RIS: Improving the management of prisoners subject to health related segregation and at risk regimes

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Problem definition

Prisoners can experience significant psychological and physiological impacts if separated from the mainstream population for long periods. Because of the significance of the harm that can result, and the potential impact on an individual’s human rights, clear and formal safeguards should apply to ensure that prisoners are not subject to these regimes for longer than necessary.

While operationally prisoners are typically visited by staff each day, the current process for considering the status of the segregated prisoner is informal, lacks transparency and clarity around Corrections’ requirements to ensure that prisoners are not removed from the mainstream prison population for longer than necessary. The status quo lacks clarity for staff and prisoners as to what prisoners’ rights are to have their management status reviewed over time, which creates issues around accountability for situations where reviews are not completed. Under the status quo, if a prisoner is segregated and kept apart from the mainstream prison population for longer than is deemed necessary, there is a risk that Corrections could be subject to litigation challenging the length of time someone is placed on segregation or the at-risk regime.

In addition, prisoners separated from the mainstream population for other reasons have statutory review periods to protect their rights and wellbeing. Currently this means there is a legislative discrepancy that means that without clear safeguards in place, there is a risk that prisoners may find it difficult to understand their rights when being managed on these directions and regimes (although we were unable to consult with prisoners to understand the extent of this risk).

New Zealand is also not currently aligned with comparable international jurisdictions, who have more formal statutory processes in place for reviewing whether placement on these regimes is still necessary, and for escalating decision making where prisoners are on these regimes for substantial periods of time. The approaches of other jurisdictions, and comments from their courts, support the importance of clear formal safeguards where prisoners’ human rights are being impacted.

We want to give stronger assurance to prisoners, their family and friends, and oversight entities, that we are taking as many steps as we can to ensure that prisoners are not segregated from the mainstream prison population for longer than necessary. There is an opportunity to formalise review processes for prisoners subject to segregation for the purpose of medical oversight, or at-risk regimes, to give this assurance.

Executive Summary

Segregation of prisoners from the mainstream population is a key correctional management tool. Segregation and at-risk regimes for managing prisoners can be used for various purposes. These include:

• for the purpose of security, good order, or safety (s58)
• protective custody (s59(1)(a) for voluntary, s59(1)(b) for directed)
• medical oversight (s60)
• for prisoners at-risk of self-harm (s1B-H)

Prisoners can voluntarily ask for segregation, or it can be directed by the prison manager.

While directed segregation and the at-risk regime are important tools, careful consideration needs to be given to their use as prolonged periods of being removed from the mainstream prison population can be detrimental to prisoners’ wellbeing and increase their risk of self-harm. This level of impact can increase with the extent of the separation a prisoner experiences. Specifically, if a management regime amounts to solitary confinement, which is defined under the Mandela Rules as confinement of 22 or more hours per day without meaningful human contact, risks can include significant negative psychological and physiological impacts, including depression, hallucinations, paranoia, psychosis, insomnia, and fatigue.

We have identified an opportunity to formalise review processes for prisoners subject to segregation for the purpose of medical oversight, or at-risk regimes, to give assurance that prisoners are not removed from the mainstream prison population for longer than necessary.

The safeguards that do exist are for health professionals to visit these prisoners one or two times per day, for the purpose of checking the prisoner’s health and wellbeing, and during which consideration may be given as to whether it is best for the prisoner to stay on segregation or an at-risk regime. However, there are currently no clear requirements for regular reviews of the decision to continue to manage prisoners on either of these restrictive regimes. Instead, prisoners remain on segregation or the at-risk regime until such time as it is revoked by the prison manager, or in the case of medical oversight the Chief Executive. On average, this is for 7-8 days, with a median length of 3 days. There is insufficient data to understand if this length of stay is longer than necessary in some cases, because of the current lack of reviews.

This approach is inconsistent with other forms of segregation within the Corrections Act, which have requirements for reviews at set intervals, seclusion under the Mental Health (Compulsory Assessment and Treatment) Act 1992, and comparable jurisdictions’ procedures for similar regimes.

Legislative change to require daily reviews of the decision to continue to segregate a prisoner for their health or to manage them as at-risk is the best option to meet the objective of implementing clear and sufficient safeguards to ensure these prisoners are not removed from the mainstream population for longer than necessary. While staff typically visit prisoners daily based on operational practice and may informally review the segregation status, we seek to ensure transparency for prisoners, staff, and oversight entities because separation from the mainstream is a significant experience for prisoners.

Other options considered were to require reviews every three days or at longer intervals, through either operational guidance or legislative change, or to have a legislative expiration date. These options are not recommended as they do not contribute to safety or support the wellbeing of prisoners as well as the recommended option, or do not provide the same level of accountability.

We recommend that a phased approach is taken by making this change now, as there is a legislative vehicle to make this legislative change, and we consider it necessary given that the change will support human rights of prisoners, and transparency of decision making while longer term change that will take up to five or ten years continues.