5. Segregation for the purpose of security, good order or safety

5.1 Segregation for the purpose of security, good order, or safety
Section 58(1)

Section 58(1) of the Correction Act 2004 provides that a Prison Manager (or his / her authorised delegate) may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if, in the opinion of the Prison Manager (or his / her authorised delegate):

• The security or good order of the prison would otherwise be endangered or prejudiced (section 58(1)(a));

OR

• The safety of another prisoner or another person would otherwise be endangered (section 58(1)(b)).

Consideration needs to be given as to which subsection is applicable in each particular case. For example, if the prisoner makes oral threats and/or uses physical force on another prisoner or another person, then depending on the level of risk that prisoner presents to the safety and well-being of that other prisoner or other person, it may be more appropriate to segregate him or her under section 58(1)(b) for the purpose of safety of another person or prisoner (rather than under section 58(1)(a) for the purpose of security or good order of the prison).

5.2 Grounds for directing segregation for the purpose of security, good order or safety

Prison Managers (or their authorised delegates) must ensure that a direction to segregate a prisoner for the purpose of security, good order, or safety, and any recommendation to continue such a direction are logically robust, evidence-based, and can withstand scrutiny.

Information supporting a segregation direction or recommendation to continue a direction and the prisoner's sentence plan file notes justifying the segregation direction must be forwarded to PPS Regional Office (as the CE's authorised delegates). This is to verify the cohesion of the evidence to support the segregation direction. Where the prisoner is already subject to a period of segregation and the prison is recommending the continuation of that segregation direction, the supporting documentation required to be forwarded to PPS Regional Office need only cover the current period of segregation. The prison must provide supporting information commenting on the effectiveness (or ineffectiveness) of the segregation to date and of any interventions used to assist the prisoner's return to the main prison population.

Where the prisoner's behaviour continues to present difficulties for management and the prisoner has been segregated under section 58(1) of the Correction Act 2004, consideration should be given to reviewing the prisoner's security classification. If the prisoner's behaviour is of concern to the ongoing security, good order, or safety of the prison, or if the safety of another prisoner or another person would continue to be endangered, the new security classification should reflect the increased internal risk. This may warrant the prisoner being managed in more restrictive environment on a more permanent basis, as opposed to continued periods of segregation.

5.3 Continuing segregation for the purpose of security, good order or safety for up to 3 months
Section 58(3)(c) & (d)

A direction for segregation for the purpose of security, good order, or safety, expires after 14 days (section 58(3)(c)), unless before it expires, the Chief Executive (or his / her authorised delegate) directs that it continue in force.

The direction must, if it continues beyond 14 days, be reviewed by the Chief Executive (or his / her authorised delegate) at intervals of not more than 1 month, and expires after 3 months unless a Visiting Justice directs that it continue in force.

To avoid doubt, the segregation periods and the time by which applications recommending the continuation of a segregation direction for the purpose of security, good order, or safety must reach the Chief Executive (or his / her authorised delegate) are specified below:

1. A recommendation to continue the segregation direction beyond 14 days for up to one month from the start date of segregation must reach the Chief Executive (or his / her authorised delegate) before the14-day expiry date.
2. A recommendation to continue the segregation direction beyond 1 month for up to 2 months from the start date of segregation must reach the Chief Executive (or his / her authorised delegate) at least 7 days before the 1-month expiry date.
3. A recommendation to continue the segregation direction beyond 2 months for up to 3 months from the start date of segregation must reach the Chief Executive (or his / her authorised delegate) at least 7 days before the 2-month expiry date.

5.4 Application to Visiting Justice for direction to continue in force beyond 3 months and review at intervals of not more than 3 months
Sections 58(3)(d)(ii) & 59(3)(e)

Only a Visiting Justice can direct that segregation for the purpose of security, good order, or safety continue in force beyond 3 months. If a Visiting Justice directs that segregation continue in force beyond 3 months then the direction must be reviewed by a Visiting Justice:

• not more than 3 months from the date on which the Visiting Justice directed that segregation continue in force beyond 3 months and
• at subsequent intervals of not more than 3 months.

Before an application and supporting documents are forwarded by the prison to a Visiting Justice, these must be forwarded by the prison to PPS Regional Office (as the CE's authorised delegates)to consider whether or not to revoke the direction. The application and supporting documents must reach PPS Regional Office at least 3 working days before they are due to be forwarded by the prison to a Visiting Justice.

If a segregation direction is revoked by PPS Regional Office or by the Visiting Justice, the prisoner must be removed from segregation immediately upon the receipt by the prison of the revocation notification from PPS Regional Office or the Visiting Justice. If the direction is not revoked by PPS Regional Office, the prison must, no later than 7 days before the segregation expiry date, forward to the Visiting Justice the application and supporting documents.

New information not available to the prison at the time the documentation is forwarded to PPS Regional Office and/or the Visiting Justice can subsequently be forwarded as supplementary information.

The prison must provide the prisoner with a copy of the application and supporting documents at the same time that these are forwarded to a Visiting Justice. Any supplementary information subsequently forwarded to the Visiting Justice must also be copied to the prisoner at the same time. The prisoner is to be asked to acknowledge in writing that he / she has received a copy of the application and supporting documents, as well as any supplementary information. If the prisoner refuses to acknowledge in writing that he / she has been given a copy of the application and supporting documents, then this refusal must be noted by the prison officer and this notation witnessed at the same time by another officer on the copy of the application given to the prisoner.

Note: Information copied to the prisoner may exclude any document(s) or part(s) of document(s) withheld under the Official Information Act 1982 or the Privacy Act 1993. If this is the case the prisoner must be informed (using the Prison Manager's Notification to the Prisoner of the Prisoner's Placement on Segregation or Continuation of Segregation form) that the withheld documents exist and are being withheld and / or parts of the document(s) are being withheld under the relevant provisions of the Official Information Act 1982 or the Privacy Act 1993, unless there are grounds under section 10 of the Official Information Act 1982 or section 32 of the Privacy Act 1993 that justify neither confirming nor denying the existence of the document(s).

5.5 Prisoners suspected of concealing unauthorized items
Reg. 64

The following requirements, set out in regulation 64 of the Corrections Regulations 2005, apply to a prisoner who is subject to a segregation direction under section 58(1)(a) of the Corrections Act 2004 because the prisoner is suspected of concealing internally an unauthorised item:

• Such a prisoner may be placed in a cell that does not have:
  • a toilet; or
  • running potable water; or
  • a modesty screen.
• A medical officer must advise the Prison Manager in writing as soon as he or she believes that there has ceased to be any justification for continuing to deny or restrict the prisoner's opportunity to associate with other prisoners.
• Unless the medical officer directs otherwise the Prison Manager must ensure that a registered health professional visits the prisoner at least once per day.
• The registered health professional must keep written notes of each visit and arrange for those notes to be placed in the prisoner's medical record.
• The medical officer must record any recommendation or advice given by the medical officer in the medical records of the prisoner concerned.

Note the difference between a "medical officer" and a "registered health professional above":

• Under section 20 of the Corrections Act 2004 a medical officer of a prison must be a medical practitioner (i.e. a doctor, including a psychiatrist) registered with the Medical Council of New Zealand as a practitioner of the profession of medicine. A nurse, psychologist, or counsellor employed or engaged by the Department is not a medical officer for the purposes of the Corrections Act 2004.
• A registered health professional is defined by section 3(1) of the Corrections Act 2004 as a health practitioner who is, or is deemed to be, registered with an authority established or continued by the Health Practitioners Competence Assurance Act 2003 as a practitioner of a particular health profession - this would include a nurse employed or engaged by the Department.