The right to be free from torture or cruel, inhuman or degrading treatment or punishment: for ombudsman schemes

Article 3 of the Human Rights Act protects you from mental or physical torture, and inhuman or degrading treatment or punishment, including the risk of facing such treatment through deportation or extradition to another country.

Torture has been defined in the Convention against Torture as intentional infliction of severe pain or suffering on someone, including to punish, intimidate, coerce or to get information. If you uncover instances of torture in your investigation, you should refer it to the relevant authorities as a criminal matter.

Inhuman treatment or punishment causes intense physical or mental suffering. This could include serious physical assault or psychological abuse in care settings, cruel or barbaric conditions or detention, or the real threat of torture.

Treatment may be considered degrading if it is extremely humiliating or undignified. Whether treatment qualifies as degrading may depend on its duration, its physical or mental effects and the personal circumstances, such as sex, age and health of the victim.

Cases that are not sufficiently severe to engage this right may still breach the right to respect for private and family life.

Cruel, inhuman or degrading treatment does not have to be inflicted on purpose. Inhuman treatment is considered degrading, but degrading treatment need not be considered inhuman.

Soft law

There are several soft law standards about treatment in detention, including:

• UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
• UN Standard Minimum Rules for the Treatment of Prisoners
• UN Rules for the Protection of Juveniles Deprived of Their Liberty
• UN Standard Minimum Rules for the Administration of Juvenile Justice
• Standards of the European Committee for the Prevention of Torture
• Means of Restraint in Psychiatric Establishments for Adults (Revised CPT Standards)

• health services
• social care
• hospitals
• mental health services
• residential and nursing homes
• law enforcement
• police and prison services
• immigration and asylum services
• educational institutions
• welfare
• home and family settings

The Human Rights Committee has stated that the right protects ‘in particular, children, pupils and patients in teaching and medical institutions’.

The right places positive and negative obligations on public authorities, both to refrain from degrading or inhuman action or inaction, and to provide certain basic amenities.

These could include food, water, shelter, fresh air and opportunities for social interaction. When there is a threat of harm from others, it could be a duty to provide physical and emotional safety.

States are not only obliged to create an adequate legislative, administrative and judicial framework to achieve this, but also raise awareness among public authorities about their duties under the right, such as through guidance and staff training (UN Human Rights Committee General Comment No. 20).

This right is absolute. Staff pressures, lack of resources, or other competing rights, can never justify subjecting individuals to treatment that is cruel, inhuman or degrading.

Medical treatment

Necessary medical treatment cannot generally be regarded as inhuman or degrading (Herczegfalvy v Austria 1992 and Jalloh v Germany 2007), but medical need must be convincingly demonstrated (Nevmerzhitsky v Ukraine 2005).

However, inhuman or degrading treatment may be found when a public authority:

• withholds or denies access to treatment for serious or terminal illnesses, including by deportation to a country where an appropriate level of healthcare is not available
• forces medical treatment and seriously interferes with an individual’s physical or mental integrity, including when less intrusive means are available Jalloh v Germany 2007
• provides medical treatment against the wishes of a patient who has mental capacity Ms B v An NHS Hospital Trust 2002
• provides medical treatment to a patient who lacks mental capacity when it is known that the individual would have refused it
• undertakes medical or scientific experimentation without getting an individual’s consent General Comment No. 20

Dignity in death

Dignity in death is part of the right to be free from inhuman and degrading treatment, and ensuring this dignity may involve balancing this right with the right to life. Such situations could include withholding life-prolonging but futile medical treatment if it would lead to further distress and pain as in Alder Hey Children’s NHS Foundation Trust v Evans 2018. Withdrawal of such treatment by doctors maybe justified to ensure dignity in death; however, this right does not include assisting someone to die (see Assisted suicide, under the right to life).

Care settings

In care settings, this right could apply, for example, to an individual’s continence needs, as in A and Others v East Sussex County Council 2003. Leaving incontinence pads unchanged for prolonged periods could amount to inhuman or degrading treatment. In less severe instances, such as McDonald v UK 2014, adverse effects on a person’s dignity may not engage this right, but still amount to a breach of the right to respect for private and family life.

See also Use of restraint, and Social isolation and solitary confinement under Prisoners, for other ways the right may apply in care settings.

Case studies

• Use of Do Not Attempt Resuscitation (DNAR) notices
• Use of police custody for those with mental health conditions

Use of restraint

Restraint could be used in secure units, as well as care homes, mental health services and other non-custodial settings.

The Commission has produced a Human rights framework for restraint which sets out principles for the lawful use of physical, chemical, mechanical and coercive restrictive interventions. The framework also provides examples from a range of settings to illustrate the principles.

Types of restraint

Restraints include:

• physical restraints, such as being held by staff
• mechanical restraints, such as bed rails, bed cages, and straps
• chemical restraints, such as sedative drugs
• seclusion, such as involuntary placement in a locked room or solitary confinement in prisons
• removal of mobility aids to prevent movement

The Human Rights Committee has said that the use of bed cages amounts to inhuman and degrading treatment. Case handlers should consider this in complaints about the use of bed rails in healthcare settings.

The European Committee for the Prevention of Torture (CPT) advises that in mental health services, applying any mechanical restraint to patients for days on end cannot have any justification, and that physical restraints that make it hard to breathe or inflict pain should be prohibited.

General principles

The European Committee for the Prevention of Torture has stated that the use of restraint should be:

• governed by clearly defined policies and procedures
• regulated by law
• applied according to the principles of legality, necessity, proportionality and accountability
• for security not therapy
• only for the imminent risk of harm to the individual or others
• carried out by appropriately trained staff
• for the shortest possible time
• a last resort
• recorded in the individual’s personal file in every instance, including durations, circumstances, reasons and the name of the person who authorised it

Restraint should not be used:

• as a punishment
• to maintain order R(C) v The Secretary of State for Justice 2008
• for the mere convenience of staff
• to cover staff shortages
• to prevent damage to property
• as a substitute for proper care or treatment
• for long periods without regular review and good reasons

In Metropolitan Police v ZH 2013, the court found there had been a breach of this right when the police restrained a severely impaired disabled teenager, even though they considered they were doing so for a short period of time and in his best interests. The court said that the police had made ‘serious errors’ in using restraint which had caused the individual ‘great distress and anguish’.

Case studies

• Complaint to a health trust about the care and treatment of an elderly relative
• Use of lap straps as restraints in a care home

Prisoners

Health

A failure to provide adequate medical assistance to prisoners could be considered inhuman or degrading treatment.

This includes:

• sending a prisoner with a severe mental health condition to a standard prison Dybeku v Albania 2008
• failure to take account of serious medical conditions and needs Khudobin v Russia 2007, Logvinenko v Ukraine 2011 and Gülay Çetin v Turkey 2013
• failure to make adjustments for disabled prisoners D.G. v Poland 2013
• restraining pregnant women for gynaecological examinations or during childbirth

Social isolation and solitary confinement

Inhuman and degrading treatment can involve social isolation, lack of meaningful activity and lack of access to fresh air. This usually applies to prisoners, but it could include other settings, such as patients in mental health services (Munjaz v Mersey Care NHS Trust 2003).

In Mathew v Netherlands 2005, a case about a prisoner held in solitary confinement, the European Court of Human Rights found there had been a violation of the right, because of ‘the complete sensory isolation coupled with total social isolation’ he had undergone.

Diversity and inclusion

Prison authorities should give staff diversity and inclusion training. They should record and address any breaches of their equality and discrimination policies. Staff may need to intervene promptly to separate prisoners for their physical and mental safety.

Case studies

• Homophobic bullying in prisons

Domestic abuse

Public authorities have a duty to protect people from abuse in their own homes, including domestic violence and child neglect Z and Others v UK 2001.

A government whose police service failed to protect a woman from repeated domestic violence, even when she was subject to a protection order, was found to be in violation of this right Opuz v Turkey 2009.

Welfare

A refusal of state support that could force individuals into destitution without means for sustaining themselves could amount to inhuman or degrading treatment, as in R v Secretary of State for the Home Department 2005.

Standards about what constitutes cruel, inhuman or degrading treatment have evolved over time. There is a subjective element too: the individual’s perception of the treatment and its impact is crucial to understanding its nature.

The courts have, however, established a high threshold of severity must be reached for there to be a violation of the right. You should take that into account before using the terms ‘cruel’, ‘inhuman’ or ‘degrading’ in your report.

The threshold may be set lower according to the status and circumstances of the individual, including disadvantaged or protected characteristic groups, such as children, older people, or disabled people. See also protection from discrimination.

If your case does not meet this threshold but the impact on the individual has been significant, you could consider the relevance of the right to respect for private and family life, which is often closely related.

What to do if this right is relevant to your case

You should aim to establish:

• the duties and obligations of the public authority, either in providing services (such as care, treatment or safety), or refraining from actions (such as using restraints)
• whether the public authority met its obligations
• the reasons for any failure to meet its obligations – for example, whether it was intentional or because of neglect
• the impact of the treatment on the individual, taking into consideration their personal circumstances
• the characteristics of the treatment, including its duration and severity
• whether there was a cumulative effect of different instances or types of treatment

• Use of Do Not Attempt Resuscitation (DNAR) notices
• Use of policy custody for those with mental health conditions
• Complaint to a health trust about the care and treatment of an elderly relative
• Use of lap straps as restraints in a care home
• Homophobic bullying in prisons