Detailed and Individualised Risk Assessment Required Prior to any Handcuffing of Prisoner During Hospital Visits

Faizovas, R (on the application of) v Secretary of State for Justice [2009] EWCA Civ 373 (13 May 2009) This case sets out a requirement for prisons to undertake detailed risk assessments if they deem it necessary for handcuffs to be used on a prisoner during hospital visits.  The England and Wales Court of Appeal found that the risk assessments carried out in this case demonstrated that the prisoner posed a realistic risk of absconding.  In light of this security risk, the use of handcuffs did not constitute degrading treatment.  Nonetheless, the prison was instructed to revise its policy on handcuffing, which was deemed to fall short of current human rights standards.

Facts

Mr Faizovas, a prisoner in the United Kingdom, was undergoing treatment for cancer in hospital.  Whilst attending these hospital appointments, Mr Faizovas was handcuffed and guarded by two prison officers.  Mr Faizovas said that the handcuffing was humiliating and deprived him of the right to dignity.  He brought a claim in the Administrative Court in the United Kingdom contending that the use of handcuffs during hospital visits violated art 3 of the European Convention on Human Rights, which deems that no person shall be subjected to inhuman or degrading treatment or punishment.  Mr Faizovas' claim was dismissed and an appeal was lodged in the England and Wales Court of Appeal (the Court).

Decision

Protection against degrading treatment

The Court held that art 3 contains an important safeguard against the ill treatment of prisoners.  In her leading judgment, Lady Justice Arden confirmed art 3 guarantees that prisoners must not be subjected to inhuman or degrading treatment.  She advised that it is not necessary for ill treatment to be at the level of 'extreme violence, deprivation or humiliation' for it to constitute a breach of art 3.  In fact prisoners, because they have been deprived of their liberty, impose special obligations on the state.  The dependency of prisoners on the state is a circumstance that must be taken into account when assessing whether treatment is 'degrading' within the meaning of art 3.  In Arden LJ's opinion, humiliation and distress on the part of a prisoner could be an indication of degrading treatment.  However in order to determine whether there had in fact been a breach of art 3, it was necessary to examine the particular circumstances of the case at hand.  In this case, the Court deemed that the risk assessments carried out by the prison were the key factor in determining whether the use of handcuffs on Mr Faizovas constituted degrading treatment.

Risk assessments

The prison authorities had completed detailed risk assessments for each visit to the hospital made by Mr Faizovas.  The risks of Mr Faizovas absconding and causing harm to the public were assessed for each visit.  On each occasion, the prison authorities found that the prisoner posed a realistic risk of absconding and a risk of harm to the public if he did escape.  The question of whether the handcuffs were to remain on during medical treatment was also expressly considered for each visit.  Each risk assessment found that it was necessary to handcuff Mr Faizovas during medical treatment to prevent him from absconding.  There was no evidence before the Court which indicated that Mr Faizovas' treatment or recovery was impeded by the use of handcuffs.  Likewise, there was no evidence of practical alternatives that could be used to secure the room in which Mr Faizovas was being treated.  Under these circumstances, the Court found that Mr Faizovas' sense of humiliation was not sufficient to displace the security risk that was identified in the risk assessments.  For these reasons, the Court found that the handcuffing of Mr Faizovas was not degrading within the meaning of art 3.

Policy changes

Although the Court found no breach of art 3 in this instance, it was careful to emphasise that it was not appropriate for prisons to adopt a rigid or blanket policy with regards to the handcuffing of prisoners.  In this case, the handcuffing of Mr Faizovas during medical treatment was only justified in light of the individualised risk assessments that were carried out for each hospital visit.  These assessments required the prison authorities to undertake a detailed analysis of the security risks posed by the prisoner and, if a risk was identified, to consider whether there were suitable alternatives to handcuffing.

Nonetheless, having examined the prison's handcuffing policy in detail, the Court declared it to be out of step with Convention jurisprudence.  Of particular concern was the fact that the policy only contemplated the removal of handcuffs if the prisoner's life was endangered or if medical staff requested the handcuffs' removal.  The policy did not address the possibility of the particular medical treatment making it disproportionate to use handcuffs if there was some practical alternative available.  Although the shortcomings of the prison's policy did not affect the outcome in this case, the Court deemed that the policy fell short of Convention standards.  The prison was instructed to review its policy on handcuffing in light of the Court's jurisprudence on this issue.

Relevance to the Victorian Charter

Section 10 of the Charter protects the right of all people, including prisoners, to be free from inhuman and degrading treatment in similar terms to art 3 of the Convention.  The decision in this case indicates that the handcuffing of a prisoner during medical treatment may constitute degrading treatment if the prison is unable to demonstrate, by way of a detailed risk assessment, that the prisoner posed a realistic security threat at the time of the handcuffs being used and that there were no viable alternatives to handcuffing.  In addition, s 22 of the Charter raises a point of differentiation in the Victorian context.  Section 22 of the Charter protects the right to humane treatment when deprived of liberty.  This right is not included in the Convention.  Therefore, read together, ss 10 and 22 would imply that the Charter is more rigorous than the Convention in its protection of the welfare and dignity of prisoners.

The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/373.html. 

Magdalena McGuire is a volunteer with the Human Rights Law Resource Centre