Muhammad & Ors, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3157 (Admin)

Case No (1) CO/12203/2013Case No CO/14783/2013Case No CO/14871/2013[2013] EWHC 3157 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/10/2013
Before
MR JUSTICE STEWART
Between
(1 st Case) The Queen on the application of Noreen Jan MuhammadClaimant(2 nd Case) The Queen on the application of Isa Muazu(3 rd Case) The Queen on the application of Sid Ahmed Adda(1 st, 2 nd, & 3 rd Case) The Secretary of State for the Home DepartmentDefendant
1 st Case: Miss Wilding (instructed by Maalik & Co) for Claimant (Muhammad)2 nd Case: Ms Hirst (instructed by Deighton Pierce Glynn) for Claimant (Muaza)3 rd Case: Ms Hirst (instructed by Deighton Pierce Glynn) for Claimant (Adda)(All the above Cases) Mr Gullick (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 14 th October 2013
JudgmentMr Justice Stewart :
[1]These cases are applications for interim relief which raise similar issues. For that reason the cases have been heard together as a matter of urgency and this is the judgment in respect of the applications in all three cases. For the purposes of brevity, I shall refer to the Applicants as NM, IM and SA.

NM – Procedural History

[2]This Application for interim relief came before me without notice in the late afternoon of Wednesday 9 October 2013. What was sought was an order that:
“(a) That the Defendant releases the Claimant from detention immediately (b). Costs of this application to be reserved (c). Any other order the Court thinks fit.”
I adjourned the application to 9:30am on Friday 11 October 2013 for two reasons (i) to give the Defendant a chance to be heard; (ii) for a statement from the Claimant’s Solicitor confirming that the Claimant had given instructions to make the application. A statement was filed and served by the Claimant’s Solicitor on 10 October 2013 as ordered.[3]The Claimant is a Pakistani national aged 35 years. She entered the UK as a student in January 2013 and claimed asylum on 6 July 2013. This was refused on 16 July 2013 and permission to appeal was refused by both the First Tier Tribunal and the Upper Tribunal. Further submissions were made on 20 August 2013. On 27 August 2013 the Defendant issued a decision letter stating that the further submissions did not amount to a fresh claim for asylum and human rights. Further submissions were(i) the Claimant’s husband had been recently killed by her family in Pakistan(ii) her family have lodged an FIR (a First Information Report which is the legal basis for an arrest) against her(iii) she has not been eating/drinking since 13 August 2013. The Claimant issued a claim for Judicial Review of that decision on 30 August 2013.[4]On 3 October 2013 Jeremy Baker J made the following order “Application for interim relief and permission to apply for Judicial Review is hereby refused”, his reasons were:
“1. The application for urgent consideration claims interim relief, namely the applicant’s release from detention. There is no adequate explanation for the urgency of the application bearing in mind that it is based upon the medical reports from Dr. Partha-Das, which should apparently be dated 10.9.13 and Dr. H D Grant-Peterkin dated 11.9.13. Although both of them raised concerns as to the health of the Applicant due to her refusal to eat/drink, these reports are now three weeks old and the current situation is unclear. 2. On the basis of the evidence presently relied upon there is no justification for the urgency of the application and for the granting of the release sought. 3. I have taken the opportunity of considering the application for permission to apply for Judicial Review of the Defendant’s decision dated 27.8.13 not to treat the representations made on 20.8.13 as a fresh claim. 4. The original application for asylum was refused by the Defendant on 16.7.13. The appeal against this refusal to the FTT was promulgated on 29.7.13. The FTT refused the appeal and Article 2, 3 and 8 ECHR considerations, in a fully reasoned decision, in respect of which permission to appeal was refused by the FTT and the Upper Tribunal. The FTT rejected the Applicant’s account as to the threat of serious injury both to herself and to her husband. In the alternative the FTT considered that the Applicant would be able to return in safety to another area of Pakistan. 5. In these circumstances the Defendant was entitled to decide that the further representations made by the Applicant did not amount to a fresh claim. 6. Therefore there are no arguable grounds for Judicial Review of this decision and permission is accordingly refused.”
[5]When the matter came before me urgently on the afternoon of 9 October 2013 I was concerned as to whether the Claimant had given instructions to make the application. She had told Dr Grant-Peterkin that she just wanted to die and that if she had no husband she had no future and that he, Dr Grant-Peterkin, had assessed her suicidal ideation to be linked to grief of believing her husband to be dead rather than to her immigration status.[6]There was confusion in that both myself and the Defendant’s Counsel turned up for the hearing at 09:30am on 11 October 2013 but Claimant’s Counsel, Ms Wilding, had understood that the case was listed at 2pm before Ouseley J. That was inaccurate and therefore the matter was adjourned to be heard on Monday 14 October 2013 with the other two cases.

IM – Procedural Background

[7]IM is a Nigerian national who entered the UK on 25 July 2007 on a visit visa with valid entry clearance. He became an overstayer on 23 January 2008. He made an application for leave to remain in May 2011 but this was refused. On 25 July 2013 he claimed asylum. He was detained. Asylum was refused by decision letter of 7 August 2013 and his claim was certified under section 94(4) of the National Immigration and Asylum Act 2002 such that he had no in country right of appeal. He remains in detention. He cannot be removed at present as he does not have a travel document and, it is said, because he is physically unfit to be removed.[8]On 4 October 2013 a claim form was issued. Section 3 “Details of the Decision to be Judicially Reviewed” was completed as:
“Decision to Detain the Claimant (despite medical evidence that he is not fit to be detained)” and the date of the decision “25 July 2013 and ongoing, as recorded in the monthly progress report of 19 September 2013.”
The application for interim relief came before me as the Immediates Judge on 4 October 2013. The draft order claimed bail on conditions enabling IM to attend hospital for urgent treatment and, following discharge, to live and sleep at an address in London SE8.[9]On 4 October 2013 I made an order on the papers:
“1. The Defendant do have the opportunity to file and serve a response to this application by 1pm Tuesday 8 October 2013 2. In any event the papers shall be placed before the Immediates Judge during the afternoon of 8 October 2013.”
[10]The Defendant requested a hearing and on 8 October 2013 Mr

Justice Charles ordered:

“The application for permission and interlocutory relief is adjourned to be listed in court, on notice to the defendant as soon as is practicable on or after 11 October 2013. In the event of an emergency both parties have permission to apply if practicable on notice.”
[11]Apart from some directions as to evidence, Charles J also ordered the following case management directions:
“The parties should at the hearing (or on an emergency application) provide the court with the details of their respective positions as to (or be in a position to explain why the points raised are not relevant): • Whether the Claimant has capacity to consent to him being detained in a hospital or elsewhere for treatment or care • If it is asserted that he has that capacity whether or not he will consent to such detention and if he does not whether it is accepted or asserted that he could or should be sectioned under the Mental Health Act or that his detention (or a restriction on his liberty) for treatment and/or care could or should be otherwise authorised. • If it is asserted that he does not have that capacity whether it is asserted that any detention (deprivation of liberty) should be rendered lawful under the Mental Health Act or the Mental Capacity Act or otherwise. • More generally what would constitute a suitable release plan (and so the relevant safeguards against the Claimant absconding, accommodation, treatment and care and whether this is to be as an in-patient or in the community), who would provide it, how and by whom the necessary arrangements to provide it would be made and when this would be done if the Court is minded to grant interim relief. • Whether the Claimant has the capacity to consent to and does consent to the disclosure of his medical records.”
SA – Procedural Background.[12]SA is an Algerian national who arrived in the UK on 27 October 2012 and was granted leave to enter as a visitor until 3 March 2013. On 17 April 2013 he was detained for a suspected immigration offence and was served with Notice of Liability to Removal as an overstayer. He claimed asylum. This was refused on 23 May. His appeal was dismissed by the First Tier Tribunal on 12 June 2013. He has exhausted his appeal rights.[13]A claim form was issued on 7 October 2013 seeking to judicially review “the decision to detain the Claimant (despite medical evidence that he is not fit to be detained)”. The date of the decision was given as 18 April 2013, repeated on 4 October 2013, and ongoing.[14]Interim relief was sought requesting that the Claimant be released from detention urgently and granted bail subject to conditions.[15]The application came before Mr Justice Sales on 7 October 2013. He ordered “The application is adjourned to be placed before a judge as an urgent/immediates application on 10 October 2013.”[16]Sales J’s reasons were “The Claimant has access to appropriate healthcare and is subject to constant monitoring. He was assessed as recently as 3 October 2013 to be fit to be detained. Apart from the health issue, it is not suggested that detention pending removal is unjustified. In the circumstances the balance of justice and convenience is against ordering immediate release. The application is to be adjourned to allow the Defendant time to put in materials in response. The adjournment is short, in recognition of the seriousness and urgency of the situation.”[17]On 10 October 2013 Jeremy Baker J adjourned consideration of the application for interim relief to an oral hearing on 14 October 2013.

Applications for Interim Relief

[18]Because of the urgency of these applications, it has not been thought appropriate to deal with permission to bring Judicial Review. This was a course agreed to by all parties and the Court.[19]The usual private law principles apply i.e. serious question to be tried and, in the circumstances of these cases, the balance of convenience. In addition the Court has to take account the importance of the public interest when considering the grant of interim relief against a public authority (R on the application of Medical Justice) v SSHD (2010) EWHC 1425 (Admin) see also Sierbein v Westminster City Council (1987) 86 LGR 431. The Defendant has not argued that there is no serious question to be tried.[20]The Court must also bear in mind in the present cases that, since the Claimants seek their immediate and unconditional release from immigration detention, if that is granted, the Claimants will in effect be obtaining the relief that they would otherwise be seeking at trial.

The Applicable Legal Sources

[21]Relevant to these applications is paragraph 55.10 of UKBA Enforcement Instructions and Guidance (“EIG”), the Detention Rules 2001 (SI 2001 no. 38) rule 35, the Home Office Detention Services Order 03/2013 paragraphs 55 – 60, a letter dated 31st July 2013 from Karen Abdel-Hady, Head of Detention Operations to Centre Managers/Area Managers on food refusing and Articles 2 and 3. These citations are relatively lengthy and are to be found in the Appendix to this judgment.[22]There is also mention in the Grounds in some of the cases of Article 8 ECHR and the Equality Act 2010 (particularly section 149). However, these do not feature in the application for interim relief and therefore are not to be found in the Appendix or elsewhere in this judgment, save in relation to the anonymity application dealt with below.

Medical Justice

[23]As mentioned above, the medical report in the case of NM has been provided by Dr. Grant-Peterkin. In the cases of IM and SA medical reports have been provided by Dr. Hartree.[24]There is a letter signed by those two doctors and two other doctors dated 10October 2013 headed “Detainees Refusing Food and Fluid”. The letter states that it “has been prepared in response to questions raised by the Home Office in court proceedings about Medical Justice’s ability and experience in assessing the medical needs of immigration detainees who are refusing food and/or fluid.”[25]The letter makes the following points:(i) There are difficulties in assessing detainees refusing food and/or fluid. It is not a condition usually encountered, so most GPs and hospital doctors will not have experience in dealing with patients who are malnourished or dehydrated on the timescale or severity seen in immigration centres.(ii) The Department of Health Guidelines do not address all clinical questions and are not detailed/specific enough for individual situations. It is not surprising because guidelines cannot cover every eventuality. It means that doctors must rely on their own clinical judgment in individual cases.(iii) It is very difficult to assess the severity of dehydration or malnutrition and what is the risk to the patient in terms of imminence of organ failure, collapse or death. It is usually not possible to make precise predictions about when these complications are likely to happen, only to advise that if the food/fluid refusal continues, eventually collapse/organ failure/fatality will happen, and there is a risk that it could occur soon.(iv) Medical Justice doctors are clinical volunteers who receive training in the medical problems encountered in detention centres including food/fluid refusal. They pool and share experience and are gradually building up some collective expertise in the clinical field of fluid/food refusal.(v) When patients have refused food or fluid for long periods they are at risk of “refeeding syndrome” (medical complications eating after a long fast) or kidney failure which can cause imbalance and large fluctuations in body chemistry. These are dangerous. Because this is such a specialised area and one that hospital physicians cannot be expected to have much experience of, it is especially important that appropriate handover is arranged on release from detention. This results often in inappropriate early discharge. Early discharge has risks because of the potential complications of serious re-feeding syndrome. Therefore Medical Justice have started contacting hospitals in advance of former hunger strikers arriving and have communicated with the relevant doctors directly. Their experience is that, after this type of communication, patients were more often admitted and remained in hospital for longer with repeated blood tests being carried out rather than a single test following discharge.(vi) Overall Medical Justice’s experience is that many patients receive less than ideal medical care from the NHS after being released in a severely malnourished state.[26]On 11 October 2013 the Treasury Solicitor sent an email to the solicitors instructed by IM and SA referring to the Medical Justice letter of 10 October 2013. This contained the following statements: “1. We are also surprised at the general and sweeping criticisms of NHS hospital staff contained within the letter which appear to be without any evidential foundation and we note that there is no suggestion that the matters set out therein have led to any substantiated complaints or successful actions for medical negligence or professional disciplinary action” “2. We enclose a document titled “Practical Notes for People on Hunger Strike” written by Dr. Frank Arnold of Medical Justice…on the basis of this document Medical Justice appears to be an organisation that takes the view that people on hunger strike are engaged in “protest action” through which they can “negotiate to achieve these demands” and is prepared to advise detainees on how to conduct their hunger strike. Given that your clients are seeking to rely before the courts on CPR 35 compliant expert reports prepared by Medical Justice, please can you explain what the views of Dr. Arnold on behalf of Medical Justice mean. We understand from publicly available information that Dr. Arnold is a founder of and former clinical adviser to Medical Justice. If the view of Medical Justice is as stated by Dr. Arnold, namely that there is the potential for action by way of food and refusal to achieve detainees demands, please explain why this is not at least been made clear to the court in the expert reports”. (An undated document by “Frank Arnold from Medical Justice” was attached to the Treasury Solicitor’s letter).[27]I note the comment in para 1 of that letter of 10 October 2013. As regards paragraph 2, Ms Hirst, Counsel for IM and SA, sought to call Dr. Hartree of Medical Justice. However I indicated to her that the document would not affect my view of the merits of these cases. She nevertheless told me Dr. Arnold ceased to be with Medical Justice about a couple of years ago.

The Application of NM

[28]The application of this Claimant is based primarily on EIG chapter 55.10. It is stated that she is not suitable for detention because she is suffering “from serious medical conditions which cannot be satisfactorily managed within detention” and/or “serious mental illness which cannot be satisfactorily managed within detention…”[29]In this case I was referred by Counsel for the Claimant, Ms Wilding, to:(i) Two reports from Dr Grant-Peterkin dated 6 October 2013 and 10 September 2013; also an addendum report dated 10 October 2013. The 6 October report was prepared after a two hour consultation at the detention centre. In the previous psychiatric history section (paragraph 5) there is mention of an attempt to commit suicide in Pakistan following her family’s violence towards her and self-harm lacerations of her left wrist whilst in detention. Her weight is recorded as 38.6 kilogrammes (down from 50.7 kilogrammes on 8 July 2013) and her diagnosis (paragraph 9) is major depressive episode without psychotic features. Dr Grant-Peterkin (paragraph 9.4) says that NM’s detention and immigration status undeniably play a role in her current mental state, but her husband’s death appears to be the more significant factor as it removes all hope for her. Dr. Grant-Peterkin regards NM as presenting a high and ongoing risk of suicide in addition to her ongoing suicide attempt via food refusal (paragraph 11). The report questions NM’s ability to give instructions but does not go so far as to say she lacks capacity. Finally at paragraphs 13 and 14 Dr Grant-Peterkin says that NM is “wholly unfit for detention in an immigration detention/removal centre. She requires urgent psychiatric assessment and treatment… thus far it has not been possible for treatment and monitoring, either psychiatric or physical, to be consistently carried out within the immigration detention centre setting and her continued detention undermines treatment and any possible recovery.” He states that NM would be best cared for in a psychiatric inpatient bed with close contact to a medical hospital and “following admission to a psychiatric hospital and period of treatment, once deemed safe to discharge, she would be best placed with her cousin in the community. Her cousin is the only person who she trusts and feels safe with and living with him would give any community Mental Health Team the best chance of engagement with her.” He says that he concurs with the detention centre doctors in deeming her “not fit to fly” on both physical and mental health grounds.(ii) There is a letter from Dr Hilary Pickles (“C/O Medical Justice”) dated 7 October 2013. She says she is an independent public health doctor and has never been NM’s treating doctor. She has never met her. Her comments are based on records and reports. These include Dr Grant-Peterkin’s reports. She gives her professional opinion that NM is in grave danger and is wholly unfit for detention.(iii) In support of the effect of the Claimant’s cousin, reliance is placed on a medical record dated 4 October 2013. After a visit from her cousin a day or two before, NM ate two pieces of toast and drank a cup of tea; also in paragraph 4.3 of Dr Grant-Peterkin’s report is this statement “the only slight sign of hope is a smile she gave when she recalled her cousin feeding her by hand, this suggests an ability to respond to kindness/compassion as she did when she last refused food in Pakistan.”[30]The major first hurdle which is presented in NM’s case is that Ms Wilding opened her submissions on Monday morning saying that she had been informed that NM felt sad and depressed and needed to be with her cousin in the hope that he could help her to get better. It was said that her cousin would collect her by car if she were to be released and she could go to Hillingdon hospital for tests. However she would not accept admission to hospital. For reasons which appear later in this judgment this statement was analysed and found to be a stumbling block for the Claimant, even on her own case. At the end of Monday’s proceedings, in the afternoon, Ms Wilding said she had checked her emails and re-read an email sent on 10 October 2013 at 17:11 from Theresa Schleicher a casework manager at Medical Justice. This read:
“Hi Jo, Her cousin called me back now. He confirmed that he is happy for N to stay with him and that he will come to Yarl’s Wood to pick her up. He will take her straight to Hillingdon hospital, which is the closest hospital to his house. We will contact Hillingdon and make sure they know that she will be coming and have her medical information. N agrees to us passing her information to them. She will stay there until the doctors have confirmed that she is fit for discharge and at that point her cousin will take her home. Best Wishes Theresa”
I asked where the Monday morning instructions had come from. I was told that these had come to Ms Wilding on Thursday 10 October by email from her solicitors . Best Wishes Theresa”

Best Wishes

[31]The situation is therefore somewhat confused. It is not clear whether Counsel’s solicitors had made a mistake, or whether Theresa Schleicher of Medical Justice had made a mistake, or whether the Claimant was giving inconsistent instructions. Nevertheless it casts very serious doubts on whether the Claimant is prepared to accept admission to hospital if she is released.[32]Counsel’s submissions (prior to discovering the Theresa Schleicher email) were that the best hope for the Claimant was release from detention to her cousin.[33]I refuse to grant the interim relief sought in NM’s case for the following reasons:(i) I am wholly un-persuaded that NM, even if released, would undertake inpatient treatment. Not only was there the unresolved confusion about Counsel’s instructions; in addition there is no evidence that the cousin has a better chance of persuading her to receive treatment outside detention than that the Claimant will accept treatment whilst detained.(ii) Dr Grant-Peterkin’s report does not support discharge to NM’s cousin. He says that she would be best cared for in a psychiatric inpatient bed with close contact to a medical hospital.(iii) There is, nevertheless, some quite cogent evidence that the Claimant is refusing sustenance and medical treatment because of her detention. There is a very lengthy entry from a psychiatrist, Dr Leahy, in the medical records. This is dated 26 September 2013. The entry says “whilst she presents some features of depression, depression appears to be arising in reaction to problems/decisions regarding her immigration status…she is refusing all specific treatments including anti-depressant medication and any form of hospital admission…she is determined not to eat and drink unless for instance the decision on bail to live with her cousin could be reversed…it seems likely that the factor which would have most impact on her health would be the matter of detention versus living with her cousin and a decision which is (illegible) with her wishes in this regard. In such a scenario it would be appropriate to review need for psychiatric/psychological treatment.” Also on 4 October 2013 in the medical records it states “she stated that she will not eat until she is released from the IRC”. This had been the subject of an earlier indication in the Defendant’s Decision letter dated 27 August 2013 where the following statement is made:
“also, when questioned about your food refusal on 17 August 2013 you clearly state that your actions are due to the fact that you had been served removal directions and you make no mention of the alleged passing of your husband. This is directly at odds with your witness statement of 20 August 2013 whereby you clearly state that your reason for food refusal is due to the death of your husband.” (iv) In short, whilst there is evidence of mental illness, NM has capacity. She is able to consent to treatment but refuses to do so. Ms Wilding submitted, with some support from the report of Dr Grant-Peterkin, that the mental illness is at least a factor in causing refusal. I will review this feature in some more detail in the cases of IM and SA below; because of the reasons I have already given, NM’s case for interim relief must fail. However even absent those reasons it would fail on this ground. I repeat that Dr Grant-Peterkin’s view is that she is “unfit for detention in an Immigration Detention/Removal Centre.”
She is not unfit for detention if she is hospitalised in detention. (v) Any issues as the lawfulness of the detention of NM are matters for final hearing. She is appeal rights exhausted. She has had permission to bring Judicial Review refused on paper by Jeremy Baker J on 3 October 2013. Nevertheless the balance of convenience is in favour of NM remaining in detention. There is a real risk of her absconding, despite the conditions offered if she were to be released.

IM and SA: Introduction

[34]Ms Hirst submitted that it is arguable in these two cases that, even if detention commenced lawfully, it is not now lawful. She based this on Articles 2 and 3 and on the submission that the Defendant is not complying with paragraph 55.10 EIG. It was common ground that in respect of Articles 2 and 3 the Court must investigate itself whether there is a breach of Convention rights. As to application of policy, there is a dispute between the Claimants and the Defendant. The Defendant submitted that the question at trial would be whether the Defendant’s continued detention of the Claimants was a Wednesbury unreasonable application of her policy (R (LE) Jamaica)) vSSHD (2012) EWCA Civ. 597 at 29). The Claimant’s submission is that this case is no longer good law on this point. In the circumstances of these Claimants, I regard these matters as issues for trial. For the purposes of interim relief there is, as the Defendant does not dispute, a serious question to be tried.[35]It is also common ground between the parties that:(i) Both Claimants currently have the capacity to litigate and make decisions about refusing food and/or treatment.(ii) The Defendant has no power to transfer the Claimants to hospital for the purposes of treatment. The criteria under section 48 of the Mental Health Act 1983 are not (at present) satisfied in respect of either Claimant.(iii) The Court’s inherent jurisdiction to act to protect a vulnerable adult who is incapacitated for reasons not covered by the Mental Capacity Act 2005 cannot be exercised. The Court has no jurisdiction in relation to an adult who has capacity and is not a “vulnerable adult”. In the case of Re: SA (Vulnerable Adult with Capacity: Marriage) (2006) 1 FLR 867 at 82 Munby J (as he then was) gave a description of a “vulnerable adult”. I appreciate that it was only a description and not a definition. That description was adopted by the Court of Appeal in Re L (Vulnerable Adults: Court Jurisdiction) (No 2) (2012) 3 WLR 1439. The Claimants in the present case do not, it seems to me, come within the definition of a “vulnerable adult”. Nor did either party contend that they did.[36]These preliminary matters having been mentioned I now turn to the facts of the individual cases.

The Application of IM

[37]Ms Hirst first took me to the Defendant’s records of IM and the following entries:(i) In physical care records of 28 August 2013 IM was noted as “complaining of food provided by the Centre”. On 30 August 2013 it is recorded “he claims that he is not eating because the food is not prepared the way he used to, he is used to take only vegetable and liver because of his condition as he was diagnosed as hepatitis B and kidney problems”. On 12 September 2013 he was recorded as “still claims that he is not refusing the food but the food supply is not suitable for his medical condition.” On that date “…encouragement given to go to the dining room first to choose the food that he can tolerate…”(ii) On 20 September 2013, on a Harmondsworth Acute Assessment sheet, IM’s presenting complaint was “disturbed by hallucinations (auditory and visual).” A medical history of kidney problems, hepatitis B and piles was noted. There is an entry that IM “presented low in mood. Very cooperative. Responds very well to questions. Complained of command hallucinations. No plan to harm self/others but concern of the voices. Poor speech and dietary intake. Not eating from Centre because of command from the voices. Family history of mental illness…PLAN: referred to psychiatrist”.(iii) Although there was the plan to refer to a psychiatrist noted on 20 September 2013, this has not yet taken place. The Defendant’s Counsel told me on instructions that it was scheduled for this week, commencing 14 October 2013. However, on handing down this judgment, I was told that this was an error.(iv) On 2 October 2013 a nurse mental health practitioner (Miriam Mayla-Zajac) carried out another Harmondsworth Acute Assessment. She noted “loose and fleeting thoughts of killing himself. Could not identify whether suicidal or identifying death as an option. No actual attempt, had thoughts to hit head against wall, friends stopped him 2/52 ago”. He was recorded as having “poor appetite, has now stopped eating food provided by GEO. Drinks water (little amounts).” Her assessment was “Impression: inflexible way of thinking, resulting in unhelpful and maladaptive behaviour patterns, aimed at achieving certain outcomes.” (The Claimant challenges this impression, particularly in the light of the medical evidence from Dr Hartree).(v) The Claimant points to the Defendant’s tracker system of “food/fluid BRAG sheets”. These have a colour rating which commences at green and deteriorates through amber to black. On 11 September 2013 IM was assessed at green. There was then deterioration to black from early October. On the BRAG sheets of 6 October and 10 October 2013 the rating is black. On both the following are ticked:• Detainee at risk/has health needs which cannot be met within an IRC• Detainee causing concern and admitted to level 3 ….• Detainee is at risk from serious permanent damage to health or death.” Further on 10 October 2013 BRAG sheet there is a tick against “detainee declines clinical monitoring therefore limiting the assessment process and increasing clinical risks.” Nevertheless the daily comments of the nurse (apparently the same nurse) are that IM is fit to be detained. (The Claimants submit that what they call “the tick box approach” and the letter of the 31 July 2013 (see Appendix) cannot comply with the Defendant’s EIG policy nor with anxious scrutiny under Articles 2 and 3.)[38]The Medical Justice report from Dr Hartree follows a telephone consultation on 4 October 2013 and a two hour visit on 6 October 2013. The Claimant submits that this detailed report should be preferred to the Defendant’s medical records approach. Whilst I have had regard to the report as a whole, the following sections are of particular relevance:(i) IM is severely and dangerously malnourished and probably also mildly dehydrated. He has a psychotic illness and is not fully rational (paragraph 6.2).(ii) IM is suffering from an acute psychotic illness and the likely diagnosis is schizophrenia (paragraph 6.14).(iii) In IM’s case a faked presentation is most unlikely, for reasons then given (paragraphs 6.21).(iv) IM’s malnutrition has reached a critical stage (paragraph 6.28) “…it is difficult for me to say how close to death a malnourished patient may be, unless they show some incontrovertible sign such as actual collapse into clinical shock or coma. However if the patient develops shock or coma, their condition is then likely to be irreversible or fatal, and it would be unwise to wait until then to decide that a patient needs transfer to hospital.” (Paragraph 6.33).(v) Without former psychiatric treatment and/or a change in his situation it is unlikely that IM’s mental health has any realistic prospect of improving. If he remains detained he is very likely to (a) refuse to take any medication from the healthcare staff (he has expressed ongoing lack of trust in IRC Healthcare staff). It is unlikely he would accept the treatment he (probably) needs i.e. anti-psychotic medication, in the setting of detention. While he remains detained, this environment, as far as I can ascertain, is directly fuelling his hallucinations and delusions. So I doubt that he can recover or improve spontaneously, particularly within the available time frame before he collapses from malnutrition (paragraph 6.36).(vi) The cause of IM’s food refusal is likely to be that he has an underlying psychotic illness, probably schizophrenia. This tends to flair up when he feels under stress. Being detained is recognised as stressful and as adversely affecting mental health. He has developed an acutely or increasingly psychotic state while detained. The current focus of his psychotic symptoms (hallucinations and delusions) are the ideas that he should not be detained and that food in the detention centre is bad for him – so bad that it is worse than no food at all. He expressed a persistent and unshakable, abnormal belief (a delusion) that he cannot eat any food currently provided in the IRC. Therefore his expressed beliefs about food and his mistrust of food and staff in the detention centre are most likely to be the result of his mental condition which is considered likely to be a diagnosis of schizophrenia. “I do not think it likely that his food is being carried out with directly manipulative intent. It is quite possible that the food refusal is the indirect result of (IM’s) dislike of being detained, but this dislike is being mediated and expressed through the psychosis itself, which is not rational. Therefore I consider it very unlikely that IM is making a conscious, calculated protest against detention. Rather I considered that his dislike of being detained has expressed itself in delusions which have now become so fixed in his mind that he continues to refuse food in the fixed belief that he “cannot” eat the food provided (paragraphs 6.38 – 6.42).(vii) If IM remains detained he is likely to continue refusing food and could collapse or develop organ failure or death at any point or may last a few weeks longer. He cannot be treated or managed in the setting of detention because he is unlikely to accept medical or psychiatric treatment or if transferred to hospital whilst still a detainee. Detention centre healthcare has so far failed adequately to assess and treat his mental condition (paragraphs 6.44 – 6.49).(viii) IM requires urgent assessment and treatment in hospital because of the risk of re-feeding syndrome. Once his physical health is less precarious he is likely to need psychiatric assessment, treatment with anti-psychotic medication and psychiatric review and follow up (paragraphs 6.50 – 6.51).(ix) He is unfit to fly (paragraph 6.52).[39]The Defendant points to a mental health record entry on 9 October 2013 from a registered mental nurse (RMN) in which it is noted that IM “maintains that he will not eat until released because he is of the view that he was duped/misled to agree to attend detention. He said he was advised to bring all his property/belongings including his food but ended up in detention.” A physical care record of 7 October 2013 notes “refuses hospitalisation; has capacity”. On 8 October 2013 and 9 October 2013 IM refused to have his vital signs observed/taken. A note on 10 October 2013 states “declined observations to be taken …fit for detention”.[40]In short the Defendant submits that IM is refusing hospitalisation with capacity to do so and therefore this is a consequence of his own decision. The Defendant is fully prepared to take IM to hospital.[41]Further the Defendant cast some doubt on the previous mental health history given by IM since a disability questionnaire completed on 16 July 2013 contains no mental health issues entry, and a further document which is part of the detainee healthcare record and appears to be dated 26 July 2013, states that he has never been tested for or immunised against hepatitis B.[42]I accept (as does the Defendant) that Article 2 ECHR imposes a positive obligation on the state to take steps to protect life and this extends to an obligation to prevent self inflicted death in custody: Keenan v UK (2001) 33 EHRR 38. Further Article 3 imposes an absolute prohibition on torture, inhuman or degrading treatment or punishment. Nevertheless, IM has capacity to make his own decisions; the Defendant is fully prepared for him to have hospital treatment and to facilitate this whilst in detention but IM will not consent. The stark choice is as to whether in these circumstances the Defendant, and if not the Defendant the Court, has no option but to release IM from detention. In my judgment that is not the case in the present circumstances. It may well be, to use the words of Dr Hartree that it is unlikely that IM’s food refusal “is being carried out with directly manipulative intent” (my underlining) and, as she says, “it is quite possible that the food refusal is the indirect result of IM’s dislike of being detained, but this dislike is being mediated and expressed through the psychosis itself, which is not rational.” It may also be the case (Dr Hartree paragraph 6.64) that IM does not have the capacity to make rational decisions relating to his food intake. However I do not accept that there is sufficient evidence that he cannot make rational decisions about whether or not to go to hospital. If he can make a rational decision about whether or not to go to hospital and refuses to do so, then that is his decision and, in my judgment, is a key factor in refusing interim relief.[43]I add that there is no evidence that if IM went to hospital (whether in detention or if he was released) that he would then not have the capacity to make rational decisions relating to his food intake. This is not stated in Dr Hartree’s report. It was something that was raised at the hearing. There is no evidence to support this. Indeed in reality it would be very difficult to understand such evidence. The Claimant’s case is that he wants to go to hospital (albeit not in detention). Therefore it cannot be his case that he would refuse food in hospital.[44]I note from Dr Hartree’s CV that she has extensive experience in mental health care but she does not have psychiatric qualifications. She quite properly says (paragraph 6.26) that in her opinion IM requires assessment by a psychiatrist and she expresses her diagnosis of IM’s psychiatric illness with some caution. I trust that at the time of this judgment or very shortly afterwards IM will be assessed by a psychiatrist instructed by the Defendant.[45]I deal with the following points in my refusal of interim relief in IM’s case:(i) IM may well be unfit to be detained in a detention centre. However he is not unfit to be detained in hospital. This in my judgment explains the medical record entries of 6 October 2013 and 10 October 2013. Ms Hirst submits that it is not open to the Defendant to say that IM can render his detention lawful by being detained somewhere else. In my judgment that is wrong. His detention is lawful. He is fit for detention in hospital. He refuses to go there. That is his decision. He does not lack the capacity to make that decision.(ii) Ms Hirst says that in detention cases such as IM and SA the detention is not predetermined. It must be kept under review and may become unlawful because of self-inflicted harm. It can be put to an end by the Defendant at any stage. I accept this submission but do not accept its consequence. See (i) above.(iii) As regards the risk of absconding Ms Hirst accepts that IM is an overstayer. She says he brought himself to the attention of Defendant in an attempt to regularise his status. She also says there is no risk of harm to the public and no alternative to detention has been explored. She says that conditions imposed upon IM’s release would minimise the risk of absconding. Against this is the fact that IM evaded detention for a number of years. He has now become appeal rights exhausted. There is a real risk of his absconding. He is not fit to fly at present but that is because of his medical condition which is treatable if he consents. In my judgment the question of whether there is a reasonable prospect of removal in a reasonable time is not a matter that I should deal with on this interim relief application. The balance of convenience is strongly against granting interim relief. There is a real risk of absconding, despite the conditions offered by and on behalf of the Claimant.[46]I was told at the end of the hearing that on Sunday night (13 October 2013) IM had accepted a small amount of hot water with milk powder. This does not affect the decision in any way. Nevertheless, it may possibly be that there is a ray of hope that IM will either accept food in detention or will consent to his removal to hospital in detention for treatment.

The Application of SA

[47]Ms Hirst highlighted these entries from the Defendant’s records of SA:(i) A nursing reception assessment dated 1 October 2013 recording “food and fluid refused for 13 days” and “was found preparing to attempt suicide on 26 September 2013”. She said that under rules 35(1) and (2) of the Detention Centre Rules 2001 (SI 2001 No.38) certain duties incumbent upon the Defendant had not been fulfilled.(ii) On 29 September 2013 SA’s condition was described as deteriorating and that he would be seen by the doctor the next day if he could not attend healthcare. He was “assessed as “black” – imminent.”(iii) On 30 September 2013 the “UKBA Immigration Detention: advanced directive” Appendix B was endorsed “refused to sign but stated verbally that should he become unconscious does not wish to be treated.” This document is a statement of whether a detainee intends to eat, drink, otherwise receive fluids or treatment. In the medical notes it is stated “has full capacity.”(iv) The food/fluid BRAG rating sheet of 6 October 2013 rates SA as “black” and as being at risk/having health needs which cannot be met within an IRC. He was also noted as causing concern and admitted to level 3 and at risk from serious permanent damage to health or death. The daily comment was “is not eating or drinking – condition weak – seen by GP – refused to go to hospital – fit for detention – to be seen by mental health …”(v) On 7 October 2013 physical care records include notes that SA “refuses hospitalisation” and “wishes to die – wants freedom”.(vi) There are other similar records on 2, 4 and 5 October evincing SA’s refusal of food and fluid but comments from people (apparently in different handwriting on the different dates) stating that he is “fit for detention”.(vii) Two other entries warrant mention. These are both from the mental health practitioner, Miriam Mavaia-Zajac and are as follows: (a) 3 October 2013: SA “was seen today in HC3 where he has been admitted due to food and fluid refusal. He said he would drink small amounts of water but will not eat.

(b) 4 October 2013:

“he remains food refusal with small amounts of water. He did not exhibit any other symptoms of mental/emotional distress. Also no psychotic phenomena and no abnormal perceptions.”
[48]The report of Dr Hartree of Medical Justice followed a telephone assessment on 4 October 2013 and then a face-to-face consultation on 6 October 2013 for two hours. From that long report I elicit some of the main points as follows:(i) SA finds that being locked up is unbearable to him and feels he has now reached the end point where “I can’t bear the loss of freedom” (paragraph 4.22).(ii) SA described suicidal ideation. He has some insight into his poor physical health and of the risk to his health from food and fluid refusal. He feels he would rather die than continue being detained (paragraphs 7.12 and 7.13).(iii) SA was adamant that he could not bear to continue being detained and even if advised to transfer to hospital while detained he would refuse and resist a transfer. He reiterated that he would rather die. He expressed a lack of trust in the detention centre staff saying that the nursing staff were exaggerating his ability to mobilise, that staff in the IRC did not care and that some of them were bad mannered. “He asked me to remove the cup of water that had been placed by his bed, saying that he did not know what was in it.” He did not respond to advice that it would be sensible to take fluids at least so as to prevent or reduce organ damage and give his solicitor time to see if she could assist him. When this was discussed he reiterated that he did not mind dying but could not bear to be detained.(iv) SA is physically and mentally unwell. His physical state is critically unwell. He has lost considerable weight such that his body mass index on 2 October was 15.5. (Paragraphs 9.2 and 9.3).(v) He is severely dehydrated and severely malnourished. (Paragraphs 9.5 and 9.6).(vi) He described a cluster of symptoms indicating a severely depressed state. He has life experiences that could contribute to depression. Depression is not uncommon in detained patients and this is recognised that immigration detention severely affects mental health (paragraphs 9.10 – 9.14).(vii) SA’s physical health from fluid and food refusal has now reached a critical state in which his body is becoming unable to compensate for the effects of starvation and dehydration (paragraph 9.16).(viii) It is not possible to give a precise prognosis in terms of time scale of survival. He is at a high risk of re-feeding syndrome which is a dangerous condition (paragraphs 9.22 – 9.24).(ix) As to mental health: SA’s reason for food/fluid refusal has been recorded by IRC nursing staff as “a protest”. However the reasons are likely to be more complex. His symptoms and likely diagnosis of depression may play a major role in his decision making, including his decisions about starting or continuing food and fluid refusal (paragraph 9.29).(x) It is likely that SA’s poor mental health has a significant role in his decision making about food and fluid refusal. He may have severe depression and has expressed hopelessness, a wish to die, social withdrawal and lack of trust. He requires further assessment and monitoring of his mental state, although at present his physical state is too frail to allow much exploration of his mental condition. (Paragraph 9.33).(xi) If SA remains in detention it is likely that his despairing frame of mind and wish to die will continue. Continuing detention is therefore likely to maintain both his current state and his food and fluid refusal. He would then be at high and probably at imminent risk of collapse or organ failure from malnutrition or dehydration. Even if he does not collapse his health is at serious risk (paragraphs 9.37 and 9.38).(xii) It is concerning that no detailed mental health assessments have been carried out on SA (paragraph 9.40).(xiii) Dr Hartree is “unable to see how SA can be considered physically or mentally fit to remain in detention.” He is unfit to fly (paragraphs 9.43 and 9.49).(xiv) SA “was coherent orientated and able to express his views. In my opinion he is able to understand legal advice and communicate his views so as to instruct a solicitor.” As to his capacity to make decisions about food/fluid intake this “is a more complex question.” In Dr Hartree’s opinion his capacity to make such decisions is likely to be affected by his mental and physical health. (Paragraphs 9.54 and 9.55).[49]The Defendant points out, particularly from the entries dated 3 – 7 October 2013 (paragraphs 47(v) and (vii) above), that SA links refusal to his freedom and his immigration status. As in the case of IM, the Defendant’s submission is that SA is refusing hospitalisation with capacity to do so; therefore this is a consequence of his own decision in circumstances where the Defendant is fully prepared to take SA to hospital.[50]Each case must depend on its merits but for the reasons similar to these given in paragraph 42 above in relation to IM, I repeat that I do not accept in SA’s case that there is sufficient evidence that he cannot make rational decisions about whether or not to go to hospital. If he can make a rational decision about whether or not to go to hospital and refuses to do so, then that is his decision and is a key factor in refusing interim relief.[51]I refuse interim relief in SA’s case against that background and taking into account the following:(i) SA is not unfit to be detained in hospital. For the reasons given in paragraph 45(i) in relation to IM, his detention is not unlawful because he may well be unfit to be detained in a detention centre.(ii) I repeat paragraph 45(ii) above in relation to SA’s case.(iii) As regards SA’s risk of absconding I refer to the procedural background at paragraph 12 above. SA is appeal rights exhausted. He had been arrested on suspicion of immigration offences. Ms Hirst submitted that it may be a considerable time (if at all) before he can be deported to Algeria; firstly by reason of his ill health; secondly because he does not have an emergency travel document and there are often difficulties in deporting non-documented people back to Algeria. In the fast-track detention record of the Defendants it is stated that and ETD (Emergency Travel Document) interview was conducted on 16 July 2013. On 22 July 2013 the ETD pack was sent to the Algerian High Commission. “This will take three months to process”. On 19 August 2013 a letter was received from the Algerian Consulate dated 7 August 2013 stating that the ETD has been sent to the relevant authorities in Algeria for identification. “ETD is a current barrier. The case-owner…is liaising with there removals/EOP team to expedite the ETD.” In my judgment: (a) There is a real risk of SA absconding should he be released. This is despite the conditions offered by/on behalf of the Claimant. (b) SA is not fit to fly at present primarily because of his physical condition which he is refusing (with capacity) to have treated in hospital. (c) It is not for me to determine at this stage whether SA’s detention is unlawful on the basis that there is no reasonable prospect of removal in a reasonable time. Certainly, save for the medical position, the evidence to me seems to point to the fact that it is not unlawful for that reason. The trail in terms of deporting SA to Algeria does not seem at all to have gone cold.(iv) In those circumstances the balance of convenience is strongly against granting interim relief.[52]It may be that the Defendant has not acted in accordance with rule 35 of the Detention Centre Rules 2001. Mr Gullick, Counsel for the Defendant, could not assist on the facts of this matter. However the Defendant has had little time to answer that particular allegation. In any event it does not affect my overall judgment on the granting of interim relief at this stage. Summary[53]For the above reasons interim relief is refused in all three cases.

Anonymity

[54]There were applications for anonymity in all three cases. These applications were based on the Applicants’ mental health problems and on the basis of what was said to be press harassment and the risk resulting from the names of the Applicants’ appearing in the press. Reliance was also placed on Article 8 and a right to private life.[55]By CPR 39.2(4) “the Court may order that the identity of any party …must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.” The test to be applied is whether there is sufficient public interest in publishing a report of proceedings that identifies the party to justify a resulting curtailment of that party’s Article 8 rights. (AMM v HXW)(2010) EWHC 2457 (QB).[56]The Defendant did not make submissions on this point but left it to the Court to determine. I remind myself that it is not a matter of discretion but it is a matter of obligation under the Human Rights Act 1998 section 6 and ECHR Article 8. I do not consider that anonymity should be granted in these cases. None of the Claimants is a protected party. There is no evidence that failure to anonymise would in any way inhibit or impede them from accepting the medical treatment they need. Nor is there any other cogent reason to grant anonymity in these cases.

Supplemental Information: SA

[57]Yesterday, 16 October 2013, I received a letter from SA’s solicitors via my clerk. This enclosed a letter from Dr Das, a Registrar specialising in renal medicine and signed also by Dr Hartree. Both doctors are Medical Justice Doctors. I was due to give judgment on Friday, 18 October 2013. As a result of this information, I have managed to bring judgment forward to today. I have not heard further submissions.[58]SA’s solicitors obtained his medical records up to 15 October 2013. The letter from Dr Das and Dr Hartree dated 16 October 2013 deals with those records. They say “from the information available we consider that he is in imminent danger of collapse or organ failure and needs to be hospitalised without further delay. We do not think it is safe to defer decision making about his case.” In setting out the records between 11 October and 15 October they draw particular attention to an entry on 14 October including “reduced skin turgor”. The comment is that this is a sign of severe dehydration which cannot be faked. Also “capillary return 2 – 3 second”. They say that this is a sign of serious illness and circulation critically poor.[59]Dr Das and Dr Hartree say that SA’s health has further deteriorated since Dr Hartree’s report of 7 October 2013. His weight has further decreased from 46 to 42 kilogrammes (BMI 14.2) which they say is severely and dangerously underweight. The low blood pressure and low “pulse pressure” readings are highly concerning – particularly when combined with pulse rates which are normal or high. Taken together with the capillary return and skin turgor, they say that these are objective signs of severe circulatory compromise, probably from a combination of fasting and dehydration. This heralds a state known as hypovolaemic shock and/or shock resulting from cardiac failure which is a critical and life threatening state which a high mortality. They conclude that SA “is dangerously ill and it is no longer safe for him to remain outside of a hospital acute ward. He requires immediate assessment and re-hydration followed by re-feeding, and requires these in a closely monitored hospital environment.”[60]Also enclosed with the solicitor’s letter is a healthcare record of SA dated 14 October 2013 which reads:
“This detainee is food refusal day 27 with minimal fluid intakes. He has a low BP 94/77 and since his arrival 1/10/13 D13 of refusal has lost 4kg, 8.3% of his body weight. He is clinically dehydrated and weak, with generalised abdomen pains. He has refused hospitalisation and a blood test. In his current state I feel he is no longer fit for detention as Harmondsworth can no longer manage his medical needs.”
[61]The letter from SA’s solicitors states “I wrote to the Defendant yesterday, 15 October 2013, to ask them to reconsider their decision not to release in the light of the record. They responded that the Defendant would facilitate the transfer to hospital but only under escort, but otherwise they would wait until judgment from the Court.”[62]In relation to the 14 October 2013 entry, the finding that SA is no longer fit for detention is predicated on the fact that the detention centre can no longer manage his medical needs. It does not appear to me that this changes anything. As I have stated in paragraph 45(i) in relation to IM (and repeated in relation to the facts of SA) he is fit for detention in hospital but he refuses to go there. That is his decision. He does not lack the capacity to make that decision. [I do, however, note that this may not necessarily sit very easily with the wording in paragraph 55 of the Detention Services Order 03/2013].[63]For those reasons, despite the distressing circumstances outlined in particular in the more recent information, my decision that the application for interim relief fails must remain.