FGP v Serco Plc & Anor

Restraints used on a detained person during hospital attendance must be reasonably necessary and proportionate in all the circumstances. The assessment must distinguish transport, waiting, treatment and inpatient care. There is a presumption against restraint during treatment and against attendance within earshot during medical consultations, unless a strong and properly assessed risk justifies it and no reasonable alternative is available.

Immigration detention may take account of risks of absconding, harm to the public and self-harm. A policy is unlawful if it cannot be operated lawfully or creates an unacceptable risk of unlawful decisions. Guidance need not prescribe every circumstance, provided responsibility for an individualised assessment is clear.

The claimant was detained at Colnbrook Immigration Removal Centre pending removal. During four hospital visits he was restrained by handcuffs or a closet chain. He challenged the restraints and the guidance governing their use, alleging breaches of Articles 3 and 8 of the European Convention on Human Rights.

The claim was brought against Serco Plc, which operated the centre, and the Secretary of State for the Home Department, who issued relevant guidance. The central issues were whether the individual restraint decisions were proportionate, particularly during an eight-day inpatient stay, and whether the guidance created an unacceptable risk of unlawful treatment.

1. Individual restraint decisions. The relevant question was whether restraint was reasonably necessary and proportionate, having regard to all relevant circumstances. These included the risks of escape, harm to the public, staff or detainees, the detainee’s history and current behaviour, the hospital’s security, the nature of the medical procedure and the availability of alternatives. Immigration detention did not prevent consideration of danger to the public. Fear of self-harm could justify an officer’s presence, or restraint where necessary.
2. Convention rights. Handcuffing during medical treatment could engage Article 3. The assessment depended on the duration, physical and mental effects, health and vulnerability of the detainee. Article 8 could also be engaged, particularly because medical confidentiality and private consultations are important aspects of private life. A proportionate interference would nevertheless be justified under Article 8(2).
3. Treatment stage. The assessment had to distinguish conveyance, waiting, treatment and inpatient care. There was a presumption against restraint during treatment and against attendance within earshot during consultations. Restraint or attendance could continue only where proper grounds showed a strong risk and no reasonable alternative was reasonably practicable. It was wrong to continue restraint unless medical staff requested its removal.
4. The three short visits did not breach the claimant’s rights. The continuous restraint during the inpatient stay was disproportionate. The claimant was generally cooperative, and insufficient consideration had been given to treatment, washing, toileting, specimens, sleep and medical confidentiality. Article 3 was therefore breached.
5. A policy which could not be operated lawfully, or which created an unacceptable risk of unlawful decision-making, would itself be unlawful. The Secretary of State’s guidance was imperfect and should have stated the treatment presumption more clearly, but it did not cross that threshold. The claim against Serco succeeded in part; the claim against the Secretary of State was dismissed.