The Queen (on the application of G and A) v Secretary of State for Justice [2007] EWHC 2940 (Admin)

This case raises the question of whether or not a sick prisoner, when being treated as an in-patient or an out-patient at a hospital, who is handcuffed during all or part of his time in hospital, has had his rights under Article 3 or 8 of the ECHR infringed.

G was a 28 year-old man serving a 3-year sentence for possession of cannabis, cocaine and heroin with intent to supply it to others.  He had a history of drug offences and one previous conviction for violent disorder.  He was a Category C prisoner and assessed as posing some risk of escape and some risk to the public should he escape.   During the course of his sentence he developed a serious illness and was diagnosed as suffering from Hodgkin’s lymphoma.  He was admitted to hospital as an emergency and his condition rapidly deteriorated.  His prognosis was extremely poor.  His treating physician expressed the view that there was no question of him having the ability to abscond from hospital independently.  He made a request to the prison authorities that compassion be displayed in his case and that the level of protection should be reduced.

There were four factors to be considered in a risk assessment to determine the level of security required for a prisoner.  Two of these factors were the risk posed to the public and the risk of escape.  In G’s case, following diagnosis of his illness, the conclusions reached by the first assessment were unclear though it concluded that handcuffs were to remain in place and he was to be accompanied by 2 prison officers at all times.  In a second risk assessment his condition was assessed as such that he would be able to escape unaided and there had been 2 adjudications of custodial violence.  At this time he was assessed as posing a risk to the public or hospital staff and handcuffs were not to be removed during visits to hospital and treatment.  Approximately one year after he was diagnosed, W, Head of Security and Operations at the prison, reviewed G’s risk assessment and decided he should not be subject to restraint at all due to the deterioration in G’s health and the representations made by his treating physician.  He was also directed that G escorts should be in plain clothes and not prison uniform to preserve his dignity.

Following some improvement in G’s condition, another risk assessment was carried out and since there were no medical reasons why restraints could not be applied, it was directed that he should be restrained by the use of an escort chain for the remainder of his time in hospital.  This was sanctioned by W.  After he was discharged and returned to the hospital for chemotherapy treatment, W directed that he not be handcuffed when receiving treatment or having a consultation.  On 5 occasions this did not happen and G was handcuffed during his treatment and consultation with doctors.  The risk assessments on which these decisions were based failed to indicate concerns in any of the four areas required.  The Court found a there was a lack in consistency in many of the risk assessments made thereafter and certainly no objective basis for deciding that G should be handcuffed during his chemotherapy sessions.  The warnings and intelligence about G when closely scrutinised did not portray an accurate picture.

The facts relating to A were similar but more straightforward.  He was 73 years old and had been convicted of the murder of his wife and 2 children and had been in prison for five years.  He was a Category B prisoner and was receiving treatment as an in-patient for a short time for a myocardial infarction.  On one visit to hospital he had been handcuffed by prison officers who had consulted staff prior to the visit about the medical implications of this.  There were none and the treatment took place in handcuffs.  The risk factors for A were significantly different to G.  He posed a risk to children; he had previous convictions for theft and fraud and was a “highly manipulative person who will try to condition staff whenever possible”.  There was also a real possibility that he might try to escape though there was no current intelligence to suggest this.

A complained that the wearing of cuffs whilst he was in a hospital bed caused difficulty to his breathing and was uncomfortable but the prison officers had obtained assurances from medical staff that this would not impact on his physical health nor was it medically inappropriate.

The Court looked at the ECHR case law in this area and found that handcuffing did not normally give rise to Article 3 issues where the measure had been imposed “in connection with a lawful detention and did not entail the use of force exceeding what was reasonably considered necessary”.  However, in Mouisel v France [2004] the use of handcuffs, in light of the applicants deteriorating health, treatment for chemotherapy and his physical weakness the Court found their use disproportionate to the needs of security.    In another case Tarariyyeva v Russia a prisoner was shacked to his bed whilst undergoing treatment for a life-threatening illness.  In both cases there was a violation of Article 3 of the ECHR.   The High Court concluded that the unnecessary use of handcuffs on a prisoner receiving treatment at a hospital was capable of breaching Article 3 either because it was inhuman or degrading or both.  Much depended on the risk assessment and the likelihood of the prisoner escaping or the threat posed to staff or the public in his current condition.  On this basis it followed that the routine handcuffing of prisoners receiving treatment in hospital without there being a risk assessment in place was likely to be unlawful and involve a breach of Article 3.

In the case of G, the court held that there was no breach of his Article 3 rights during the period he was an in-patient receiving treatment when the risk assessment by W had recommended restraint based on objective criteria.  It did however find a breach of his Article 3 rights during the period in which he was receiving out-patient treatment when W had directed that no restraint should be applied due to a change in the risk posed by G to hospital staff or the public should he escape.  In W’s view there had been no need to impose restraint on G who had been recommended for early release on compassionate grounds.  Compensation ordered at £500.

In the case of A there was every justification for assessing him as posing a risk of escape and of harm to the public if he was to escape during his treatment as an in-patient and an out-patient.  The assessments were lawful.  They were undertaken with medical approval and did not cross the threshold of inhuman or degrading treatment prohibited by Article 3.  Claim dismissed

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