AS (Lebanon), R (on the application of) v Secretary of State for the Home Department & Anor [2012] EWHC 1349 (Admin)

[2012] EWHC 1349 (Admin)Case No CO/1641/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/05/2012
Before
THE HONOURABLE MRS JUSTICE LANG DBE
Between
The Queen (on the application of AS (Lebanon)Claimant
Mr G Denholm (instructed by Bhatt Murphy) for ClaimantMr A Deakin (instructed by the Treasury Solicitor) for First DefendantMr R Dunlop (instructed by the Treasury Solicitor) for Second Defendant for The Interested Party did not appear.Hearing Hearing dates: 11 th May 2012
Judgment
[1]The Claimant applies for permission to seek judicial review of his detention by the First Defendant pursuant to the Immigration Act 1971. He also apples for an interim remedy, namely, release or transfer to a psychiatric hospital. This short judgment was reserved because the court ran out of time at its sitting on 11th May 2012.[2]The Claimant is a Lebanese national aged 39. He entered the UK in 2006 and his claim for asylum was finally refused by 1st January 2007. Thereafter he remained in the UK without leave.[3]Between 2008 and 2011 he was convicted of 11 criminal offences and cautioned. Much of his offending has been motivated by his need to fund his drug addiction, mainly heroin and crack cocaine.[4]On or about 8th December 2011 he was convicted of attempting to pervert the course of justice and sentenced to ten months imprisonment. He completed the sentence on 31st January 2012 (because of time spent on remand). Since that date he has been detained pursuant to a decision by the Secretary of State dated 30th January 2012 to detain him pending deportation to Lebanon. A deportation decision was made on 13th February 2012.[5]He has an in-country right of appeal against the decision to deport him. His appeal was heard by the First-Tier Tribunal in early May 2012 and a decision is awaited. If he is unsuccessful before the First-Tier Tribunal he has a potential right of appeal to the Upper Tribunal, if permission to appeal is granted.[6]The Claimant does not possess valid identity documents. It will be difficult to obtain authorisation for him to be returned to the Lebanon without identification documentation. Summary of claim and defence to claim[7]The Claimant contends that he is suffering from mental illness, demonstrated by self-harm and suicide attempts. He submits that his detention is unlawful for the following reasons: a) It breaches the principles derived from R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704 in that: i) Given the severity of his mental illness and the potentially grave consequences of continued deprivation of liberty, even a short period of detention is unreasonable, and ii) Having regard to the Claimant’s mental ill-health and the difficulties in removal to the Lebanon, it is apparent that his detention will endure for an unreasonable period. b) The Defendant has failed to have regard to or lawfully apply her policy on detaining the mentally ill: i) The Defendant has failed to apply her published policy in Chapter 55, paragraph 55.10 of her Enforcement Instructions and Guidance to the effect that those who are ‘suffering serious mental illness which cannot be satisfactorily managed within detention’ should only be detained in ‘very exceptional circumstances’, and/or ii) The only view open to a rational Secretary of State properly directing herself on the facts is that the Claimant’s release is required by that policy. c) The Defendant’s policy on detaining the mentally ill, as amended on 26th August 2010, is unlawful and the Claimant’s detention under that policy is unlawful for that reason. d) The Claimant’s detention breaches Article 3 and/or Article 8 ECHR.[8]In the Claim Form as originally drafted the Claimant sought a mandatory order compelling the Claimant’s release from detention on temporary admission or bail, together with various declarations and damages.[9]In his Amended Claim Form the Claimant also sought a mandatory order requiring his transfer to hospital under Section 48 of the Mental Health Act 1983; alternatively a mandatory order compelling the Defendant to release the Claimant on temporary admission or bail on condition of a subsequent transfer to hospital.[10]The Secretary of State for the Home Department’s case is that detention is justified pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971. The reasons for detention pending deportation are: a) He is likely to abscond (he has failed to report on previous occasions); b) There is a risk of further offending in the light of his past history; c) He has been assessed as posing a serious risk of harm to the public and has made threats against his ex-partner, his arresting officer and his doctor. The history[11]The Claimant has a history of mental health problems, including numerous suicide attempts, which is recorded in sentencing reports and prison records.[12]On 26th January 2012 the Claimant’s solicitors wrote to the First Defendant specifically raising his mental health problems and arguing that he could not be detained consistently with the Defendant’s own policy. Following a pre-action protocol letter, the claim was issued on 15th February 2012 with an application for expedition and urgent interim relief.[13]The Claimant’s solicitors instructed Dr Basu on 23rd February 2012 to prepare a psychiatric report.[14]On 16th February 2012 Collins J made an order stating that the claim would be listed for an oral hearing in the week commencing 5th March 2012 by which time the First Defendant must have available any medical reports on which she seeks to rely.[15]On 7th March 2012 Dr Basu’s provisional report was available but the First Defendant had failed to obtain psychiatric evidence. Ouseley J therefore adjourned the application for permission and interim relief until 3rd April 2012. His order provided:
“The Claimant and Defendant shall each obtain an independent psychiatric report addressing (a) the Claimant’s mental health; (b) the Claimant’s treatment needs; (c) the Claimant’s suitability for detention; and (d) any other matters considered to be of relevance. For the avoidance of doubt, such reports are in addition to any report provided by Dr Brown.”
[16]On or about 14th March 2012 the First Defendant filed summary Grounds of Resistance stating that the Claimant’s claim was premature since the Defendant was likely to consent to the Claimant’s transfer to hospital should the medical experts agree.[17]Dr Basu’s report was provided on 25th March 2012. He recommended transfer to hospital saying that the conditions under Section 48 of the Mental Health Act 1983 were met.[18]On 3rd April 2012 the matter came before me. The First Defendant had still not obtained psychiatric evidence. At that hearing I was informed that the First Defendant’s position was that she was willing in principle to make a Section 48 transfer if the independent psychiatrist instructed by her recommended that course. The application was adjourned on the basis that the First Defendant informed the Court that its independent psychiatrist Dr Slater would report by 13th April 2012.[19]On 16th April 2012 Dr Slater’s report was served. He also recommended transfer to hospital under Section 48 of the Mental Health Act 1983.[20]On 23rd April 2012 Mr Stewart Catchpole QC, sitting as a Deputy High Court Judge, gave the Claimant permission to amend his claim to join two interested parties, the Secretary of State for Justice and the South West London and St George’s Mental Health Trust. Mr Catchpole ordered the interested parties to attend at the next hearing listed for 27th April 2012 in order to explain their respective positions.[21]By consent the hearing listed for 27th April 2012 was adjourned because it transpired that the wrong NHS body had been joined as an interested party. By consent the Brent Primary Care Trust has been substituted as the appropriate NHS body.[22]Mr James Holton of the UK Border Agency made a statement dated 20th April 2012 which stated as follows:
“4. As soon as the Defendant received Dr Slater’s report and had considered the contents of the same, advice was received from Tsol the same day after they had considered the report. On Thursday 19th April 2012 AS was referred to the Three Bridges Mental Health Unit by Dr Brown in the prison health care team in light of Dr Slater’s report. At the time of doing so, Dr Brown advised that the Three Bridges Mental Health Unit do not have a bed available at the current moment in time and it could take between 1-6 weeks for Three Bridges to accept AS depending on the severity of his condition and after all risk issues have been considered. In the early afternoon of Thursday 19th April 2012 the Claimant’s solicitors were informed of this. 5. However later in the afternoon of Thursday 19th April the Home Office caseworker telephoned Three Bridges to check on what the current state of affairs was. The caseworker spoke to a Dr Kemal of the Three Bridges Mental Health Unit. Dr Kemal is a consultant psychiatrist who had discussed AS’s case with his registrar, a Dr Sharda, who had assessed and completed the report dated 16th March 2012. Dr Kemal asserted to the caseworker that the Claimant does not meet the criteria for referral to the unit and can be suitably managed in the Healthcare Wing of the prison. The caseworker asked Dr Kemal to confirm this opinion in writing; however Dr Kemal said that in order to get something in writing the caseworker should contact the admissions manager Mr Maguire. 6. The caseworker duly spoke to Mr Maguire who advised him that AS is not suited for Three Bridges due to his personality disorder and mentioned that there is a hospital in Mill Hill that deals with patients with personality disorder. However, the difficulty with this is that I understand that Dr Brown has stated that AS can only be transferred to a facility within the current NHS Trust area. … 8. The court will be aware that the UKBA’s obligation to identify the need for any proposed transfer and the required supporting evidence and a referral is made on that basis, however transfer decisions are made by the Secretary of State for Justice, who I note are not currently a party to these proceedings. … 10. The Defendant continues to monitor and assess the Claimant’s detention and ongoing health care within prison while alternative and appropriate care is identified. As such, it is the Defendant’s belief that detention continues to be the most appropriate way of providing the Claimant with appropriate health care and preventing him from self-harm. As well as protecting the public, and particularly his former partner, from the risk of harm and reoffending which the Claimant is considered to pose.”
[23]On 9th May 2012 the Treasury Solicitor, acting on behalf of the Secretary of State for Justice, wrote to the Claimant stating that AS did not require a transfer to hospital under Section 48 MHA 1983. In support of this view the Treasury Solicitor referred to the report from Dr Sharda from the Three Bridges Unit dated 16th March 2012 and the report from Dr Brown dated 27th March 2012, amended 11th April 2012. The letter concluded:
“We are aware of the expert opinions provided on behalf of the Claimant and Defendant, but we are of the view that Dr Brown is best placed to assess your client’s suitability for hospitalisation as she is your client’s treating psychiatrist who sees your client on a regular basis. Our client is, however, happy to review his decision should your client’s mental health deteriorate or change in any way. Further, our client was informed by Dr Brown in the last few weeks that AS’s mental health appears to be improving and this further strengthens our view that he does not require treatment in hospital at the current time.”
[24]The most recent information from Brent PCT is an email sent 2nd May 2012 to the Claimant’s solicitors. It stated:
“I can confirm that under DH Responsible Commissioner Guidance NHS Brent are the Responsible Commissioner for AS’s health and Westminster Council are responsible for his Social Care. Should the Courts determine a mental health need requiring acute in-patient treatment he will be reassessed either at Park Royal or St Charles’ Hospital (both mental health units are under CNWL-Central and North West NHS Trust who cover our commissioned m/h services). This is on the basis that West London Mental Health Trust as the expert forensic provider that we commission to provide high and medium secure provision have assessed him and their clinical recommendation was that he was not appropriate for this service. Park Royal or St Charles will still need to do their own assessment to meet any m/h needs and manage any related risks. This assessment will also inform what package of health and/or social care or other support may be required to insure that his needs are adequately met.”
Conclusions[25]In my judgment, the Claimant has a good arguable case that he should not be in immigration detention because of his psychiatric condition, on the legal and policy grounds set out by the Claimant in his claim form. The independent psychiatric reports obtained by order of the Court on behalf of the Claimant and the First Defendant both are in agreement that the Claimant suffers from an emotionally unstable personality disorder with quasi-psychotic symptoms and post-traumatic stress disorder. His continuing detention has exacerbated the symptoms and increases the chances of a successful suicide. Both consultant psychiatrists are in agreement that he meets the criteria for transfer to a hospital pursuant to Section 48 MHA 1983.[26]His case for release or transfer is made stronger by the fact that he is being detained in prison conditions, instead of an immigration detention centre, because of his mental state and the perceived risks.[27]Dr Karen Brown, consultant forensic psychiatrist at HMP Wandsworth has prescribed medication but she has had long standing concerns about the significant risk both to himself and others if he remains in a prison environment. This is recorded in a report dated 15th December 2011 by Dr Pamela Walters, consultant forensic psychiatrist, and in a report dated 9th January 2012 by Dr Patil, specialist registrar to Dr Brown.[28]Dr Brown therefore referred AS to the Three Bridges Mental Health Unit but he has been refused admission on the basis that he does not meet the unit’s criteria. As explained in the letter dated 22nd December 2011 from Dr Kahtan, he does not at face value meet the criteria, as he is not charged with a violent offence, does not present a significant risk to others and has a primary diagnosis of ‘emotionally unstable personality disorder’. Dr Kahtan then listed the types of psychology programmes that the Unit runs, none of which would appear to be suitable for the Claimant.[29]Dr Sharda in his report dated 16th March 2012 stated:
“in terms of admission to a medium secure unit, he does not meet our criteria for admission at present as he is not presenting as a significant immediate risk to others, his primary diagnosis is of borderline personality disorder.”
[30]In my judgment the fact that AS is not suitable for admission to one particular psychiatric unit does not mean that he does not suffer from a psychiatric condition which requires him to be removed from prison to psychiatric hospital. It is simply a question of which psychiatric unit is appropriate for him.[31]I appreciate that the Secretary of State for Justice also relies on Dr Sharda’s opinion that AS’s needs can be appropriately met in prison. However Dr Sharda’s opinion is contrary to the weight of medical evidence. I have already referred to the opinions given by two independent consultant psychiatrists, Dr Basu and Dr Slater. Dr Sharda is an ST4 not a consultant. What is an ST4? My understanding is that training in psychiatry comprises basic specialist training for three years and higher specialist training for a further three years. At the end of three years of higher specialist training a psychiatrist can register as a specialist and is eligible to apply for consultant posts. The years of higher specialist training are ST4-6. So it appears that Dr Sharda is in his first year of higher specialist training. He is therefore considerably less senior and experienced than the other psychiatrists who have given their opinion on the Claimant.[32]I do not consider that Dr Sharda’s assessment deserves greater weight than that of the other consultants. His report is based on one interview and without the benefit of AS’s earlier medical records. His conclusion that the Claimant does not represent a risk is inconsistent with the report of Dr Brown, dated 27 March 2012 (as amended) which states:
“6.1 Since his arrival into Wandsworth, AS has made numerous threats to harm himself and on several occasions has engaged in significant acts of self-harm. His risk to himself in this regard is due to his emotional instability and poor coping skills in relation to stress. On release he is likely to seek prescription medication or use illicit drugs which may serve to increase his risk to himself. His risk to himself at present remains significant; it could be lowered by supportive and specific treatment for those with personality disorder as provided by local secondary psychiatric services. 6.2 AS was previously charged with the common assault of his partner, it is my understanding that this charge was dropped at court some months later. He has twelve previous convictions for sixteen offences. He was first convicted of theft in 2008, he went on to commit eight further thefts over the next two years. He was convicted of battery in 2011, however I do not have details of this offence. He has admitted to previously fighting with a Hezbollah militant group while in the Lebanon and carrying a gun in his mid-late teenage years. Since his arrival here he has made intermittent albeit serious threats to harm me and threats to kill himself and ‘take someone with him’, implying a prison officer or another inmate. He has also made threats to harm the arresting police officer in relation to recent criminal proceedings; this matter was reported to the police. 6.3 AS has various historic risk factors for future violence towards others, including history of previous violence, presents with personality disorder, previous substance misuse, employment problems, lack of stable relationship, and early maladjustment. Clinically he presents as impulsive and lacks insight into his behaviour. If released into the community risk factors would include lack of support and exposure to drugs and alcohol. I note that AS has not been violent towards others in prison (albeit threatened this), however overall his risk of engaging in future violence, particularly further assaults remains significant.”
[33]In her report, Dr Brown does not express a view as to the Claimant’s suitability for continued detention – she seeks to remain neutral. She explains the reason for that in paragraph 1.2 of her report:
“I am the resident consultant forensic psychiatrist at HMP Wandsworth and have provided psychiatric assessment and treatment for AS for the past 9 months. In this context I advise that I am not able to give an independent view in relation to the questions asked of me by the Court. In addition, in January this year AS made threats to harm me. I therefore do not see him myself for psychiatric review: this is provided to him by other psychiatrists from the in reach team. Both issues as outlined could be considered a conflict of interest in respect of my duty to provide an independent opinion to the Court. For this reason I have provided the Court with a short report to give information about AS’s previous and current presentation and treatment. …I have refrained from giving my expert opinion in relation to his suitability for detention owing to the conflict as outlined above. I understand that the Court will be furnished with two independent reports to address the issue of fitness for detention. I do however consider that it is appropriate to comment on risk, hence the amendments to my original report.”
[34]In the light of all the evidence of Dr Brown’s recorded concerns about AS’s placement in prison, and her efforts to refer him to a psychiatric hospital, I am unable to accept the view expressed on behalf of the Secretary of State for Justice that Dr Brown’s view is that AS does not require a transfer to a psychiatric unit.[35]I consider that the Secretary of State for the Home Department was wise to indicate, in her pleading and in submissions, that she would abide by the assessments of the independent expert psychiatrists appointed at the direction of the court, and apply her policy accordingly. Her departure from that position has meant that this claim cannot be resolved by agreement. Interim Relief[36]On the basis of the evidence before me, I do not consider it appropriate to order temporary admission or bail into the community. This is not a course of action which any of the psychiatrists are recommending, not even the Claimant’s own psychiatrist. In my judgment the risk of harm to others in the community is too great.[37]I decline to make an order requiring the Secretary of State for Justice to transfer the Claimant to an appropriate psychiatric unit. The reason is that both the Secretary of State for Justice and the Secretary of State for the Home Department have stated that, in their view, the conditions for transfer are not met in this case. The Court can only make a mandatory order against a Minister of the Crown in exceptional circumstances. I have concluded that, at this interlocutory stage, where the Claimant has not as yet succeeded in establishing that the Secretary of State for the Home Department or the Secretary of State for Justice has acted unlawfully, I am unable to make a mandatory order compelling Ministers of the Crown to act contrary to their considered views.[38]Furthermore, the Secretary of State for Justice has only very recently been made an interested party to these proceedings and it was only at the hearing before me on 11 May that I directed that he should be made a defendant. He has therefore had very limited time to consider the medical evidence and the history of this claim.[39]In a letter to the Court dated 19th April 2012 Dr Brown has suggested an alternative way forward, namely, that she arrange for AS to be assessed for the purposes of Section 2 MHA 1983. I do not consider that this would be appropriate as Section 47 and 48 MHA provide the means by which persons who are otherwise in detention may be transferred for psychiatric treatment. This enables them to be transferred back into detention if and when the psychiatric treatment is concluded. Orders and directions[40]I have made the following orders: 1. The Secretary of State for Justice is to be joinedas Second Defendant, and to cease to be an interested party 2. Brent Primary Care Trust is to be joined as an interested party, in substitution for SW London & St George’s Mental Health Trust. 3. Permission is hereby granted against both Defendants. 4. The claimant do have permission to amend the claim form to plead his case against the Second Defendant, including any challenge to the decision of 9 May 2012 to refuse to transfer him to hospital under s.48 Mental Health Act 1983 5. Application for interim relief is refused. 6. The hearing of the claim for judicial review to be expedited, to be heard as soon as possible. 7. Costs of today’s hearing and of the hearing on 23 April 2012 are reserved.[41]The sealed order incorrectly refers, at paragraph 4 of the order, to the decision of 10 May 2012. It was in fact 9 May 2012.[42]I have made the following case management directions:• The Claimant do file and serve his amended claim form and grounds by 18 May 2012• The Defendants and any other person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve detailed grounds for contesting the claim or supporting it on additional grounds and any written evidence, within 21 days of service of the amended claim form.• Any reply and any application by the Claimant to lodge further evidence must be filed and served within 7 days of the service of detailed grounds for contesting the claim by both Defendants.• The Claimant must file and serve a trial bundle not less than 2 weeks before the date of the hearing of the judicial review• The Claimant must file and serve a skeleton argument not less than 14 days before the date of the hearing of the judicial review• The Defendant must file and serve a skeleton argument not less than 7 days before the date of the hearing of the judicial review.• The Claimant must file an agreed bundle of authorities, not less than 3 days before the date of the hearing of the judicial review.• The application is to be listed for 1 day.• This case is not suitable for a Deputy High Court Judge.[43]The sealed order contains an error in the sixth bullet under the heading ‘Case Management Directions’. It should have provided for skeleton arguments from both Defendants, not just one.