Moyens de contrainte

Analysis

Circumstances exceptionally justifying to resort to instruments of restraint

Instruments of restraint enable a person’s freedom of movement to be restricted or prevented. Penal authorities may only resort to them for a limited period of time in specific situations, which are clearly identified and recognised as being legal.

In no case may methods of restraint be used as a disciplinary sanction.
Methods of restraint may be used in two main situations:

  • to prevent the risk of escape during transfers of detainees. In this type of situation (court appearance, hospitalisation, transfer to another establishment or removal of a detainee in anticipation of him/her being sent to a third country) the least incapacitating methods of restraint (handcuffs, straps, belts) must be used.
  • to prevent physical assaults on other detainees or members of staff or on the security of buildings, or to prevent acts of self-harm. In these situations, the authorities may have cause to use more incapacitating methods of restraint (straitjackets, restraining beds, medical sedation).

Whatever the situation, the use of physical methods of restraint must be undertaken as a last resort, in an exceptional manner and for a limited duration. Moreover, the more incapacitating the technique used, the stronger must be the guarantees surrounding the reasons and methods of use.

Respect for the principles of legality, necessity and proportionality

The principle of legality requires that recourse to instruments of restraint should be enshrined in law.

The law must specify which instruments may be used and under what circumstances. It must also lay down the conditions of use of these instruments, including the duration.
The principle of necessity aims to ensure that the instruments of restraint are not in fact used other than as a last resort when all others means of maintaining order and security have been used in vain. The duration of use of any such instrument must be considered in light of this principle. Therefore, any recourse to an instrument of restraint must be re-evaluated regularly and ceased as soon as the reasons leading to its use are no longer present.

The principle of proportionality is applied to guarantee that the method of restraint used is appropriate in respect of the assessed risk and that the least incapacitating method is chosen.

The principle of proportionality also aims to guarantee that the duration of use of methods of restraint corresponds to the risk identified. In concrete terms, the medical staff of the establishment must check at regular intervals that these instruments have not had any negative effects on the physical or psychological health of the person concerned.

Instruments of physical restraint

One may distinguish two principal types of instruments of restraint:

1) The least restrictive instruments which do not prevent people from moving around, such as cuffs (placed on the wrists, ankles or legs), belts, straps or even straitjackets.

2) Instruments of restraint known as ““four-point restraints”” which are used to tie down the four limbs of a person. These are, for example, restraining beds or boards which completely immobilise the person. The use of such instruments requires the compulsory participation of a doctor and must be subject to a stricter control in light of the physical and psychological consequences of their use.

Certain instruments of physical restraint such as chains and irons are totally banned. Likewise, detaining authorities must not use weapons with electrical charges as an instrument of restraint.

Chemical restraint

The use of methods of chemical restraint must be avoided. When sedation is used as chemical restraint it must be strictly controlled and limited solely to the prevention of acts of violence against others or of self-harm. Such use must be decided in agreement with a doctor. Any administration of sedatives must be done by a doctor or authorised medical staff.

In no case must the use of these sedation procedures be a substitute for a therapeutic approach.

Risks related to the abusive or arbitrary use of means of restraint

The legal framework clearly requires recourse to methods of restraint to be in strict accordance with the principles of necessity and proportionality. Methods of restraint must therefore never be used in a routine, arbitrary and/or discriminatory way.

When such use is routine, as in the case when people are automatically handcuffed during a transfer without an individualised assessment of the need for such a measure, the practice may be considered abusive.

The use is arbitrary when the authorities prioritise the alleged level of danger or the detention regime of certain detainees and restrain them during transfer, with no individual risk assessment having been undertaken.

The use of means of restraint may prove to be discriminatory when it affects certain specific groups independently of their alleged level of danger or their detention regime.

The abusive nature of recourse to instruments of restraint may also relate to the way in which they are used, which may conceal a desire to punish on the part of the authorities. For example, even if recourse to handcuffs is justified by the situation, they may be deliberately tightened in an excessive manner.

women
foreigners
disabilities
minorities
children

The use of methods of restraint may prove to be discriminatory when they affect certain specific groups independently of their alleged level of danger or their detention regime.

Risks of physical and psychological suffering

The use of instruments of restraint may cause physical or psychological trauma to the people who are subjected to it, even when lesser  restrictive methods are used. Such practices may therefore constitute an assault on the physical or mental well-being of the people concerned. For example, the use of handcuffs may prove painful and cause injuries to the wrists if it is prolonged or if the handcuffs are too tight.

Tying a person down flat on their back on the ground may cause life-threatening risks, especially from positional asphyxia.

The use of instruments of restraint may also cause suffering and humiliation, especially when used in public view.

women

Pregnant women should not be subjected to methods of restraint. The use of these (including handcuffs) is totally prohibited during labour, giving birth and the moments immediately following birth.

children

The risk of humiliation and stigmatisation is particularly great for detainees who are minors. Authorities who use these instruments in an exceptional manner in the detention of minors must take particular care and avoid any form of exposure to public view.

Role of the doctor

The doctor has a particularly important role to play in checking the instruments of restraint used as well as their physical and psychological effects. Generally speaking, the more incapacitating the method used, the more the person subjected to it is in a state of physical and psychological vulnerability, and the more crucial the role of the doctor.

Medical monitoring is necessary in the case of prolonged use of the method of restraint and the doctor must have the power to ask for the immediate suspension of the measure.
When “four-point restraints” are used, a doctor must validate the decision and be involved in applying them to avoid any harmful effect to the physical well-being of the people concerned.

Only a doctor may take the decision to administer sedatives or other means of chemical restraint.

When the instruments of restraint have been removed, the people who have been subjected to them must have access to a doctor who will assess any possible consequences and any treatment that should be given

women
disabilities
children

Whatever instrument of restraint is used, a doctor must be involved when it is used on pregnant women, disabled detainees or those with mental problems or on detainees who are minors.

Oversight by management and complaints procedure

The use of means of restraint must always be subject to oversight by management. However, the more incapacitating the method used and the more likely it is to cause physical or psychological suffering, the stricter must be the oversight by management in order to assess its legality and limit harmful effects.

When prior authorisation is not possible, particularly in the case of acts of violence towards others, self-harm, or escape attempts, the use of these means must be recorded later in a register which must state the name of the person concerned, the members of staff involved, the method(s) used and the duration of their use.

Detainees who consider that they have been subjected to such methods of restraint in an arbitrary manner or who claim to be suffering physical and/or psychological after-effects must have access to administrative and/or legal complaints procedures.