current health and safety requirements.

Under Article 3 the State (including all public authorities) is responsible for the actions of its agents. Therefore, if torture or inhumane or degrading treatment or punishment is taking place the State (or public authority) will be accountable, not necessarily the member of staff directly.

Therefore, if restrictive interventions are being used regularly and pain is being unnecessarily caused, particularly where a lesser restrictive or less harmful technique could be as effective, then there may be grounds for brining an action against an employer for torture and / or inhumane and degrading treatment and punishment. An example could be where a service user is being accommodated in an environment that doesn’t have the resources to manage him or her and staff and as a result staff are consistently having to use high levels of intervention on a frequent basis to prevent harm.

Although, based on current case law, a charge of torture in the above example may possibly be difficult to prove, due to the high threshold of proof required, it may be possible to bring an action for inhumane and degrading treatment or punishment.

However, to put this issue into context we also need to look at the first part of another Article, specifically Article 2 of the Human Rights Act, of which Part 1 of Article 2 is also an absolute right.

Article 2 of the Human Rights Act 1998.

Article 2 raises specific issues with regard to the use of physical force with regard to the right to life. In the first part of Article 2, (which, like Article 3 is an ‘Absolute Right’ and so cannot be derogated against) it states,

“Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

This statement is fundamentally important. It dictates that all State (or public) authorities must promote the positive obligation to preserve life. With regard to physical restraint this has direct implications with regard to the techniques used. In short, if a technique can prevent the loss of life it must be used as this would be consistent with taking positive steps to preserve life.

The positive duty to preserve life is even more crucial when we consider those individuals who are vulnerable by nature such as young children and the elderly or those who may be more at risk of death during restraint, such as known drug users and people under the influence of alcohol who may fatigue quicker after a violent struggle.

Risk of Death

One of the main causes of death due to physical restraint is positional asphyxia. That’s when the position of restraint or the method of intervention interferes with a person’s ability to breathe and they die from lack of oxygen.

In a Home Office Police Research Group survey of 277 deaths in police custody over a six-year period a common factor that was found which resulted in death in relation to the use of restraint is the fact that deaths normally follow a violent struggle. As a result the following recommendation was made:

“The amount of time that restraint is applied is as important as the form of restraint and the position of the detainee. Prolonged restraint and prolonged struggling will result in exhaustion, possibly without subjective awareness of this, which can result in sudden death.” 

Therefore, to minimise the risk of death restraint should be used for the least amount of time. That means that the techniques used must be effective at obtaining control quickly to bring the violent struggle to an end. This is especially important in technique design and development when consideration is given to the demographic make up of staff and the service user. In one care home we audited the average age of a member of staff was 42, many were carrying injuries, including ongoing back-problems, knee injuries, heart-conditions and wrist / hand injuries. This was in contrast to the service user demographic who were young people aged between 15 – 17, in good physical condition (fitter than the staff) and had better natural physical ability and were carrying less injuries.

In the above example staff expected to control a service user are already at a disadvantage, therefore, any physical intervention programme needs to compensate for this by the inclusion of techniques that will allow the staff to gain control within a reasonably short period of time if the risk of serious injury and / or fatality is to be reduced to it’s lowest possible level (a health and safety requirement).