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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> ASK v The Secretary of State for the Home Department [2017] EWHC 196 (Admin) (09 February 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/196.html Cite as: [2017] EWHC 196 (Admin) |
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Neutral Citation Number: [2017] EWHC 196 (Admin)
Case No: CO/9816/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 09/02/2017
Before :
MR JUSTICE GREEN
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Between :
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The Queen on the application of ASK |
Claimant |
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- and - |
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The Secretary of State for the Home Department |
Defendant |
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- and - |
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NHS England |
Interested Party |
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Stephanie Harrison QC and Leonie Hirst (instructed by Bhatt Murphy Solicitors) for the Claimant
Julie Anderson (instructed by Government Legal Department ) for the Defendant
Christopher Knight (instructed by Browne Jacobson) for the Interested Party
Hearing dates: 21 st - 23 rd June 2016
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Judgment Approved
INDEX
Paragraph No.
A. Introduction, Issues and Conclusions |
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(i) |
The issues |
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(ii) |
Conclusion on the evidence |
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(iii) |
The issue of the proper Defendant |
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B. The Relevant Law |
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(1) |
Mental Health Act 1983: Sections 2, 3 and 48 |
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(2) |
Relevant Home Office Guidance - Chapter 55.10 of the Enforcement Instructions and Guidance ("EIG") |
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(i) |
The published guidance: Chapter 55.10 EIG |
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(ii) |
Very exceptional circumstances: "satisfactory management" |
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(iii) |
The standard of care to be provided |
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(iv) |
Guidance given in O v SSHD |
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(v) |
The need for a "practical inquiry" |
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(vi) |
The duty of constant supervision |
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(vii) |
Balancing mental health with other considerations including the risk of harm to the public |
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(3) |
The Common Law Duty to Make Inquiries |
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(4) |
Article 3 ECHR: The Prohibition on Torture or Inhuman or Degrading Treatment or Punishment |
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(i) |
The issue |
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(ii) |
The test in R v Drew |
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(iii) |
The Shaw Report (January 2016) |
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(5) |
Article 5(1)(f) ECHR: Unlawful Deprivation of Liberty |
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(i) |
The legal issue |
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(ii) |
The complaint |
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(6) |
Article 8 ECHR: Private Life |
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(7) |
The Duration of Detention: The Common Law Duty to Act Consistently with the Statutory Purpose - Hardial Singh Principles |
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(8) |
The Tort of False Imprisonment: Materiality of Breach / Nominal Damages |
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(9) |
Equality Act 2010 ("EA 2010") |
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(i) |
The legal issue |
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(ii) |
The complaint |
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(10) |
Mental Capacity Act 2005 ("MCA 2005") |
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(i) |
The issue |
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(ii) |
The regulatory framework |
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(iii) |
The complaint |
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C. The Approach to be Adopted to the Evidence |
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(i) |
Evidence must be viewed as a whole and in the round - avoiding shot conclusions |
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(ii) |
Competence and caseworker hearsay |
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(iii) |
Medical hearsay |
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(iv) |
Avoid reading documents as if they were legal texts |
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(v) |
Piecing together the chronology |
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(vi) |
Documents not written according to formula / non-reference to policy |
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(vii) |
Failure to record the questions that are asked |
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(viii) |
Ex post facto witness statements |
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(ix) |
Avoid being wise in hindsight |
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D. Relevant Facts |
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(1) |
The Claimant |
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(2) |
Detention at Lakeside: October - December 2012 |
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(3) |
The Discharge of the Claimant from Lakeside: 13 th December 2012 |
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(4) |
Claimant's Conduct and Behaviour Following Discharge from Lakeside |
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(5) |
The Detention of the Claimant by the Police: 17 th January 2012 |
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(6) |
First 24 Hours Following Detention |
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(7) |
Steps Taken to Obtain the Claimant's Medical Records |
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(8) |
Transfer to Morton Hall IRC |
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(9) |
Return to Colnbrook IRC |
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(10) |
The Cancellation of the Removal Directions |
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(11) |
Ongoing Assessments with a View to Removal |
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(12) |
The 14 th April 2013 Review: Transfer to Hospital |
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(13) |
Rejection of Release into Community - The Risk of Absconsion / Self-Harm / Harm to Others: 24 th April 2013 |
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(14) |
Assessment Against Standard in Chapter 55.10 EIG: 25 th April 2013 |
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(15) |
Dr Musah's Assessment of the Urgent Need for Transfer: 8 th May 2013 |
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(16) |
The Section 47 and 48 MHA 1983 Medical Opinions |
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(17) |
The Contra-Opinion of Dr Morrison at Lakeside |
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(18) |
The Instruction of Medical Justice to Find a Hospital Bed: May 2013 |
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(19) |
The Assessment of 20 th May 2013: ASK Manageable in the IRC unless he Becomes Manic / Possibility of Transfer to A&E |
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(20) |
The Opinion of Dr Goldwyn: 28 th May 2013 |
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(21) |
The Contra-Opinion of Dr Morrison: 29 th May 2013 |
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(22) |
The Review on 30 th May 2013: Chapter 55.10 EIG Assessment |
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(23) |
The Assessments by Dr Khan on 1 st and 16 th June 2013: No Hospital Transfer Required |
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(24) |
Steps Taken to Remove the Claimant: 19 th June 2013 |
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(25) |
Letter before Claim: 19 th June 2013 |
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(26) |
Disclosure of Claimant's Healthcare Records |
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(27) |
Claimant's Request to Return Home |
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(28) |
The Intervention of NHS England |
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(29) |
Opinion of Dr Dossett on Legal Capacity: 6 th July 2013 |
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(30) |
Position of Defendant as of 12 th July 2013 |
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(31) |
Defendant Agrees to Suspend Removal Process: 18 th July 2013 |
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(32) |
The Process of Placement of the Claimant in Hospital |
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(33) |
The Acceptance for Placement by the West London Health Trust: 26 th July 2013 |
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(34) |
Admission on 23 rd September 2013 |
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(35) |
Detention under Section 3 MHA 1983: 14 th November 2013 |
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(36) |
Post Admission Assessment: Dr Stokes Report - 5 th December 2013 |
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(37) |
Post Admission Assessment: Dr Dent's Report - 15 th January 2014 |
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(38) |
Post Admission: The Discharge of the Claimant into the Community - 30 th January 2014 |
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(39) |
Re-Admission of the Claimant to Hospital |
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(40) |
Claimant Adamant that he Wishes to Return to Pakistan |
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(41) |
Transfer to Mott House with a View to Removal |
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(43) |
Present Position of the Claimant |
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E. Analysis: The Duty to Make Enquiries / Detention Unlawful at the Outset (from 17 th January 2013)? |
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F. Analysis: Detention Unlawful from Date Claimant Assessed as Unfit to Fly (9 th February 2013) |
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G. Analysis: Failure to Transfer to Hospital after April 2013 |
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H. Analysis: Mental Capacity Act 2005 |
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I. Analysis: Equality Act 2010 |
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J. Conclusion |
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ANNEX I: THE ATTRIBUTION OF RESPONSIBILITY FOR DETENTION |
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A. Introduction |
1 - 2 | |
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B. The Initial Decision to Detain |
3 - 5 | |
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C. The Provision of Healthcare in an IRC |
6 - 13 | |
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D. Decisions as to "Fitness to Detain" and "Fitness to Travel" |
14 - 17 | |
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E. The Decision to Obtain Certificates: Section 47 MHA 1983 |
18 - 20 | |
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F. The Decision to Accept a Person to a Particular Psychiatric Hospital |
21 - 22 | |
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G. Provision of Assistance to a Detainee Lacking Mental Capacity Pursuant to the Mental Health Capacity Act 2005 |
23 - 25 | |
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ANNEX II: ORDER OF 29 th JUNE 2016 |
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MR JUSTICE GREEN :
A. Introduction, Issues and Conclusion
(i) The issues
2. The case raises a number of issues.
3. First, the implications of the recent judgment of the Supreme Court in R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department [2016] UKSC 19 (" O v SSHD") and the change that it has brought to the law relating to detention, in the light of R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ 45 (" Das"). In O v SSHD the Supreme Court modified the test for when a person awaiting removal could be detained in a detention centre by rejecting the view of the Court of Appeal in Das that the Defendant was not required to take account of the possibility that a detainee would receive better care and treatment in a psychiatric unit relative to that available in the IRC.
(ii) Conclusion on the evidence
(i) The medical condition of ASK was complex. It fluctuated significantly depending, in large measure, upon whether he adhered to his medication regime.
(ii) ASK was subject from first to last to detailed and frequent assessments by a wide variety of different, qualified, clinicians. There was no point in the chronology at which it could be argued that ASK was not subject to medical supervision. There were no treatment gaps.
(iii) The views of the assessing clinicians varied widely and indeed starkly. This reflected the variable nature of ASK's condition. It is not argued that the opinion of any clinician was negligent.
(iv) At all times the assessment was related to the question whether ASK was fit to be detained and removed in accordance with applicable immigration policy.
(v) At the same time the assessment also regarded ASK's mental condition which included whether it could be satisfactorily managed in the IRC and/or whether it could be better managed in hospital.
(vi) On the facts the Defendant performed all due inquires arising at the point of first detention. ASK's medical position was in a state of constant assessment and supervision at this time.
(vii) Thereafter, given the widely divergent expert medical opinions, the Defendant was bound to consider all the evidence in the round (and not just that most favourable to the Claimant's case). The chronology establishes that the evidence was considered collectively as a whole.
(viii) The Defendant obtained and assessed what, in effect, was a tie breaker opinion (from a Dr Dossett, instructed by the Claimant) in mid-July 2013 and when it recommended hospital transfer the Defendant acted upon that recommendation with proper haste. It was only at this point in time that the Defendant concluded and decided that there was no proper basis for removal. Plans to remove ASK were withdrawn forthwith, i.e. without delay.
(ix) The delays which occurred thereafter in effecting the physical transfer of ASK to hospital were due to (a) potential receiving hospitals wishing to carry out their own assessments of ASK and/or (b) problems in locating a suitable hospital bed. These were delays intrinsic to the system. In all the circumstances they were neither excessive nor unreasonable.
(x) During the period during which ASK was awaiting transfer his condition did not deteriorate. There is no evidence to support the contention that the treatment available in hospital was materially more beneficial to ASK than that which was provided in the IRC. Although it involves the use of hindsight the chronology post-dating transfer to hospital does not show either improvement or deterioration in ASK's condition.
(xi) The Defendant's conduct throughout was, by whatever standard is applied, lawful.
(xii) With specific regard to issues of mental capacity the evidence indicates that this was a continual aspect of the assessment being made of ASK. There are a number of points to be made. First, most of the key decisions being made (e.g. fit for detention, fit to remove, transfer under the MHA 1983) were not decisions requiring ASK's consent, though I accept that this does not mean that input from ASK was irrelevant. Second, in relation to the appointment and the giving of instructions to legal advisers who might have brought proceedings more rapidly to secure his transfer there is no evidence that ASK's interests were in any way prejudiced or compromised. The chronology is in this regard telling: it shows that the Defendant acted on her own initiative to take decisions in ASK's best interests upon the basis that he lacked capacity: See, e.g. the events described at paragraphs [137] - [142] below.
(xiii) To the extent that the Claimant alleges systemic flaws in the system under the Equality Act these did not loom large in the Claimant's argument before the Court. There is insufficient evidence before the Court upon which to form the conclusion that this claim is established. In any event this case would not be an appropriate case in which to evaluate the argument given my conclusion on the particular facts of the case. I can in any event detect no facet of ASK's treatment which was discriminatory or unequal.
(iii) The issue of the proper Defendant
B. The Relevant Law
(1) The Mental Health Act 1983: Sections 2, 3 and 48.
(2) Relevant Home Office Guidance: Chapter 55 of the Enforcement Instructions and Guidance ("EIG").
(3) The common law duty to make inquiries.
(4) Article 3 ECHR: The prohibition on torture or inhuman or degrading treatment or punishment.
(5) Article 5(1)(f) ECHR: Lawful deprivation of liberty.
(6) Article 8 ECHR: Private life.
(7) The duration of detention: The common law duty to act consistently with the statutory purpose - Hardial Singh principles.
(8) The tort of false imprisonment: Materiality of breach/nominal damages.
(9) Equality Act 2010.
(10) Mental Capacity Act 2015.
(1) Mental Health Act 1983: Sections 2, 3 and 48
12. The MHA 1983 confers upon the relevant Secretary of State the power to transfer individuals, including detainees in IRC, to hospital on account of their mental condition. Section 2 MHA 1983 (" Admission for assessment") provides:
"(1) A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as "an application for admission for assessment") made in accordance with subsections (2) and (3) below.
(2) An application for admission for assessment may be made in respect of a patient on the grounds that-”
(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.
(3) An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with.
(4) Subject to the provisions of section 29(4) below, a patient admitted to hospital in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the following provisions of this Act."
13. Section 3 (" Admission for treatment") provides:
"(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as "an application for admission for treatment") made in accordance with this section.
(2) An application for admission for treatment may be made in respect of a patient on the grounds that-”
(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) ...
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section and
(d) appropriate medical treatment is available for him.
(3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include-”
(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d) of that subsection; and
(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.
(4) In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case."
14. Section 48(1) and (2)(d) (removals to hospital of other prisoners) empowers the Secretary of State to remove to hospital persons detained for immigration purposes upon the receipt of reports such as are specified in section 47 (from two registered medical practitioners who opine that the person is suffering from mental disorder which is of a nature and degree which makes it appropriate for him to be detained in a hospital for medical treatment and that appropriate treatment is available) which satisfy the Secretary of State that: The (a) person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; (b) he is in urgent need of such treatment; and (c) appropriate medical treatment is available for him.
(2) Relevant Home Office Guidance - Chapter 55.10 of the Enforcement Instructions and Guidance ("EIG")
(i) The published guidance: Chapter 55.10 EIG
15. Administrative detention will be unlawful on public law grounds if the Secretary of State fails properly, i.e. lawfully, to apply her policy in Chapter 55.10 of the Enforcement Instructions and Guidance ("EIG"). Lord Dyson in R (Lumba) v Secretary of State for the Home Department (JUSTICE and another intervening) [2011] UKSC 12 (" Lumba") paragraph [34] stated: " [I]mmigration detention powers need to be transparently identified through formulated policy statements".
16. The Defendant's published policy, at the time the Claimant was detained, in relation to continuation of detention in cases of mental health, at the time the Claimant was detained, is set out in Chapter 55 EIG entitled "Detention and Temporary Release". It provides (so far as relevant): (i) at paragraph 55.1.1 that the power to detain had to be retained in the interests of maintaining effective immigration control but that there was a presumption in favour of release; (ii) at paragraph 55.8 that, following the commencement of any detention, reviews of that detention were necessary in order to ensure that it remained lawful and in line with policy; and (iii), that detainees were to be provided every 28 days with written reasons for their continued detention, based on the outcome of the reviews.
(ii) Very exceptional circumstances: "satisfactory management"
17. Paragraph 55.10 EIG addresses the position of persons suffering from mental health conditions and is entitled "Persons considered unsuitable for detention". It provides for continued detention in very exceptional circumstances and also introduces as a test whether the person's mental illness can be " satisfactorily managed" within detention:
"The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prison:
...
Those suffering from serious mental illness which cannot be satisfactorily managed within detention ... In exceptional cases it may be necessary for detention at a removal centre or prison to continue whilst individuals are being or waiting to be assessed or are awaiting transfer under the Mental Health Act."
In O v SSHD ( ibid) the Supreme Court considered the scope of Chapter 55.10 EIG. A summary of the main conclusions is as follows. First, when considering whether there are very exceptional circumstances which make a person suitable for detention even though his or her mental illness cannot satisfactorily be managed there, the caseworker has to weigh the severity of any risks of offending or further offending and of absconding ( ibid paragraph [19]). Second, Chapter 55.10 should be considered as part of detention reviews ( ibid paragraph [25]). Third, the Court must interpret Chapter 55.10 for itself and not ask whether the interpretation placed upon it by the Secretary of State is reasonable ( ibid paragraph [28]). Fourth, the policy must be considered as a whole ( ibid paragraph [57]).
(iii) The standard of care to be provided
"-¢ Detainees should receive health care equivalent to that available to the general population in the community with access to services based on clinical need and in line with the Detention Centre Rules; and
-¢ Health and wellbeing services in IRCs should seek to improve health and wellbeing (including parity of esteem between services which address mental and physical health)..."
(iv) Guidance given in O v SSHD
"71. It has not been necessary for the determination of this appeal to consider the submission that a restrictive interpretation of the policy risks conduct in breach of Article 3 of the European Convention on Human Rights. Nor has it been necessary to decide whether it suffices for satisfactory management of mental illness in detention that deterioration is prevented or whether, as Miss Rose submitted, it involves facilitating recovery, so far as is possible. Mind's view (see Ms Nash's statement, paragraph 35) is that there would not be satisfactory management where a person's mental health could be improved by a particular treatment, such as counselling, but that treatment is not available in detention, or is not available without delay. I strongly doubt that the framers of the policy intended it to have this meaning or that it is the natural construction of the words used. It also appears inconsistent with the view taken in the previous decisions of this court and the Administrative Court where the question addressed was whether detention would result in deterioration. It raises broad policy questions of a kind which Miss Anderson informed the court is the subject of an investigation being undertaken on behalf of the Secretary of State by the Tavistock Institute. It also seems impractical as a test given the likely effect on an individual's mental health of the prospect of his or her involuntary removal from the United Kingdom in the very near future and given the variability of what treatment is available in different parts of the country to those with mental illnesses who are not detained. If Mind's position represents a general view among mental health clinicians, it may be an example of where legal policy and medical opinion diverge."
(v) The need for a "practical inquiry"
"31. Above all the policy in para 55.10 of the manual mandates a practical inquiry. As Beatson LJ stressed in the Das case, the phrase "satisfactory management" should be interpreted with regard to its context and purpose (para 45); should not be subjected to the fine analysis appropriate to a statute (para 47); nor invested with a spurious degree of precision (para 65). An important part of its context is that the management of the illness takes place in detention pending likely deportation. Treatment of a patient who finds herself in the doubly stressful circumstances both of detention and of likely deportation has its own considerable, extra challenges; treatment in those circumstances might be satisfactory even if it would not otherwise be satisfactory."
(vi) The duty of constant supervision
"(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
...
(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) for his supervision or care."
The purpose of Rule 35 is to ensure that vulnerable detainees are brought to the attention of those with responsibility for authorising, maintaining and reviewing detention.
(vii) Balancing mental health with other considerations including the risk of harm to the public
"24. Those cases... also show that these factors continue to be significant where the foreign national prisoner suffers from mental illness. Even where the policy now contained in §55.10 in principle applies, it will be necessary for the person considering detention to weigh the risk of harm to the public against the reason why that person would normally be regarded as unsuitable for detention. In the cases of those with mental illnesses who are not foreign national prisoners, the strength and weight of the policy concerning them will not be present. This means that, although the broad principles of assessment of the question whether detention is justified will be the same, some care should be taken in reading over from the result of the assessment of a case involving a person with a mental illness who is foreign national prisoner to the case of a person who is not".
(Emphasis in original)
(3) The Common Law Duty to Make Inquiries
(4) Article 3 ECHR: The Prohibition on Torture or Inhuman or Degrading Treatment or Punishment
(i) The issue
31. The Claimant relies in addition on Article 3 ECHR which enshrines a fundamental value of a democratic society. It prohibits torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour. In the event of a breach of Article 3 a person is entitled to " just satisfaction" under Article 41 ECHR and the Human Rights Act 1998. The Claimant argues that the Defendant breached Article 3 ECHR by continuing detention in an IRC following the conclusion of a clinician in April 2013 (see paragraph [113] below) that the Claimant was neither fit to fly nor fit to be detained in an IRC (including one with a psychiatric unit). It was submitted that treatment exposing an individual to the exacerbation of a naturally occurring mental illness, including relapse in a serious psychotic condition such as schizophrenia, is capable of causing suffering which engages Article 3: Pretty v United Kingdom (2002) 35 EHRR 1 at paragraphs [49] - [52]; and, Bensaid v United Kingdom [2001] 33 EHRR 205 at paragraphs [37] - [46]. In Barilo v Ukraine Application No 9607/06 (16 th May 2013) at paragraph [68] the European Court of Human Rights stated, in connection with the duties owed pursuant to Article 3 to detainees, as follows:
"The authorities must ensure that, where required by the nature of the medical condition, supervision is regular and systematic, and that there is a comprehensive therapeutic strategy aimed at curing the detainee's diseases or preventing their aggravation, rather than treating them on a symptomatic basis..."
(ii) The test in R v Drew
32. The Claimant relies further upon R v Drew [2003] UKHL 25 (" Drew") at paragraph [19] where it was accepted by Lord Bingham that the failure to transfer a detainee in need of hospital treatment for a serious mental illness could engage Article 3 ECHR. The case arose in the context of a prisoner convicted of two offences of causing grievous bodily harm. The prisoner had not been insane when he committed the offence nor was he unfit to be tried when he pleaded guilty but he was known to suffer from a mental disorder. Two approved consultant psychiatrists were of the opinion that he was suffering from schizophrenia and would be a serious danger to the public if released and recommended that a hospital order be made pursuant to Section 37 MHA 1983 with a restriction upon release, unlimited in time, under Section 41. The Judge, however, took a different view and imposed a sentence of life imprisonment with a minimum term of 2 years and 8 months. The Court of Appeal dismissed the appellant's appeal against sentence and his appeal to the House of Lords was also dismissed. It was held that his mental condition did not absolve him from criminal culpability. It was in this context that it had been submitted that in imposing a sentence without regard to the appellant's mental condition there had been a breach of Article 3. Lord Bingham stated:
"19. If it were shown that a mentally disordered defendant was held in prison, that he was there denied medical treatment, available in hospital, which his mental condition required and that he was suffering serious consequences as a result of such denial, he would have grounds for seeking judicial review of the Home Secretary's failure to direct his transfer to hospital under Section 47 of the 1983 Act: Keenan v United Kingdom (2001) 33 EHRR 913. But this would not be a challenge based on the compatibility of Section 109 and 37 with Article 3, nor is it the ground of challenge which the appellant makes, or could make, in this case, since the Home Secretary exercised his transfer power promptly. While the interruption of the appellant's medication during the 8 days following sentence caused him ill effects, these were not in our opinion of sufficient severity to engage the operation of Article 3: see Ireland v United Kingdom (1978) 2 EHRR 25, 79, para 162; Aerts v Belgium (1998) 29 EHRR 50, 90, para 66."
34. The case law was reviewed by Mr Justice Singh in HA (Nigeria) v SSHD [2012] EWHC 979 (Admin) (" HA Nigeria"). At paragraph [173] Singh J identified (by reference to the judgment of the European Court of Human Rights in Kudla v Poland (2002) 35 EHRR 11) certain features of the case law:
"The following principles relating to Article 3 are well-established in the Strasbourg jurisprudence and can be summarised by reference to the decision of the European Court of Human Rights in Kudla v Poland (2002) 35 EHRR 11, although many other cases could be cited:
(1) Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (para 90).
(2) However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (para 91).
(3) The Court has considered treatment to be inhuman because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either bodily injury or intense physical or mental suffering (para 92).
(4) It has deemed treatment to be degrading because it was such as to arouse in the victim feelings of fear, anguish and inferiority capable of humiliating and debasing them (para 92).
(5) On the other hand, the Court has consistently stressed that the suffering and humiliation involved must go beyond that inevitable element connected with a given form of legitimate treatment or punishment (para 92). Measures depriving a person of liberty may often involve such an element (para 93).
(6) It cannot be said that Article 3 lays down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to receive a particular kind of medical treatment (para 93). Nevertheless, the state must ensure that a person is detained in conditions which are compatible with his dignity and that the manner and method of execution of measures used do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (para 94)."
"... the suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."
Singh J, in HA ( ibid), at paragraph [177] acknowledged that the suffering associated with a relapse in mental health was capable of falling within Article 3. The Claimant in the present case points out that the High Court concluded that there was found to be a breach of Article 3 in the case of HA. It is, therefore, instructive to identify the circumstances in which the breach was found to exist in that case. The factors the Judge held to be relevant included the following:
(i) The Claimant was suffering from a serious mental illness whilst in detention;
(ii) Observers described the Claimant's behaviour as " odd" and " bizarre". He spent prolonged periods of time in isolation, in segregation or temporary confinement. He slept on the floor often naked in the toilet. He drank and washed from the toilet. He self-neglected by not maintaining adequate nutrition. He failed to wash or change his clothes for prolonged periods extending in excess of 12 months. He suffered from insomnia.
(iii) The Claimant's behaviour alienated him from others in the IRC such that he had to be segregated.
(iv) He was not given appropriate medical treatment to alleviate his mental illness for a prolonged period in excess of 5 months.
(v) Authorised force had to be used against him upon several occasions.
(iii) The Shaw Report (January 2016)
(5) Article 5(1)(f) ECHR: Unlawful Deprivation of Liberty
(i) The legal issue
38. The Claimant also relies on Article 5(1)(f) ECHR which provides:
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(f) The lawful arrest or detention... of a person against whom action is being taken with a view to deportation..."
39. Article 5 is silent as to the place or conditions of detention which are required but, argues the Claimant, ECHR case law makes clear that there has to be a nexus or relationship between the basis or ground relied upon to justify the permitted deprivation of liberty and the actual place and the conditions of detention: see e.g. Ashingdane v UK [1985] 7 EHRR 528; Bonamar v Belgium [1987] 11 EHRR 1; Aerts v Belgium [1998] 29 EHRR 50; and Mayeka v Belgium [2006] 46 EHRR 23. The Court has found that Article 5 is capable of being violated where a detainee requiring psychiatric treatment has been denied this treatment in prison conditions: Aerts ( ibid) and Ashingdane ( ibid).
"(c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent him from committing an offence or fleeing after having done so..."
"The Court recalls, however, that any deprivation of liberty under Article 5 para 1(f) will be justified only for as long as the deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 para 1(f)..."
42. In Saadi v UK [2008] 47 EHRR 17 at paragraph [72] the Grand Chamber, in a similar vein, stated:
"72. Similarly, where a person has been detained under Article 5(1)(f), the Grand Chamber interpreting the second limb of this sub-paragraph, held that, as long as a person was being detained 'with a view to deportation', that is, as long as 'action [was] being taken with a view to deportation', there was no requirement that the detention be reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing ( Chahal... paragraph 112). The Grand Chamber further held in Chahal that the principle of proportionality applied to detention under Article 5(1)(f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held (paragraph 113) that 'any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible'..."
"74. To avoid being branded as arbitrary, therefore, such detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that 'the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country'... and the length of detention should not exceed that reasonably required for the purpose pursued."
45. In R (Idira) v SSHD [2015] EWCA Civ 1187 the Court of Appeal (per Lord Dyson MR) endorsed the Grand Chamber judgment in Saadi as the leading authority. In paragraphs [40] - [44] the Master of the Rolls stated:
"40. In my view, however, the most important Strasbourg authority is the Grand Chamber decision in Saadi which was plainly intended to set out authoritative guidance as to the correct approach to article 5(1). Para 74 states that the requirement that the detention 'must be closely connected to the purpose of preventing unlawful entry' is distinct from the requirement that 'the place and conditions of detention should be appropriate'. The latter requirement is referred to in para 78 as 'the third criterion'. Mr Roe seeks to interpret the third criterion as if the court had said that the place and conditions of detention should be 'appropriate for the relevant article 5(1) purpose'. But that is not what the court said.
41. In my view, para 78 shows that the court had in mind a broader evaluative exercise than that for which Mr Roe contends. On Mr Roe's approach, it would have been irrelevant that the Oakington Centre had the various recreational and other facilities mentioned by the court. The use of the phrase "suitable conditions" in para 80 also indicates that the court had in mind a broader exercise.
42. The national court must, therefore, decide whether the place and conditions of detention are appropriate or suitable. I find support for this broad approach in (i) the plain and natural meaning of the language used by the court in paras 69 and 74; and (ii) the fact that in para 74 the court stated that the place and conditions of detention should be appropriate 'bearing in mind that the measure is applicable "not to those who have committed criminal offences, but to aliens who, often fearing for their lives, have fled their own country"'.
43. The significance of (ii) is that it shows that the court envisaged an evaluative exercise which takes into account all material facts and not only the question whether the detention furthers the relevant article 5(1) purpose. In most cases, the immigrant detainee will not have committed criminal offences. The fact that at para 74 the court mentioned this as a relevant factor in determining whether the place and conditions of detention are 'appropriate' indicates that it envisaged a broad evaluative exercise."
(ii) The complaint
(6) Article 8 ECHR: Private Life
(7) The Duration of Detention: The Common Law Duty to Act Consistently with the Statutory Purpose - Hardial Singh Principles
48. The Claimant relies further upon common law constraints upon the exercise of powers. It is submitted that once it was determined that ASK was unfit to fly and/or fit to be detained the Defendant was under a duty to release ASK or transfer him to a secure unit with great expedition and that (unlawfully) neither outcome occurred. The Hardial Singh principles govern the relationship between detention and the imminence or foreseeability of actual removal. The principles governing this question were set out in the decision of Woolf J in R v. Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704. Today the most oft-cited formulation is by Lord Justice Dyson (as he then was) in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at [46]. More recently in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, at [22] Lord Dyson JSC affirmed the Hardial Singh principles. He summarised them in the following way: (i) the Secretary of State can only use the power to detain for the purpose of deporting the detainee; (ii) the period of detention must be no longer than that which is reasonable in all the relevant circumstances; (iii) if before the end of that period it becomes apparent that it will not be possible to effect deportation within it then the power should not be exercised; and, (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.
49. In Lumba (ibid) Lord Dyson observed that the Hardial Singh principles reflected basic public law duties to act consistently with the statutory purpose and reasonably in a Wednesbury sense. The principles were not exhaustive and included the public law duty of adherence to published policy. A person's mental health will affect the determination of what is a reasonable period for which to detain that person: see Baroness Hale in Lumba (ibid) at paragraph [218] and Dyson LJ in M v Secretary of State for the Home Department [2008] EWCA Civ 307 at paragraph [39] - where detention has caused or contributed to a person suffering mental illness that was a factor which " in principle" account should be taken of in assessing the reasonableness of the length of the detention. In such cases a critical question remains whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering.
50. It is for the Court itself to determine the answer to this question: See e.g. R (A) v SSHD [2007] EWCA Civ 804 per Toulson LJ at paragraph [62] and per Keene LJ at paragraph [74]; and, Kambadzi v Home Secretary [2011] UKSC 23. The assessment is to be made by reference to the circumstances prevailing as of the date of the decision in question and not with the benefit of hindsight taking into account current events occurring subsequently: Hussein v SSHD [2009] EWHC 2506 at paragraphs [105] - [106] per Sales J (as he then was):
"105. ... In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge.
51. The point about hindsight was reiterated by Haddon Cave J in DK v SSHD [2014] EWHC 3257.
(8) The Tort of False Imprisonment: Materiality of Breach / Nominal Damages
"71. I can see that at first sight it might seem counter-intuitive to hold that the tort of false imprisonment is committed by the unlawful exercise of the power to detain in circumstances where it is certain that the claimant could and would have been detained if the power had been exercised lawfully. But the ingredients of the tort are clear. There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised. Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed."
(9) Equality Act 2010 ("EA 2010")
(i) The legal issue
(i) Equality duties are an integral part of mechanisms ensuring the fulfilment of the aims of anti-discrimination legislation;
(ii) An evidential element in the discharge of the duty is the recording of the steps taken by the decision-maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v SSHD [2007] EWHC 199 (QB) Stanley Burnton J;
(iii) The relevant duty is upon the Minister or other decision-maker personally, and is not based upon what was known by officials advising her: R (National Association of Health Store) v Department of Health [2005] EWCA Civ 154 at paragraphs [26] and [27] per Sedley LJ;
(iv) The risk of adverse impact must be considered before the adoption of a proposed policy and not merely as a " rearguard action" following a concluded decision: per Moses LJ, sitting as a judge of the Administrative Court, in R (Kaur) v Ealing London Borough Council [2008] EWHC 2062 (Admin) at paragraphs [23] - [24];
(v) The public decision-maker must be aware of the duty to have due regard to the relevant matters; the duty must be fulfilled before and at the time when a particular policy is being considered; the duty must be " exercised in substance, with rigour, and with an open mind"; the duty is non-delegable; and the duty is a continuing one: R (Brown) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening [2009] PTSR 1506;
(vi) There must be a conscious regard to the statutory duty, a general regard is not the same; per Davis J in R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) 406 at paragraph [84], approved of in R (Bailey) v Brent London Borough Council [2012] LGR 530 at paragraphs [74] - [75];
(vii) Officials reporting to or advising decision-makers on matters material relevant to the discharge of the duty, must not merely tell the minister/decision-maker what he/she wants to hear but they have to be " rigorous in both inquiring and reporting to them": R (Domb) v Hammersmith and Fulham London Borough Council [2009] LGR 843 at paragraph [79] per Sedley LJ;
(viii) If a Court is satisfied that there has been a proper consideration of the duty, it is then for the decision-maker to decide how much weight should be given to the various factors informing the decision: Baker v Secretary of State for Communities and Local Government (Equality and Human Rights Commission intervening) [2009] PTSR 809.
(ix) When considering the decision of a disabled detainee, the mere existence of the policy in Chapter 55.10 is not sufficient to discharge the equality duty (then under section 49A Disability Discrimination Act 1995): R (BE) v SSHD [2011] EWHC. In R (on the application of HA (Nigeria)) v SSHD [2012] EWHC 979 (Admin) (" HA") the Defendant's previous Chapter 55 policy was found to be unlawful because no consideration had been given to the public sector equality duty.
(ii) The complaint
(10) Mental Capacity Act 2005 ("MCA 2005")
(i) The issue
(ii) The regulatory framework
59. Under section 2(1) MCA 2005 a person lacks capacity: " if at the material time he is unable to make a decision for himself in relation to a matter because of an impairment of, or disturbance in the functions of, the mind or brain". Capacity is both issue and time specific, and may fluctuate (section 2(2)). Lack of capacity must be proved on the balance of probabilities (section 2(4)) with appropriate evidence: Masterman-Lister v Brutton & Co [2003] 1 WLR 1511. Decision makers must act in the best interests of a mentally incapacitated person (section 4). This duty applies " in circumstances where a person with capacity would take, or participate in the taking of, a decision": R (Chatting) v LB Wandsworth [2012] EWHC 3595 (Admin) at paragraph [100].
(iii) The complaint
65. It is argued that the Defendant erred in: (a) failing to direct or carry out formal assessment of the mental capacity of ASK to make relevant decisions prior to or at any time during the detention and despite his deteriorating mental state, including the failure to determine whether he had capacity to participate in the legal process of removal; (b) failing to provide any assistance or advice or representation from an independent responsible adult either a social worker contrary to policy (see R (Howard League for Penal Reform) [2002] EWHC 2497 at paragraph [139]) or a mental health advocate or lawyer; and/or (c) failing to consider and act in ASK's best interests to safeguard his needs as a vulnerable adult.
68. Further by failing to have any or any rational system of procedure in place for ensuring that detainees lacking mental capacity are protected and treated in accordance with relevant statutory framework this creates an unacceptable risk of unfairness in the exercise of the discretionary power to detain: R (RLC) v SSHD [2005] 1 WLR 2219 at paragraph [15], as well as an unacceptable risk of breaches of Article 3 and 8 ECHR: Shahid v Scottish Ministers [2015] 3 WLR 1003.
C. The Approach to be Adopted to the Evidence
(i) Evidence must be viewed as a whole and in the round - avoiding snapshot conclusions
(ii) Competence
(iii) Medical hearsay
(iv) Avoid reading documents as if they were legal texts
(v) Piecing together the chronology
(vi) Documents not written according to formula / non-reference to policy
(vii) Failure to record the questions that are asked
(viii) Ex post facto witness statements
(ix) Avoid being wise in hindsight
D. Relevant Facts
(1) The Claimant
(2) Detention at Lakeside: October - December 2012
(3) The Discharge of the Claimant from Lakeside: 13 th December 2012
(4) Claimant's conduct and behaviour following discharge from Lakeside
(5) The Detention of the Claimant by the Police: 17 th January 2013
(6) First 24 hours following detention
(7) Steps Taken to obtain the Claimant's medical records
(8) Transfer to Morton Hall IRC
(9) Return to Colnbrook IRC
"Applicant treatment for schizophrenia is ongoing. His health was reviewed on 27/01/12 (13?), by a doctor who stated that his mental illness had stabilised. However when he was transferred back to the detained population, his mental illness began to deteriorate again and he was subsequently transferred back to healthcare medical hold. Bearing in mind, applicant's severe mental illness and the likelihood he may not be well enough to attend his F to F interview on 06/02/12 (13?). I recommend release to afford him the opportunity to get the vital treatment and family support he requires. We will be able to remove applicant on a further date. Next Charter is on 15/02/13."
(10) The Cancellation of the removal directions
(11) Ongoing assessments with a view to removal
106. On 23 rd February 2013 Dr Sultan reviewed the Claimant and concluded that he continued to exhibit signs of schizoaffective disorder but that his position was gradually improving. He remained fit for detention but he was " still unfit to fly".
"There is no suggestion that this is being caused primarily by his detention (i.e. that the very fact of detention is influencing his failure to comply)."
"It is debatable whether the subject's symptoms as detailed in Dr Sultan's report on 9 March 2013 engaged the policy but even assuming that it does it is clear that the steps which have been taken by healthcare (close monitoring, varying medication and access to a psychiatrist) and the consequence, albeit gradual, improvement clearly demonstrate that the subject's illness is being satisfactorily managed in detention. The healthcare team still believe that he is fit to be detained."
"I accept that there is a presumption in favour of release but I do not see anything in the evidence before me which suggests that the subject would comply with any conditions attached to temporary admission or bail. His medical history clearly gives rise to a very strong suspicion that he would not be able to comply. There does not appear to be any close friends or family member who could assume responsibility for ensuring his compliance. He does not appear to have a settled address. There are no outstanding applications which could reasonably be said to act as inducement. In those circumstances it could also be said that it would be in his best interest to remain under the care of the healthcare team."
(12) The 14 th April 2013 Review: Transfer to hospital
(13) Rejection of release into Community - The risk of absconsion/ self-harm / harm to others: 24 th April 2013
(14) Assessment against standard in Chapter 55.10 EIG: 25 th April 2013
"3. We are on difficult ground here. The healthcare team has told us that the subject is not fit to be detained and in the ordinary course we would simply release him from detention. However, we cannot release him because he needs to be admitted to hospital because of the state of his mental health. A relapse caused it would appear by his failure to take his medication. So he is going to have to remain in detention."
(15) Dr Musah's Assessment of the Urgent Need for Transfer: 8 th May 2013
(16) The Section 47 and 48 MHA 1983 Medical Opinions
(17) The Contra-Opinion of Dr Morrison at Lakeside
(18) The instruction of Medical Justice to find a hospital bed: May 2013
(19) The Assessment of 20 th May 2013: ASK manageable in the IRC unless he becomes manic / possibility of transfer to A&E
(20) The Opinion of Dr Goldwyn: 28 th May 2013
"It is well recognised in psychiatry that external stresses such as a change in environment, or an environment which is perceived as stressful (including detention), may precipitate a deterioration in mental health...including a deterioration in pre-existing psychotic illness."
(21) The Contra-Opinion of Dr Morrison: 29 th May 2013
(22) The Review on 30 th May 2013: Chapter 55.10 EIG Assessment
"7. Detention pending transfer to hospital under the Mental Health Act can constitute exceptional circumstances. But as the Detention Services Policy Unit points out, it is for us to prove that exceptional circumstances exist. That ultimately depends upon whether we can release [the Claimant] into the community, if stringent safeguards are put in place, whilst transfer to a psychiatric unit is awaited. ...in the light of our overall duty of care to [the Claimant] I do not think we should consider releasing him from detention without clear advice from healthcare as to whether that would be in his best interests. I would reserve judgement on the 55.10 EIG point until I receive healthcare's substantive response."
(23) The assessments by Dr Khan on 1 st and 16 th June 2013: No hospital transfer required
(24) Steps taken to remove the Claimant: 19 th June 2013
(25) Letter before Claim: 19 th June 2013
(26) Disclosure of Claimant's Healthcare Records
(27) Claimant's request to return home
(28) The intervention of NHS England
(29) Opinion of Dr Dossett on legal capacity: 6 th July 2013
(30) Position of Defendant as of 12 th July 2013
"The steps which were being taken by the healthcare team to transfer the Claimant to hospital were effectively halted by the medical opinion of Dr Morrison to the effect that the Claimant's condition did not warrant transfer to hospital under section 48 of the Mental Health act 1983. For a short period thereafter the option of release into the community was explored but that was not clinically recommended unless there was agreement for provision of mental health support in the community from the responsible body, which was not forthcoming. There were no barriers to removal subject to fitness to fly at the point of departure and the Claimant wished to return to his home country. However, the appropriate progression of the case had to be informed by the clinical position, which required clarification."
(31) Defendant agrees to suspend removal process: 18 th July 2013
(32) The process of placement of the Claimant in hospital
(33) The acceptance for placement by the West London Health Trust: 26 th July 2013
(34) Admission on 23 rd September 2013
(35) Detention under Section 3 MHA 1983: 14 th November 2013
151. On 14 th November 2013 the Claimant was detained pursuant to Section 3 MHA 1983.
(36) Post admission assessment: Dr Stokes Report - 5 th December 2013
"Throughout the assessment sessions he appeared preoccupied with his detention in hospital and his legal situation, and required frequent prompts to re-focus him when other topics were being discussed. Due to the degree of [the Claimant's] thought disorder and his preoccupation with his detention, the scope of this assessment was necessarily somewhat limited."
"[The Claimant] repeatedly described himself as being well and not needing to receive further treatment in hospital. He did not give a clear reply as to whether he agreed with his diagnosis and he denied experiencing any physical psychotic symptoms. Whilst [the Claimant] was obviously preoccupied with his detention and expressed his view that he has been treated unjustly by healthcare services, the police and the government, no clear delusional beliefs were elicited over the course of the assessment."
(37) Post admission assessment: Dr Dent's report - 15 th January 2014
"On 17 th January 2013 [the Claimant] was discussed at the community team allocation meeting. Dr F Carranza, Sarah Griffiths (Senior Social Worker), Rashmi Chandna (Administrator) and a decision made to discharge Mr Khan's 117 status. I can find no documentation of the reasoning behind the decision in the notes...However, from my own discussions with Dr Morrison, the belief of the team at that time appeared to be that Mr Khan did not have a mental illness but a personality disorder exacerbated by cannabis use. Dr Dent records, elsewhere in the report, that there was a history of cannabis use dating back to the age of 14. Dr Dent records progress made following admission. He summarises the conclusions of Dr Stokes. It is recorded that the Claimant had shown a good response to treatment with an anti-psychotic Aripiprazole and the mood stabiliser Sodium Valproate but, nonetheless, he remained profoundly thought disordered at times. As of 14 th January 2014 though his mood had plainly improved he remained thought disordered with a tendency to revert to ruminations regarding the circumstances of his admission to Lakeside Hospital in 2012 and he had variable insight into his illness accepting at times that he had been depressed and that medication had helped but he attributed this entirely to a physical accident he sustained and failed to recognise the difficulty people had understanding his thought disordered speech patterns."
(38) Post Admission: The discharge of the Claimant into the community - 30 th January 2014
(39) Re-Admission of the Claimant to Hospital
"[He] has no valid immigration status in the UK, and if discharged from hospital is liable to be moved to a detention and removal centre where his mental state previously deteriorated severely."
(40) Claimant Adamant that he Wishes to Return to Pakistan
162. A note dated 5 th June 2014 stated as follows:
"... it seems that [the Claimant] wants to be transferred back to the detention centre because he thinks he will get deported back to Pakistan much faster from there rather than from the ward. Dr Maier explained to him that if he were in his situation, he would prefer to stay on the ward as the conditions in the detention centre can be difficult. Care plan: (1) Staff to assist him in getting additional clothing. (2) Dr Maier will contact his solicitor to explore options of transferring him back to detention centre and/or Pakistan. (3) Team will liaise with his SW regarding the above. (4) Team to contact Pakistani embassy regarding necessary passport/travel documents. (5) Explore available options for therapeutic activities while he remains on the ward. (6) Continue to encourage him to comply with his medication and refrain from cannabis use. (7) Continue to monitor mental state."
(41) Transfer to Mott House with a View to Removal
(42) Present Position of the Claimant
E. Analysis: The duty to make enquiries / detention unlawful at the outset (from 17 th January 2013)?
168. First, as at the date of detention ASK:
a) had recently been discharged from a mental health unit (Lakeside - see paragraphs [82] - [84] above) upon the basis that he did not need hospital treatment and was not suffering from a psychotic illness;
b) was established as an unlawful over-stayer with no asylum or other claim or right to leave to remain;
c) had no fixed abode and had been forced to leave two hostels/hotels (see paragraphs [85] - [88] above);
d) was consuming alcohol and cannabis;
e) had been assessed by the Mental Health team on 15 th January;
f) was exhibiting intransigent behaviour towards staff at the Community Health Care team base (see paragraph [88] above).
F. Analysis: Detention Unlawful from Date Claimant Assessed as Unfit to Fly (9 th February 2013)
G. Analysis: Failure to transfer to hospital after April 2013
H. Analysis: Mental Capacity Act 2005
I. Analysis: Equality Act 2010
J. Conclusion
202. In conclusion for all the above reasons this claim fails on the facts.
ANNEX I: THE ATTRIBUTION OF RESPONSIBILITY FOR DETENTION
A. Introduction
1. As referred to in paragraph [10] of this Judgment, at the end of the oral hearing, in the light of submissions made by the Secretary of State that she could not be held liable for certain failings which might arise in the course of detention, I adjourned proceedings so as to permit submissions to be made on who, in a variety of different circumstances, the correct Defendant would be. In particular I sought submissions on which government department/Secretary of State was responsible in law for each of the following: (i) the initial decision to detain; (ii) the provision of healthcare in an IRC; (iii) the decisions (a) as to fitness to detain and (b) fitness to travel; (iv) the decision to obtain certificates under section 47 MHA 1983; (v) the decision to implement transfer decisions under MHA 1983; and (vi) the decision to accept a person to a particular psychiatric hospital. In the case of each permutation I sought submissions on the legal and statutory basis for each decision. I also asked for submissions on the position which would apply were responsibility for any function to be shared. Finally, I sought submissions on the government entity which had responsibility in law for providing assistance to a detainee lacking mental capacity pursuant to the Mental Capacity Act 2005. I also sought submissions as to whether the State was indivisible for the purposes of liability.
2. In the event, for the reasons set out fully in the Judgment, it has not been necessary to form a concluded view as to which state entity or entities is responsible for any breach. At the point in time at which I made the direction for submissions I had formed no view as to the merits of the case. In the light of the conclusion that I subsequently arrived at an analysis of the issue of attribution of liability is not called for. However, this issue might arise in future cases and, in the circumstances, I have concluded that it is helpful to summarise the submissions of the various parties on the central issues.
B. The Initial Decision to Detain
3. All the parties agree that the Secretary of State is responsible for the exercise of the statutory power to detain for immigration purposes. The principal sources of the statutory powers of detention are found in Schedules 2 and 3 Immigration Act 1971. Further powers to detain are set out in section 62 Nationality, Immigration and Asylum Act 2002 and in section 36 UK Borders Act 2007. The power may be exercised in a wide variety of circumstances. These include upon arrival in the UK for the purpose of examination (paragraph [16] Schedule 2 to the Immigration Act 1971); pending administrative removal pursuant to section 10 of the Immigration and Asylum Act 1999 (paragraph [16] Schedule 2 to the 1971 Act); and pending deportation from the UK (paragraph [21] Schedule 3 to the 1971 Act and/or section 36 UK Borders Act 2007). Separate powers of detention exist in relation to nationals of EEA pursuant to Regulations 19 and 24 of the Immigration (European Economic Area) Regulations 2006.
4. The power arising in the present case is contained in paragraph [16] Schedule 2 Immigration Act 1971. The Secretary of State explained: " There is no dispute that prima facie this case fell within the scope of the statutory power to detain, which has been recognised as a broad power. The power depends on there being 'reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs [8] to [10A] or [12] to [14] [IA 1971]'".
5. The Claimant, in his submissions, contended that the power to detain was subject to a variety of overarching legal principles contained in the common law and under the ECHR. The Secretary of State recognises that there is a basic common law requirement that a detainee be fit for detention ( R (M) [2008] EWCA Civ 307 at paragraph [39]) and in other sources but she observes that in practice these add little if anything in the light of the guidance set out in Chapter 55.10 Enforcement Instructions and Guidance. The Secretary of State therefore agrees that there are overarching curbs to the exercise of the power but she differs as to the application of that principle in the present context (as the facts of the case demonstrate).
C. The Provision of Healthcare in an IRC
6. The Secretary of State submits that she has no statutory duty or power to provide health care in an IRC or to fund its provision. She relies upon the response provided to the questions by NHS England. NHS England is the body responsible for commissioning the provision of health care in IRC's pursuant to regulations made under section 3 B(1)(c) National Health Service Act 2006 as inserted by section 15 Health Social Care Act 2012. She contends that the funding of the provision of health services was transferred to NHS England as part of a transfer of responsibilities. She accepts that she has committed to cooperate with NHS England in the discharge of its duties. However all the usual rules of medical confidentiality apply. The Secretary of State is not responsible for monitoring the quality of health care delivered by service providers commissioned by NHS England. In her written submissions the Secretary of State thus stated: " In this case, the SSHD accepts no legal responsibility for the provision of primary, secondary or tertiary medical services to the Claimant or any matters of judgment, acts or omissions by the responsible clinicians wherever located".
7. In written submissions submitted by NHS England the only question to which a detailed response was considered appropriate was that in relation to the provision of health care in an IRC. NHS England took the view that it was responsible under 2012 Regulations for commissioning the provision of health care in IRC, i.e. ensuring that a body was contractually obliged to provide health care. However in its submissions it stated: " It is not itself legally responsible for decisions taken in the course of that provision by the provider; those are the responsibility of the provider in public and/or private law depending on the circumstances".
8. NHS England also submitted:
"The decision to accept a person to a particular psychiatric hospital (under section 48 of the 1983 Act or otherwise) is a matter for the responsible clinicians, employed by the applicable provider. It is not a commissioning matter. In this case, the Claimant's transfer could, at different times depending on the medical recommendations of the responsible clinicians in his case, have been to a PICU commissioned by the local CCG or to a secure mental health facility commissioned by NHS England.
Commissioned providers will have internal processes by which a case can be escalated if there is concern that delays are occurring, or if there is clinical disagreement. Providers also have internal mechanisms which allow them to manage capacity issues. In secure mental health cases, NHS England's commissioning role enables it to assist providers in identifying spare bed capacity; but in non-secure (e.g. PICU) mental health cases providers would be expected to liaise with each other to deal with any capacity concerns because NHS England has not commissioned the non-secure services. Similarly, as indicated above, providers or other interested persons will sometimes seek the involvement of NHS England to assist in the resolution of any transfer issue. NHS England considers it is able to provide advice as a neutral body under its section 2 general incidental power, but as no legal power to direct a particular outcome.
For the same reasons as those set out above, responsibility for providing assistance to a detainee in an IRC under the Mental Capacity Act 2005 cannot be a matter for NHS England as the commissioning body. Providers are commissioned to provide a reasonable level of health care. This includes health care to those lacking mental capacity, and the assessment process to determine capacity. Individual decisions of capacity are not, and could not be, a matter for NHS England because it is a matter of expert judgment on the part of the responsible clinician or other appropriate person."
9. In the concluding section of its submission NHS England acknowledged that there may be a lack of clarity in some instances as to the precise governmental body responsible for particular actions in an IRC context. However, the essential position was that where a complaint concerned a clinical decision, any inquiry into legal responsibility had to start with the actual provider of the services in which context the act occurred. If legal responsibility was to be assumed by a body, such as NHS England, whose role was at a higher level of abstraction such as commissioning, then a clear rationale and justification was required. Any allegation concerning the performance by NHS England of its commissioning responsibilities had to be clearly pleaded and explained and there was no such particularisation in the present case.
10. The Claimant argued that the Secretary of State as the detaining authority had a legal duty to ensure provision of medical care and treatment for detained persons. It is acknowledged that the Secretary of State could contract out both the management of detention centres and the functions to be performed within such directly managed centres pursuant to sections 149 - 150 Immigration and Asylum Act 1999. However where management was contracted out the Secretary of State had to ensure compliance with the requirement of Part VIII of the Act and with any Rules made pursuant to Part VIII thereof, which would include the Detention Centre Rules 2001 issued by the Secretary of State. The Secretary of State was required to appoint a contract monitor for each contracted out centre whose duty included reporting to the Secretary of State upon the running of the centre. It followed that the Secretary of State had legal responsibility for setting the terms of the contract for management of a detention centre including the delivery of health care services and the monitoring of performance therein. The Claimant also pointed out that health care provision within IRC is governed by Rules 33 - 37 of the Detention Centre Rules 2001 which Rules are made pursuant to the powers of the Secretary of State under Part VIII and Schedules 11 and 13 Immigration and Asylum Act 1999. These Rules governed such matters as: the requirement for IRC's to have qualified general practitioners and a health care team responsible for care of the physical and mental health of detained persons; the carrying out of a medical examination on admission and thereafter upon request by a detainee; the provision of reports by qualified medical practitioners to managers in the case of any detained person whose health is likely to be injuriously affected by continued detention or conditions of detention; the obligation to report on detainees who may be suicide risks; and, the obligation to report on detained persons who may be the victims of torture. The detention centre managers were required to send copies of Rule 35 reports to the Secretary of State without delay. Further the Secretary of State had issued Detention Centre Operating Standards which set out the standards and procedures which detention centres had to maintain in place. Moreover the Secretary of State had issued Detention Service Orders (DSOs) which provided instructions to Home Office and detention centre staff on matters relating to the management and care of detainees. These included instructions on medical appointments, food and fluid refusal etc.
11. The Claimant argues that the overriding legal obligation to ensure provision of medical care and treatment in IRC's on the part of the Secretary of State is non-delegable: GB v Home Office [2015] EWHC 819 (QB) at paragraphs [35] - [43]. Further the Claimant refers to R (C) v Secretary of State for Justice [2009] 2 WLR 1039 at paragraph [58]; and, D v SSHD [2005] 1 MHLR 17 as authority for the proposition that the Secretary of State is under a concurrent public law duty to ensure the health and the welfare including the mental wellbeing of those she detains and to manage and monitor the activities of private contractors who are contracted to run detention facilities. These public law duties are also said to be non-delegable: R (Das) v SSHD [2014] 1 WLR 3538, HA (Nigeria) [2012] EWHC 979 (Admin). Further the Claimant relies upon the provisions of the ECHR insofar as they affect the health, safety and well being of detainees, particularly those with mental illnesses, to ensure that they are held in appropriate conditions meeting their medical needs: Savage v South Essex Partnership NHS Trust [2009] 1 AC 681 at paragraphs [28] - [29].
12. In relation to shared responsibility between the Secretary of State and other providers of health care the Claimant refers to the fact that the practical arrangement for commissioning health care after 1 st April 2013 (when responsibility for commissioning health care services in IRC's transferred to NHS England pursuant to Schedule 3 National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012). However, the practical arrangements for commissioning health care since the 1 st April 2013 required continued involvement by the Secretary of State pursuant to a Partnership Agreement between Home Office Immigration Enforcement, NHS England and Public Health England. The agreement explains that those three entities have a shared responsibility for the development of health and wellbeing service to detainees on the basis of a shared assessment of need, patient involvement and evidence-based practice.
13. In conclusion the Claimant submits that the Secretary of State has legal and practical responsibility for the provision of health care in IRCs and her powers and function must be viewed in the context of her overarching legal responsibility as the detaining authority for immigration detainees which is unaffected by contractual arrangements made for health care provision by other public or private providers.
D. Decisions as to "Fitness to Detain" and "Fitness to Travel"
14. The Secretary of State accepts that ultimate responsibility for decisions on fitness to detain and fitness to fly rests with her. She will take her decision on the basis of factual assessments and clinical opinions of responsible clinicians, who are normally best placed to make such assessments. The Secretary of State will consider other expert opinions provided or other relevant information. The Detention Centre Rules 2001 impose a legal obligation on responsible clinicians to examine a detainee within 24 hours of arrival in an IRC and at any and all times to inform the manager of medical conditions that might make detention injurious to a detainee's health. The IRC manager must inform the Secretary of State. In the context of the present case the Secretary of State accepts responsibility for making public law compliant assessments of the clinical information in relation to fitness to fly and fitness to be detained.
15. The Claimant also concludes that the Secretary of State is responsible for exercising the power to detain and/or the power to remove an individual from the UK. It follows that a decision as to whether an individual is "fit to be detained" or "fit to travel" is one for the Secretary of State. It is pointed out that in practice the Secretary of State does not consider whether an individual is fit to travel but only whether he or she is fit to fly. That expression comes from the Civil Aviation Authority. It is not a statutory test for detention or removal and is not incorporated into the Secretary of State's policy on detention.
16. The relevance of fitness to travel to the exercise of the power of detention is that an individual who is not fit to travel cannot be removed which therefore impacts upon the legality of the exercise of the power to detain for the purpose of removal. The question whether an individual is fit to be detained or fit to travel is one informed by and based upon clinical opinion. The Claimant submits that the Secretary of State must make inquiries of clinicians within an IRC as to whether a detainee is fit to be detained and/or fit to fly. It is submitted that the Secretary of State: " If acting rationally will accept that opinion and act upon it unless there is some very good reason to reject it".
17. The Claimant also submits that the Secretary of State has no power to decide whether an individual is "fit to be released into the community". The Secretary of State can only exercise the power of immigration detention for the purpose of specified immigration purposes (i.e. removal) not for any other purpose including the prevention of harm to the detainee or others: AA v SSHD [2010] EWHC 2265. If an individual is not fit to be detained for the purpose of removal then the Secretary of State is required to consider whether she may continually lawfully exercise a power of detention. An individual suffering from a mental illness who is released into the community is entitled to treatment and services available in the community under the relevant duties upon local authorities and/or subject to statutory provisions governing mental health in the MHA 1983. This includes voluntary admission to hospital or detention pursuant to sections 2 and/or 3 MHA 1983. It is open to the Secretary of State and/or clinicians working within the IRC to liaise with local mental health services to ensure that the individuals concerned receive appropriate care when they are released from IRC detention but it is not a precondition for release from immigration detention where it would otherwise be unlawful.
E. The Decision to Obtain Certificates: Sections 47 MHA 1983
18. The Secretary of State contends that she has no responsibility for the decision to obtain such certificates. She points out that answers provided by the Ministry of Justice to the questions posed by the Court indicate relevant provision and practice in this area: see below. The Secretary of State explains that she may be asked to provide information in relation to the security needs of a detainee relevant to the level of security needed in a psychiatric institution. However she accepts no responsibility for decisions in relation to section 47. She says that insofar as the present case contains an allegation of unlawfulness on the part of the Secretary of State in relation to section 47 then it must fail as having been brought against the wrong defendant. As to the correct defendant she declines to pinpoint responsibility, and says: " The right defendant may depend on the particular nature of the allegation (i.e. whether it is an allegation of individual error of the relevant clinician or as a result of a system failure or institutional failure)".
19. The Ministry of Justice has provided a helpful explanation in relation to the role of the Secretary of State for Justice in the transfer of immigration detainees pursuant to the MHA 1983. Pursuant to section 48(1) in conjunction with section 47(1) the Secretary of State for Justice may by warrant direct the removal and detention in hospital for treatment of certain persons. Those persons are set out in section 48(2) which include, at section 48(2)(d) those detained under the IA 1971 or under section 62 Nationality Immigration and Asylum Act 2002. The powers of the Secretary of State for Justice may be exercised where the Secretary of State is satisfied by the provision of reports from at least two registered medical practitioners (one of whom must be approved under Part III of section 12 MHA 1983) that the detainee is suffering from a mental disorder of a nature or degree which makes it appropriate for the detainee to be detained in a hospital for medical treatment; the detainee is in urgent need of that treatment; and appropriate medical treatment is available for the detainee. The Secretary of State for Justice may, pursuant to section 49, make the transfer detainee subject to the special restrictions set out in section 41. It is confirmed that all of the Secretary of State's functions under section 48 and 49 MHA 1983 are in practice exercised by the Secretary of State for Justice. The power to transfer immigration detainees to hospital pursuant to section 48 is related to the Secretary of State's powers in relation to prisoners and other persons detained under the MHA 1983. The powers were formally exercised by the Secretary of State for the Home Department until the establishment of the Ministry of Justice in May 2007 when they were transferred to the new Secretary of State for Justice. The particular functions are undertaken on behalf of the Secretary of State by a team of officials in the Ministry of Justice - the Mental Health Casework Section. This section, formally known as the Mental Health Unit, was transferred from the Home Office to the Ministry of Justice upon the establishment of the latter in 2007.
20. The Claimant does not demur from the above analysis. He submits that the responsibility for transfer decisions lies with the Secretary of State for Justice. However, and in disagreement with the Defendant, it is submitted that unlike in prison cases the Secretary of State for the Home Department remains the public authority responsible for detention under the immigration legislation which remains the case where a person is transferred pursuant to sections 47/48 MHA 1983. The authorisation for detention continues. Once the person is no longer liable to detention under immigration powers any transfer decision " shall cease to have effect": section 53 MHA 1983 which, it is said, indicates that the underlying power to transfer rests with the Secretary of State for the Home Department. It follows, so it is argued, that the Secretary of State for the Home Department retains responsibility for ensuring that all reasonable steps are taken to facilitate a speedy and effective transfer to hospital where the need for one is identified. The Claimant rejects the submission of the Secretary of State in the present case that she has no legal or practical responsibility for ensuring that those unfit to be detained in an IRC and requiring treatment in psychiatric hospitals are not speedily transferred to hospital beyond providing evidence as to level of security. The Claimant points out that the present Defendant does not identify who the correct defendant would be asserting that it all depends upon context and the nature of the allegations made. The Claimant appears to accept that the position of the NHS England that it does not have legal responsibility for a failure to ensure speedy transfer to hospital although it can and will assist if approached; and the submission of the Ministry of Justice that its responsibility is confined to the issuing of the warrant once the statutory requirements are met and it is requested to do so. The Claimant submits that the health care provider and individual clinicians are the only other possible candidates but such bodies are not on current public authority susceptible to judicial review or pursuant to the Human Rights Act 1998 responsible for failures to comply with the Detention Centre Rules 2001 and the Operating Standards: D and K v SSHD [2006] EWHC 908 at paragraphs [93] and [102] - [105]. The Claimant says that if the Secretary of State for the Home Department is correct there could be no claim for unlawful detention or breaches of fundamental rights against such entities leaving a Claimant with no remedy in respect of wrongs.
F. The Decision to Accept a Person to a Particular Psychiatric Hospital
21. The Secretary of State in the present case contends that she has no responsibility for the decision to accept a person to a particular psychiatric hospital because, as for individuals in the community, this is a clinical decision. In relation to the present case it is said that if the allegation is that the Claimant should have been accepted to a particular hospital and was denied hospital treatment as a result of a refusal to admit the Claimant then the Defendant cannot be held responsible for such an alleged failure or any failure on the part of any clinician or medical institution to provide adequate medical treatment.
22. The Claimant states that ordinarily the decision whether to accept a patient into a hospital is for the "gate keeping" clinician to make. Legally the decision to accept a patient to a particular hospital is that of the hospital managers responsible for any subsequent detention under the MHA 1983: section 6 MHA 1983. However, it is argued that in the case of a transfer pursuant to sections 47/48 MHA 1983 the individual remains detained under the authority of the Defendant. A transfer does not require that a bed be made available in the local psychiatric hospital or that the hospital concerned agrees to the transfer: R (D) v SSHD and National Assembly for Wales [2004] EWHC 2857. It was pointed out that the Mental Health Act Code of Practice states at paragraph [22.69] that exceptionally the Secretary of State for Justice may "direct" a restricted patient's admission to hospital pursuant to section 48 outside of normal NHS commissioning arrangements. The legal power to direct such transfer lies with the Secretary of State for Justice and responsibility for ensuring that steps are taken to procure a warrant for transfer lies with the detaining authority, namely the Secretary of State for the Home Department.
G. Provision of Assistance to a Detainee Lacking Mental Capacity Pursuant to the Mental Capacity Act 2005
23. The Secretary of State argues that pursuant to section 1 MCA 2005 she is obliged to treat all detainees as having mental capacity to make decisions. However she contends that there are no decisions by the Secretary of State in issue in this case that are "consensual", i.e. decisions requiring agreement by an individual. Removal and deportation decisions are not consensual. They take place even if the detainee objects strenuously. Where a foreign national subject to removal actioned indicates that they wish to make a voluntary return the Secretary of State may seek confirmation of their mental capacity to make that decision, as happened in the present case. But there is no legal requirement for consensual removal or deportation to be given.
24. She contends that it is the duty of responsible clinicians to ensure that detainees suffering from mental health issues receive appropriate treatment and assistance and as part of those duties the clinicians must ensure that there is mental capacity to make decisions concerning medical treatment and to ensure that the duties under the MCA 2005 are adhered to. But the Defendant has no statutory power under the Act or otherwise, and no practical ability, to assess the mental capacity of a detainee to make any type of decision or become involved in the detainee's decision making in medical, financial or legal matters.
25. The Claimant agrees in part with the above analysis; but in important respects disagrees with it. The Claimant accepts that the Defendant is correct that decisions by the Secretary of State to remove or deport an individual are non-consensual and do not require the consent of the individual concerned and it is also correct that there is a statutory presumption of capacity in section 1 MCA 2005. However the Claimant disagrees that, upon this basis, there is no duty upon the Defendant to assess, or request the assessment of, the mental capacity of a detainee or to take steps to assist an incapacitated detainee to participate in the process and in decision making. It is argued that the Defendant has recognised that there are situations in which a detainee's mental capacity will effect decisions taken about them whilst in detention. For example DSO03/2013 requires capacity to be assessed where a detainee is refusing food and/or fluid. DSO01/2016 (medical information sharing) expressly recognises the best interests duty in respect of an incapacitated detainee when decisions are taken requiring consent to information sharing. The Claimant also joins issue with the Defendant when she says that she has no power or practical ability to assess mental capacity. It is said that no specific statutory power is required since the MCA 2005 requires anyone working with an incapacitated person to assess capacity where there is a cause for concern. The Defendant's case workers are, it is said, able to recognise situations and information causing concern that a detainee lacks capacity and to request a capacity assessment from an appropriate clinician or health care professional. It is said the Defendant has not introduced procedural guidance to caseworkers on when and how the capacity of a detainee should be assessed at all. In the present case it is said that the duty to assess mental capacity was triggered by the Claimant's symptomatic behaviour which raised concerns from the outset that the Claimant could not understand communications from officers and by the consistent concerns raised by clinicians including the two section 48 psychiatrists as well as Dr Goldwin and Dr Dossett. The decision relating to immigration status and removal from the UK to Pakistan were decisions requiring the Claimant's participation. At various times he agreed to voluntary removal and at other times he suggested a claim for asylum.
ANNEX II
IN THE HIGH COURT OF JUSTICE CO /9816/2013
ADMINISTRATIVE COURT
BEFORE Mr JUSTICE GREEN
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
B E T W E E N:
The Queen
on the application of ASK
(a Protected Party, by his Litigation Friend the Official Solicitor)
Claimant
- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
- and -
NHS ENGLAND
Interested Party
- and -
THE SECRETARY OF STATE FOR JUSTICE
Prospective Interested Party
and -
THE SECRETARY OF STATE FOR HEALTH
Prospective Interested Party
______________________________
ORDER
______________________________
UPON hearing Counsel for the Claimant Ms Stephanie Harrison QC and Counsel for the Defendant, Ms Julie Anderson
IT IS ORDERED THAT:
1. The Defendant, the Interested Party (NHS England) and prospective Interested Parties (Ministry of Justice and the Department of Health) use best endeavours to file and serve a written response or respective responses to the issues set out in Appendix 1 to this order as soon as possible and by no later that 4 pm on 14 July 2016.
2. The Claimant shall file and serve a written reply to the document(s) referred to in paragraph 1 above as soon as possible and no later than 14 days after service upon them of the said documents.
3. To the extent that any response is judged necessary, the Government bodies identified in paragraph 1 shall file and serve any response no later than 7 days after service of the Claimant's reply.
4. There is liberty to apply to vary this order for all those identified in it.
Reasons:
1 An issue arose in the course of argument as to the responsibility in law and in fact for various acts or omissions alleged to have occurred in the treatment of the Claimant whilst detained for immigration purposes.
2 The Secretary of State has argued that not every act or omission can be attributed to her and that the responsibility for some acts/omissions at least is either that of NHS England (Department of Health) and/or the Ministry of Justice. She accepts that the position might be different under the ECHR because relevant articles are binding upon the "United Kingdom" qua signatory and for that propose the state is indivisible. But she appears in this regard to draw a distinction with domestic law.
3 The Claimant contends that clarification has already been sought from the Secretary of State as to her case on responsibility for decision taken in the detention context but that none has been provided. It is at present unclear in my mind as to the significance for these proceedings of the point now being raised; for instance is it being argued that the claim would fail (assuming otherwise it could be made out) upon the basis that the wrong defendant has been identified.
4 The question of the attribution of responsibility as between different Government departments and different Secretaries of State under the relevant legislative regimes and whether this is severable or indivisible etc., is or may be relevant to a number of issues arising in the case for determination.
5 The Court has already received helpful submissions from NHS England on its role in detention related decisions. NHS England was, hitherto, an Interested Party in the proceedings but prior to the hearing considered that there was no need or reason for it to remain actively involved in the proceedings. It is however at least arguable that there is a difference of view between NHS England and the Defendant as to who bears actual responsibility for decisions taken in the detention context.
6 In the present case there are a number of decisions which are challenged and in respect of which issues of attribution of responsibility might arise. I give two illustrations. First, the Claimant alleges that the lack of a speedy and prompt transfer of the Claimant from IRC to hospital was unlawful. The Secretary of State argues that there was no unreasonable delay but, in any event, the responsibility for transfer lay with NHS England because, on the evidence, it was a disagreement between clinicians which delayed the process. A second illustration concerns responsibility for decisions taken in relation to mental capacity. The Claimant argues that he lacked mental capacity to participate in relevant detention related decisions adverse to his interest and that the failure of the Defendant to enable him to be represented legally at a sufficiently early stage impacted adversely upon his position and rights. The Secretary of State rejects the legal analysis but in any event argues that she is not responsible for the provisions of legal representation to detainees. I express no present view at all on these illustrations and they serve simply to highlight how issues of attribution of responsibility from within Government might be significant.
7 In my view there is at present insufficient clarity as to the relationship between the different roles undertaken between different governmental bodies for me to be able to assess the Defendant's arguments or determine with precision their relevance to the issues arising. It also seems to me that these questions might be of broader importance.
8 For these reasons at the end of oral argument I adjourned proceedings to enable the parties to seek to agree an order which was to be served on all potentially relevant Government Departments.
9 In my view it is important that issues such as these are not determined by the Court without the various Governmental bodies having had a proper opportunity to consider them and to make such submissions to the Court as they see fit. Equally, it is not fair on the Claimant to be in a position where there is a lack of clarity as to the Government's position. I am conscious of the difficulties which might arise at the present time within Government which might make the coordination of views more difficult. The Order thus requires best endeavours to produce answers. I would make clear that I would prefer full responses rather than hasty ones. If more time is properly needed then the parties should liaise and agree revised timetables accordingly. I will expect sensible and effective cooperation between all parties in this regard.
10 In the circumstances I make the Order set out above.
Appendix 1
(1) Which Government Department/Secretary of State is responsible in law for each of the following:
(i) The initial decision to detain.
(ii) The provision of healthcare in an IRC.
(iii) The decisions (a) as to fitness to detain and (b) fitness to travel.
(iv) The decision to obtain certificates under s 47 MHA 1983.
(v) The decision to implement transfer decisions under MHA 1983.
(vi) The decision to accept a person to a particular psychiatric hospital.
(2) What is the legal basis for each of the above decisions? Please identify the statutory basis in each case.
(3) If responsibility for any function is shared please identify the legal basis for sharing and identify precisely how (a) responsibility in law and (b) in fact, is divided up between the parties.
(5) Which government entity or entities at the each stage of the detention process has responsibility in law for providing assistance to a detainee who lacks menta l capacity pursuant to the Mental Capacity Act 2005.
(6) The Defendant is to explain how her answers to the above questions impact upon the present proceedings. For instance is it her case that if (for the sake of argument) the responsibility for a particular decision lies with another Secretary of State / Department then the Claim fails upon the basis that the wrong person has been made a Defendant in these proceedings? If the Interested parties also wish to comment upon this issue then they should do so.
(7) The answers to the above are needed to enable the Court to know who, in the event the Court finds a breach, is responsible for remedying the defect and/or paying compensation (if any).
Mr Justice Green
29 th June 2016