Does the Prison Service Owe a Duty of Care Towards Prisoners?

HM Prison Service, prison governors and directors, and all members of prison staff owe a duty of care to protect prisoners from personal injury and harm, including from abuse and neglect. This duty extends to taking appropriate and proportionate action to protect prisoners.

The Prison Service’s duty of care is also covered by Article 2 of the European Convention on Human Rights which imposes a positive obligation on the State to take measures to protect an individual whose life is at risk.

If prison staff fail to take reasonable, proportionate action to prevent an attack on a prisoner by other prisoners, the injured prisoner may be able to claim damages against the Prison Service.

Reasonableness in particular circumstances mean that prison staff or managers must exercise their judgment as to the nature and extent of the threat on the particular prisoner, and put in place certain measures which they believe to be appropriate to protect that prisoner from harm.

For instance, force may be used to protect a prisoner, but it must be reasonable in the circumstances and necessary; no more force than is necessary; and is proportionate to the seriousness of the circumstances.

If a prisoner failed to protect themselves from harm, this will not necessarily mean prison staff are absolved from their legal obligations. Prison officers must discharge their duty of care to that prisoner, regardless of whether the prisoner concerned has taken measures himself.

On occasions, prison staff may segregate a prisoner from other prisoners for their protection. The following factors will be taken into consideration as to whether segregation is appropriate:

• Whether that prisoner has been threatened, assaulted or bullied
• Whether the nature and the extent of any such threat is sufficient to justify segregation
• Whether improved supervision on the prison wing, transfer to another prison wing or transfer to another prison would be deemed a more appropriate solution
• Whether the prisoner is unable to cope with the normal location
• Whether the prisoner has been convicted of an offence that has attracted media attention and is likely to create resentment amongst the other prisoners
• Whether the prisoner has come under pressure to bring drugs or other contraband into the prison
• Whether the prisoner is an informant or suspected of being so by the other prisoners
• Whether the prisoner is segregated from the rest of the prison would that prisoner’s mental health deteriorate which may lead to an increased risk of self-injury or suicide?

One of the biggest issues faced by the prison service is the problem of self-harm and suicide amongst prisoners. The duty of care to prevent harm to prisoners extends to situations where a prisoner is at risk of harm from themselves. Segregation may be a reasonable and proportionate means to discharge their duty of care, and, for instance, placing a prisoner on suicide watch.

Suicide watch is implemented when a prisoner is considered to be at risk of suicide, or they have specifically expressed a desire to take their own life. In these circumstances, the prisoner should be placed under continual surveillance to ensure that they do not attempt to take their own life.

If prison staff fail to take appropriate action and the prisoner takes his own life, they could be liable for negligence.

If a prisoner suffers mental illnesses in prison, the prison service has a duty of care to implement appropriate safeguarding interventions. If appropriate, and on the doctors’ advice, this may require placing a prisoner into dedicated mental health care.