The case of FGP v Serco (2012) EWHC 1804 (Admin) concerned the judicial review of Serco’s decision to use restraints on an individual during visits to Hillingdon Hospital.

FGP was taken to hospital from an immigration removal centre four times between July 2010 and September 2010. On each occasion a risk assessment was carried out which concluded that the use of restraints at all times was necessary. This was due to FGP’s history of violent offending, his risk of self-harm, the likelihood of him absconding and the low level of security at the hospital. FGP was therefore escorted to hospital in handcuffs or closet chains and remained in the restraints during his visits to the hospital.

Three out of four of the visits were completed within a day but one visit resulted in an eight day in-patient stay. During that time FGP could not leave his bed without being handcuffed to an officer, including when he needed to relieve himself, shower or undress. He claimed Serco Plc had failed to consider the question of restraints properly and therefore had breached his European Convention on Human Rights under Article 3 and Article 8.

FGP also joined the Secretary of State as a defendant stating that the guidance on the use of restraints during hospital visits was imprecise leading to an unacceptable risk that a breach of his human rights would occur.

It was held that the decision to restrain FGP during his hospital visits was justified given his history. The restraints applied during the three shorter hospital visits had not breached FGP’s human rights.

However, for the longer eight day visit the court was concerned at the continued use of restraints during FGP’s stay. Serco PLC had not considered whether FGP should be restrained during treatment, whether it was necessary to handcuff him to the bed while he slept and whether the presence of officers in the room was needed instead of stationing them outside the door.

The court also affirmed that there is a presumption that restraints will not be applied during medical treatment and that there should be no attendance within earshot of consultation unless it is decided on proper grounds that such restraints or attendance were necessary. It was not the correct policy to continue to use restraints and attendance unless medical staff requested otherwise. By failing to consider these points and continuing to apply restraints when they were not necessary, Serco breached FGP’s Human Rights during this longer stay.

On the issue of the Secretary of State’s policy the court held that the policy could not be expected to go into great detail and in any case Serco plc was primarily responsible for safeguarding the human rights of individuals under its control. Whilst the court found that the policy could be criticised for not identifying clearly that there should be a presumption against restraints during treatment or consultation, that did not render the policy unlawful.

NHS bodies should not allow those responsible for the security of prisoners and other detained persons to argue that the burden of deciding whether restraint is necessary falls on the NHS. Staff should remember that consultations and treatment are confidential and there is a presumption against restraint or security staff being in earshot at these times. If staff are concerned that restraint is disproportionate or is impacting adversely on a patient’s care, they should raise it with Trust management.