Part II: Tools for an effective follow-up and implementation 1.7 Warning and enforcement powers A few NPMs have the power to issue warnings to the authorities or even enforce their recommendations. However, the use of such powers may require caution in view of the preventive approach of NPMs. NPMs with such powers will need to balance their use against the need to find systemic solutions to complex problems and maintaining the sensitive relationship between them and the authorities, which is built upon the premise of cooperation rather than confrontation. Few NPMs, notably those formed on the basis of existing inspection bodies, have special powers to ensure the implementation of their recommendations by warning or penalising authorities or even exercising enforcement. For example for some of the bodies of the UK NPM such powers range from issuing a warning notice, issuing fixed penalty notices, and prosecution,165 ‘improvement notices’, urgent procedures and ‘failure to comply notices’.167 Similarly, some members of the Dutch NPM have enforcement powers. For example if the Health Care Inspectorate (IGZ) receives a report which suggests serious shortcomings in the quality of care, or less serious shortcomings which are nevertheless of a structural, ongoing nature, the Inspectorate will take enforcement action. The measures available range from advice and encouragement to correction and coercion.168 Some bodies in the UK NPM with enforcement powers reported a greater likelihood of compliance with their recommendations.169 The RQIA has noted that ‘the appropriate use of enforcement powers, including prosecution, is important: to secure compliance with legislation and minimum standards; and, to ensure that registered providers are held to account for failures to safeguard the health, safety and welfare of service users.’170 Conversely, such enforcement powers can also raise challenges and may impact on the collaboration and constructive dialogue that the NPM may have with the inspected institution. As has been noted by the UK NPM ‘members should be cautious that this doesn’t detract them from making observations about problems that have no apparent ready solution, or making observations about matters that are relatively minor to the inspected/monitored body, but important to the detainee.’171 Although, therefore, on the one hand having strong enforcement powers may at first glance seem to be an attractive tool for NPMs, on the other hand some cautioned against over-using them in practice, preferring to stress the importance of a constructive dialogue with the relevant authorities as key to ensuring implementation. For example one body of the UK NPM considered that enforcement powers may cause a negative relationship with the inspected/monitored body because those with enforcement powers could be wary of making recommendations or raising issues that they would not be prepared to follow through to enforcement action.172 1.8 Individual complaints and investigations NPMs regularly receive individual complaints and requests when monitoring places of detention. While it is not the NPM’s mandate to investigate the cases, some NPMs use them as a means to assess implementation of recommendations and to identify systemic issues. Moreover, individual UK, Care Quality Commission (CQC), Enforcement Policy (2013) 8. E.g. UK, RQIA, Health and Personal Social Services (Quality, Improvement and Regulation) Order 2003, art 39. 167 Ibid arts 21; and Regulations of RQIA. 168 The Netherlands, National Preventive Mechanism, Second Annual Report 2012, 27. 169 UK NPM, Making Recommendations (2014) para 8. 170 UK, RQIA, Enforcement Policy (2013) para 3.1. 171 UK NPM Recommendations Project. Summary of Findings, para 8. 172 UK NPM, Making Recommendations (2014) para 8. 165 166 - 60 -