Faizovas, R (on the application of) v Secretary of State for Justice

For restraints used during a prisoner’s medical treatment, Article 3 of the European Convention on Human Rights requires an individualised proportionality assessment. Authorities must consider the particular security risk, the nature of the treatment and practical alternatives. Heightened appellate scrutiny examines whether the decision has adequate reasons and is reasonably open to the authority; it is not a merits review. Serious illness and humiliation are relevant, but humiliation alone does not establish degrading treatment. A policy that retains restraints automatically during treatment is inconsistent with that approach, although an individual assessment may still justify restraints on the evidence. Medical confidentiality may engage Article 8, but interference can be justified as part of treatment.

Mr Vaclovas Faizovas, a prisoner suffering from terminal cancer, challenged the use of handcuffs and an escort chain during hospital visits and chemotherapy, and the presence of prison officers during consultations. Dyson LJ dismissed the judicial review claim and rejected the alternative Article 8 claim: [2008] EWHC 1197 (Admin). After his death, his daughter continued the appeal under CPR 19.8. The Court of Appeal had to decide whether the restraints amounted to degrading treatment under Article 3, whether Article 8 protected medical confidentiality, and whether the later decision in Uyan v Turkey altered the analysis.

The appeal was unanimously dismissed.

1. Article 3 framework. Article 3 applies only when ill-treatment reaches the minimum level of severity. Whether treatment is degrading depends on matters including humiliation or debasement and its effect on the person’s personality. The prisoner’s dependence on the state and vulnerability are relevant. Humiliation or distress is an indication of degrading treatment, but does not itself establish a violation. The court applied the principles discussed in R(C) v Secretary of State for Justice [2008] EWCA Civ 882 and Raninen v Finland (1998) EHRR 563.
2. Restraints during treatment. Uyan v Turkey Application no. 7496/03 required separate consideration of security measures at the treatment stage. Proportionality required consideration of the individual security risk, the type of treatment and practical alternatives. Uyan did not establish an absolute prohibition on handcuffs during treatment.
3. Appellate scrutiny. Because Article 3 was potentially engaged, the court had to scrutinise the decision with heightened care. That required it to ask whether the conclusion was supported by adequate reasons and was reasonably open to the prison authorities. It did not require a merits review.
4. Application. The risk assessments were made for each hospital visit and expressly considered whether restraints should be removed during treatment. A low risk was not necessarily negligible. There was no medical evidence that the treatment was incompatible with handcuffing, that treatment or recovery was impeded, or that practical alternatives would secure the room. The evidence did not show that the assessments were unreasonable. The authorities were entitled to distinguish the exceptional circumstances in Mouisel v France (2004) 38 EHRR 34 and R(Graham) v Secretary of State for Justice [2007] EWHC 2940 (Admin).
5. Policy guidance. The local policy was inconsistent with the national framework and the Strasbourg approach because it contemplated removal only for medical reasons or where handcuffs were life-threatening. That defect did not affect the result because individual assessments had considered removal. The authorities were directed to review the policy in light of Mouisel and Uyan.
6. Article 8. Medical confidentiality may attract Article 8 protection where treatment falls short of Article 3 severity. Any interference in this case was justified under Article 8(2) as part of receiving treatment.

1. Court of Appeal (Civil Division): dismissed the appeal against the Administrative Court’s decision.
2. High Court of Justice, Queen’s Bench Division (Administrative Court): Dyson LJ rejected the Article 3 and Article 8 claims: [2008] EWHC 1197 (Admin).