“(a) he is suffering from mental disorder of a nature or degree which make it appropriate for him to receive treatment in hospital; and (b) [repealed]; (c) it is necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be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.” “Appropriate medical treatment” is defined in section 3(4) as “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”
“3.25 The Secretary of State does not have to agree to transfer; the decision is based on whether it is expedient and in the public interest. 3.26 The Secretary of State takes account of • any risks associated with the prisoner (escape risk, nature and history of offending, notoriety, victim issues), and the public protection implications • whether public confidence could be undermined by allowing transfer • …. • whether treatment can be provided in prison • the length of time the prisoner still has to serve, behaviour and current security category • medical opinion, past and presenting symptoms and level of clinical risk (e.g. actively suicidal, assaultive).” • any risks associated with the prisoner (escape risk, nature and history of offending, notoriety, victim issues), and the public protection implications • whether public confidence could be undermined by allowing transfer • …. • whether treatment can be provided in prison • the length of time the prisoner still has to serve, behaviour and current security category • medical opinion, past and presenting symptoms and level of clinical risk (e.g. actively suicidal, assaultive).”
“3.7 The transfer clock starts when the first doctor’s assessment identifies that the criteria for detention under the [MHA 1983] is met. This assessment will provide one of the medical reports required by the Secretary of State and triggers the formal referral to the responsible mental health provider to undertake the second doctor’s assessment. … 3.8 The transfer clock does not stop during processes to • resolve differences of clinical opinion • resolve disputes over commissioning responsibility [see also paragraph 2.6 to the same effect].” 3.8 The transfer clock does not stop during processes to • resolve differences of clinical opinion • resolve disputes over commissioning responsibility [see also paragraph 2.6 to the same effect].”
“(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 [paragraph] (1)… 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) which appear necessary for his supervision or care.”
“It does not matter whether the impairment or disturbance is permanent or temporary”
“[I]t is important to carry out an assessment [of capacity] when a person’s capacity is in doubt.”
“The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised.”
“Detention must be used sparingly, and for the shortest period necessary.”
“The greater the risk of absconding, the more likely it is that detention or continued detention will be appropriate.”
“Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control. … The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: … •those suffering 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 while individuals are being or waiting to be assessed, or are awaiting transfer under the [MHA 1983];…”
“Once an individual has been identified as being at risk, by virtue of them exhibiting an indicator of risk, consideration should be given to the level of evidence available in support, and the weight that should be afforded to the evidence, in order to assess the likely risk of harm to the individual if detained for the period identified as necessary to effect their removal: … Level 3 Professional evidence (for example from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm – for example, increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk, should be afforded significant weight. Such evidence should normally be accepted and any detention justified in light of the accepted evidence. Representations from the individual’s legal representative acting on their behalf in their immigration matter would not be regarded as professional evidence in this context.”
“Consideration should be given, on the basis of available information, to whether the condition or impairment can be managed within detention through medication or through other interventions. Even if a condition or impairment can be managed in detention, an individual must still be treated as at risk as defined in this policy, and the presumption will be that detention is not appropriate.”
“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. (ii) The deportee may only be detained for a period that is reasonable in all the circumstances. (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention. (iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.”
“It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the [IA 1971]. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.”
“I accept that, if it is shown that a person’s detention has caused or contributed to his suffering mental illness, this is a factor which in principle should be taken into account in assessing the reasonableness of the length of the detention. But the critical question in such cases is whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering. It is the view of the in-house psychiatrist at Colnbrook Healthcare (under whose care the appellant is while he is in detention) that he does not have a serious condition such as would require his treatment elsewhere. He has not been assessed as unfit to remain in detention, where his condition is being managed.”
“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 or extradition.”
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“(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. (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. (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. (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. (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. Measures depriving a person of liberty may often involve such an element. (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. 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.”
“However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral or physical resistance, it may be characterised by degrading and also fall within the prohibition set forth in article 3. It should also be pointed out that it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others.”
“Being placed at a substantial disadvantage in relation to the exercise of a function means… if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment”. ” iii) Section 21 provides (so far as relevant to these appeals): “(1) A failure to comply with [the duty in section 20(3)] is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person”. iv) Section 136(2) and (3) provides for the burden of proof as follows: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”
“Yes I’m broken. On many occasions I have tried to harm myself, burn myself. This is caused by an invisible person following me”
“Whilst this presentation persists, on balance in my opinion he’s currently unfit to travel, however should he be treated or our understanding of his difficulties change I will update this risk. He can currently be well-managed by healthcare facilities in the 93. [IRC] pending an assessment for hospital.”
“Detention is likely to have worsened [MDA’s] mental health, through retraumatising reminders of childhood and adolescent traumas, by lack of therapeutic environment, inconsistent and poorly planned medical and psychosocial treatment of symptoms of mental illness and a lack of full medical past history considered and a sensitive cultural context. The uncertainty over deportation date and progress of appeal processes contributed to low and on occasions labile mood, and a general stressors of detention will have impaired the efficacy of medication and psychosocial treatments attempted. Detention will thus have worsened symptoms of psychosis, depression and suicidality and all symptoms of complex PTSD.”
“(i) The standard of mental healthcare provided to the Claimant during his detention was not adequate for his complex needs. (ii) Treatment was not offered in a suitable therapeutic environment. (iii) A person with a psychotic mental health problem who in addition may have a past history of PTSD from events in Somalia should be considered unsuitable for detention which is known to worsen mental health conditions in such patients. (iv) When transferred from one IRC to another it appears that the new healthcare unit was not provided with adequate information about [MDA’s] complex disorder and treatment and care needs. (v) Various studies indicate that there is a high risk of segregation further exacerbating existing mental health problems.”
“210. It is clear that the [Secretary of State] took steps to inform herself of the [MDA’s] medical condition both when making the decision to detain and during the review process. The form used to minute the detention decision, and to undertake monthly reviews, contains express reference to chapter 55.10 of the EIG. There is no substance in the [MDA’s] contention that the [Secretary of State] misunderstood her own policy, or that she misapplied it. 211. The conclusion reached by the [Secretary of State] that [MDA] was being satisfactorily managed cannot be characterised as being Wednesburyirrational; it was a conclusion that she was entitled to reach on the information before her, in particular the reports of Dr Stocking Korzen, Dr Thomas and the GCID Case Record Sheets relating to communications with the healthcare unit in the immigration removal centre. The GCID Case Record Sheet for 14April 2016 is of particular relevance as it records that Dr Hillman, a Consultant Forensic Psychiatrist, had advised that the Claimant can currently be well managed.”
“187. It is clear from the records before the court including the Complex Case Review notes, and the Detention Review reports, that [MDA] had access to healthcare when in detention. 188. It is equally clear from those records that [MDA] was exhibiting what was described as ‘inappropriate behaviour’. As an example, the GCID Case Record Sheet for 18February 2016 records that [he] defecated in his room and later on the landing. The other residents complained about [his] behaviour which they stated had been noisy and disruptive and had lasted for three months. The record states that [he] would press the cell bell, and if a female officer attended in response to his call, he would press the bell all night. The record for 5March 2016 states that [he] stripped naked even though female staff members were present. 189. The record for 14April 2016 states that Dr Hillman a Consultant Forensic Psychiatrist considered [MDA] to be ‘currently well managed by healthcare facilities in the Centre pending an assessment for hospital’. 190. In my judgment, based in particular on Professor Hale’s analysis of the medical records and his conclusions, the treatment of [MDA], whether when associating with other detainees or when removed from association did not reach the level of severity to infringe article 3. Professor Hale does not identify such a level of severity. In addition, at the time when transfer to a hospital was contemplated [MDA] was not deprived of treatment only available in hospital and which his mental condition required, indeed the consultant psychiatrist was of the view that his condition was well managed by healthcare facilities in the IRC pending an assessment for hospital. 191. For those reasons, I find no infringement of article 3.”
“Analysis of the detention review forms from December 2015 to November 2016 shows that [the Secretary of State] was conscientiously reviewing the lawfulness of [MDA’s] detention every 28 days or so and applying the correct legal tests.”
“For example, in May 2016 the authorising officer noted that the only barrier was the resumption of returns to Somalia. A similar entry was made in June 2016. In July 2016 it was noted that the position relating to return to Somalia may soon become more positive. In August 2016 the authorising officer states ‘we need to ascertain whether his removal is a likely prospect’. In September 2016 the authorising officer noted ‘We have reason to be confident that returns will resume soon’. In October 2016 the authorising officer stated ‘… I would like us to review where he will sit in our list of priority cases for removal under the MOU’. On 8November 2016 the authorising officer noted that advice was needed from CST on timescale.”
“The entries made in the review documents must not be judged with the benefit of hindsight (R (Botan) v Secretary of State forthe Home Department[2017] EWHC 550 (Admin) at [96]). Assessing those entries based on the facts known to the [Secretary of State] at the time, it was never apparent that [MDA] could not be removed within a reasonable period.” [MDA] could not be removed within a reasonable period.”
“… [T]here is no place for causation here”
“[ASK’s] treatment for schizophrenia is ongoing. His health was reviewed on 27/01/[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, [ASK’s] severe mental illness and the likelihood he may not be well enough to attend his [face-to-face] interview on 06/02/[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 [ASK] on a further date. Next charter is on 15/02/13.”
“11. It would appear that the subject’s constellation of symptoms is attributable to his failure to adhere to his medication regimen. 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). 12. It is debatable whether the subject’s symptoms as detailed in Dr Sultan’s report on9 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. 13… 14. 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 [ASK] 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.”
“He recovered gradually from his psychotic symptoms for a short while but on seeing him today, he is exhibiting relapse of psychotic illness, e.g. paranoia, formal thought-disorder and flight of ideas, pressure of speech and grandiosity. In my opinion after seeing him today he is not fit for detention and should be admitted in a Psychiatric Hospital for further assessment and treatment. He is non-compliant with oral medication and would benefit from Depot Injection – Not fit to fly.”
“I would like to meet Immigration to discuss the current situation of my case. I would like to know why I have been detained, so that I can forward my case to my solicitor. I would be grateful if you could book an appointment ASAP. Many thanks. ”
“However, due to your medical issues, detention is to be maintained for the interim period. Once you have been treated, you will be removed from the United Kingdom.”
“Patient lacks capacity and has very limited insight”
“The steps which were being taken by the healthcare team to transfer [ASK] to hospital were effectively halted by the medical opinion of Dr Morrison to the effect that [ASK]’s condition did not warrant transfer to hospital under section 48 of the [MHA 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 [ASK] 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.”
“The healthcare team cannot enforce compliance and I think it arguable that he is reaching the stage where we cannot sensibly say that he can be satisfactorily managed per the policy set out in 55.10 EIG. All current medical evidence indicates this. But, even if that is the case I am still satisfied that there are, in accordance with this policy, very exceptional circumstances – essentially the absence of any other viable option – why we must maintain detention whilst we effect his transfer to hospital in accordance with the latest medical recommendations. It seems that the psychiatric assessment on24 July 2013 has supported the view that the subject requires inpatient treatment and it is hoped that a bed will soon be available. We will know more tomorrow. I recommend continued detention.”
“... it seems that [ASK] wants to be transferred back to the [IRC] 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.”
“Although such arrangements cannot necessarily be made overnight, or even within a few days, on any view, the delay of over five months in this case was manifestly excessive.”
“(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.”
“For a violation of article 3 to arise there must therefore be: (a) a denial of medical treatment which is available in hospital; (b) which is of a nature which the person’s mental condition requires; (c) where evidence exists that the person concerned suffered serious consequences as a result of the denial; (d) a failure to exercise a transfer power to hospital ‘promptly’; and (e) the consequences suffered by the person in question reach a level of ‘sufficient severity’ to engage the operation of article 3. These conditions are expressed in Drew as being cumulative.”