Article 3: Inhuman and Degrading Treatment - high care needs focus

Blog 2 of our 6-part Human Rights in SEND series.

Please be aware that this blog contains difficult and potentially triggering issues. Triggers include upsetting and harmful treatment of a young person and reference to restraint and seclusion.

Article 3 of the Human Rights Act protects individuals from any treatment by a public official/authority that is inhuman or degrading. You can read an in-depth explainer of Article 3 here. This treatment includes anything that causes a person serious mental or physical harm, causes extreme or long-term suffering or makes them feel lesser than others. It does not matter what the intention is behind the action being taken, if it causing serious harm then it is unlawful under the Human Rights Act. This right comes up most often in our work where a child is in a residential setting, but this can happen anywhere where a public official is involved. Read more about who has duties and when here.

It is important to note that to recognise whether this right is at risk, we need to focus on the impact on the person. Where an action is causing the individual serious harm (which is different for every person depending on their individual circumstances), no matter what the action is, this could be amount to inhuman and degrading treatment. What might be slightly uncomfortable for one person, may be seriously harmful to another.

The Right to be free from Inhuman and Degrading Treatment is an absolute right, this means that it is never lawful for a public body to cause someone serious mental or physical harm at any time.

This could look like:

Inappropriate or badly managed restraint of a child
Leaving a child in bodily waste for long periods
Secluding a child for long periods
Not stepping in if a child is causing themselves serious harm.

Restraint and Seclusion – what does this mean?

Physical restraint – people are physically held because they are acting in way that was a danger to themselves or others, in someone’s own home this could look like being overly forceful when helping them move around or calming them down.
Chemical restraint – where prescribed medicines are used to calm an individual. This could look like overmedication of people who might be distressed.
Mechanical restraint – having a person controlled by use of a device, like a safe suit or handcuffs. This could look like them being strapped into a wheelchair or any other device that prevents them from moving.
Seclusion – when someone is kept away from all others, often in one room, for a period. During this time, they are not allowed any contact with anyone.

The HRA puts a duty onto all public bodies to respect, protect and fulfil human rights in all decisions they make. Click here to find out more about the Human Rights Act and who has duties. It also puts this duty onto anyone else who is performing a public function.

Examples of people who are performing public functions in the SEND sphere include:

People who work for the local authority: EHC case workers, social workers, educational psychologists, speech and language therapists, the SEN team.
Local authority run schools.
Private specialist schools where places are funded by local authorities.

In SENDIASS it’s important to say that academies have been held to be duty bearers for other pieces of legislation - as yet there hasn’t been a legal case to confirm this position regarding the HRA, but it is highly likely to be the case. This means that the HRA can also be used to challenge academies, which can otherwise be very difficult as they are not beholden to a local authority and formal complaints process can be notoriously hard to access effectively.

This means that the HRA can be used at any and all stages of securing the SEND support that children and young people are entitled to. This can be particularly useful in the stages before a formal appeal to the SENDist tribunal, as it can bolster a case to the point where a local authority will see no point in continuing to refuse support than can be shown to be necessary. Having an additional piece of legislation to use as evidence of the local authorities' obligations in a case will always be useful and the same can be said for lending weight to any other form of formal or informal complaint.

Why does this matter so much for SEND children and young people?

Children and young people with higher care needs can sometimes exhibit behaviours that may be dangerous to themselves or others. This may mean that restraint is used, if done properly and safely with no serious impact on the child, this won’t amount to Inhuman or Degrading Treatment (although other rights may be at risk). However, if restraint is not planned and done properly and safely, this could cause them serious mental or physical harm.

In specialist schools (particularly residential) there is a likelihood that there will be designed seclusion rooms. These are intended to be safe spaces where a child may be held for a short period of time so they can regulate themselves, or just have a bit of space where no one else will be. There can be times where seclusion is the appropriate option, but again if misused it can cause a child serious mental or physical harm. Misuse could be if a child is spending long periods of time in this space, they are not being given access to toilet facilities while there, they are placed there as a punishment rather than their own safety or are being placed there very frequently.

If a setting does not have designed seclusion areas, it is still possible a child may secluded in a space like an empty classroom or staffroom, maybe even a corridor. This can be particularly harmful as the space is not designed appropriately for a distressed child for any period, and they could quite easily cause themselves harm.

If you think there is a possibility a child is being restrained or secluded in a way that is inhuman or degrading, you must raise this as soon as possible because this is never lawful.

Real life example:

Zane's story

Zane was an autistic (with high care needs), epileptic nineteen-year-old with learning disabilities. In 2008 he was at a swimming pool in a specialist school he attended. He became fixated on the water and the swimming pool manager phoned the police when Zane wouldn’t move away from the side of the pool. When the police arrived, Zane jumped into the water. He was then forcibly removed, handcuffed, put in leg restraints and placed in a cage in the back of a police van for a period of around 40 minutes.

The impact of the ordeal was profound. Zane developed PTSD and his epilepsy became more prevalent.

The police argued that they acted in Zane’s best interests under the Mental Capacity Act, but the judge found they did this in violation of Zane’s right to be free of inhuman and degrading treatment (along with his right to liberty and right to private life. Click here to read more about the right to liberty or click here to read more about the right to respect for private and family life, home and correspondence.).

This example shows that although the police believed that they were acting in a way that was best for Zane, by restraining him and then holding him in a cage, their actions had a huge impact on him and caused him serious harm.

If you would like to read the case in full please click here.

Practical things you can do

Read our resources on all rights protected under the Human Rights Act: All rights explained here.

Include any human rights concerns in formal complaints to schools or the local authority itself. As well as in any submissions to the SENDist Tribunal. We will have model letters available soon and include the link to those in our next blog.

Our blog series over the next few months (finishing in April 2024) is going to look at:

Brief introduction to the Human Rights Act and how it can be used, using Article 8 as an example. Click here to read this blog.
Article 3 with a focus on residential schools and very high care needs students. (This blog)
Article 1 Protocol 1 focus – fiddle toys and other learning aid provision/access to phones.
Blanket policies in schools – uniforms and behaviour policies etc. also building on Blog 3 about phones.
School Transport.
A practical tool to use – a letter template for bring up human rights issues with public bodies.

You will be able to find all published blogs here: BIHR Blogs

All our SEND specific and SENDIASS blogs are here: SEND blogs

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Find out more about workshops for SENDIASS and LA practitioners: Click here for more info.