S, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 50 (Admin)

Case No CO/2809/2012[2014] EWHC 50 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 January 2014
Before
HH Judge Anthony Thornton QC(Sitting as a deputy judge of the High Court)
The Queen on the application of
Between
S by his litigation friend The Official SolicitorClaimantThe Secretary of State for the Home DepartmentDefendantNestor Primecare Services Limited Interested PartyHearing Hearing date: 16 April 2013 followed by post-hearing submissions
Mr Graham Denholm instructed by Deighton Pierce Glynn for ClaimantMs Claire Van Overdijk instructed by The Treasury Solicitor for SSHD for The Interested Party did not serve an acknowledgement of service and were not represented at the hearing
JudgmentSummaryThis summary does not form part of the judgment and is provided for convenience of the readerThe claim
[1]The claimant, “S”, claims damages for his alleged unlawful immigration detention in Corby Police Station and Colnbrook and Harmondsworth IRCs between 3 December 2011 and 21 March 2012 and for the alleged series of significant breaches by the defendant, (“SSHD”) of the policies relating to immigration detention, the detaining of those suffering from serious mental illness and of the treatment and conditions of detention of such immigration detainees.

The background facts

[2]The claimant, a Ghanaian, had been unlawfully resident in the UK since 19 February 2005. He had lawfully entered the UK on a 6-month visitor’s visa and a valid passport. He remained as an unlawful overstayer and in the nearly 7 years he had overstayed, he is not recorded as having worked, drawn any benefits or committed any crime. He was arrested by the police in Corby where he was living in accommodation provided for free by his Church on 3 December 2011 having been brought to their attention on 2 December 2011 behaving in a strange fashion in the street. His unlawful status came to light when one of the officers who had observed him in the street checked his details against the UKBA computerised details and ascertained that he was an unlawful overstayer.[3]No passport, valid or invalid, was found in the claimant’s possession and, from the outset, he was considered to be subject to and fit for administrative removal and his arrest and detention were made and maintained on that basis. There were four separate stages in his detention: his arrest and acceptance into police custody in Corby Police Station (“CPS”) between 3 and the early hours of 5 December 2011- a total of about 34 hours whilst enquiries were made and the decision was being taken to detain him by officers of the Cambridgeshire & Northamptonshire Local Immigration Team (“CNLIT”) and then arrangements were being made to transfer him to an Immigration Removal Centre (“IRC”); between 5 and the early hours of 14 December 2011 in Colnbrook IRC when he was transferred to Harmondsworth IRC; between 14 December 2011 and 10 February 2012 when he was detained in Harmondsworth whilst CNLIT was responsible for his case and between 10 February and 21 March 2012 when he was detained in Harmondsworth in the Detained Fast Track whilst the Harmondsworth DFT team was responsible for his case.[4]He was released from detention on the orders of an Immigration Judge who had been listed to hear his asylum appeal in the DFT in Harmondsworth at the outset of the hearing on discovering from his appearance, behaviour, demeanour and from reading the two psychiatric reports that had been prepared for the hearing that he was unfit to participate in the hearing, was lacking in capacity and was incapable of representing himself – he was unrepresented at the hearing.

S’s mental illness

[5]S’s behaviour immediately prior to his arrest and behaviour whilst in detention are now known to have been symptoms of florid and largely untreated psychosis which has been diagnosed as paranoid Schizophrenia with symptoms of cognitive impairment, perplexity, suspiciousness and severe depressive symptoms requiring stabilisation with the use of antipsychotic and mood stabilisation medication and other appropriate treatment following a lengthy period of assessment in a hospital setting. This illness had, it can now been seen, started to develop some months earlier but was, until his arrest, wholly untreated and its florid and fluctuating state had become active just before, or as a result of, his arrest. The illness was only finally brought under control after S had been released from detention and had been treated by a community-based psychiatric team between March and October 2012.

Unlawful detention

[6]S’s claim is based on a series of allegations to the effect that his detention from the outset and throughout was unlawful because it infringed the SSHD’s related and intertwined policies of detention and detention of those suffering from mental illness. In short, S was suffering from a serious mental illness which could not be managed satisfactorily or at all by either Colnbrook or Harmondsworth IRCs and which clearly precluded his being removed from the UK in the foreseeable future. In order to consider this case, it has been necessary to examine in considerable detail the entire periods of detention – which lasted for 110 days counting the day of arrest and of release from detention. In essence, S’s case was that he was never properly assessed save on two occasions by an independently instructed psychiatrist who attended at Harmondsworth IRC on 21 December 2011 and 6 March 2012 but whose reports were completely ignored by those responsible for his detention until the Immigration Judge who considered his second report which had been included in the hearing bundle for his appeal hearing on 21 March 2012. He was considered from the outset to be fit for detention, for participation in his – as it turned out – lengthy immigration and asylum claims and proceedings, for removal and for flying and, although unfit for all of those activities, was left virtually untreated throughout the period of detention.

The findings

[7]The inevitably lengthy and factually complex judgment examines the claimant’s claims in four stages:(1) a consideration with specific findings of fact of each of the four stages of detention;(2) an analysis of the claimant’s claim and of the various legal issues that arose in the consideration of the claim;(3) a consideration of the general features of the claim and(4) a detailed discussion and series of findings.

The result

[8]The overall conclusion is that the claimant’s detention was throughout unlawful and that each of the decisions taken to detain and to confirm his detention were also unlawful as being Wednesbury unreasonable, and unlawful as having failed to take into account highly significant facts related to the claimant’s mental health. Particular failings arose from the failure by Immigration Officers to visit or interview the claimant whilst he was in CPS; by Colnbrook Healthcare Centre to report, and to ensure that its locum psychiatrist, who correctly assessed the claimant but whose assessment was never reported to anyone or acted upon, issued or caused to be issued a revised IS91 and a Rule 35 report (these were never issued); by Harmondsworth Healthcare Centre who failed to treat or manage the mental illness of the claimant throughout his time in Harmondsworth; and by the various Immigration Officers who failed to pick up and give effect to the evidence of S’s serious mental illness and to obtain further details from all three detention locations which would have highlighted it.[9]In addition to establishing that his detention was unlawful, the claimant has established that those responsible for his detention and for his assessment, treatment and illness management in detention were in breach of his rights that were protected by articles 3 and 8 of the ECHR.[10]The claimant is entitled to substantial damages for his unlawful detention, since he would not have been held in detention for any part of the claimed period had the SSHD operated its policies lawfully, and if necessary additional damages for the sustained breaches of articles 3 and 8 of the ECHR. The damages for unlawful detention will need to reflect not only the period of unlawful detention but also the conditions under which the claimant was detained and an additional award to provide just satisfaction will be needed for the breaches of articles 3 and 8 if and to the extent that the claimant’s damages for unlawful detention do not fully and fairly reflect satisfaction for the matters giving rise to those breaches.

Damages

[11]The claimant’s damages will now have to be assessed if these cannot be agreed. Given the complexity of that assessment process, I will myself undertake that assessment – either by a paper assessment following the receipt of further evidence and submissions or at an oral hearing if that is sought and granted. I will give directions for this assessment at the handing down hearing of this judgment which will have built into them an initial period during which the parties are to attempt to reach agreement on the award figure and thereby avoid a further hearing altogether. 12. Index I Introduction 1 II The Facts 2 – 223(1) S’s diagnosed mental illness 2(2) Prior to arrest 3 – 12(3) CPS: 3.12.2011 – 5.12.2011 – Arrest and transfer to immigration detention 13 – 57(4) Detained in Colnbrook: 5.12.2011 – 14.12.2011 58 – 86(5) Detained in Harmondsworth 14.12.2011 – 24.12.2011 – Phase 1 – CNLIT 87 – 117(6) Detained in Harmondsworth: 24.12.2011 – 10.2.2012 – Phase 2 – CNLIT 118 – 154(7) Detained in Harmondsworth: 10.2.2012 – 21.3.2012 – Phase 3 – HDFT 155 – 211(8) Community mental health care: 21.3.2012 – 31.10.2012 212 - 223 III S’s Claim in the Judicial Review 224 – 229 IV Applicable Law and Policies 230 – 252 (1) Power to detain 230 – 231 (2) Detention policy 232 – 233 (3) Policies governing the decision-making Process – Detention Centre Rules and Operating Standards 234- 236 (4) Contracting out healthcare services 237 (5) Detention Fast Track 238 (6) Mental Health Act 1983 as amended 239 – 240 (7) Human Rights Act 1998 241 – 243 (8) Equality Act 2010 244 – 252 V Analysis of the Facts – General Matters 253 – 290 (1) S’s mental illness 253 (2) The nature of Schizophrenia 254 – 261 (3) Assessments 262 – 264 (4) The respective responsibilities of CNLIT, HDFT and DEPMU 265 (5) CNLIT, HH and HDFT’S evidence – general considerations 266 – 272 (6) SSHD’s responsibility for the failings of CH and HH and any locum working there 273 – 274 (7) The meaning and applicability of EIG paragraph 55.10 275 – 280 (8) Applicability of PACE Code C to S’s Immigration detention 281 – 289(9) S’s assessment and transfer to hospital from police custody or immigration detention 290 VI S’s Grounds of Claim – Discussion and Findings 291 – 415 (1) Detained in CPS: 3.12.2011 – 5.12.2011 291 – 322 (2) The decision to transfer S to Colnbrook 323 – 335 (3) General comments: S’s immigration detention in Colnbrook and Harmondsworth 336 – 338 (4) Detained in Colnbrook: 5.12.2011 - 13.12.2011 339 – 354 (5) Detained in Harmondsworth – Phase 1: 14.12.2011 – 24.12.2011 – CNLIT 355 – 372 (6) Detained in Harmondsworth – Phase 2: 24.12..2011 – 10.2.2012 – CNLIT 373 - 390 (7) Detained in Harmondsworth – Phase 3: 10.2.2012 – 21.3.2012 – HDFT 391 – 410 (8) S’s release from detention in Harmondsworth: 21.3.2012 411 - 415 VII Conclusion 416 - 420 Annex Chart Showing S’s Treatment and Medication in CH and HH After 420 HH Judge Anthony Thornton QC: I. Introduction[1]In this judicial review, the claimant (“S”) claims a declaration that his immigration detention between 3 December 2011 and 21 March 2012 was unlawful and, if he succeeds, damages for that unlawful detention. He also claims damages for alleged breaches of his rights protected by section 3 of the Human Rights Act and articles 3 and 8 of the European Convention on Human Rights arising from the adverse way that he was treated whilst in detention. This is another case that raises the question of whether the Secretary of State for the Home Department (“SSHD”) has lawfully applied her policy relating to the immigration detention of those suffering from mental illness The parties cited 10 authorities concerned with the alleged or confirmed unlawful immigration detention of a detainee suffering from mental illness. These were, in chronological[2]The claimant is now known to have been suffering throughout his time in immigration detention from paranoid Schizophrenia whose depressive and delusional elements were particularly prominent. His psychotic symptoms can now be seen to have manifested themselves in 2010 but his mental illness only became actively psychotic a short time before he was arrested on 3 December 2011 in Corby by the police for being an illegal overstayer. This illness developed during his period in immigration detention and it was only fully treated and stabilised in the latter part of 2012 when S was under the care of a community-based mental health team in Birmingham following his release from immigration detention. (2) Prior to arrest[3]Very little was documented about S and since he is now known to have been actively suffering from paranoid Schizophrenia and consequent cognitive impairment throughout his period of detention, his accounts of his past life and of his historic symptoms of mental illness are inevitably confused in places. S is Ghanaian. He was born on 9 April 1973 in Accra and was brought up and lived there until he came to the United Kingdom in 2004. His father was a teacher and his mother a market trader and he is one of five siblings of whom only he and a sister are still alive. His parents died within six months of each other in 2005 and his three deceased siblings had died before 2004. His surviving sister had come to England before 2004 and lived in the Birmingham area but at some stage before 2010 she returned to Ghana and S reported that she had then been admitted to a mental hospital there. He appeared to have been in touch with her at the time of his arrest because he was reported by the custody officer to have made two mobile telephone calls to her whilst in the custody of the police in CPS. S also had a surviving uncle in Accra since that relative submitted an affidavit dated 20 May 2009 for use by S at his immigration appeal hearing in the First-tier Tribunal (Immigration and Asylum Chamber) (“FtT”) in 2012.[4]S could not remember how many years of schooling he had had and, on leaving school, he worked for a screen-printing company making promotional items. He had a short marriage that ended not long before he came to the UK and he has not referred to any children that he has fathered. He flew to England on a pre-booked flight in August 2004 and travelled lawfully on a valid Ghanaian passport which contained a 6-months visitor’s visa that expired on 18 February 2005. The purpose of his visit was to see his sister and friends in the UK but when his visa expired he remained in England unlawfully as an overstayer. He stated that he had subsequently lost this passport and no valid or invalid passport was found in his possession after his arrest. Throughout his time in the UK, he never worked, save possibly casually as a cleaner. He spent much of his time writing unpublished books and poems. He was supported financially and emotionally by his sister, his friends and by the two churches he attended in Birmingham and Corby. Since his arrival in the UK, he does not appear to have had any other resources or to have made any claim on public funds of any kind.[5]S explained to Professor Katona, who was the psychiatrist that his detention solicitors instructed to undertake psychiatric assessments of him in Harmondsworth IRC (“Harmondsworth”) on 21 December 2011 and 8 March 2012, that he left Ghana due to his fear of a pagan fetish group, whom he always referred to as ‘The Fetish Tradition’, that his grandfather had been involved with. On S’s account, his parents and he and his siblings refused to have anything to do with this group. He was convinced that members of The Fetish Tradition had killed his parents and his deceased siblings by spiritualistic means as a punishment for refusing to participate in their activities. His own fear of the group arose because he was convinced that it was also out to kill him by the same means because he had refused their request that he should become the head of one of their shrines. He gave similar accounts of these fears to each of the psychiatrists who assessed him whilst he was in immigration detention and to others that he spoke to about his paranoid delusions. These accounts have provided the assessing and treating psychiatrists who have been involved with him with detailed and clear evidence of the paranoid and delusional nature of his on-going psychotic illness that, in its active phases, left him terrified and with evident cognitive impairment.[6]On arrival in the UK, S initially went to London for a few weeks and then went to live in the Smethwick area of Birmingham with or close to his sister. He became involved with the Birmingham branch of the Christ Faith Tabernacle International Church. He informed Professor Katona that in 2005 he had started to suffer from what Professor Katona considered from S’s description to have been recurrent symbolic nightmares with a choking sensation coupled with a low mood on waking. These symptoms lasted for about a year. There was no available documentary report of this first depressive episode or of any treatment that S might have had.[7]In late 2009 or early 2010, S moved to Corby at the suggestion of a friend. It seems likely that this move was triggered by his sister returning to Ghana. The origins of his detectable mental illness can be traced back to that time. Professor Katona, in his first assessment report dated 23 December 2011, stated that S reported that his problems started in 2010 or early 2011 “after his parents died and his sister was admitted to a psychiatric hospital in Ghana”. He started to suffer from depressive moods and in August 2010, he visited a walk-in Health Centre who prescribed him with citalopram, an antidepressant, which he took for about 6 days. He started to attend the People for Christ Ministries Church in Corby whose pastor befriended him, provided him with emotional support and tried to help him to look to the future. He initially lived at his friend Bruno Edorh’s house but he was asked to leave because he disturbed the occupants at night by his restlessness, agitation and unusual behaviour. He then moved into accommodation on his own provided free of charge by The People for Christ Ministries Church.[8]S continued to be reminded on a regular basis of The Fetish Tradition which caused him frequently to lose sleep. He remained convinced that the ‘fetish people can get me anytime’. This sleeplessness and his disturbing thought patterns appear to have led to his three visits to the Birmingham City Liaison Psychiatry Service (“BCLPS”) in September and October 2010 Professor Katona was able to obtain copies of the records of S’s previous limited involvement with psychiatric and medical services from Yewcroft Community Mental Health Team (“Yewcroft”), the community mental health team that cared for S whilst he was living in NASS accommodation following his release from detention. These records included full notes of his meetings with psychiatric nurses at the BCLPS which had been obtained by Yewcroft and,with S’s consent, would have been obtainable by any other psychiatrist undertaking a psychiatric assessment of S in immigration detention. .[9]On 13 September 2010, at his pastor’s prompting as a result of concerns about his mental state, S was persuaded to let his pastor and his pastor’s wife accompany him to the Accident and Emergencies Out-patients Department at Birmingham City Hospital. A triage nurse in A & E referred S to BCLPS where he was interviewed by a liaison psychiatric nurse. S informed the nurse that he had not eaten, drunk or slept for one to two months, that he was experiencing recurrent symbolic nightmares and was depressed. The nurse’s notes recorded that he appeared to be low in mood with a flattened effect and that he had struggled to answer simple questions. He also noted S’s poor sleep patterns and appetite and his feelings of anxiety. S screened negative for paranoia, formal thought disorder, perceptual abnormalities, hallucinations and suicide risk. The nurse diagnosed that S was suffering from a “mild to moderate depressive episode” and he advised S to register with a GP as a matter of urgency and to attend his GP’s community mental health trust as soon as possible. S’s pastor was noted as having expressed disappointment with this diagnosis since he remained concerned at S’s suicide risk and mental state. S, on the other hand, was noted as not accepting that he was depressed and as believing that it was culturally unacceptable for a man of his culture and faith to have depression.[10]On 28 September 2010, S again attended BCLPS because he was feeling low and was having death thoughts and seeing visions of bad things when he closed his eyes, none of which he wanted to discuss with other people. The interviewing liaison nurse concluded that S was experiencing a moderate depressive episode and that she would forward her assessment to S’s local mental health Single Point of Access Team. There was no record that S contacted or had any contact with this Team subsequently.[11]On 3 October 2010, S attended BCLPS for the third time complaining, as reported in the interviewing liaison nurse’s notes, of poor sleep and requesting a scan to identify what it was that was causing the feeling he was experiencing of something moving in his head. The liaison nurse, the third to have seen him at BCLPS within a month, noted that S stated that he had increasing suicidal ideation, no energy, poor sleep and diet and negative thoughts. The nurse considered that he appeared to be deteriorating and that there was possible evidence of his responding to unheard stimuli. He wanted help but, either through cultural or religious reasons or through lack of insight, he did not want to discuss his mental health. The notes identified his risk to be his increasing suicidal thoughts, his worsening presentation and his lack of resources and support due to his illegal immigration status. The notes concluded: “Refer to duty doctor for further assessment as presentation appears to be worsening”.[12]S reported that in the period prior to his arrest, he had started to go out in the street in the middle of the night and had been disturbing his neighbours by calling on them to pray for him. He appears to have had limited social contact with anyone other than with members of his Church and he did not see a psychiatrist, GP, nurse or healthcare worker between his last visit to BCLPS on 3 October 2010 and his assessment by a Forensic Medical Examiner (“FME”) in Corby Police Station (“CPS”) after he had been arrested on 3 December 2011. (3) CPS: 3.12.2011 – 5.12.2011 - Arrest and transfer to immigration detention[13]On Friday 2 December 2011, S was observed by a police patrol to be following a young woman and when stopped and asked to explain himself, kept saying that he just wanted to talk to her. This was a chance encounter by the police who reported that they had not had a complaint from the person being followed. S was escorted home and given a warning. The officers then checked his details with the United Kingdom Border Agency (“UKBA”) and discovered that he had been an unlawful overstayer since his visitor’s visa had expired in 2005.[14]One of the police officers who had stopped S in the street went round to his address on Saturday 3 December 2011 at about 14.00. He had no warrant but he was admitted by S into his accommodation who then readily accepted that he was an unlawful overstayer. As a result, the officer arrested him at 14.07 because there were reasonable grounds for suspecting that S was someone in respect of whom removal directions might be given whose arrest was necessary pending a decision whether or not to give such directions Pursuant to paragraph 16(2) of Schedule 2 to the Immigration Act 1971. . The officer did not make a search for S’s passport because he felt uneasy about S who was making strange comments and acting in a bizarre manner. S accompanied the officer to CPS without resistance or objection.[15]On arrival at CPS, S was detained by the police at 14.29. The grounds for his detention were booked as:29. Reasons to arrest: to allow the prompt effective investigation of the offence or of the conduct of the detained.30. Circumstances:
“[S] has been arrested as the immigration system shows him as being an overstayer”
. The police were, therefore, from the outset acting as detaining agents for the SSHD in relation to S’s immigration detention.[16]Whilst being booked between 14.36 and 14.50 in the custody suite, S again acted in a strange manner. The police detention log recorded the details of the custody officer’s risk assessment that he had compiled immediately before he filled in the detention log. Both the log and the risk assessment stated that: A. Yes. D[etained] p[erson] has possible mental health issues, if required may need to see a D[octor] in custody.33. Q. Is in need of a Health Care Professional?34. A. Yes. As above.35. Q. Has indications of self harm?36. A. Yes. Had thoughts - no current.37. Detainee to be visited at least every 30 minutes – [S]’s first time in custody. [S] appears to be going round in circles in regards to questions, possible mental health, CCTV A reference to the need for S to be detained in a cell with CCTV to enable him to be constantly monitored. .”[17]At 14.36, S filled in and signed the tick box self-assessment risk assessment form. He ticked the question: “Do you have any medical conditions?” as: “Yes – Dry feet”, the question: “Do you have any mental health problems?” as “No” and the question: “Have you ever tried to harm yourself?” as “Yes” with the following added by the custody officer: “Claims to have thought about it and hasn’t gone into any details”.[18]At 14.54, the custody officer noted in the detention log that S was a little vacant during the booking-in process and that he had had to explain to him a number of times what was happening. He logged that S told him that he had a heart problem and that he seemed to agree with everything that the custody officer said to him. He recorded that it was possible that S had mental health issues and that Immigration was to be contacted because, if S required an interview, he might need a doctor to assess whether he was fit to be interviewed. At 14.57, the custody officer contacted the duty officer of the Criminal Duty Solicitor Scheme who advised that the solicitor whose business card S had in his possession did not undertake legal aid work and was not on the list of duty solicitors. The custody officer requested the Criminal Duty Solicitor Scheme duty officer to arrange for a duty solicitor to contact S by telephone to give him advice as to his situation.[19]At 15.13 the custody officer was sufficiently concerned about S’s mental health that he arranged for an health care professional, in this case a GP who was also a FME, to attend S in custody to undertake a medical examination of S’s mental and physical health. This examination was one provided for by paragraph 9.5(c) of PACE Code C This and all other references to Code C are to the 2008 edition which was the edition in force on 3 - 4 December 2011 when S was in police custody in immigration detention in CPS. See further paragraph 281 - 284 below for the applicability of Code C when such detention occurs. and was called for to enable the FME to express his opinion about any risks or problems which the police needed to take into account when making decisions about the detainee’s continued detention and about the need for safeguards in relation to any interview carried out in the police station. Code C made it clear that it was particularly important that any directions concerning the frequency of visits to a detainee in his cell in a police station were clear, precise and capable of being implemented For a FME assessment, see paragraphs 9.14 – 9.15 and Note 9F of Code C. .[20]The custody officer also arranged for a support officer to contact a duty officer at the UKBA’s Detainee, Escorting and Population Management Unit (“DEPMU”) with the information that S had been arrested as an overstayer who had been found to be present in the United Kingdom unlawfully. DEPMU contacted the duty officer at Cambridgeshire & Northampton (East) Local Immigration Team (“CNLIT”), the local enforcement team covering the Corby area. As a result, at 15.29, a CNLIT Immigration Officer (“IO”), IO Neil Lawford, telephoned the custody officer who informed him that S had been arrested and was in custody at CPS as an illegal overstayer, that he had acted strangely when he was arrested and was continuing to act strangely and that his behaviour was such that an FME had been asked to attend the police station to assess him. IO Lawford contacted his Chief Immigration Officer (“CIO”) at CNLIT who agreed that CNLIT would decide whether to serve detention papers on S and how to proceed once the FME’s report was available.[21]At 15.42, a criminal duty solicitor, presumably arranged by the Criminal Duty Solicitor Scheme that the custody officer had previously contacted on S’s behalf, telephoned and spoke to S for about 20 minutes. The call was interrupted by the arrival of the FME, Dr Raj Kumar who was a registered GP, to examine S and at 15.44 the FME started his examination of him in the FME room. The examination was concluded at about 16.11. In his report, which he prepared and provided to the custody officer before leaving the police station, the FME advised:43. Medical Advice44. Normal physical examination. Mental health assessment includes inappropriate thoughts? auditory and visual hallucinations. No insight. Difficulty in understanding. ?poor short and long term memory. Fitness to detain but not for interview.45. Risk of self-harm – Standard46. Detainee to be visited at least every 30 minutes.”[22]This report was typed into a pro forma “Detained Person’s Medical Form”. Beneath this report was a tick-box section with a yes and no box to X for each of the following recommendations, the comments added by the FME are set out in italics: Yes No Appropriate adult X FME’s comment ?MH issues Fit to be detained X Fit for interview X FME’s comment Needs AA AA is a reference to Appropriate Adult Fit for transfer X Fit for charge X Medical review required X[23]Thus, as can be seen from the FME’s assessment report, the custody officer’s earlier risk assessment that S should be visited at least once every 30 minutes in his cell due to his perceived vulnerable condition and should be constantly monitored by CCTV was endorsed by the FME as being necessary safeguards whilst S remained in police custody.[24]At 16.49, the custody officer contacted the person nominated by S as his nominated person, being the pastor at his church in Corby that he had attended since August 2010, to notify him that S had been detained in police custody in CPS and to explain the circumstances that had led to his being there. The police log stated that S’s nominated person, Pastor Emeka, when contacted by the custody officer, informed him that he did not know S very well and that he only knew S because he attended his church. The custody officer did not, at that stage, ask Pastor Emeka to attend CPS and visit S. When contacted again later in the day with a request to attend a planned interview of S as his appropriate adult the following morning, a Sunday, Pastor Emeka stated that he was unable to attend at that time due to his church commitments. There is no record of the pastor being asked subsequently to attend CPS to visit S during his period in police custody.[25]Someone called Janice, presumably a support officer working in the custody suite at CPS, telephoned the CNLIT at 17.00 and the CNLIT IO she spoke to recorded in a minute that he was told by her, as stated in the CNLIT note: “The Dr believes that [S] may be suffering from Schizophrenia. He also stated that [S] may be making it up because he has been arrested but without a full assessment he cannot be sure. There is also the possibility that [S] is suffering from HIV but again this is untested. Taking all this into account, the Dr has stated that he is suitable for detention but will require an appropriate adult when he is interviewed. He has not prescribed any medication. (A full report is available at custody and needs to be collected on 4.12.2011)”.[26]There is, in fact, nothing in the FME report that supports the view that S might be feigning the reported symptoms of Schizophrenia and it seems unlikely that the FME conveyed these views to the custody officer since they were not recorded in his report. The note is timed as having been made with all other entries for 3 December 2011, at 19.30 hours at the end of a long day and after the decisions to detain and to remove S administratively had been taken so that little weight can be placed on the accuracy of the second-hand hearsay report of the FME’s reported off-the-record comments. Furthermore, the police station detention log contained many entries that suggested that S was not feigning his symptoms of possible mental ill-health. It follows that the custody officer is unlikely to have passed on such a comment to the support officer in the first place.[27]The IO’s note about S’s possible HIV status was the earliest reference in the documents in the hearing bundle to the possibility that S was suffering from HIV. The FME’s report did not record that S had referred to the possibility that he was an HIV sufferer and there is no reference to S mentioning this possibility in BCLPS’s notes of the three assessments that were made of his mental and physical health in September and October 2010. However, it is likely that the FME mentioned this possibility in an informal comment to the custody officer since it was subsequently raised as a possible organic cause of S’s psychosis by Professor Katona following his first assessment of S on 21 December 2011 and S also is noted to have referred to this possibility in his medical assessments.[28]The IO’s note to the effect that S would require an appropriate adult when he was interviewed was not an accurate summary of the FME’s advice on that topic since the report advised that S was unfit for interview. It is of course possible that Janice had stated that the FME had advised in this way but, if so, this would have been an inaccurate summary of the FME’s advice which was that S was unfit to be interviewed at all. The IO’s note was, however, accurate in stating that the FME had advised the custody officer that S was suitable for detention, that he had not prescribed any medication for S, that he was apparently suffering from Schizophrenia and, by necessary inference, that he should have a full psychiatric assessment to determine whether his reported symptoms were active psychotic symptoms of Schizophrenia. The note concluded with a reminder that the IO who was to interview S in custody the following day had to collect a copy of the FME’s report from CPS. This had not been faxed or emailed to CNLIT due to temporary technical difficulties then being experienced by CNLIT.[29]The CIO decided at 17.30 that S was an overstayer subject to administrative removal and that he should be detained pending the issue of an Emergency Travel Document (“ETD”). The reasons given for detaining him were the lengthy period of time that had elapsed since S’s visa had expired, the lack of sufficient reliable information to decide whether to grant him temporary release, his lack of enough family or friends to make it likely that he would stay in one place and his recent actions. Additional information about the decision was recorded in the CNLIT Case Record Sheet. This stated that:
“[The CIO] … is in agreement that … [S] should be served with an IS151A as an overstayer and detained pending the issue of an ETD. This will be reliant on [S] being detained in an UKBA healthcare bed. CIO [redacted] has requested that the police arrange an appropriate adult to attend the police station on 04.12.211 at 10.00 hrs so that mit circs I/V can be conducted and an ETD can be completed.”
Reference to mitigating circumstances included, or should have been taken to include, a reference to S’s current state of mental and physical health.[30]In taking the decision that S should be detained, the CIO appeared to have taken into account and to have placed weight on the information that the duty officer had conveyed to the effect that the FME considered that S’s claims to be suffering from symptoms of a mental illness and HIV could be feigned. This was a possibility which the CIO appeared to consider to be strengthened by it being reported that S had not been prescribed any medication to treat either his possible mental health or HIV problems. It is not clear whether the CIO took account of the need for S to be psychiatrically assessed to determine whether he was suffering from Schizophrenia. This need should reasonably have been inferred from the advice that the FME had been reported as giving.[31]At 17.30, the CNLIT duty officer made a note that the CIO took the initial detention decision on the following basis:
“[The CIO] now considered all the information in the case and is in agreement that due to the [S’s] visa expired and his recent actions, [S] should be served with an IS151 [the form which notifies a person of his immigration status and his liability to be detained and removed] as an overstayer and detained pending the issue of an ETD. This will be reliant on [S] being detained in a UKBA healthcare bed. This is a breach of Sec 10(1)(a) and an offence under Sec 24(1)(b)(i) (as amended) A reference to the relevant provisions of the Immigration Act 1971. . CIO [redacted] has requested that the police arrange an appropriate adult to attend the police station on 04.12.2011 at 10.00 hrs so that mit circs I/V can be conducted and an ETD can be completed.”
[32]At 17.50, the CNLIT duty officer telephoned the duty HEO at DEPMU who informed him that DEPMU saw no problem in principle of S going into a healthcare bed. DEPMU requested CNLIT to submit a detention request to DEPMU along with the FME’s report and to state that a healthcare bed would be required. An IS91 and an IS151 were completed by hand and faxed to CPS at about 17.50.[33]At 18.10, IO Lawford telephoned CPS and asked Janice in the custody suite to arrange for S’s nominated person, who was Pastor Emeka, to be contacted to see if he could attend the interview that CNLIT had arranged to carry out at CPS the following morning at 10.00 as S’s appropriate adult.[34]At 18.13, the custody officer contacted Pastor Emeka to ask whether he could attend CPS at 10.00 the following morning, a Sunday morning, to be present when S was interviewed but was told that that would not be possible because the Pastor had a service to conduct. There is no record of that information being passed back to CNLIT or of any steps being taken by CNLIT to arrange for an alternative appropriate adult through the appropriate adult scheme operating in the Corby area to attend an interview at 10.00 on 4 December 2011 or at any other time during S’s custody in CPS.[35]At about 18.20, the IS91 authorising the police to be CNLIT’s detention agent, the IS151 notifying S that he was liable to be removed with the accompanying notice of an Immigration Decision and S’s IS91R notifying him of the reasons for his detention and the accompanying Bail Rights notice were finalised and they were faxed to CPS by CNLIT at 18.47. S’s IS91 identified two risk factors that were applicable to the need for “this detainee [to] require special monitoring or supervision”. These were “psychiatric illness” and “other medical concerns”. The “comments” section associated with these risk factors stated:
“[S] has been seen by a Police doctor who feels [S] may be showing signs of psychiatric illness. [S] may also be suffering from HIV although there is no confirmation of this.”
The IS91 recorded that immigration detention in CPS started at 18.20. The covering letter was signed by IO Lawford and it stated that, as discussed with the named support officer earlier, “we” (presumably a reference to an IO from CNLIT) will attend CPS at 10.00 on 4 December 2011 to speak to [S] with his appropriate adult”. It would seem that the custody officer had not communicated to CNLIT by 18.47 the information it had acquired at 18.13 that S’s appropriate adult was unavailable to attend that meeting.[36]At 19.23, S was allowed to make a telephone call to his sister and at 19.43, the custody officer attempted to give S a copy of his IS91. However, as is recorded in an entry on the CNLIT minute sheet in an entry made on 21 December 2011, it was not possible for the custody officer to serve this document on S at that time due to his disturbed behaviour. At 20.33, the custody officer reminded S of his Code C right to free legal advice and informed him, as required by Code C, that it was necessary to detain him because he would otherwise fail to appear in court to answer bail See paragraphs 281 – 284 below where the applicability of Code C issued under the provisions of the Police and Criminal Evidence Act 1983 (“PACE”) and EIG Chapter 38 and paragraph 55.10 are discussed. . This was, strictly inappropriate since S was detained in immigration detention and the police were acting as CNLIT’s detention agents and PACE and much of Code C did not apply to S’s detention See paragraph 282 below. . It was, however, appropriate for S to be informed of his right to free legal advice given that the relevant parts of Code C including the right to appropriate legal advice applied to his detention pursuant to PACE Code C and EIG Chapter 38.[37]At 21.39, a duty immigration solicitor telephoned S to speak with him on the telephone. This call was made under the duty immigration solicitor scheme by the solicitor who spoke to him again on 4 December 2011. This solicitor was acting for S in relation to his immigration detention and must have replaced the criminal duty solicitor who had contacted and spoken to S earlier that day. There is no evidence of what was discussed during this call which was, of course, subject to legal professional privilege.[38]During the evening of 3 December 2011 and the night of 3 – 4 December 2011, S’s condition was logged and the entries suggested that his mental health symptoms had worsened appreciably since his arrival at CPS and were continuing to worsen. During that entire period, and throughout the day of 4 December 2011, S repeatedly refused food and drink save for sips of water, was continuously restless and constantly moved about his cell with a bible that he had been supplied with in his hand. He barely slept throughout this period and he remained standing and restless for most of this time. At 00.59 on 4 December 2011, the custody officer noted that S continued to stand and walk around his cell as he had since that officer had come on duty at 17.00. At 01.31, 02.01 and 06.30 during the night of 3 – 4 December 2011, S asked for and was refused permission to contact his nominated person, Pastor Emeka.[39]There is no explanation as to why a custody officer did not subsequently ask Pastor Emeka or another appointed person to visit S in his cell at any time during the afternoon or evening of Saturday 3 December 2011, particularly in the light of S’s bizarre behaviour during the night, the cancellation of the proposed interview by an IO on the Sunday morning and the evidence of his worsening mental illness.[40]At 08.09 on 4 December 2011, the custody officer contacted “OOH” [“out of hours”] at CNLIT and left a message on its answering service for it to contact him. This call was presumably made in order to discuss whether the planned interview with S was to take place since Pastor Emeka was not available to attend and, if so, what arrangements should be made for an appropriate adult to be present. It was not recorded anywhere whether this information was passed back to CNLIT or when and for what reason CNLIT cancelled the proposed interview and did not attempt to re-fix it for later in the day of 4 December 2011.[41]Early on 4 December 2011, CNLIT sent Bedfordshire Enforcement Office (“BEO”) a Detention Referral Form signed by a CIO requesting a placement in an IRC for S which identified him as an overstayer since February 2005 and stated that upon his arrest the police FME had conducted an assessment of his fitness to be detained and stated that S “will require a Health Bed”. The first item logged on the GCID system that both CNLIT and BEO logged into for 4 December 2011 was a note that BEO had received the detention pro-forma from CNLIT, that S had been accepted into the Midland Enforcement allocation system and that CNLIT had been notified of this by fax. BEO’s logged notification of this acceptance contains the information entered against “Pre-booked bed” the answer “No” which, given that a healthcare bed had been requested, was an erroneous entry.[42]At 08.19, the custody officer logged that Louise from “immigration” had telephoned and informed him that she was going to send through a picture of the detainee from his visa so that his identity could be confirmed. The request to confirm S’s identity was probably triggered by DEPMU’s decision to accept S into IRC detention and was also, possibly, triggered by the decision that had by then been taken that the interview with S at CPS had been cancelled. It is also possible that the cancellation decision was triggered by DEPMU accepting S for detention in an IRC or by CNLIT becoming aware that Pastor Emeka was not available to attend as an appropriate adult at the time arranged for the interview. Neither the detention log nor CNLIT’s disclosed documents record the decision that CNLIT must by then have taken that S would not, after all, be interviewed in CPS.[43]At 08.36, the custody officer visited O and then confirmed to CNLIT that the picture that it previously sent was O’s picture.[44]The detention log recorded that a telephone conversation took place between S and Ms Rachel Henson who was the immigration duty solicitor from Wilson Solicitors based in Tottenham in North London who had been appointed to give him telephone advice under the immigration duty solicitor scheme and who was presumably the same unidentified immigration solicitor who was logged as having spoken to S at 21.39 the previous evening. This telephone interview started at 10.03 and must have lasted for an appreciable period of time.[45]At 10.42, the custody officer emailed a copy of S’s medical form to CNLIT. The GCID log The GCID log was a UKBA internal computerised Case Record Sheet which was used by UKBA officers involved with an immigration detainee to log their actions in relation to that detainee. recorded receipt of this form. The medical form included a copy of the FME’s report which would have been collected by the IO when attending CPS at 10.00 to undertake S’s mitigating circumstances interview had that interview taken place.[46]Ms Henson emailed CNLIT a detailed solicitor’s letter addressed to CNLIT at 11.30. This requested S’s immediate release on temporary admission or, alternatively, that he should be given a full mental health assessment to assess whether he was fit to remain in detention. The letter included these passages:
“[S] has been experiencing some mental health problems including memory loss and as such he is not currently able to provide clear information about his personal circumstances. We have therefore spoken to the Pastor from his church and to one of his close friends in order to obtain further information and we are making these representations with [S’s] consent. [S] is an intelligent and educated man but he has been unwell and has experienced depression and memory loss for some time and this he is receiving significant support from friends and from his church in Corby. He has an address to which he can return (provided) – this is provided through his church and they and his friends have been providing him with financial support. [S] is dependent on the assistance that he receives, both practically and emotionally, and this he is not at all likely to abscond if granted temporary admission and his church pastor and friends can ensure that he complies with reporting or other conditions. His church minister Pastor Emeka … would be willing to speak to you to confirm this information, if required. He can be contacted on [mobile phone number given]. … … If [S] is released today, he can arrange for a friend in Corby to come and collect him from the police station and take him home. … [S] is clearly distressed by his detention and moreover, he has not been actively seeking to evade immigration control but has not been in a position to receive full advice and take steps to resolve his immigration position due to his current health problems. After speaking to us, his Pastor and [his close friend] have both confirmed that if he is released, they will assist him in accessing appropriate advice and further medical services if required as well as complying with any conditions attached to his release. They have also confirmed that due to his memory and mental health problems, he is very dependent on their support and the support of his other friends and church members.”
The email also expressed concerns at the adequacy of the brief FMC assessment as the basis for assessing his fitness for on-going detention given that it was based on incomplete information, namely the doctor having spoken to S, without any information about his medical history or his symptoms over time.[47]The solicitor’s letter and the FME report that was noted as stating that S was not fit for interview without an appropriate adult present and the pro-forma from DEPMU stating that S had been accepted for detention in a healthcare bed in an IRC were all passed to IO Dann for consideration. He carried out a risk assessment which was logged on the GCID log. This identified two potential risks associated with S’s detention, namely his psychiatric disorder and medical problems. The accompanying comments summarised the contents of the FME’s report and stated that: 73. [S] is not currently on any medication for either his HIV or mental health problems.”[48]IO Dann filled out the pro forma requesting a healthcare bed in an IRC for S and a completed IS91RA form, and faxed both with a copy of the FME’s report and the completed initial risk assessment to BEO for onward transmission to DEPMU. The IS91RA form stated in the comments section that S claimed that he had auditory and visual hallucinations and that he also claimed to be suffering from poor short and long term memory, long term sleeping issues and throat and sight problems. The comments continued:
“[S] was signed fit for detention and transfer by the FME however he has stated that should subject be interviewed an appropriate adult must be present. FME report attached. Subject is not currently on any medication for either HIV or mental health problem.”
This was only partially true since the FME had only advised that he was fit for detention in CPS and that he was fit for transfer to an unspecified destination which could have included a hospital or to a place in the community on bail.[49]Regrettably the IS91RA did not refer to the CIO’s detention decision requirement that S should be given a mitigating circumstances interview before a final transfer decision was taken but that it had been decided to forgo that interview, that S should be located in a healthcare bed or that the effect of the FME’s advice was that he was probably suffering from active Schizophrenia and should be assessed by a psychiatrist as soon as possible.[50]The documents were emailed or faxed to MEE UKBA Regional Detention Team who sent them to DEPMU who accepted the request and allocated S a place in Colnbrook IRC, West Drayton (“Colnbrook”).[51]At 13.24, Bedford RDC faxed CNLIT a detention acceptance form which stated that CNLIT’s “referral for a ‘ring-fenced’ detention bed has been accepted”. It also stated that DEPMU had been notified and would make the necessary arrangements for transfer and it instructed CNLIT that if it had any enquires in relation to transfer, these should be directed to DEPMU.[52]It is to be noted that the CIO in authorising S’s detention at 17.30 on 3 December 2011 had made it a condition that S should be located in a healthcare bed, being a hospital bed within the IRC’s healthcare unit. This type of bed was requested by CNLIT as part of its original request for detention in an IRC but that request was worded by CNLIT and accepted by DEPMU as a “ring-fenced detention bed”. It seems, despite the confusing terminology, that the ultimate acceptance for a “ring-fenced bed” was an acceptance for a “healthcare bed”, which is a bed in one of the small number of small hospital-type wards within the healthcare unit and is the nearest equivalent to a hospital bed that is available in an IRC. Such a bed is to be contrasted with a “normal location bed” which Colnbrook reserved for S or a “single occupancy bed” which is a single room in normal location within the IRC which Colnbrook finally allocated to S. IO Dann understood that DEPMU had allocated S a healthcare bed because he, or someone on his behalf, later telephoned the CPS custody officer and informed him that “immigration” had arranged for a bed for S at a healthcare unit and that S would hopefully be collected “tonight” (i.e. during the evening of 4 December 2011). However, because the requirement for a healthcare bed was not set out in the IS91, DEPMU booked S into a normal location bed at Colnbrook IRC.[53]IO Dann then undertook a paragraph 395C assessment Paragraph 395C of the Immigration Rules, no longer in force, required an assessment to be made of a person who was being considered for removal to determine whether there were any reasons why removal should not take place. . The decision-making process was recorded on a file minute sheet and the GCID log. It recorded that none of the possible reasons that had to be evaluated were sufficiently compelling to hold up S’s immediate administrative removal. In particular, the assessment concluded that S was a 38-year old who was physically healthy who had been an overstayer for 6 years, had no family in the UK, had not worked illegally in the UK, was supported by his church financially with no means of supporting himself and had no criminal record. His compassionate circumstances were recorded as being:
“… (including medical issues) – [S] claims to suffer from HIV. His Mental Health has also been evaluated and it has been decided that he may suffer from a mental illness. Subject is not currently taking any medication for either claimed illness.”
[54]IO Dann then completed the 24-hour first review of S’s detention and confirmed S’s continuing detention. The review summarised the events of the last 24 hours, repeated the risk assessment that IO Dann had carried out and noted that S was not currently on any medication for his HIV or mental health problems.[55]The immigration duty solicitor’s email letter sent earlier in the day was then responded to by IO Dann. His short response stated that S had remained unlawfully in the UK for over 6 years with the assistance of the same people that the letter now suggested he should be released back to. In short, S’s continued detention was appropriate to enable the UKBA to conduct a health assessment and consider its ability to remove S back to his country of origin. The solicitor’s letter could and should have been considered as applying for bail on behalf of S or, as an alternative, an application for temporary release from detention on account of his mental health problems. IO Dann’s response did not address this basis of the application for release from detention and did not address EIG paragraph 55.10 dealing with the detention of those suffering from a mental illness.[56]At 15.30, S called his sister and also his nominated person, Pastor Emeka. At 16.50, the duty solicitor emailed back in reply to CNLIT’s letter at 16.50 by asking that CNLIT should inform the firm where S was transferred to and to fax a copy of his IS91R to their office on the provided fax number in order that the firm could ensure that he was able to access legal representation after his transfer. There is no record of CNLIT taking either of these steps.[57]At 22.41, Immigration Manchester was contacted by the custody officer and was informed that S was going to be taken to Colnbrook in Middlesex and that the van would collect S “in a couple of hours”. It arrived about 90 minutes later and S was transferred out of CPS at 00.14 on 5 December 2011. (4) Detained in Colnbrook: 5.12.2011 – 14 December 2011[58]S was kept in custody at CPS from 14.07 on 3 December 2011 until approximately 00.15 on 5 December 2011 when he was transferred from CPS to Colnbrook, arriving there at 03.05. In Colnbrook at that time, the Colnbrook Healthcare Centre (“CH”) was managed and operated by Serco. At 04.00, CH carried out a reception admission assessment and the assessment report recorded that S had arrived with a note on his IS91 which stated that he had a mental illness and might be of HIV status, that he had consented to a full assessment by a nurse and that he didn’t know whether he had mental health concerns or if he had ever been on suicide watch. He was recorded as being very distant and vague and as displaying very odd and strange behaviour with poor concentration and a lack of response to external stimuli. The assessment advised that he should be assessed by both a GP and a psychiatrist.[59]The nurse undertaking the assessment also recorded that S was very odd and strange in behaviour and found it difficult to focus. His concentration was poor and he did not appear to be responding to external stimuli. The nurse’s patient risk assessment was that S had a poor understanding of his medical condition and had difficulty in reading or was unable to read the directions label and that his risk score was high.[60]The reception nurse or someone in authority in CH filled out and signed The copy of the form in the hearing bundle had been obtained as part of the Subject Access Freedom of Information Request made by S’s solicitors before the claim was issued and, in accordance with normal practice, the name and signature of the maker of the report had been redacted. The SSHD had not subsequently disclosed an unredacted copy despite being asked to do so by S’s solicitors. an IS91 Part C form and faxed it to DEPMU at 05.48. The form stated that it should be completed as soon as further information became available or the detainee’s behaviour and/or statements indicated a possible alteration to his risk factors. This form had been filled out as S’s induction assessment. The comments that were added stated:
“This man arrived at Colnbrook IRC from Campsfield Hse This appears to be a mistake since S had travelled from CPS to Colnbrook. . There is a warning note on his movement order that he may be suffering from mental illness and in light of his current presentation it is deemed prudent for him to be in single occupancy until he is fully assessed by the psychiatric team.”
Beneath these comments, the following proforma comment appeared: 87. In the light of this it is considered that the risk factors associated with this detainee may have increased or decreased in which case a new IS91 should be issued. You may also wish to consider whether a change of detention location is appropriate. Signed: [Redacted] Print Name: [Redacted] Date: 5/12/11 88. This detainee’s location does/does not (delete as appropriate) need to be changed. 89. The reasons for any change, for example from one removal centre to another or to prison or vice versa, MUST be recorded in the comments section above and be accompanied by the issue of a revised IS91. 90. Detaining Office to issue new IS91: Yes/No Signed: [Blank] Print name: [Blank] There was an undecipherable squiggle over the text but the Yes/No section had not been filled in and it was unsigned. It is to be inferred that this squiggle indicated that an Immigration Officer at DEPMU had decided that no relocation or new IS91 was contemplated at that stage.[61]Although the CIO in approving S’s detention originally had recorded that this decision was dependent on S being allocated a healthcare bed – that is a bed as an IRC Healthcare inpatient - his IS91 did not refer to this requirement and, on arrival at Colnbrook and following his reception admission interview and initial medical assessment, he was allocated a short-stay bed on main location which meant that he had been allocated a single room there. The following morning, S was given the required Rule 34 Rule 34 of the Detention Centre Rules 2001 requires “Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner … within 24 hours of his admission to the detention centre.” medical examination. He was initially seen by a registered mental health nurse (“RMN”) and then, because he had both physical and mental health issues, he was seen by both a GP and a psychiatrist. The RMN recorded that S:92. He proved very difficult during reception screening. Appears to be lost in his thoughts most of the time. Finds it difficult to adhere with his screening process. Finds it difficult to answer any questions. Thought block? Appears to be struggling to focus on – poor concentration. …93. Seems very reluctant to give any information about himself. Denies any medical concerns. Denies any communicable diseases. mental health needs. Denies any self-harm history or any current suicidal interests. Denies any “HIV” issues or concerns.94. Today’s presentation as:- very odd and strange in demeanour. Dressed in tracksuit top and half-eye contact [word illegible]. Sat cross-legged and stared at the wall. Is very slow in demeanour and speech slurred at times. Though content – denies any self-harm tendencies. Is quite religious, maintains that “God knows” to most of his answers.95. Thought block. Thought withdrawal?? Thought broadcasting – no. Visual and auditory hallucinations – denies both. -. Is orientated in time but not in place or person. -. Denies being on any current treatment or medications. However, plan for him to be assessed by visiting psychiatrist and his location issues as well.”[62]S was then assessed by Dr Vara, the CH GP. He reported in the CH notes that S behaved strangely. He was unkempt with dirty clothes, was unshaven and was not answering any questions. He kept looking around and “blanked”. Dr Vara concluded his note by stating that it was planned to provide S with a single occupancy room.[63]S was then separately assessed by Dr Allen who was an experienced consultant adult psychiatrist of over 17 years practising experience. He had only recently, in April 2011, started to work as a locum with detained people in an Immigration Removal Centre (“IRC”). Since starting such work in CH, he had worked one and a half days a week there. His notes recorded that S had difficulty with memory and blurred vision. He felt weak all the time with something in his throat. He had difficulty sleeping and was not rested. Food was a big problem and he had breathing difficulties. On examination, S appeared to be thought blocking and guarded. S explained to Dr Allen that spiritual beings wanted to take him over and harm him. Dr Allen’s overall impression was that S was suffering from a psychotic illness, possibly Schizophrenia, that UKBA should be informed of this impression “in his best interests” and that he appeared to lack capacity to consent. He prescribed a normal treatment dose of Olanzapine which is an antipsychotic medication.[64]During the oral hearing, it became clear that Dr Allen’s evidence of S’s presentation at this assessment was of considerable relevance. One reason for the adjournment of the hearing was to allow the SSHD’s solicitor to obtain Dr Allen’s explanation of his assessment which had never previously been written up. He was sent a questionnaire by the SSHD’s solicitor which he responded to in writing. The questionnaire merely informed Dr Allen that S was involved in immigration proceedings and he was merely sent a copy of his notes made during his assessment and his one follow-up meeting with S. It follows that his answers were not influenced by the views of others.[65]In his written reply, Dr Allen stated that he couldn’t remember how long his assessment meeting had lasted for but he was sure that he had had sufficient time to make the assessment in the setting he was working in which was an outpatient clinic. His working diagnosis of S was that he was suffering from a psychotic illness. He was unable to be more definite on the basis of one assessment which had been conducted without any historical information. This was the normal type of psychiatric assessment carried out at Colnbrook. Dr Allen stated that he had based his assessment on his clinical acumen which was the normal diagnostic method used by a psychiatrist when undertaking a psychiatric diagnosis. He prescribed and signed for in the Prescriptions not in Possession or Supervised Prescriptions Register (“prescriptions register”) a 10mg nocte dose of the antipsychotic medication Olanzapine and had entered in the appropriate place in the prescriptions register: “Diagnoses - Psychosis” and “No. of Days - ongoing” thereby showing that this medication was to continue until stopped by a registered medical practitioner. Dr Allen stated that he had prescribed Olanzapine because he had diagnosed S as suffering from a psychotic illness. He also asked the CH team to move S to a single-occupancy room in the CH inpatient unit for further care, assessment and observation.[66]Dr Allen made brief notes in S’s Mental Health Records (“mental health records”) kept in CH. These summarised his examination of S in note form. A significant part of that examination was taken up by S speaking randomly about the spiritualists who had killed his parents and wanted to kill him. Dr Allen’s noted impression was:103. (treat) Olanz[apine]104. Inform UKBA in his best interests105. He appears to lack capacity to consent just now106. See Fri”[67]Dr Allen was specifically asked in writing by the SSHD’s solicitor what the meaning was behind his note:
“Inform UKBA in his best interests. He appears to lack capacity to consent just now.”
His answer, in full, was as follows: 108. In order to disclose confidential information about a patient it is necessary for a doctor to either obtain their consent (if they have capacity to give this) or otherwise (as in this case) to follow the principles contained in the Mental Capacity Act 2005 and, acting in the patient’s best interests disclose whatever information is necessary. 109. I therefore filled in a ‘Part C’ which can be found in his medical notes.”[68]Dr Allen’s reference to filling in a Part C is a reference to Part C of Form IS91 that he appears to have filled in and signed immediately after completing this assessment. This Part C document, however, does not appear to have been sent to CNLIT or DEPMU but was placed on S’s CH file where it remained unnoticed until a redacted copy of the completed, signed but undated form was obtained by a Freedom of Information Act request some months later and a further unredacted copy was obtained by the Treasury Solicitor from Dr Allen immediately prior to the hearing.. Both the redacted and unredacted copies were added to the hearing bundle. It stated:
“[S] has now been assessed by the psychiatric team. He is to be moved to [CH] and treated. He is not well enough to be moved at the moment.”
[69]CH did not therefore produce and send to CNLIT the revised IS91 signed by Dr Allen containing the relevant information that Dr Allen wished to be conveyed to CNLIT by his note in S’s mental health records which stated “inform UKBA [what was] in his best interests” (i.e. as now explained by Dr Allen, “inform the CNLIT caseworker and DEPMU that, following the RMN’s and Dr Allen’s assessments, Dr Allen’s assessment is that S should be transferred immediately to a CH bed but is not well enough to be transferred there at the moment and that he might need to be transferred to a hospital”). CH should have sent a revised IS91 form in these or similar terms to CNLIT and DEPMU. In other words, CH should have sent out immediately after Dr Allen’s assessment an IS91 that fully and accurately summarised S’s risk in the light of the results of the assessments that had been carried out, which included Dr Allen’s noted and signed IS91 comments and which updated the IS91 that Harmondsworth had sent to CNLIT and DEPMU on 5 December 2011.[70]Dr Allen was also asked whether S’s condition was manageable in detention or whether he required a transfer to a hospital setting. His reply, in summary, was that he considered that S needed to start medication whilst he remained in immigration detention. Furthermore, his condition needed to be kept under close review and he planned to see him on each occasion that he visited the CH. He had it in mind that treatment in a hospital might prove to be necessary but he also knew that realistically such transfers took around two months so that doing nothing in the interim was not an ethical option. Moreover, S was able to take medication informally (that is non-capacitously but not objecting) so he might well have improved whilst still in immigration detention.[71]Dr Allen was finally asked whether he considered that a Rule 35 report was required. His answer was that he understood that his views as to S’s mental health should be, and by inference had been, conveyed to UKBA on an IS91 Part C form. His answer provided significant further evidence in these terms:
“At this stage [i.e. in the period since he had started to work at Colnbrook] no-one had told me that I could fill out a Rule 35 report indeed … I was clearly instructed that in the circumstances which pertained, filling in a Part C was the correct response. Since leaving Colnbrook I have been trained by Medical Justice and now understand that this should have been my correct response concurrent with filling in the Part C.”
[72]This answer is highly significant since Rule 35 and the applicable UKBA process Rule 35 of the Detention Centre Rules 2001/238. required a medical practitioner to report to the manager on the case of any detained person whose health was likely to be injuriously affected by continued detention or by any conditions of detention Part 1 of version 8.0 of the Detention Rule 95 Process issued by UKBA 0n 15 June 2011 applicable at the time of S’s detention for “the sight of all officers with direct or indirect responsibility for handling and managing detained cases (paragraph 1.1).” . “The manager” in this context was the manager of CH. Dr Allen should have been informed of the Rule 35 report procedure by CH when he started to work there and he should have volunteered, and the assessing nurse or CH manager should have obtained from him, a signed Rule 35 report that fully summarised his assessment, diagnosis and risk assessment to enable all those directly responsible for authorising, maintaining and reviewing S’s detention to decide what if any action should be taken including whether he could be satisfactorily managed in CH, whether he should be transferred elsewhere, released from detention or sent to a mental health ward of a hospital and what further assessments or treatments should be arranged for him. The CH manager should have passed this report onto CNLIT for immediate attention and all necessary action including immediate consideration by an IO at an appropriate level could take place. These considerations would have been necessary because the principle purpose of a Rule 35 report is to ensure that particularly vulnerable detainees, including those whose vulnerability arises from mental illness, are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing their continuing detention so as to decide whether continued detention is appropriate and to take all appropriate action as a matter of urgency.[73]Had Dr Allen been made aware by the management of Colnbrook or of CH of the need for him to record and report on S under Rule 35, it is clear that he would have done so. By piecing together the contents of his notes in the CH mental health records, the Part C entry he drafted and signed, his elaboration of his notes in June 2013 and his other evidence in reply to the questionnaire he was sent to answer, it is possible to identify the contents of the Rule 35 report that he would have made had he made one. That report would have been along these lines: My assessment is that S is suffering from a psychotic illness that might be Schizophrenia. His illness needs to be fully assessed over a 6-month period by an appropriate psychiatric team. He currently needs appropriate antipsychotic medication and I have started him on Olanzapine with a 10mg dose nightly pending the results of a full psychiatric assessment. He should be located in a single-occupancy healthcare bed. He is not well enough to be moved at the moment from his present single occupancy room on normal location and currently needs to be kept under close review where he is currently located. It is unlikely that Colnbrook Healthcare has the resources and available accommodation to enable the necessary full assessment over an appropriate timescale to take place. I will visit him on each of my twice-weekly visits to Colnbrook. His health might deteriorate rapidly so as to need urgent hospital attention. Provision should be made to enable that to happen if necessary. He is currently unfit for removal to Ghana and is lacking capacity to consent. That report would inevitably have had led to a review of S’s detention and his continuing suitability for detention and a consideration of what further action was appropriate.[74]On 7 December 2011, CNLIT emailed CH. The email referred to the IS91 previously sent and to the intention to assess S psychiatrically and asked CH to arrange for this assessment. The only response was noted in handwriting on CNLIT’s copy of the email that was presumably written by someone at CNLIT in response to a telephone call. The note read: “All done already”. No other answer appears to have been given.[75]On 8 December 2011, the GCID recorded that S’s induction interview had been completed within Colnbrook. No appropriate adult was present as was confirmed by a telephone call from “Jaz” at Colnbrook to CNLIT when informing CNLIT that the induction interview had been completed and the ETD was to be sent to HEO. No notes or other information of what transpired at this interview are available or, it would seem, were sent by Harmondsworth to CNLIT. No appropriate adult or legal representative was present despite the FME’s diagnosed lack of capacity by S to be interviewed. It is likely, given the absence of any detail of the interview, that it was confined to obtaining S’s signature on his application form requesting the Ghanaian High Commission for an ETD. Later that day, DEPMU faxed a request to CH asking whether S had had his mental assessment done and CH faxed back by return:
“I can confirm that [S] has been assessed by the Mental Health Team and Psychiatrist.”
The assessments that are referred to were those, respectively, of the RMN and Dr Vara and of Dr Allen and, remarkably, CH did not inform CNLIT or DEPMU of the contents of any of these assessments or of Dr Allen’s diagnosis and recommended treatment and, equally remarkably, neither CNLIT nor DEPMU sought them from CH.[76]On 8 December 2011, an officer in the Colnbrook UKBA team spoke to an officer at CNLIT and asked whether a telephone interview for S should be arranged with the Ghanaian High Commission and was informed that this should be arranged 5 days after the ETD application had been sent by the RGDU, being the appropriate forwarding unit within DEPMU, to the Ghanaian High Commission. A note on the CNLIT file dated 9 December 2011 indicated that the ETD application had been sent to the Ghanaian High Commission on 9 December 2011 by recorded delivery by RGDU following its being sent by CNLIT to “HEO” which was another way of referring to “RGDU”. No thought appears to have been given as to whether S was mentally fit or had the mental capacity to be interviewed by telephone whether with or without an appropriate adult or a legal representative present.[77]Also on 8 December 2011, S’s duty immigration solicitors faxed a proforma notice of appeal template to Colnbrook for S’s attention to enable him to lodge an appeal against CNLIT’s IS151 removal decision. Since the firm had only acted as duty immigration solicitors in connection with S’s detention in CPS, this was a well-meaning additional service it carried out for S but it could not have acted further without being appointed by S under the publicly funded legal aid scheme. It is not clear when S filled this template out in somewhat sketchy terms but he did not send the completed notice of appeal to the FtT until mid-January 2012 whilst located in Harmondsworth. The application was filled out without legal assistance and its core section merely stated:
“Wish to appeal on a human-rights grounds (sic). I am trying to find a solicitor to help me with my case.”
[78]On 9 December 2011, S was visited by Dr Allen as part of his routine duties undertaken during his one and a half days working in CH. He noted on S’s CH mental health file that S had been taking his medication. In fact S was not taking his prescribed Olanzapine as the physical health records subsequently revealed that he had been non-compliant and had secreted the issued prescribed Olanzapine tabs in his room. Dr Allen also noted that he was still sleeping in the short stay accommodation Despite the CIO in the original detention decision stating that detention was only authorised on condition, amongst other conditions, that H should be located in Healthcare in patient accommodation and Dr Allen’s instruction that he should be moved into single occupancy accommodation in CH – see paragraphs 31 and 65 above. and that he still seemed vague and depressed. Dr Allen finally noted that he would review him on 12 December 2011 and that S’s psychotic illness and that his diagnosis remained unchanged from his diagnosis 4 days earlier.[79]Later on 9 December 2011, CNLIT contacted CH again with this request:122. We were advised that there were possible mental health issues but we have not had any confirmation of this?123. I would like to clarify this so that the information can accurately be recorded on his file.” CH does not appear to have provided answers to these questions and CNLIT does not appear to have chased either CH or HH for answers. CH’s answer to DEPMU the previous day did not answer any of these questions since its informal answer had merely stated that S had been assessed by a psychiatrist. CH should, by way of answers to both DEPMU and CNLIT, have provided each of them with was a copy of an assessment report prepared by Dr Allen in the form of a Rule 35 report and a separate revised and updated IS91 Part C form which summarised the details and conclusions of Dr Allen’s two assessments on 5 December 2011 and the morning of 9 December 2011 and the RMN’s assessment on 5 December 2011.[80]On 9 December 2011, DEPMU took the decision to move S from Colnbrook to Harmondsworth IRC, Middlesex (“Harmondsworth”) soon after it had been informed by CH on 8 December 2011 that S had been assessed by a psychiatrist. No reason was given for this decision and it can only have been taken for administrative reasons and without taking S’s mental illness or its management into account. There can be no other reason save an administrative one to have moved S at that time since both Colnbrook and Harmondsworth are located in the South of England and both are IRCs which accommodate those subject to administrative removal as well as those detained in the Fast Track. Furthermore, the decision appears to have been taken without consulting CNLIT and without obtaining from either CNLIT or CH a copy of the psychiatric assessment which it had been informally told had now been undertaken. Had CNLIT asked CH for a written assessment, CH would have had to have arranged for Dr Allen to provide a copy, he would have had to draft one and, once it had been drafted and sent to CNLIT and DEPMU, both would have become aware of the extent and severity of S’s mental illness.[81]The accompanying Movement Notification that was issued by DEPMU to the movement contractor and copied to CH and CNLIT, stated:126. Mental health concerns - possibly suffering from Schizophrenia [S] Claimed Medical Condition 2011-12-13127. [S] stated he is HIV positive. Claims to have auditory & visual hallucinations, poor & long term memory & sleeping issues. Claims to have throat & sight problems. Signed fit for detention by FME but should have appropriate adult when I/Vd.128. [S] Mental Illness 2011-12-03, Possible mental health issues – claims to have auditory & visual hallucinations.129. [S] Medication not known, 2011-12-03. Not currently on any medication for his HIV or mental health problem See paragraphs 65 and 111 that discuss the fact that S had been on prescribed antipsychotic medication – Olanzapine - since 5 December 2011 and remained on it throughout save for a period between mid-January and early March 2012. The problem was that HH failed to appreciate that S was on this prescription but, notwithstanding that, HH prescribed Olanzapine, an antipsychotic medication, on 19 December 2011 and 18 March 2012. For the significance of S’s possible HIV status, see paragraphs 96(7), 97 and 113 below. .”[82]On 10 December 2011, an IO undertook a 7-day review of S’s detention and maintained his detention. The decision noted that S had mental health special needs or issues which would require monitoring whilst he was detained and stated that S was an overstayer for whom the only current barrier to his removal to Ghana was the lack of an ETD which had been applied for. It is clear from that decision that the decision-maker had not been provided with any report of Dr Allen’s views let alone a full and accurate one.[83]Dr Allen had prescribed a nightly dose of antipsychotic medication with the first dose to be taken on 5 December 2011. The prescriptions register recorded that S had been given this prescribed medication on each of the 8 nights he remained in Colnbrook between 5 and 12 December 2011. However, he does not appear to have taken the tablets he had been prescribed since a note in the physical care records stated that an officer had searched S’s room on 11 December 2011 and at 16.30 had brought into CH 6x10 mg Olanzapine tablets which must have been the 6 tablets that S had been provided with between 5 and 11 December 2011 under Dr Allen’s prescription. S’s failure to take his medication does not appear to have been brought to anyone’s attention by CH but this incident provided clear evidence of S’s non-compliance with his prescribed medication – a frequent occurrence from those suffering from mental illness - and of CH’s failure to monitor his mental illness.[84]At 03.45 on 12 December 2011, it was recorded that S had complained of difficulty in breathing but the medical nurse noted that he was speaking clearly in complete sentences with no obvious signs of struggling or difficulty in breathing. As the nurse was leaving, S started to have chest pains. These were controlled by the nurse who considered on examination that they were not cardiac in origin. This problem also does not appear to have been brought to anyone else’s attention by the nurse or by CH.[85]During the morning of 12 December 2011, Dr Allen attempted to visit S again. His recent evidence, having been shown the health records, was that he had been unable to see S because of the physical difficulties he had experienced in the early hours of that day. What seems clear is that Dr Allen was not informed about S’s failure to take any of his prescribed Olanzapine and that he had breathing difficulties and chest pains. Both of these matters were relevant to his and CH’s monitoring of S’s psychosis and to Dr Allen’s previous diagnosis that S was unfit to be moved to a healthcare bed let alone a different IRC.[86]S’s movement notification requiring and authorising his movement from Colnbrook to Harmondsworth was created on 12 December 2012 at 08.12 and was sent to the escort contractor whose name was Centre Contractor. S was moved during the night of 13 - 14 December 2011 and arrived at Harmonsdworth at about 02.00 in the morning of 14 December 2011. (5). Detained at Harmondsworth: 14.12.2011 – 24.12.2012 – Phase 1- CNLIT[87]The Harmondsworth Healthcare Centre (“HH”) was run by Primecare. At S’s introductory medical assessment on arrival at Harmondsworth at 02.21 on 14 December 2011, it was recorded in HH’s physical care records that he had been transferred from Colnbrook, that he had been assessed by a psychiatric doctor on 5 December 2011 who had diagnosed him as suffering from a psychotic illness which was possibly Schizophrenia as well as from depression, that he might be an HIV suffer but it was not known if he had been tested for HIV, that he was confused and disorientated, that he was on a prescribed course of Olanzapine and that there was a request on his detainee form for him to see a doctor which, in that context, was clearly a reference to a psychiatrist.[88]The following were the verbatim recorded notes in the HH physical care records in the entry dated 14 December 2011 timed at 02.21:138. [Assessed] by Psychiatric Dr on 5/12/2011139. Psychosis illness? Schizophrenia?140. Olanzapine – 10mg T nocte141. Refer to see Dr on detainee requested”[89]No Rule 34 medical assessment was undertaken either within 24 hours of S’s arrival in Harmondsworth or at all. However, standard UKBA detainee movement practice appears to have been followed so that the entirety of S’s mental and physical care and prescriptions register had been taken by his escort in a sealed envelope from CH and delivered to HH. These would not, of course, have contained a full account of Dr Allen’s diagnosis given the inadequacies of the IS91report that Colnbrook had issued and his failure to issue a Rule 35 report. However, it was recorded in the physical care records that HH accepted the CH-to-HH referral from CH. S was not located in HH but was placed on general location on A-Wing and it would appear that no attempt was made by HH to provide him the Olanzapine antipsychotic medication that he had been prescribed in Colnbrook and which remained his prescribed medication after his arrival in Harmondsworth.[90]S’s 14-day detention review was undertaken by CNLIT on 17 December 2011 and S’s detention was authorised by an HMI. The decision recorded that CNLIT had asked HH for an update about S’s mental state. It was recorded in the GCID CNLIT’s computerised log of S’s case file. that the HMI was happy to authorise continued detention pending an update from medical staff at Harmondsworth regarding S’s mental health and that if that update showed that his health was stable and being managed, the HMI was happy to maintain his detention. However, the HMI stipulated that should any issues arise about or changes occur to his mental health, S’s case should be re-referred to an HMI.[91]This review prompted CNLIT to contact HH by an email and several telephone calls on 17 December 2011 and again on 19 December 2011 with a request that it should confirm that S was mentally fit to be detained and also fit to fly. Later on 19 December 2011, Senior Nurse Manyere, the HH Healthcare Co-ordinator, faxed CNLIT and stated that S was mentally fit to be detained and to fly and that HH had “no concerns” about him.[92]S was prescribed 10mg of Olanzapine nocte for a period of 28 days on 19 December 2011. No note was made in the mental or physical health records to explain why this prescription had been issued, nothing was written in the box labelled “complaint/diagnosis” in the prescriptions register and the prescribing HH GP was not identified. Since this was a repeat prescription of the antipsychotic prescription that Dr Allen had prescribed on 5 December 2011 in CH, the fact that it was given provided clear evidence that the RMN had considered that S was still presenting with psychotic symptoms on 19 December 2011 and had referred his CH prescription to one of the HH GPs who considered that these symptoms should be addressed in the same way as Dr Allen had addressed them two weeks earlier. HH also made an appointment for S to see a GP the following day.[93]On 20 December 2011, S saw a GP in HH for the 10-minute appointment about “meds” that had been arranged for him the previous day. There is no entry in the physical or mental health care records recording that this appointment had been made. However, it was recorded in the GP’s appointments rota that S attended and the obvious inference is that this appointment had been made to enable the GP to explain why a GP had re-prescribed Olanzapine the previous day and to stress to S the importance of his regularly taking that medication. The advice that S was given should have been noted in the mental health records and monitored by HH who should have ensured that S took this prescribed medication.[94]CNLIT’s email and follow-up 5 unanswered telephone calls to HH seeking an answer to CNLIT’s query as to S’s fitness to be detained and to fly were finally responded to at 18.26 on 20 December 2011 by HH sending CNLIT an updated IS91RA which stated that S was fit to fly, was complying with his prescribed medication and appeared to be in a stable mental state. However, the IS91 was inaccurate in several significant respects. Firstly, S had not been compliant with his medication in Colnbroook and had not been administered any medication since his arrival in Harmondsworth. Secondly, his condition was not stable since he had been re-prescribed with anti-psychotic medication the previous day and he had also seen a GP that morning about “meds” both of which suggested that his mental health remained unstable. Thirdly, he had not been medically or psychiatrically examined in HH in order to ascertain whether he was mentally and physically stable and fit to fly despite the outstanding and noted need for him to be re-assessed by a psychiatrist. Fourthly, the IS91form was signed by the Senior Medical Nurse who had not examined him and in circumstances in which there was no record in the mental health or physical care records that anyone else had carried out the necessary examination to enable that assessment to be signed off. It is therefore clear that HH’s assessment that S was fit both to be detained and to fly had been made in a hurry by a medical nurse with no knowledge and an erroneous understanding of the current state of S’s mental health and without reference to the HH mental health team or their locum psychiatrist.[95]Following S’s detention and what must have been their concerns about his mental health and continued detention, S’s immigration duty solicitors, Wilson Solicitors, arranged with Medical Justice for Professor Katona to assess his mental health and diagnose any mental health illness that he might be suffering from. It had not been possible to arrange for Professor Katona’s assessment prior to it taking place on 21 December 2011 in HH. Professor Katona has an international reputation as a practising and academic psychiatrist with an extensive experience of assessing asylum seekers and others detained in IRCs who are suffering from mental health problems. His report, in the form of an assessment letter “to whom it may concern”, was based on an extensive structured interview with S, on various relevant mental state tests that Professor Katona carried out and on his examination of S’s healthcare notes. He concluded clearly and starkly that S required urgent transfer to a psychiatric hospital for full assessment and treatment.[96]Professor Katona’s report summarised what S had told him and the results of various tests that he had carried out on S’s cognition and mental health during the assessment. His conclusions, in summary, were that:(1) S presented as having severe depressive symptoms and significant cognitive impairment and as being significantly disorientated both in time and place with impaired short-term memory and an inability to copy a simple design.(2) S lacked capacity to give evidence in his immigration case See paragraph [ ] above and [ ] below. .(3) S’s HH notes recorded similar observations to his own in terms of the type of symptoms and signs that he had noted.(4) S appeared to be floridly psychotic, perplexed and suspicious.(5) S’s impaired cognitive function suggested that there might be a physical illness underlying his deterioration.(6) S’s suspicions were repeatedly expressed in terms of a malign force lurking inside him. These suspicions manifested themselves as episodes of intensive panic during which he would start to shake. He had poor appetite, he reported that he had suffered weight loss and he could not answer whether he had ever thought about dying.(7) S’s psychosis, cognitive impairment, perplexity and suspiciousness appeared genuine. Professor Katona’s clinical judgment was that S was neither feigning nor exaggerating his mental health symptoms.(8) S’s acute mental health needs could not be met in the immigration detention setting. He needed urgent transfer to a psychiatric hospital for full and continuous assessment and appropriate management which should include psychotherapy and rehabilitation as well as medication. He also needed a full investigation to exclude organic causes such as HIV for his psychosis and associated cognitive difficulties.(9) A failure to identify and address the acute medical causes of his deterioration would risk further potentially irreversible deterioration in his mental and general health.(10) Professor Katona particularly recommended that, after appropriate counselling, S should undergo HIV testing and should have a CT or MRI scan to determine whether or to rule out the possibility that S’s psychosis was organic in origin having been caused by HIV or Hepatitis.[97]Professor Katona left this legible note that was clearly written in capital letters in S’s mental health records:151. Imp[aired] organic psychosis (?HIV)152. or Schizophrenia153. I would recommend transfer to hospital for assessment (inc. HIV testing and CT/NM)154. Prof Katona MD FRCP[sych]”[98][S] explained to Professor Katona that his fear of The Fetish Group arose because he was convinced that it was out to kill him by the same spiritualistic means as it had killed his parents and siblings because he had refused their request that he should become the head of one of their shrines. He gave similar accounts to each of the psychiatrists who assessed him whilst he was in immigration detention and to others that he spoke to about his paranoid delusions. These accounts have provided the assessing and treating psychiatrists who have been involved with him with detailed and clear evidence of the paranoid and delusional nature of his on-going psychotic illness.[99]S was seen by the psychiatric nurse, RMN Dube, at 15.20 on 21 December 2011. The note of that assessment is instructive. It recorded that S appeared withdrawn and distant most of the time and was preoccupied in thought. He seemed confused as to why he had been prescribed Olanzapine two days earlier. It was difficult to engage him. The lack of spontaneity in his speech raised questions. He kept repeating the phrase “there is something happening, but you won’t see it” but was unable to tell him what this “thing” was although he acknowledged that he could see “it”. The RMN’s note concluded that S’s bizarre presentation required further assessment by a psychiatrist. RMN Dube made no reference to Professor Katona’s notes although his meeting with S took place during the afternoon of the same day as Professor Katona had previously carried out his assessment. However, RMN Dube’s conclusions were consistent with Professor Katona’s conclusions and the two may well have spoken to each other whilst Professor Katona was in HH. Furthermore, in the letter he subsequently wrote to CNLIT dated 16 January 2012, RMN Dube stated that his findings, that he referred to as the findings of the mental health in-reach team, were in material respects similar to those of Professor Katona in that both had found that S appeared perplexed and frightened with a significantly low mood.[100]Thus, Professor Katona’s assessment was wholly consistent with Dr Allen’s views that were noted in the mental health records and those of RMN Dube, albeit that Dr Allen’s views had not been set out in a Rule 35 report or an issued IS91 and all three assessments and findings were clearly at odds with the comments of the medical nurse that had been provided on the IS91 form that HH had sent to CNLIT the previous day.[101]Reassured by HH’s statement that S was fit to be detained and to fly, CNLIT booked an ETD interview with the Ghanaian High Commission for 22 December 2011 despite Professor Katona having advised HH the previous day and in his report issued on 23 December 2011 that S lacked capacity to deal with his immigration case. S declined to participate in this interview when he was informed that it had been booked because, as he is reported to have explained, “I need time to think”.[102]On what appears to be 21 December 2011, the handwritten date being barely decipherable, an HH nurse visited S in his room and found that he was unable to breathe properly. The nurse took his temperature and blood pressure and adjusted the excessively heated room temperature and advised him to see the doctor if he still felt uneasy about his breathing problems. An appointment was made, or booked, for 22 December 2011 with the GP but S failed to attend it. This event should have been brought to the attention of the HH mental health team since it potentially provided further relevant evidence of all the available symptoms of S’s possible mental ill-health[103]Professor Katona produced his assessment report on 23 December 2011 and emailed a copy to Medical Justice and a further copy to HH with a letter that informed HH that the report summarised his concerns about S. The HH manager replied that the report had been handed over to the RMN for perusal and for filing into the medical records. The disclosed mental health file revealed that Professor Katona’s assessment was not filed in S’s medical records and, since HH did not subsequently disclose its copy of the report, it would appear that it was not filed on the mental health file, was mislaid and had remained unread by HH’s mental health team. Medical Justice also emailed a copy of the report to the UKBA General Enforcement Office (“GEO”) with a covering letter that raised concerns about its contents and a request that the GEO should instigate urgent action with Harmondsworth and HH to arrange for S’s transfer to hospital as recommended in Professor Katona’s report.[104]S declined to attend a telephone interview with the Ghanaian High Commission that Harmondsworth had, on 21 December 2011, re-arranged for 23 December 2011 without first consulting S or considering whether he was fit to be interviewed at all or was only fit to be interviewed with an appropriate adult in attendance. S stated that his reason for declining to be interviewed was that he first wanted to receive legal advice.[105]At 11.10 on 24 December 2011, S’s 21-day detention review was authorised in a telephone call from the authorising CIO to CNLIT in which the CIO stated that a response should be obtained from HH about S’s mental state. CNLIT telephoned HH in an attempt to obtain a response and left a message on getting no answer.[106]HH arranged for S to be seen by its locum consultant psychiatrist Dr Burrun at one of his regular fortnightly three-hour visits to HH. The assessment took place during a meeting that lasted for approximately 40 minutes during the morning of 24 December 2011. Dr Burrun did not refer to Professor Katona’s report in his note of his assessment that he left in the mental health records and Primecare, who ran HH, subsequently stated in a report it sent CNLIT dated 16 March 2012 that Dr Burrun did not see a copy of Professor Katona’s report on 24 December 2011 because it had not received a copy of this report until 28 December 2011. Thus, HH had failed to make available to Dr Burrun the copy of Professor Katona’s report that he had emailed to HH on 23 December 2011 which it had acknowledged receipt of in an email in reply also dated 23 December 2011.[107]It follows that Dr Burrun was not shown the report as is clear from the way that his mental health records note was written. This does not refer to that report or its contents. It is important to consider what information, if any, Dr Burrun had been given before he started his assessment, which was arranged for one of his half day fortnightly visits to HH and must have been conducted under time pressure caused by the other appointments that would have been arranged for him and by the fact that it took place on Christmas Eve. It is to be presumed that he had had no time to do anything more than scan Professor Katona’s note in the mental health records and S’s entries on the prescriptions register and, possibly, to have had a brief word with RMN Dube. He was clearly unaware of Dr Allen’s assessment or diagnosis or his notes of his two meetings with S in Colnbrook and, indeed, he appears to have thought that Professor Katona’s assessment had taken place in Colnbrook and to have been the assessment carried out by Dr Allen there since he stated in his report dated 20 March 2012 that Professor Katona had seen S on the 5 December 2011 which was the date of Dr Allen’s assessment. His answer given on 15 May 2013 in answer to the Treasury Solicitor’s question as to his knowledge of Professor Katona’s views was:
“Yes, I was aware of Professor Katona’s assessment and impression hence the request for blood tests as mentioned [in my note left on the mental health records].”
[108]Dr Burrun would also have been aware, from his reading of the prescriptions register, that S was currently subject to two prescriptions for Olanzapine, being the prescription administered on 5 December 2011 by CH and the second administered on 19 December 2011, some 5 days earlier, by HH. He therefore, must have started his assessment with it in mind that S had been reported as having acted bizarrely, as having been psychiatrically diagnosed recently as suffering from an active psychosis which was possibly Schizophrenia and as someone who had recently been prescribed Olanzapine by HH but whose apparent psychosis might have an organic cause which it had been recommended should be tested for, if only to rule it out as a cause of his psychosis. His assessment note, written immediately following his assessment and his prescription of Mirtazapine written at the same time as that note were, therefore, building upon that presumed starting point rather than being the product of a psychiatric assessment of someone who had had no access to any previous knowledge of any of S’s previous psychiatric assessments, treatments or prescriptions.[109]The record of Dr Burrun’s assessment of S is, nonetheless, very unsatisfactory. The only contemporaneous record was contained in his virtually illegible handwritten note in the mental health records that he made immediately after the assessment. No-one appears to have read – or at least to have understood – the contents of this note since its recommendations were not followed up or reported to anyone. He provided a brief summary of his conclusions in his assessment report dated 20 March 2012 that he produced following the second assessment of S that he carried out on 13 March 2012. He also produced an intelligible transcript of his 24 December 2011 note at the SSHD’s solicitor’s request in June 2013. It can be seen, however, that he has elaborated on his manuscript note when producing the word processed version of it rather than producing an accurate transcription of it. Finally, he also provided answers to two questions relating to his 24 December 2011 assessment which he prepared at the same time as making the transcript of his note. Regrettably, these four separate documents are not entirely consistent but it is possible to ascertain Dr Burrun’s overall conclusions that he reached on 24 December 2011 from a detailed collective analysis of all of these documents read with and taking into account the knowledge he appears to have started with of the psychiatric background to his own assessment of S.[110]The primary source of Dr Burrun’s original diagnosis is his contemporaneous manuscript note dated 24 December 2011 that he inserted into the mental health care records re-edited to remove the ascertainable alterations he had subsequently made during the transcribing process. That diagnosis was to the effect that S was eating well and had a stable body weight. He had recurrent anxiety attacks and was worried about being deported. He had not provided any past history of community-based psychiatric problems and denied being prescribed any medication. He was calm and co-operative when examined. He was fairly well orientated in time, place and person. His mood was low and anxious and his affect was reactive. He denied any visual or auditory hallucinations or feelings of self-harm or ill-harm to others. His cognition was grossly intact. Dr Burrun’s overall diagnosis was that S was suffering from mixed anxiety and depressive disorder and that it should be ascertained whether organic causes for this could be eliminated. S should be started on Mirtazapine, an anti-depressive medication, HH should continue to monitor his mental state coupled with the RMN giving him 1:1 support.[111]Dr Burrun’s typed transcript contained several material alterations from the manuscript note. The decipherable alterations were:(1) The manuscript notes recorded that S was “not taking Olanzapine” but the transcript omitted those words. This was a significant interpolation. To understand why, it is necessary to consider the history of S’s Olanzapine prescriptions taken from the prescriptions register: (a) S was first prescribed Olanzapine by Dr Allen in CH on 5 December 2011 for a period of time stated to be “ongoing”. He was re-prescribed Olanzapine by the GP in HH on 19 December 2011 for 28 days even though S’s outstanding prescription for this medication had been transferred intact from CH to HH on 14 December 2011. The GP saw S on 20 December 2011. The stated purpose of that meeting was “meds” and this meeting must have been arranged to enable the GP to discuss with S the need for him to be provided with and to take Olanzapine. Although S was subsequently stated by HH to have missed this appointment, there is no record of his non-attendance in the GP appointments log so that it is likely that he did attend it and the continuation of this prescription was apparently agreed since no record of S’s objection to this prescription was entered into the mental or physical health records. (b) On 21 December 2011, Professor Katona observed from the prescription chart that S had recently been prescribed with Olanzapine. In his report dated 8 March 2012, Professor Katona indicated that the prescription of 19 December 2011 was a live prescription by stating that S was “no longer taking any antipsychotic medication” following an examination of the prescriptions register during a discussion with RMN Dube See paragraph 5.10 of the report dated 8 March 2012. . Moreover, Professor Katona, in his third report dated 15 March 2013, noted the 19 December 2011 Olanzapine prescription with approval whilst commenting that, although prescribed, it had not been administered by HH until Dr Burrun “re-prescribed it on 13 March 2012” Ibid., see paragraphs 3.8. 5.10 . . (c) On 24 December 2011, Dr Burrun prescribed 15mg tab Mirtazapine nocte for 28 days. At the same time, he neither altered nor deleted the Olanzapine prescription dated 19 December 2011 despite that prescription being a recently prescribed and on-going prescription which would have been known about by Dr Burrun since it appeared immediately above his own signed prescription for Mirtazapine in the prescriptions register. Moreover, he made no mention of the Olanzapine prescription in his notes written into the mental health records despite recording that his plan included “start on tablet mirtazapine 15mg nocte”. Had Dr Burrun intended to cancel the Olanzapine prescription he could, should and would have done so by cancelling the prescription in the prescriptions register and by referring to the cancellation in his notes in the mental health records. (d) Since both medications can be prescribed together, and indeed Dr Burrun prescribed them together in a prescription written into the prescriptions register on 14 March 2012, the obvious conclusion from his prescription for Mirtazapine is that he changed the existing prescription for Olanzapine into a joint prescription for both Olanzapine and Mirtazapine. (e) Dr Burrun’s comments in his original notes, therefore, that S denied being prescribed an antipsychotic medication and was not taking Olanzapine, when read alongside the prescriptions register, reasonably meant that Dr Burrun considered that S was in denial, as many Schizophrenia sufferers are, that he had been prescribed antipsychotic medication and had been re-prescribed it on 19 December 2011 because he still needed it and had apparently been non-compliant with both of those previous prescriptions. (f) Someone in HH on about 27 December 2011 See paragraphs 118 – 120 and 124 below. , as reported by a medical nurse called Marge in HH in a telephone conversation with HI Young of CNLIT on 2 February 2012 and by HH’s interim manager Ms Valerie Anderson in a letter to S’s solicitors dated 6 February 2012 and in a second letter to S dated 29 February 2012, stated that S’s medication had been changed by Dr Burrun on 24 December 2011 without defining the change that had occurred. This statement is ambiguous and is consistent with Mirtazapine being added to S’s prescribed Olanzapine rather than replacing it. Given the history of S’s prescribed Olanzapine, the obvious meaning of these statements is that there had been an addition to the then current prescribed Olanzapine and not a replacement of that medication with Mirtazapine. (g) HH did not, as a matter of fact, administer S with Olanzapine between 19 December 2011 and 13 March 2013 when Dr Burrun re-prescribed it in conjunction with a re-prescription of Mirtazapine. HH’s interim manager sought to explain that error, without reference to any contemporaneous document or note, by suggesting that Dr Burrun had changed S’s prescribed Olanzapine medication by discontinuing Olanzapine by replacing it with Mirtazapine on 24 December 2011. That prescription, had it been intended and had it occurred, would not have been a change but a discontinuation and replacement of medication. Moreover, there is no evidence that that was what Dr Burrun intended and there is also significant evidence that he intended there to be an addition to the prescribed medication by way of Mirtazapine and not a discontinuation of Olanzapine and its replacement with Mirtazapine. (h) Thus, HH should have continued administering Olanzapine unless and until Dr Burrun confirmed in writing that it should be discontinued. (i) The explanation that Olanzapine had been discontinued by Dr Burrun appears to have originated from comments made to an IO in CNLIT in a telephone call by a medical nurse in HH on 27 December 2011 following a hasty and erroneous interpretation of S’s mental health records which were repeated by the manager of HH who was by training a medical nurse without consulting RMN Dube or Dr Burrun. The nurse and the HH manager were in error in drawing, and had no authority to draw, that conclusion or to suggest that Dr Burrun had decided to discontinue Olanzapine on 24 December 2011. (g) Thus, when in June 2013, Dr Burrun deleted his original note that S had not been taking Olanzapine, he must have done so because he realised that that statement in his notes was inaccurate or potentially misleading in suggesting that S was not taking Olanzapine so that he deleted it whilst transcribing his note. The true position was that S was subject to prescribed Olanzapine continuously throughout the period from 5 December 2011 to 14 January 2012 but HH failed to administered it and failed to arrange for its continuation when the prescription for it expired on 14 January 2012.(2) The typescript includes two passages which had not been in the notes:
“He maintained good eye contact” and “He denied any feelings of self-harm or harm to others”
. It would seem that these after-thoughts were added by Dr Burrun without any explanation for doing so whilst transcribing his notes one year after the assessment had taken place. (3) Dr Burrun has altered the meaning of this passage:
“?Organic” by altering the wording to read: “to rule out any organic cause”
. This alteration confirms that Dr Burrun considered that S appeared to be suffering from a psychosis and that it was desirable to determine whether that psychosis had an organic or a mental cause. (4) Dr Burrun also altered:
“Blood test routine + ?HIV screening (agreed), Hep B/C” to: “Request routine blood test, Hb, FBC, U and E, LFT as well as screening for HIV and Hepatitis B and C as consented by [S]”
. This alteration appears to have been made so as to clarify what was intended by his original notes which, regrettably, were neither legible nor drawn to HH’s attention for immediate action.[112]Dr Burrun’s report dated 20 March 2012 contained this passage:
“[S] was seen on 24/12/2011 when he was started on anti-depressant medication tablet Mirtazapine 15mg Nocte and he also agreed to undergo routine blood test investigations as well as screening for HIV in order to rule out any underlying organic cause for [S’s] clinical presentation, as recommended by an independent psychiatrist Prof. Katona who had seen [S] on the 05/12/2011 (sic) This was a noteworthy mistake for 21 December 2011. S didn’t arrive in Harmondsworth until 14 December 2011 .”
[113]Dr Burrun was also provided with a questionnaire to answer. The following was his response to two significant questions that he was asked: 171. Q. For what reasons did you disagree with Professor Katona’s assessment of [S] on 21 December 2011 and 8 March 2012 regarding the diagnosis and manageability of [S’s] condition in detention? A. I agreed with Professor Katona’s initial impression. Furthermore, Professor Katona gave an initial impression of [possible] organic psychosis and queried HIV. The screening blood tests that I requested were to rule out any underlying physical illness such as HIV and viral Hepatitis. All basic investigations are possible to be done within the HH centre of the Immigration Removal Centre, and did not require hospital referral at this stage.173. In the meantime, [S] was started on medication namely Tab mirtazapine 15mg Nocte …174. All these steps indicate that I clearly took into consideration Professor Katona’s impression and requested further investigations. As [S’s] memory and orientation was normal there was no indication for a formal cognitive assessment. He was self-caring and able to move around the unit without getting lost. During the first assessment he clearly remembered that he had to go back to his room in order to fill out some urgent forms regarding his immigration issues. [S] declined admission to the Care Wing at Harmondsworth for further assessment. … First consultation lasted for about 40 minutes … .”[114]This answer is somewhat contradictory in appearing to both agree with Professor Katona’s assessment (“I was aware of Professor Katona’s assessment … I agreed with Professor Katona’s initial assessment”) and to disagree with at least part of it (“All basic investigations … did not require hospital referral at this stage”). However, the contradiction is explained when it is appreciated that his assessment was, in his mind, a second psychiatric assessment which was intended to confirm or disagree with the first assessment of Professor Katona which he had not seen. Dr Burrun’s assessment, as it turned out, only contained one significant disagreement with his understanding of the first assessment of Professor Katona, namely his view that S did not currently need to be transferred to hospital since his diagnosed symptoms and the investigations as to their cause could currently be carried out in HH.[115]Overall, therefore, Dr Burrun must have accepted and agreed with the underlying basis of Professor Katona’s assessment and, had he known of its existence, of Dr Allen’s assessment both of which had been undertaken in the preceding 19 days. All three psychiatrists agreed that S appeared to be suffering from a psychosis which might be organic in origin and which had showed itself in his recurrent anxiety attacks and by his mixed anxiety and depressive disorder. He was perplexed and frightened and of significantly low mood. Professor Katona and Dr Allen both considered that S’s current illness was far more severe than Dr Burrun considered it to be and had the appearance of Schizophrenia but they, unlike Dr Burrun, had had the opportunity to delve into S’s psychiatric history in some detail, to observe his paranoid and frightened mental state at first hand and, in Professor Katona’s case, to test and assess his cognitive impairment. Had Dr Burrun been afforded sight of Professor Katona’s report and an accurate and full report from Dr Allen, he would have been alerted to these further manifestations of a significantly more extensive psychosis and mental illness and would no doubt have taken them into account in formulating his own treatment plan.[116]Both psychiatrists, however, agreed that the symptoms each had observed required basic investigations and blood tests to be carried out to determine whether the psychosis had an organic cause and, if so, whether it was either HIV or Viral Hepatitis. Dr Burrun recommended that S should be started on Mirtazapine 15mg Nocte antidepressant medication and, by inference, agreed with Professor Katona and Dr Allen that his pre-existing prescribed Olanzapine should be maintained. As he first explained 18 months later, he considered that a more limited range of investigations and treatments were required than either Professor Katona or Dr Allen considered to be necessary. These less extensive interventions could be undertaken within HH and S did not require hospital referral at that stage.[117]It follows that Dr Burrun’s only significant difference of opinion with Professor Katona and Dr Allen was that both Professor Katona and Dr Allen considered that an immediate transfer to hospital was necessary whereas he considered that S’s ill-health could be managed in HH without a transfer to hospital. There is no evidence that anyone else saw or read Dr Burrun’s notes or discussed S’s mental health with him given that his prescription records note is handwritten and virtually illegible, his assessment took place during the morning of 24 December 2011 and he was not consulted before HH finally responded to Professor Katona’s concerns in a brief response prepared by the RMN on 16 January 2012. Had Dr Burrun had the opportunity denied to him by both time pressures and circumstances outside his control to read and consider a full and accurate account of both Professor Katona’s and Dr Allen’s respective assessments and to have them in mind when giving S a more extensive mental state examination than that he had time for on 24 December 2011, he too would, on the balance of probabilities, have agreed with both his predecessors in recommending extensive assessments and possible treatment in a hospital setting. (6) Detained in Harmondsworth: 24.12.2011 – 10.2.2012 – Phase 2 - CNLIT[118]On 27 December 2011, CNLIT received an email from the General Enforcement Office (“GEO”) which forwarded the letter it had received from Medical Justice dated 23 December 2011 which raised concerns about S’s medical issues that had been highlighted in Professor Katona’s report which had been enclosed as an attachment to Medical Justice’s letter and was also attached to the GEO email. The GEO duty officer who had only just became aware of the emailed letter and had immediately contacted HH on reading it and had received information from the nurse covering on that day who had answered the telephone. The duty officer had scribbled notes on the hard copy of Medical Justice’s letter that summarised what he understood to be the information provided by the nurse during his telephone conversation with her. The relevant note relating to S’s current Olanzapine prescription and his fitness for detention was written alongside the passage in Medical Justice’s letter which had summarised Professor Katona’s recommendation in his report that he was unfit to engage with his immigration case and should be transferred to hospital forthwith. The GEO duty officer then made a hard copy of Professor Katona’s report for the GEO files, forwarded the Medical Justice letter and its attached report to CNLIT, to “c/w” and to “Steve Scott”. In Steve Scott’s case, the duty officer noted that that officer “should liaise with HH to decide whether S needed to be transferred to hospital or not?”.[119]On 27 December 2011, the GEO duty officer had made a note on Medical Justice’s letter on 27 December 2011 which stated:
“[S] seen by psychiatrist on 24.12.11, taken of anti-Sychotic (sic) meds. [S] fit for detention. Email sent to [Steve Scott He appeared to be a UKBA representative located in Harmondsworth. ] that Medical Justice will need written confirmation as to why [S] is fit for detention, plus a response to all the points highlighted in the letter.”
The CNLIT’s note then summarised the note that GEO must have added to his notes on the Medical Justice letter to the effect that Steve Scott had been informed that Medical Justice would need written confirmation as to why S was fit for detention plus a response to all the points highlighted in its letter.[120]The notes made by the GEO duty officer of his telephone conversation with a nurse in HH on 27 December 2011 on a copy of Medical Justice’s letter are the only written assertion or statement or record that Dr Burrun took S off Olanzapine on 24 December 2011 by cancelling the outstanding prescriptions for that medication that had been issued on 5 and 19 December 2011. The note is, therefore third hand hearsay having been a note of a telephone conversation with a nurse who was presumably interpolating entries in S’s medical file that he or she was consulting during the conversation with the GEO officer, such entries being first hand hearsay of Dr Burrun’s intentions since he had not himself recorded anything about Olanzapine in his notes in the records. What is likely is that the nurse consulted the IS91 dated 19 December 2011 and the prescriptions chart. The former stated that S was fit to fly (and hence it might be inferred fit to be detained), the latter contained the Olanzapine prescription dated 19 December 2011 immediately followed by Dr Burrun’s Mirtazapine prescription dated 24 December 2011 (which an uninformed medical nurse unfamiliar with S’s mental health hurriedly consulting the prescription chart might have erroneously interpreted as cancelling the Olanzapine prescription). That obvious sequence of events probably explained the laconic statement that S was “taken off anti-psychotic meds” and was “fit for detention”. What is clear from all the other evidence See paragraph 111 above. is that this third-hand hearsay evidence about S’s prescribed Olanzapine provided by a medical nurse on the telephone in a hurry is wholly inconsistent with all the other available evidence, is erroneous in its content, is wholly unreliable as a source and is to be rejected.[121]On 31 December 2011, S’s 28-day review was undertaken and his detention was renewed. It was stated that there were concerns about his mental health and that an update was awaited from HH. The HMI authorising this decision requested a response as soon as possible concerning S’s mental state. S was also served with a monthly progress report to detainees which stated that one of the reasons for deciding that he was required to remain in detention was that his mental health gave serious cause for concern for his own wellbeing and/or for public health and safety. This reason had not previously been given as a ground for detaining him.[122]Also in the afternoon of 31 December 2011, CNLIT served S with an IS151, being a notice of the SSHD’s intention to remove him to Ghana, and a monthly progress report of his detention which informed him that the only barrier to his removal was his lack of an ETD. It asserted that S “had refused to be interviewed by the Ghanaian authorities” and made no reference to S’s possible lack of capacity to make decisions concerning his immigration case or to participate in it. One of the reasons for the decision that he should remain in detention was that his health gave rise to serious cause for concern on the grounds of S’s own wellbeing and/or public health and safety.[123]CNLIT telephoned HH on 31 December 2011 but got no reply and again on 2 January 2012 to be told by the HH manager that S had had his medication changed following a review. She promised a detailed response to Professor Katona’s assessment report. None was ever provided.[124]On 3 January 2012, the GEO manager emailed a copy of the letter it had received from Medical Justice to CNLIT which had handwritten onto the letter a note by the GEO duty of a telephone conversation between the GEO duty officer and HH of 27 December 2011 already described. Again, HH did not provide a response to Medical Justice or to Professor Katona’s assessment report despite this further request to provide it.[125]Early in the New Year, S appointed Pierce Glynn The firm changed its name to Deighton Pierce Glynn in the summer of 2012 following its merger with Deighton Guedalla. to act for him as his solicitors in detention and HH matters. On 6 January 2012, Pierce Glynn as S’s public law detention solicitors sent CNLIT the first of three letters before claim. It referred to Professor Katona’s assessment report and to S’s serious and urgent health problems that required immediate investigation. S’s release from detention was asked for on the grounds that the Home Office’s policy set out in EIG 55.10 See paragraphs 232 & 246 - 249 below. concerning the release from detention of those suffering from serious mental illness was engaged.[126]CNLIT telephoned HH again on 7 January 2012 and was told by the nurse who responded that he or she was not able to provide CNLIT of any details of S’s state of mental health or of his treatment and that no medical update would be available until Monday 9 January 2012 due to HH only having a skeleton staff working.[127]Also on 7 January 2012, CNLIT maintained S’s detention without giving any reason for this decision.[128]CNLIT telephoned and faxed HH several times on 9 January 2012 but could get no answer. Also on 9 January 2012, Pierce Glynn emailed HH with a copy of Professor Katona’s report, being the third copy of this report that it had received. The accompanying letter asked for details of any assessments, referrals or treatments that S had been provided with and, if no assessments, referrals or investigations had yet been provided, why this was so. Finally, HH was asked whether it had sent out a Rule 35 report in the light of Professor Katona’s report.[129]On the same day, CNLIT emailed HH and requested an update on S’s medical status. The email stated that it had received representations on his behalf following Professor Katona’s examination on 21 December 2011 and that on the basis of his findings, he had suggested that S should be transferred to a psychiatric hospital for a full assessment. The letter continued:
“In order to refute (or accede) to these claims, we need to ensure that this well-being is paramount and that he has been assessed appropriately by the competent authority. I would also appreciate your views on what post removal treatment is required should we be in a position to remove this person.”
[130]The HH RMN Nurse Dube saw S on 12 January 2012 for a follow-up mental health nursing assessment after his first interview on 21 December 2011. The RMN’s principle conclusion was that S provided no evidence of any psychotic features or thought disorder and was able to reflect at length on his life. He was more amiable than he had been at his first interview and more willing to interact and respond. He was, however, low in mood as before.[131]CNLIT telephoned HH again on 13 January 2012 and spoke to the HH manager. She confirmed that S’s mental health was currently stable, that he was complying with his medical treatment and that he would only give cause for concern if he stopped being compliant with his medication and his condition then deteriorated. Furthermore, HH was not on antipsychotic medication and HH was not aware of any underlying medical conditions that S was suffering from. Thus, S was receiving adequate medical treatment from HH. If he was released, the level of care that he would receive would depend on the treatment that he had had before he was released and he would not necessarily be either hospitalised or have daily contact with mental health services. Finally, the recommendations, presumably those of Professor Katona, had been passed onto S’s doctor at HH to consider if further action was required.[132]There is little support for any of this advice in the disclosed medical records. S had had no recorded contact with HH between 24 December 2011 and 12 January 2012. Furthermore, there is no record that S’s antipsychotic Olanzapine medication prescription that had been prescribed on 19 December 2011 had been withdrawn albeit that he had not been supplied with any Olanzapine since it had been prescribed. Moreover, S had only been supplied with his antidepressant medication between 3 and 5 January 2011 and had not been supplied with any medication on any of the other days since 24 December 2011. Finally, HH had made no attempt to provide S with any of Professor Katona’s recommended tests or treatment. In short, HH had not provided S with any treatment or medication since 24 December 2011 save for antidepressant medication between 3 and 5 January 2012. It is also to be noted that HH made no attempt to respond to CNLIT’s request that its psychiatrist should answer every point made in Professor Katona’s report.[133]S’s detention was again maintained in a decision that was taken on 14 January 2012. The decision relied on the information that had been communicated by HH’s manager to CNLIT’s HEO on 13 January 2012 that S’s mental health was stable and that he continued to take his medication. In the light of the HH manager’s advice, CNLIT made a further arrangement for an ETD telephone interview between S and the Ghanaian High Commission.[134]The RMN repeated the HH manager’s diagnosis in a report dated 16 January 2012 that HH sent to CNLIT. He explained the differences between Professor Katona’s assessment and that of what he described as the mental health in-reach team – a somewhat grandiloquent way of describing himself and 3 hours once a fortnight from Dr Burrun - on the basis that HH had been able to monitor S over a longer period of time than Professor Katona had monitored him and in consequence had gathered more information than he had done. As a result, he was able to say that, currently, the view was that S would not require any post-removal treatment. This reassuring diagnosis was, however, built on very slender foundations since the only documented monitoring of S’s mental health that HH had undertaken consisted of the RMN’s two meetings with S on 21 December 2011 and 12 January 2012. In truth, the RMN’s observation of S amounted to one meeting on 12 January 2012 and his assessment was based on that snap shot of S without addressing any of the points made by Professor Katona that followed his structured assessment. It is likely that Professor Katona’s one meeting had lasted longer than both of RMN Dube’s meetings. It had incorporated various mental state tests and it took account of S’s history of mental health symptoms. It was also consistent with Dr Allen and Dr Burrun’s assessments, with RMN Dube’s assessment following his meeting with S on 21 December 2011 and with the subsequent psychiatrists’ assessments. It follows that the optimistic conclusions reached by RMN Dube carry little weight in comparison to the remaining extensive body of psychiatric evidence.[135]CNLIT had re-arranged S’s telephone interview with the Ghanaian High Commission for 17 January 2012 without first liaising with S or considering whether S had the capacity to participate in that interview or giving him the opportunity to consult with his detention and healthcare solicitors. When S was informed that the interview was about to take place, he declined to participate on the grounds that he wanted to speak to his solicitor first.[136]On 18 January 2012, S’s application for an in-country right of appeal was held by an Immigration judge to be invalid in a decision taken on the papers. The notice of appeal proforma had been in S’s possession since 8 December 2011 when it had been faxed to him in Colnbrook by Wilson Solicitors See paragraph 46 above. . It appears that it was still in his possession on 24 December 2011 since Dr Burrun noted that during his session with S on that day, S had “clearly remembered that he had to go back to his room in order to fill up some urgent forms regarding his immigration issues”. Since potentially invalid notices of appeal are dealt with by the FtT duty judge soon after they have been served on the FtT, it is likely that S did not in fact send it off to the FtT by fax until a day or two prior to 18 January 2012. This is further evidence of S’s cognitive impairment and further support for Professor Katona’s diagnosis on 21 December 2011 that his cognition was impaired and was not fit to participate in his immigration appeal.[137]S’s application was held by the Immigration judge to be invalid on the grounds that S was not pursuing a human rights immigration appeal and therefore could not proceed with his proposed appeal in-country. Instead, S only had an out-of-country appeal against the SSHD’s decision dated 3 December 2011 that he was subject to administrative removal since that ground of appeal did not amount to a human rights appeal. S had in fact, albeit sketchily, served a notice of appeal that incorporated an appeal on human rights grounds which he had not particularised and that appeal was therefore understandably ruled out by the Immigration judge as not conforming to the procedural rules governing appeals to the FtT that required a prospective appellant to give full and sufficient particulars of the claimed appeal on human rights grounds. Such a requirement would have been almost impossible of fulfilment by an unrepresented detainee suffering from psychosis and cognitive impairment who was not fit to participate in the immigration appeal process.[138]One obvious ground for S’s intimated appeal on human rights grounds, which was at least arguable at that time, was that the attempt to remove him whilst he was actively psychotic and without appropriate treatment to stabilise his mental state amounted to a failure to afford him protection under articles 3 and 8 of the ECHR. S’s failure to provide sufficient particulars of this claim or to make arrangements to be legally represented by a solicitor would appear to have resulted from his cognitive, depressive and general mental health difficulties. Such an appeal could have been pursued in-country as an immigration appeal and, had his notice of appeal been accepted, it is likely that he would have then been released on temporary admission to await the hearing of the appeal.[139]On 20 January 2012, CNLIT responded to Pierce Glynn’s first letter before claim by stating that Professor Katona’s findings were not disputed by HH but S had denied to the HH mental health team that he had any psychotic problems. Moreover, he was taking medication for anxiety and depression. The mental health team considered that they could meet S’s medical needs and that he was receiving adequate treatment from HH. His condition remained stable and he was complying with his medication. This response therefore repeated the verbal information that had been provided by the HH manager on 13 January 2012 and the information contained in the RMN’s letter dated 16 January 2012. Also on 20 January 2012, Pierce Glynn chased HH for a response to its letter dated 9 January 2012 that had requested details about the treatment that it had provided in response to Professor Katona’s report.[140]On 23 January 2012, IO Barrett of CNLIT replied to Pierce Glynn in response to their concerns that S was not receiving appropriate care. This reply stated:
“With regards to [S’s] level of care in detention. Healthcare are aware of the report compiled by Professor Katona and they have had the opportunity to assess [S] over a period of time. They have continued to monitor [S] and they have confirmed that [S] has been and continues to be assessed fit for detention. In view of this, I am satisfied that [S’s] detention remains appropriate pending his documentation being issued and his removal to Ghana.”
[141]On 27 January 2012, CNLIT faxed S’s ISI51 form to Harmondsworth giving him notice of the intention to remove him to Ghana. Also on 27 January 2012, S’s solicitors again chased HH for a response to their earlier complaints in their letters of 9 and 20 January 2012 that none of the referrals recommended by Professor Katona had been made and that that S had not been offered any testing for HIV.[142]On 28 January 2012, CNLIT served on S a monthly progress report of his detention which informed him that the only barrier to his removal was the lack of an ETD. The notice stated that he was to remain in detention. However, one of the reasons for detaining him that was given was that his health gave cause for serious concern on the grounds of his own wellbeing and/or public health or safety.[143]On 30 January 2012 in a telephone interview that S had with the Ghanaian High Commission without an appropriate adult being present, S was confirmed as being a Ghanaian.[144]On 31 January 2012, S was served with an IS151 notifying him of his intended removal to Ghana. On the same day S saw a GP, Dr Allam, in HH who recorded in the Physical Care notes that he had back pain, felt well and had “no red flags”. S also told the GP that his night medication had been stopped. The GP prescribed painkillers for his back pain and also noted:
“Mirtazapine 15mg nocte prescribed as is legible from psychiatrist notes.”
[145]S engaged a firm of solicitors, Fadiga & Co to act for him in his immigration and asylum matters. On 1 February 2012, Fadiga wrote to CNLIT stating that S wished to appeal in-country against CNLIT’s removal decision dated 3 December 2011 on human rights grounds and to lodge an asylum claim. The letter also drew attention to Professor Katona’s assessment dated 23 December 2011 that S was not fully competent to give evidence in his immigration case and explained why it had not been possible for S to make his asylum claim earlier. The letter concluded by seeking confirmation that S’s removal would neither take place nor be attempted until the SSHD had had an opportunity to consider his applications based on human rights and humanitarian grounds further and, in particular, to consider these issues in the light of his poor mental health. This letter was passed to the Asylum and Immigration Unit (“AIU”) to progress the asylum claim and to decide on the basis of the asylum screening interview whether it would be pursued through the Detained Fast Track (“DFT”) with S remaining in detention or in the normal manner following his release on temporary admission.[146]On 2 February 2012, S was seen by another HH GP, Dr Naqui, complaining of lumber spine back pain. The GP noted that S was under stress and, no doubt because S’s Mirtazapine prescription had expired on 21 January 2011 and S had not been under prescription for, nor provided with, Mirtazapine since then, he represcribed 15mg Mirtazapine nocte for mixed anxiety and depression and noted that S should be interviewed by the RMN. Despite that recommendation, the RMN did not see or interview S until 6 March 2012. Also on 2 February 2012, CNCLIT completed a further detention review and confirmed S’s detention.[147]On 3 February 2012, Pierce Glynn sent CNLIT a second letter before claim. It repeated the submissions set out in the first letter of claim and again sought S’s immediate release from detention. In a second letter, also dated 3 February 2012, Pierce Glynn lodged a formal complaint with the HH manager that no answer had yet been received to their letters dated 9, 20 and 27 January 2012 asking HH to provide the referrals recommended by Professor Katona. In a third letter on the same date, Pierce Glynn notified HH that S wished to make formal complaints about the lack of an HIV test, the failure to make any other referrals or make assessments including a CT or MRI scan, the failure to provide S with his medication and the failure to respond to correspondence. S’s bail application which was rejected on 10 February 2012 must have been submitted on or soon after 3 February 2012. It included a copy of Professor Katona’s assessment report dated 23 December 2011.[148]The grounds of defence stated that a detention review took place on 5 February 2012 but there is no reference to this review in the hearing bundle. If it took place, it presumably reached the same decision confirming detention for the same reasons as the detention review decisions that were made on 14 January 2012 and 10 February 2012.[149]On 6 February 2012, HH responded to Pierce Glynn’s letter of 27 January 2012 with a letter from the HH manager which read in part:211. [S] has been seen by Dr Burrun at Harmondsworth, by the RMN and by GPs since Dr Katona visited him on 21 December 2011 Dr Burrun on 24 December 2011 with no recorded diagnosis, the RMN on 12 January 2012 and the GPs on 31 and 2 February for back pain with no attention being paid to mental health issues. .212. [S] had his medication changed by the psychiatrist on the 24 December 2011 which he was non-compliant but now has become more compliant. [S] was reviewed by our in-reach team (letter dated 16/01/12) where it is noted that [S] appeared more responsive and was able to talk at length about why his mood had been low since being detained. Therefore completion of Rule 35 Special Illness and Conditions was not completed. [S] will continue to be reviewed by the Mental Health in-reach team and the onsite GPs. Should your client’s condition change and Rule 35 is necessary then we will not hesitate to submit one.” It is to be noted that the HH manager accurately states that S’s medication was changed on 24 December 2011, that he was non-compliant with the medication – i.e. Olanzapine – that he had been prescribed with but that he was now more compliant. The use of the word “changed” in this letter had in this context the objective meaning that S’s medication had been supplemented by the addition of Mirtazapine and not altered by its replacement of Olanzapine by Mirtazapine.[150]On 8 February 2012, S was given an asylum screening interview in Harmondsworth. He was unrepresented and no appropriate adult was present. This interview proceeded despite Professor Katona’s assessment that he lacked capacity to take part in his immigration case. On the same day, the RMN who had seen S on 12 January 2012 but had not seen him subsequently wrote to Pierce Glynn as follows:
“Following [S’s] assessment by our psychiatrist, it was found that there was no clinical evidence or symptoms to an extent that warranting (sic) referral to a psychiatric inpatient unit or sectioning under the Mental Health Act (1983) amended 2007. [S] is currently taking his medication. Please see attached prescription chart for the past 5 days confirming this. Attempts were made to have a blood sample taken today for screening purposes but he was in a meeting [for his screening interview] with the UKBA. The next available appointment for this will be on the morning of 10th February 2012. [S] will be notified of this.”
[151]The enclosed extract from the prescriptions register for the period 3 – 7 February 2011 was a very misleading document in relation to a clear and accurate relevant history of S’s taking prescribed medication for his depression and psychotic condition. The letter stated that S “was currently taking his medication” which was only literally true since S had only been taking Mirtazapine since 2 February 2012 although he then stopped taking it on 9 February 2012 and only took it intermittently on 7 days between then and 6 March 2012. He had not been taking the prescribed Olanzapine at all since his arrival in Harmondsworth. Between 25 December 2011 and 20 January 2012, he had only taken Mirtazapine on 6 of those 26 days and, between 21 January and 2 February 2012, was not subject to any prescription since the Mirtazapine prescription expired on 20 January 2012 and was only renewed on 2 February 2012 when the GP in HH discovered fortuitously that it had expired when seeing S about his back pain. Hence, S had resumed taking Mirtazapine on 3 February 2012 having only taken it on a very occasional basis prior to that date and only taking it on a very occasional basis after 8 February 2012 and not having taken the prescribed Olanzapine at all See the CH & HH schedule of medication and care annexed to this judgment for further details. . Moreover, S had not been seen by any member of HH mental health team since 12 January 2012 when he had seen the RMN.[152]The letter was also misleading in suggesting that HH’s mental health team had found that S did not need a referral to a psychiatric in-patient department following Dr Burrun’s psychiatric assessment on 24 December 2012. This statement suggested that the mental health team at HH had reached a considered opinion following its monitoring of S’s progress since Dr Burrun’s assessment that Professor Katona’s diagnosis that a hospital reference was an immediate necessity had been shown to be unduly pessimistic. However, no weight can be placed on this expression of opinion. The HH mental health team had only seen S on one occasion between 24 December 2011 and 8 February 2012, being the meeting between S and RMN Dube on 12 January 2012. It had not monitored S’s mental health, it had only succeeded in providing him with his prescribed anti-depressant medication on 14 of the 49 days in this period, it had not provided him with any therapy or 1:1 interventions, it had allowed him to remain on A-Wing away from the healthcare centre and had made no contact with him there, it had incorrectly understood that S’s Olanzapine medication had been stopped on 24 December 2011 and it appeared to be unaware of the contents of Professor Katona’s and Dr Burrun’s assessments and, at the very least, was not applying itself to the recommendations and diagnoses of either of these psychiatrists.[153]On 9 February 2012, S’s case was considered by Andy O’Brian at the AIU who decided on the basis of the asylum screening interview that S’s claim should be referred to the DFT process. S’s case was therefore passed to the FIU who requested CNLIT to issue a fresh IS91RA. This was issued by IO Booth and it recorded that S had no psychiatric disorder but did have medical problems/concerns. It stated:
“[S] claims to have psychiatric problems however the attached letter dated 8/2/12 Presumably a copy of the RMN’s letter to Pierce Glynn referred to in paragraph 150 above. from Harmondsworth show NO evidence of him requiring referral as a psychiatric inpatient. He is on medication (see attached drug sheet) I have been unable to get hold of Healthcare to confirm the drugs as I can’t read their writing.”
This IS91, the previous IS91 that it replaced and the RMN’s letter dated 8 February 2011 and its accompanying 5 page extract of S’s prescription chart for the period 3 – 7 February 2011 were referred to a Senior Case Worker within the FIU, Mensah Logo who noted that S claimed to suffer from HIV and mental health problems and had no special needs. Inexplicably, neither Professor Katona’s assessment report dated 23 December 2011, nor a report from Dr Burrun addressing Professor Katona’s report were provided to the FIU even though CNLIT had a copy of Professor Katona’s report and had asked repeatedly but unsuccessfully for a copy of a responsive report from Dr Burrun’s report. The FIU approved the transfer of S’s case to the DFT subject to an Eurodac search and S being finger printed.[154]On 9 February 2012, the UKBA’s bail summary and reasons for opposing bail were served. These made no reference to S’s mental illness or to Professor Katona’s assessment report save for a brief reference to S’s mental condition that stated that when he was arrested, he had “displayed ‘strange behaviour’” and that he had been “constantly assessed at regular intervals since his initial detention”. (7) Detained in Harmondsworth: 10.2.2012 – 21.3.2012 – Phase 3 - HDFT[155]On 10 February 2012, S’s asylum claim was transferred into the DFT process and the ownership of his case passed from CNLIT to the Harmondsworth DFT team (“HDFT”).[156]Mr David Crook, the manager of the case-work support team, then undertook a review of S’s detention. In his review summary, he concluded that a quick decision could be made in relation to S’s asylum claim since, following initial checks, the case was considered suitable for DFT consideration. Moreover, although S claimed to suffer from serious medical conditions such as Schizophrenia and HIV, after 69 days in detention no information had been received from HH staff that he was unfit for detention so that any medical issues were manageable in the detained environment. Mr Crook did not call for a copy of any medical or mental health assessment and relied on the comments of the new IS91 that CNLIT had issued on 9 February 2012 and the HH letter of 6 February 2012. He decided to maintain S’s detention.[157]A blood sample was taken on 10 February 2012 but when the test results came back on 24 February 2012, they were inconclusive so far as HIV was concerned.[158]S’s bail application was refused on 10 February 2012. The FtT immigration judge’s reasons for refusing bail were that there were substantial grounds for believing that S would abscond if bail was granted, that he was suffering from a mental disorder and continued detention was needed in his interests or for the protection of others. In relation to what was described as the main ground for the application, being S’s mental disorder, the Immigration judge considered that Professor Katona’s report was no more than a report of an initial observation of S which recommended assessment, HIV testing and a CT or MRI scan and which noted that S had been prescribed Olanzapine at Harmondsworth. However, there was nothing in the initial report that showed that S could not continue to be treated satisfactorily in the short-term in detention. Moreover, the judge observed that he could not direct S’s transfer to a psychiatric hospital As recommended by Professor Katona – see paragraphs 95 & 97. since he had not been sectioned.[159]On 12 February 2012, S was given a DFT induction interview. This recorded that S was unable to answer the risk factors question claiming that it was difficult to answer and that he had also claimed that he was experiencing mental issues which were already known to immigration. The note suggested that S seemed to be a confused person who objected to the question of suicide risk being raised and had also replied that it was very difficult to say what the answer was.[160]On 15 February 2012, HH booked an appointment for S to see a GP to discuss having a CT or MRI scan. S did not attend but it seems that he was not informed of this appointment but, in any event, HH made no attempt to search him out or to book another appointment.[161]On 16 February 2012, an asylum interview was booked for S for 22 February 2012. On 21 February 2012, an IO attended the interview suite to give S his asylum interview and found that S was present but unrepresented. It is not clear why the interview was attempted on 21 February 2012 having been booked for 22 February 2012. HDFT had concluded that Wilson & Co was acting for S. The interviewing officer telephoned that firm to discover that it was not acting for S. As S had no legal representative present, the interview was cancelled. On 22 February 2012, HDFT re-booked S’s asylum interview for 27 February 2012.[162]On 24 February 2012, the HH GP saw S’s blood test results dated 10, 15 and 23 February 2012 that had arrived back at HH on 24 February 2012 and would have noted that these provided an equivocal outcome to S’s HIV testing. The accompanying test report advised that until S’s confirmation test results were available, S should be counselled cautiously. There is no evidence that any counselling was given.[163]At his detention review on 24 February 2012, S was said to be fit and well with no dependents on his claim so that continued detention was appropriate.[164]On 27 February 2012, a second attempt was made to conduct S’s asylum interview. S refused to sign legal aid forms to enable him to be represented by a duty solicitor so that Harmondsworth was unable to arrange for the duty solicitor to represent him at his asylum interview that had been re-arranged for that day. S informed the IO who saw him that he was being represented by another firm. The asylum interview record states that an IO then contacted Fadiga & Co who S had stated was representing him and “on fuller enquiry found that it was evident that the other firm was not representing him”. An HDFT note stated that it did not appear that S fully understood whether or not Fadiga & Co would be representing him and that he continued to state that he wanted that firm to represent him. It is relevant to note that S was assessed by Professor Katona a few days later on 6 March 2012 to lack capacity to instruct solicitors. It seems likely therefore that S lacked capacity to decide whether to represent himself or who should represent him and it is clear that HDFT did not undertake a capacity assessment to determine whether S had capacity to take decisions about his legal representation or to represent himself at his asylum interview.[165]On 28 February 2012, a third attempt was made to give S his asylum interview but he refused to come out from the church.[166]On 29 February 2012, S’s complaint to HH about his treatment by HH was upheld by the interim manager of HH on three grounds:(1) His HIV test could have been handled better by HH staff and in a more timely manner;(2) HH staff did not act in a timely manner in response to Professor Katona’s recommendations; and(3) HH had failed to respond to S’s solicitors’ letters requesting action on the recommended tests that should be undertaken and on Professor Katona’s other recommendations. It is noteworthy that HH has not disclosed any documents concerning this complaint or its investigation or as to what was reported to the Healthcare monitor and it did not offer S any financial or other compensation save a rather hollow apology.[167]The letter dismissed S’s complaint that he had not been provided with his medication for several days without any explanation. The explanation, which was somewhat surprising given the history of non-involvement with S by HH, was as follows:
“I have reviewed your drug chart and note that your medication was changed on the 24th December by Dr Burran (sic). This is a medication that is held on stock therefore there should not have been any reason for you not receiving it. I do however note that there are periods of where you failed to attend for your medication. I have concluded that staff acted in an appropriate manner.”
[168]This explanation is less than satisfactory for these reasons:(1) Dr Burrun did change S’s medication by adding Mirtazapine to the then currently prescribed Olanzapine See paragraph 111 above. . It is clear that the interim manager here is perpetuating the error that that change was a substitution of Mirtazapine for Olanzapine but there is no direct evidence that that is what Dr Burrun did on 24 December 2011 – the direct and indirect evidence is that he added Mirtazapine to and did not substitute it for the then current prescription for Olanzapine.(2) By 28 February 2012, the day before the letter was sent out, S had been prescribed Mirtazapine for only 20 of the 49 days between 24 December 2011 and 28 February 2012 (omitting the period of 13 days between 21 January and 2 February and between 1 – 5 March 2012 when HH inexplicably allowed the prescription to run out without being renewed). Thus, HH had only managed to provide Mirtazapine on 20 of the 62 days that it had been prescribed when the letter had been written. Moreover, the 20 days that it was supplied were intermittent and in 5 separate runs of 3, 4, 6, 4 and 3 days.(3) The prescription chart does not show days when the patient did not show up to collect his prescription compared to days when the prescription was unavailable or the queue was so long that the patient was unable to collect the prescription.(4) The intermittent supply of the prescription and the 13 days of non-supply suggest wholly inadequate monitoring of S’s non-compliance with his prescribed medication. Non-compliance is a perennial problem with those suffering from an active psychosis and HH should have ensured, by locating S in Healthcare and by chasing him up, that he took his medication regularly.(5) The manager does not provide a clear-cut answer to the suggestion that the medication was unavailable on at least some of the days of non-taking. Nor does it provide an answer to why the prescription was allowed to run out without being immediately renewed on two occasions giving rise to 13 days non-supply for that reason.[169]HH informed S on 29 February 2012 that it had made an appointment for him to see a GP to discuss the CT and MRI scans and other assessments recommended by Professor Katona on 23 December 2011 but that he had missed the appointment. In fact, there is no evidence that S was informed of this appointment and, in any event, he should have been chased up given the monitoring of his health that HH had stated it was undertaking.[170]On 29 February 2012, S’s substantive asylum interview took place at the fourth attempt. S was still unrepresented at the interview and there was no appropriate adult present. The HDFT interviewing officer noted that S’s medical (not mental health) notes on file stated that S was on medication but it did not state that he was unfit for detention due to medical problems and concluded that the “N threshold” would not be breached, presumably a reference to the fact that the interview could take place without S being accompanied by a legal representative or an appropriate adult whilst in DFT detention and despite his medical and mental health problems.[171]S signed the interview record and thereby acknowledged the statement on the form that the information he had given was correct and that he did not object to the interview being conducted without representation or accompaniment. S’s responses to the questions asked were similar to his responses to Professor Katona which had led Professor Katona to conclude that S was actively psychotic and unfit to participate in his immigration proceedings. It is noteworthy that S is recorded as stating on a number of occasions during the interview that he could not remember details and that it is recorded that S’s short-term memory appeared to be uncertain and that he paused for long periods of time for no apparent reason at certain points during the interview.[172]It is noteworthy that S filled in the interview record questionnaire, which asked questions about his siblings in this way: 236. Why? Its spiritual things that cause these and their deaths. And these things are also haunting me and trying to kill me too.”[173]On 1 March 2012, S’s ETD was issued by the Ghanaian High Commission. Also his current prescription for Mirtazapine (15mg for 28 days prescribed on 3 February 2012) ran out.[174]On 2 March 2012, Pierce Glynn wrote to the HDFT stating that they only acted for S in his unlawful detention challenge and not in his immigration claim but that S was extremely concerned that he only had a short time left to make further representations for his forthcoming FtT DFT appeal hearing, that Fadiga & Co appeared to have stopped acting for him and that he was seriously mentally ill, was apparently suffering from a psychosis and was cognitively impaired. The letter stated that S should not be detained in the DFT and concluded with a suggestion that S needed to be allocated a new immigration solicitor. On receipt of this letter, HDFT contacted HH by telephone and made an urgent request for information as to whether S was unfit for detention.[175]On 5 March 2012, S’s prescription for Mirtazapine was reinstated. His dosage of Mirtazapine was reduced from its previous dosage of 15mg Nocte to 10mg Nocte. On the same day, his application for asylum was dismissed by the UKBA. The decision letter noted the reports of Professor Katona and the RMN and concluded that S did not qualify for discretionary leave to remain. The letter ended by advising S that if he had not yet taken advice on his position, he was strongly advised to do so. When a member of the HDFT attempted to serve this decision and other documents on S, he explained that he would need help to fill in the applications due to his medical condition.[176]On 6 March 2012, the third HH GP to see S, Dr Oza, saw S to discuss his blood test results that had arrived on 24 February 2012. His note in the HH physical care records merely recorded that S was informed that the HIV antibody test was equivocal and that he needed a repeat test which he gave a verbal assent for and which was to be followed up by the RMN liaison nurse. There is no other evidence of the “cautious counselling” that the drug testing unit had recommended that S should be given about the equivocal HIV test results. Dr Oza also noted that S reported that he had dreams and hallucinations – ‘bad things’ and ‘somebody inside him!’ – and that these hallucinations were experienced at night when S tried to sleep. The GP did not note in the HH physical care records that he had assessed S to see whether he was fit for detention or make any reference to his fitness for detention.[177]RMN Dube also saw S on 6 March 2012. The purpose of the meeting was to enable the RMN to respond to Pierce Glynn’s suggestion that S should not continue to be detained. RMN Dube provided an extensive note of that meeting which stated that S had spoken to him about the current challenges that he was facing. He had stated that these were impacting on his mental health and that evil spirits were making him experience visual hallucinations. He was not sleeping well and would be willing to take medication to help with that. He was currently compliant with his prescribed psychotropic medication (Mirtazapine) but he complained that it was not effective.[178]The statement relating to S’s current compliance with his prescribed Mirtazapine was, apparently, accepted as accurate by Nurse Dube and he does not appear to have challenged S’s complaint that that medication was not effective. This reaction highlighted HH’s inadequate management of S’s mental illness. The prescriptions register showed that the factual position was rather different to that portrayed by this statement and reported complaint. As shown there, S had not taken any Mirtazapine in the period 27 February to 29 February 2012 (3 days) because it was either not supplied or not called for and in the period 1 March to 5 March 2012 (5 days) because his then current prescription for Mirtazapine had expired on 29 February 2012 and had not been renewed until 6 March 2012. It followed that the statement that: “He was currently compliant with his prescribed psychotropic medication (Mirtazapine) but he complained that it was not effective” was incorrect on two counts. Firstly, S had not been compliant for any of the previous 8 days since on 5 of these his prescription had expired and had not been renewed and 3 of these were because he had been non-compliant. Secondly, Mirtazapine had not been effective because it had not been taken and not because it or its dosage were inappropriate. In the 8 weeks prior to that 8-day period, his compliance had been so infrequent and irregular that any ineffectiveness was likely to have resulted from non-compliance. These facts appeared to be unknown to Nurse Dube.[179]The RMN concluded his note of his meeting with S with the statement that, generally, there were no current risks that would impact on his continued detention pending a decision from UKBA as to his immigration status.[180]Dr Oza signed a “to whom it may concern” letter later that day, apparently after the conclusion of the RMN’s meeting with S. The open letter stated that he had seen S in GP surgery that day and that:
“He seemed fit for detention. He expressed some hallucination thoughts for which will need review with the mental health liaison team (sic).”
This letter appears to have been written as a response to HDFT’s telephone request for information about S’s unfitness for detention that had been phoned through on 2 March 2012. Neither the request nor the contents of this letter were noted in HH’s physical care records and it would also appear that Dr Oza had not been aware of the need to assess S’s unfitness for detention when he saw S earlier that day and had presumably written the letter at the request of HH following the RMN’s meeting with S. Neither this letter nor the RMN’s assessment provided answers to HDFT’s telephone request as to whether S was currently unfit to be detained, particularly as the open letter referred to the need for a further assessment by, presumably, Dr Burrun.[181]On 6 March 2012, Professor Katona met S for the second time for about 2 hours in order to prepare a full assessment report in readiness for S’s proposed judicial review concerning his continued detention and in connection with his asylum and human rights claims. Professor Katona did not note his conclusions in S’s HH mental health records as he had after his first assessment. However, he reported that he had spoken briefly to RMN Dube who told him that S continued to show evidence of severe mental illness. He also showed Professor Katona S’s medication charts which indicated that he remained on Mirtazapine (an antidepressant) but “was no longer taking any antipsychotic medication (emphasis added)” See paragraph 111 above and paragraph 5.10 of Professor Katona’s second report dated 8 March 2012. .[182]It seems that S had three meetings in HH on 6 March 2012 and in the[183]Professor Katona’s report was dated 8 March 2012 and his conclusions may be summarised in this way:(1) The report noted that Professor Katona had spoken to the Harmondsworth psychiatric nurse who had assessed S on two previous occasions See paragraphs 99& 134 above for a summary of the nurse’s views of these assessments that took place on 21 December 2011 and 16 January 2012. . The report stated that “[I] repeated the tests for depressive symptoms, current psychopathology and cognitive function and found that his depressive condition had improved slightly and was not indicative of moderate depressive symptoms but his current psychopathology indicated that he remained as “markedly ill” and his cognitive function had significantly deteriorated.”(2) S fulfilled the criteria of having a complex persecutory delusional system, delusions of control and of reference and both auditory and visual hallucinations. His psychosis remained florid and his cognition had deteriorated further. Only his depressive symptoms had alleviated slightly following antidepressant treatment.(3) S fulfilled the criteria for Schizophrenia based on his persecutory delusions, auditory hallucinations, visual hallucinations, incoherent speech, inappropriate effect and the fact that his symptoms have been present for over six months. It remained possible that S suffered from an organic psychosis, possibly from an HIV infection.(4) Schizophrenia is thought to have multiple causative factors including genetics and birth trauma but acute episodes are often triggered by traumatic life events.(5) S was unlikely to be feigning since his symptoms had remained consistent which was particularly difficult to sustain over a long period of time.(6) S would benefit from full assessment in an in-patient setting. Prolonged treatment and support in the community would be needed if the diagnosis of Schizophrenia was to be confirmed. He would need a care plan that would be likely to include antipsychotic medication, cognitive therapy, and psycho-education (to help him to understand his condition and his continued need for treatment) and close monitoring.(7) S lacked the capacity to instruct solicitors in connection with his asylum claim or give evidence in court.(8) S would be an actual suicide risk if he was to be refused leave to remain in the UK.[184]Finally, on 6 March 2011, it was decided by a HDFT IO that S’s detention should be maintained. The reasons for decision stated that S was being seen by the resident psychiatrist (sic) on 9 March 2012, that HDFT was awaiting his opinion, that Dr Oza had confirmed that he was fit for detention and that the opinion of the resident psychiatrist “has been delayed pending the psychiatrist’s opinion (sic)”. The conclusion that S was fit for detention ought to have been the reverse of that if Professor Katona’s report of his assessment also made on 6 March had been available to the decision-maker.[185]On 8 March 2011, S saw one of the general nurses in HH in order to give a blood sample.[186]On 9 March 2011, S received UKBA’s decision letter refusing his asylum and human rights claims. The decision letter summarised the available psychiatric evidence and that part of the decision of the immigration judge refusing bail that dealt with this evidence and concluded that it was not accepted that S was unfit or unsuitable for continued detention and that he had confirmed that he had understood the questions he had been asked during his asylum interview, that he lived in the UK and had engaged with solicitors in relation to his claim. These conclusions were not, in the light of the evidence now available, justified or supported by evidence given the actual poor state of S’s mental health and his lack of capacity.[187]On the same day, S’s solicitors sent their third letter of claim to CNLIT enclosing a copy of Professor Katona’s assessment and setting out in detail why it was contended that S should be released from detention. Finally, on that day, S had a second HIV blood screening test. The results were equivocal for HIV and S’s blood samples were sent off for HIV testing.[188]Given Professor Katona’s assessment in the report dated 8 March 2012 that S lacked capacity to instruct solicitors or to participate in his forthcoming asylum appeal, Pierce Glynn referred his situation to the Official Solicitor who agreed to the request to become S’s litigation friend.[189]On 12 March 2012, HDFT emailed Pierce Glynn in response to its letter dated 9 March 2012, stating that S would be assessed by a psychiatrist the following day and HDFT would respond fully to Pierce Glynn’s letter once the psychiatrist’s report was available. HDFT also emailed an urgent request to HH to read Professor Katona’s report and to respond in writing to the concerns raised by S’s solicitors. HH was asked to bring this request to the attention of the psychiatrist who was due to assess S the next day.[190]On 13 March 2012, Dr Burrun saw S for the first time since he had seen him on 24 December 2011. His notes are again virtually illegible and they have not subsequently been transcribed for use at the judicial review hearing. He recommended that S should be taken to the HH inpatient unit. Dr Burrun did not initially prepare a report. HH did not instruct him to prepare one immediately following his assessment and did not initially agree to pay for this report. However, under pressure from HH which was itself under equivalent pressure from HDFT given the imminent FtT DFT hearing and an interim relief application in this judicial review, Dr Burrun prepared a report dated 20 March 2012.[191]The salient parts of this report were as follows:
“During the review on 13/03/2012, [S] claimed that his mood has improved and he now feels less anxious, but however he believes that both he and his family are being persecuted by the Fetish Tradition in Ghana who are trying to harm him by ‘voodoo’ because he has in the past refused to join the Fetish groups and came to the UK to remake his life. However he feels that he was not previously coping as well with being in detention as other detainees seemed to have done within the detention centre. He also complained of having bad dreams on and off and claims to see people dying during his sleep and sometimes even when awake during the day. 256. Conclusions & Recommendations 1. This gentleman seems to be suffering from mixed anxiety and depression with possible psychotic symptoms which appears to be triggered by his current situational stress due to his immigration difficulties. He was commenced on tablet Mirtazapine 15mg nocte with which he has shown a good clinical response and the dose has recently been increased to 30mg nocte. We have also commenced him on tablet Olanzapine 10mg nocte. 2. [S] has politely declined admission to the HH inpatient unit at Harmondsworth IRC on the 15/03/2012, saying he felt he would become isolated and lose his association time on the unit for activities such as cleaning and attending church which he finds to be of greater therapeutic benefit. 3. He is currently undergoing investigations for any underlying organic cause for his clinical presentation and reviewed by visiting General Practitioners on a regular basis. Our mental health nurse will make arrangements for [S] to see the G.P. in order to request a CT brain scan as recommended by Professor Katona. 4. He receives regular individual support from our mental health nurse. 5. We have been able to observe [S] over the past three and a half months and in my opinion he is currently fit to be detained and at this point in time he does not need urgent transfer to a psychiatric hospital for further assessment and treatment. 6. We will continue to review his mental health state regularly and will consider referring him for further assessment and treatment to a hospital setting if the need arises in future.”
[192]Dr Burrun had not seen S since his first assessment on 24 December 2011 some 10 weeks earlier. His assessment interview lasted about 30 minutes compared to that of Professor Katona 7 days earlier which had lasted about 2 hours. He noted that S was presenting with anxiety and depression and possible psychotic symptoms and considered that it was desirable for him to be investigated for any underlying organic cause for his presentation, a recommendation he had first agreed following his previous assessment but which HH had failed to carry out in the intervening period. Dr Burrun considered it necessary to prescribe S with Olanzapine on 14 March 2012 and to repeat that prescription on 18 March 2012, on both occasions combining his prescription with one for Mirtazapine at double the previous prescribed dosage. He also advised HH on 13 March 2012 that S should be moved from A-Wing on general location, where he had been since his arrival in Harmondsworth nearly 10 weeks previously, to the in-patient unit. Finally, he advised on 19 March 2012 that he would come to HH on 20 March 2012 to access S’s notes and write his reports. These matters, whether considered individually or collectively, suggest that Dr Burrun considered that S was significantly ill and was suffering from a psychotic illness overlaid by both anxiety and depression.[193]This conclusion as to Dr Burrun’s diagnosis of S on 13 March 2011 is supported by Professor Katona. He was asked whether Dr Burrun’s conclusions in his report impacted on his own conclusions as expressed in his second assessment report dated 8 March 2012 reporting on his assessment of S on 6 March 2012. His conclusion was, as set out in his March 2013 report:
“Does Dr Burrun’s March 2012 report impact on my conclusions? 7.1 No Dr Burrun’s report does not impact on my conclusions. Dr Burrun’s clinical observations of [S’s] mental symptoms and signs are compatible with mine. Dr Burrun did not identify significant cognitive impairment. However, his handwritten notes (also dated 13th March 2012) relating to that assessment do not document any detailed cognitive assessment – unlike my own assessments of [S] in December 2011 and March 2012. 7.2. In my clinical opinion [S’s] persistent delusions and hallucinations over a prolonged period (as described in detail in my original report and as summarised above) cannot be explained as a psychological reaction to the stress of detention as Dr Burrun suggests. 7.3. I would add that in contrast to my two assessments of [S], Dr Burrun’s assessment did not make reference to the use of diagnostic criteria or of structured interview schedules or rating scales.”
It follows that Dr Burrun’s overall views are supportive of Professor Katona’s views and those views as to the serious nature of S’s psychotic condition in early March 2012 are in turn supported by S’s subsequent diagnosis by Yewcroft and his subsequent behaviour both in Harmondsworth until his release and then in the community.[194]On 13 or 14 March 2012 The HH prescriptions register records this prescription as having been made and signed by Dr Burrun on 14 March 2012. This appears to have been a mistake since Dr Burrun, who appears to have signed the prescription, was not present in HH on 14 March 2012 but was present there when he saw S on 13 March 2012. , Dr Burrun increased S’s dosage of Mirtazapine from 10mg to 30mg nocte and he was re-prescribed 10mg Olanzapine nocte for an unspecified period although his report appears to refer to this as an initial prescription for Olanzapine in stating “We have also commenced him on Olanzapine” when he had already been prescribed 10mg Olanzapine nocte on 5 and 19 December 2011. Dr Burrun did not explain why he had put S back on Olanzapine nor why he had increased his dosage of Mirtazapine save that his report refers to “possible psychotic symptoms” and the prescriptions register describes the diagnosis of Olanzapine as being for “psychosis” and of Mirtazapine as being for “mixed anxiety and depression”.[195]On 14 March 2012, HDFT telephoned Fadiga & Co to be informed that that firm was not acting for S in his forthcoming FtT FTD asylum appeal hearing and, on 15 March 2012, HDFT wrote to Pierce Glynn enclosing documents from HH which the letter stated showed that HH was content that S was fit for detention. The relevant document that was enclosed was an illegible copy of Dr Burrun’s manuscript notes of his assessment carried out on 13 March 2012. Also on 14 March, a senior medical nurse telephoned A-wing where S was located and asked that S should be taken for relocation to HH at the request of Dr Burrun who had seen him on 13 March 2012. Neither Dr Burrun nor anyone else has given an explanation for this decision to relocate S who declined because he didn’t want to be isolated.[196]On 15 March 2012, Pierce Glynn filed judicial review proceedings on S’s behalf at the Royal Courts of Justice claiming his immediate release from immigration detention and other appropriate relief for his allegedly unlawful detention. This was accompanied by an application for interim relief in relation to the perceived failure by the SSHD to assess S’s suitability for detention in the light of Professor Katona’s assessments dated 23 December 2011 and 8 March 2012, to transfer S to hospital to investigate his cognitive impairment, to provide appropriate HIV tests and to transfer his asylum claim out of the DFT. The same senior medical nurse returned to A-wing in an attempt to persuade S to relocate to HH. The nurse’s note states:
“I explained to [S] the benefits of being in-patient in relation to compliance and support but he refused.”
S again declined to be relocated.[197]On 15 March 2012, HH’s interim manager Valerie Anderson emailed HDFT a copy of a summary of S’s involvement with HH which it is clear from its contents had been prepared prior to 9 March 2012 and, on 16 March 2012, she emailed a report on Primecare’s notepaper to HDFT which summarised the contents of the summary she had forwarded on 15 March 2012. The summary document:(1) Explained that the failure to test S’s blood between 24 December 2011 and 10 February 2012 had occurred was because S had not been given an appointment for blood to be taken until 31 January 2012 and the failure to administer prescribed medication occurred because of S’s failure to attend HH at treatment times. The summary acknowledged that HH should, given that S had been non-compliant, have reviewed him and discuss with him why he had not been attending HH.(2) Asserted that the HH GP had been shown Professor Katona’s first assessment report on 28 December 2011 and he had reviewed it. However, there is no record in S’s notes of that review taking place and no indication in the summary of what the GP concluded having reviewed the report. It is doubtful, therefore, that any such review in fact took place.(3) Stated that Dr Burrun would undertake a “follow up” (to his assessment on 24 December 2011) on 9 March 2012 and, in a later passage, that he would review S on 13 March 2012 and make a final decision regarding the production of a Rule 35 report that S’s solicitors had requested in the light of Professor Katona’s second assessment.[198]The second document repeated the information in the note but contained this illuminating summary of HH’s limited involvement with S as follows:
“2. Since his arrival at Harmondsworth, [S] was seen on 21/12/11 by our Mental Health Nurse and on 24/12/11 by our visiting Psychiatrist. He was seen again on 12/01/12 and he was reviewed yesterday by the Mental Health Nurse. In terms of his mental health [S] will be reviewed on a regular basis by the Mental Health Nurse and he is due to see our visiting Psychiatrist for follow up Friday 9th March. Unfortunately, Dr Burrun was unable to attend on the 9th March and [S] was seen on the 13th March 2012. Upon receipt of the repeat blood test report [S] will be reviewed by the GP who will then assess and decide upon further investigations required. The GP will refer to the Psychiatrist, both Professor Katona’s and our visiting Psychiatrist Dr Burrun’s reports. See paragraphs 99 (21 December 2011), 106 – 117 (24 December 2011), 134 (16 January 2012) & 190 – 193 (13 March 2012) above for each of the four occasions that HH accept that they engaged with S. There is no other evidence in the records of other mental health team engagement with him. This letter appears to support the conclusion that there was only one RMN working in HH whilst S was located there since it refers throughout to “our mental health nurse” (see paragraph 268 below). ”
[199]On 15 March 2012, HDFT sent Pierce Glynn a formal decision that UKBA was maintaining its decision that S’s detention remained appropriate. The decision letter referred to, and relied on, Primecare’s first document sent to HDFT on 15 March 2012 and the illegible handwritten photocopy of Dr Burrun’s notes of his assessment on 13 March 2012 and noted that S had tested negative for HIV as stated in Dr Burrun’s notes and had failed to attend appointments on a number of occasions. The decision did not appear to rely on anything else other than these quoted sources. It is noteworthy that there is no reference to the existence or contents of either of Professor Katona’s reports, to the contents of Dr Burrun’s two assessments or to the contents of Dr Burrun’s illegible notes of those assessments save to assert, inaccurately, that S had tested negative for HIV whereas the screening test results were equivocal and the samples had been sent for more detailed testing.[200]Meanwhile, preparations were made by HDFT for the asylum hearing scheduled for 21 March 2012. The HDFT repeated its assertion in a note dated 16 March 2012 that HH had advised that S was fit for detention and that he was receiving on-going care (which is not evidenced by the HH medical and mental health records). In consequence, an SEO concluded that the exclusion criteria for removing a case from the DFT were not met, that the case remained suitable for the Fast-track and that continued detention was appropriate. S’s detention was therefore renewed.[201]On 16 March 2012, Keith J ordered that the SSHD should by 4.00pm on 21 March 2012 inform S’s solicitors of all steps which had been taken to assess S’s suitability for detention and her response to Professor Katona’s report.[202]Also on 16 March 2012, Senior Nurse Manyere in HH was informed by the Hillingdon Pathology Laboratory that had tested S’s blood that the blood sample results were again equivocal so the results had been sent to the Reference Laboratory and the results would take about a week to come back. There is no indication that S was subsequently informed of the results of these tests following his release from detention.[203]On 18 March 2012, S was again prescribed 10mg Olanzapine nocte and 30mg nocte Mirtazapine with no review date inserted by another signatory than Dr Burrun. There is no explanation as to why this re-prescription occurred. The chart records that these medications were provided to S on 18, 19 and 20 March 2012.[204]On 20 March 2012, Dr Burrun’s report was delivered to HH See paragraph 191 above. .[205]Also on 20 March 2012, HDFT noted that the FtT DFT appeal was to take place “today”. In fact the appeal was to take place on the following day. The note continued that S had mental health issues and that Dr Burrun’s report had just been received that stated that he was fit for detention and was receiving regular care. The note also recorded that the London Area Routing Team had been emailed and requested to route the case to another LIT team and that HH had been emailed and requested to advise if S required a care plan and informed that the routing team, being the UKBA Asylum Routing & Initial Accommodation Team, was to be advised if accommodation had to be arranged for S. It would seem that, at that stage, HDFT had contemplated taking S’s case out of the DFT, that his appeal would be adjourned and that his case would be transferred to another LIT who would decide whether to maintain detention or grant him temporary admission. HH responded to HDFT’s request for information by stating that S at that point in time posed no danger to either himself or anyone else and that, on his release, he would be provided with a copy of his medical record including his blood test results to enable him to continue with all of his investigations.[206]On 21 March 2012, S’s appeal against the refusal of his asylum claim came before the DFT FtT immigration judge sitting in Harmondsworth despite HDFT having given consideration on the previous day to taking the case out of the DFT. S was unrepresented. His detention solicitors were not instructed to act in his immigration appeal because they did not have an immigration public funding contract and his immigration solicitors were not acting for him in his asylum claim. S therefore represented himself and the SSHD was represented by a presenting officer. The immigration judge had been provided with both Professor Katona’s and Dr Burrun’s reports that were dated, respectively, 8 and 20 March 2012. Dr Burrun’s report was only served on S and on the FtT at the outset of the hearing since he had only provided it to HDFT the previous day. S gave his detention solicitor a full account of what had happened soon after the hearing and she set this information out in a witness statement which was included in the hearing bundle. The statement summarises what S informed her had happened at the hearing.[207]S’s solicitor stated that she had been told by S that, as soon as he arrived in the hearing room, the immigration judge asked the SSHD’s representative whether S was the applicant and, on being told that he was, remarked that it was not right that he had been brought to the hearing as he was obviously very unwell. The immigration judge then ordered that the case should be taken out of the DFT as S was not well enough for a DFT hearing or to represent himself. The immigration judge recommended that S should be given temporary admission and should be allowed to go and live with the members of his church who had supported him previously. The SSHD’s representative argued that the hearing should not be adjourned, that it should not be transferred out of the DFT and that S should not be released from detention on temporary admission but the immigration judge firmly rejected all of these submissions, did not alter her proposed directions in relation to the adjournment and the transfer out of the DFT nor her recommendation as to temporary admission to live with members of S’s church. The SSHD did not challenge this account of what had happened and, remarkably, the SSHD’s papers concerned with the hearing have since been mislaid so that they were not disclosed. Moreover, there was no additional evidence from the presenting officer or from his file as to what had been said by him or by the immigration judge during the hearing.[208]Later that day, the Treasury Solicitor informed S’s detention solicitors that the SSHD’s response to Keith J’s order was that S had been assessed by Dr Burrun on 15 March 2012 who had provided his report dated 20 March 2012 and that S’s appeal had been reclassified out of the DFT and would be listed for a hearing at Hatton Cross within 6 weeks.[209]Even later on 21 March 2012, S was granted temporary admission. It would seem that this decision was taken by HDFT after the hearing as a result of the immigration judge’s decision to remove the appeal from the DFT and that it then passed ownership of S’s case to the Solihull asylum team. No consideration was given to the possibility of granting S temporary admission and releasing him into Pastor Emeka’s care as recommended by the immigration judge. Instead, pursuant to arrangements made by the UKBA Routing Team, S was released from immigration detention by being granted temporary admission by HDFT with a condition that he should reside in UPM accommodation in Edgbaston. The named accommodation was a hostel maintained for UKBA by UPM and he was also instructed that he had to report to the Midlands Enforcement Office on dates to be advised. He was taken from Harmondsworth by an UKBA contracted carrier to overnight hostel accommodation provided by an UKBA service provider in East Dulwich and was then transferred from there to the UPM accommodation the next day by another UKBA contracted carrier.[210]S was not provided with a copy of his health care records, details of his prescription, any care plan, supplies of his prescribed medication, his outstanding blood test results or his HIV confirmed test results or with an introduction to an appropriate community mental health service or a GP when he left Harmondsworth. It appears that this failure was an oversight caused by a communication difficulty between HH and HDFT. In a letter dated 10 July 2012, the interim manager of HH informed Deighton Pierce Glynn:282. Although Healthcare was informed of UKBA’s intention to release you we were not given a date or time. This however is not unusual and staff were asked to ensure that your medications were ready to go with you when we received this information.283. Healthcare never received notification of your planned release from the Centre before you left as GEO staff faxed this information to the wrong fax number. This had now been rectified however too late to enable you to have had your prescribed medication and for this I apologise on behalf of Primecare and GEO.”[211]On 6 August 2012, the same interim manager wrote a further letter to Deighton Pierce Glynn: “... I notice from the medical records that the blood test results for the HIV tests were flagged from the laboratory as being ‘equivocal’ and further samples were sent. I am unable however to comment from the content of the records on the underlying reasons for tests not having been carried out prior to February, though I have noted several failures to attend GP appointments in both February and March.” (8). Community mental health care: 21.3.2012 – 31.10.2012[212]On 23 March 2011, S registered with the Bellevue Medical Centre ( the “Bellevue”), being a large GP group practice in Edgbaston, Birmingham. He did so by attending its walk-in centre and it is likely that this contact occurred following advice S had been given on arrival at his hostel. S did not bring any papers with him when he registered with the Bellevue. However, the Bellevue obtained a copy of Professor Katona’s report dated 8 March 2012 and arranged for S to attend a GP member of the Bellevue on 2 April 2011. At that consultation, the GP noted that S had a diagnosis of Schizophrenia and referred him with his consent to Yewcroft for psychiatric assessment and mental healthcare and told him to obtain copies of his medical records, prescribed him with the Olanzapine and Mirtazapine medication in the dosage he had been prescribed in HH on 18 March 2012 and made him return to the practice with that medication as confirmation that he had obtained it. Thus, S’s post-detention assessment, treatment and support were in the hands of the Bellevue in Edgbaston and Yewcroft which was part of the Birmingham and Solihull Mental Health NHS Trust.[213]On 23 March 2012, the SSHD filed and served its acknowledgement of service and summary grounds of defence running to 44 paragraphs and on 30 March 2012, Ms Frances Patterson, sitting as a deputy judge of the Administrative Court, granted S permission to apply for judicial review on the basis that all the pleaded grounds were arguable. Interim relief was not granted because S had already been discharged from detention on 23 March 2012.[214]On 16 April 2012, S returned to Bellevue with a copy of his care records which he must have obtained from HH and, following a screening test, S agreed that one of the Bellevue GPs should arrange for his blood to be tested for HIV and Hepatitis B & C. The GP agreed to contact the FtT to provide it with the information it required in support of his application to adjourn his forthcoming asylum appeal.[215]S’s first appointment at Yewcroft on 26 April 2012 with a locum psychiatrist was terminated because S was sleepy throughout the consultation having only had a few hours’ sleep the night before. He was extremely defensive and refused to answer questions about his past. The psychiatrist found the assessment extremely difficult and challenging and offered him another appointment two weeks later. He was noted to be on Olanzapine and Mirtazapine on 1 May 2012 and the Bellevue renewed this prescription until 28 May 2011.[216]S’s adjourned FtT hearing took place on 4 May 2012 in Birmingham. S did not attend because he was too unwell to do so. S had, by the date of the hearing, instructed a third firm of immigration solicitors Bake & Co to represent him. The representative from that firm who attended the hearing had only recently been instructed and he took instructions from S and Yewcroft by telephone from the hearing venue about S’s state of mental health and as to the reason for his non-attendance. As a result of those instructions, his representative sought an adjournment on the grounds that S had indicated that he was too unwell to attend and that a representative of Yewcroft had stated that a review meeting was to take place the following week to consider his condition and prepare a care plan. The immigration judge refused the adjournment application on the grounds that the further contemplated HIV test was not likely to be a determinative factor in S’s appeal and because the psychiatric reports suggested that there was little likelihood of S’s mental health condition being so extreme that his appeal could succeed on mental health grounds. The upshot was that S’s appeal was dismissed in a decision promulgated on 11 June 2012.[217]A CT1 psychiatrist at Yewcroft, Dr Ahmad, undertook a mental health assessment on 10 May 2012. A copy of his assessment report was sent to the Bellevue on 1 June 2012 but a copy was not included in the hearing bundle. However, the psychiatrist’s notes were included. These recorded that S had, inaccurately, informed the psychiatrist that he had been on his current Olanzapine and Mirtazapine medication since 11 December 2011. S had also reported that his sleep and appetite were satisfactory. He was noted to be preoccupied with religion and was still awaiting his HIV screening test results. He did not want to remember the death of his parents which he described as a “spiritual death”. He repeated much of his experience of and fears about the Fetish Tradition that he had recounted to Professor Katona. The psychiatrist concluded that S was experiencing auditory hallucinations in which Fetish People informed him that they could hurt him and was also experiencing visual hallucinations. The psychiatrist concluded that S was also worried about both his auditory and visual hallucinations and that he lacked cognition about time but not about place. The overall diagnosis confirmed that he was suffering from Schizophrenia. Belleview renewed his Olanzapine and Mirtazapine prescription for a further 28 days on 31 May 2012.[218]On 8 June 2012, S was noted as attending Bellevue and as presenting with normal speech, appropriate behaviour and that he was orientated and cohesive. On 13 June 2012, during a visit to a GP at Bellevue, he became very angry and threatening about a letter he was wanting Bellevue to write on his behalf and the consultation had to be terminated. S was assessed by Dr Ahmad at Yewcroft on 28 June 2012 when he was recorded by the assessing psychiatrist as being objectively euthymic and as still having auditory and visual hallucinations. He stated that the Fetish people were still after him. On 25 July 2012, S finally received negative HIV test results.[219]On 26 July 2012, a further Yewcroft assessment was carried out by an individual described as a “medical – basic trainee”. The report stated that S’s current mental state was that he continued to have delusions of a nature which fitted in with Yewcroft’s diagnosis of Schizophrenia. However, he was not expressing any intention to deliberately self-harm or any suicidal ideation or intent. On 21 August 2012, a Yewcroft psychiatrist recorded that S continued to take his medication, which still included his Olanzapine antipsychotic medication, that he had some residual symptoms of paranoia but that he had no suicidal intention or intention to harm himself or others. On 5 October 2011, it was noted that S was still getting hallucinations and spiritual messages that he could not ignore. His mental health situation appeared stable. The last recorded information as to S’s mental health related to a review on 31 October 2012 when a Yewcroft psychiatrist again noted that S had no suicidal intentions or intentions to harm himself or others. (9) Subsequent events 1.11.2012 – 15.3.2013[220]On 13 November 2012, a judge of the Upper Tribunal decided that the FtT judge had made a material error of law in relation to the decision as to S’s claims that were based on his mental health and risk of suicide since the judge had not given full consideration to the medical evidence. In particular, the Upper Tribunal concluded that it would be unfair for the decision to stand without a rehearing in relation to the claim that S’s mental condition was such that it would be a disproportionate interference with his private life for the SSHD to remove him from the UK whilst his psychiatric treatment was on-going.[221]At the rehearing of the appeal relating to the issues of suicidal tendencies and S’s articles 3 and 8 claims on 18 February 2013, the appeals against the SSHD’s refusal of S’s asylum and human rights applications were dismissed. However, the UT

judge made these findings in the UT’s decision promulgated on 14 March 2013:

“I find the fact that the HIV test is negative, and in the absence of any other indication of underlying physical conditions, supports the diagnosis that [S] suffers from Schizophrenia which is treated in the community and by prescription medicine which does not require inpatient treatment. … The above material contains a clear diagnosis that [S] is schizophrenic. … I shall … assess [S] on this appeal on the basis that [S] suffers from the diagnosed mental health disorder and that there is a potential for self-harm if he realises the next and only step is his removal to Ghana. … ”
The UT judge concluded that the suicide risk that S would run if removed to Ghana was not sufficiently high that his removal would be disproportionate and that his mental health had now stabilised with the treatment that he had received so that his removal was not disproportionate even though the facilities for treating his illness in the future were inferior in Ghana compared to those available in the UK.[222]On 15 March 2013, Professor Katona prepared his third and final report for this judicial review. I have already set out his conclusions See paragraphs 222 – 223 below. . Professor Katona had available to him the BCLPS and Yewcroft records as well as the CH and HH mental health, physical care and medication records from S’s time in immigration detention and Dr Burrun’s assessment dated 20 March 2012 so that he had a complete picture of S’s mental health symptoms and treatment. Professor Katona gave coherent reasons why Dr Burrun’s clinical observations of S’s mental health symptoms and signs were, in reality, compatible with his own. Moreover, in relation to the apparent disagreement as to whether S was cognitively impaired, Dr Burrun did not undertake a detailed cognitive assessment whereas Professor Katona had undertaken one so that his assessment was much more reliable than, and was to be preferred to Dr Burrun’s assessment. Professor Katona concluded that S’s persistent delusions and hallucinations over a prolonged period of time from sometime in the autumn of 2011 until well after his release from immigration detention could not be explained or passed off as a psychological reaction to the stress caused by S’s detention.[223]Professor Katona also made this significant professional judgment:
“8.1. … the immigration detention setting is not designed to be therapeutic. Despite his prominent psychotic features, [S] did not receive an antipsychotic between December 2011 and March 2012 (apart from the prescription dated 19 December 2011 which was not administered). He did not at any time receive any specific psychotherapy while in detention and there is no documentation that any such therapy was offered to him. As I stated in my original report, NICE guidelines on Schizophrenia National Institute of Health and Clinical Excellence before 2011). regard psychotherapy as integral to the treatment of this serious and lifelong condition. 8.2 There is in any case (as again stated in my original report) consistent research evidence both internationally and in the UK that continued immigration detention can worsen existing mental health problems Robjant et al 2009. . 8.3 In addition, despite the clear concerns raised at the time of his transfer from Campsfield This is an obvious error for Colnbrook. and subsequently in my December 2011 letter, [S] did not undergo detailed psychiatric assessment until March 2012. Given their possible relevance to his psychiatric presentation his equivocal HIV testing results were not followed up (as I think they should have been) by consultation with an HIV specialist. 8.4 My clinical opinion remains that [S] was very seriously mentally ill in December 2011 and was not at that time fit for detention. He should have been assessed urgently by a consultant psychiatrist very soon after I raised my urgent concerns. In my opinion this should have resulted in his transfer to psychiatric hospital and the full assessment that I recommended.”
III. S’s Claim in the Judicial Review[224]Based on this tangled and complex factual background, the following claims are now made on S’s behalf. He claims a judicial review of each of the decisions that led to his being detained pursuant to the SSHD’s power to detain in immigration detention and to his remaining in immigration detention. His basis of challenge was that that detention was unlawful throughout as being contrary to the SSHD’s policies relating to immigration detention in general and to the immigration detention of those suffering from a mental illness in particular. In short, it is contended on S’s behalf that he was suffering throughout his detention from a serious mental illness so that it was unsafe to detain him and which could not be satisfactorily managed within immigration detention. Moreover, the nature of his illness was such that it was, or should have, been apparent throughout his detention that it would not be possible to effect his deportation within a reasonable period. Furthermore, the relevant detention decisions were taken without all material relevant considerations being taken into account. This was principally because this information had not been available to the decision-makers because of a series of failures by the SSHD and her officials and medical teams that she was responsible for to follow statutory requirements and ministerial guidelines. Finally, the nature of S’s detention was unduly severe and it had had significant adverse consequences on his mental health, medical treatment and immigration claims. The relief claimed is now confined to a claim for damages for unlawful detention and for various breaches of his articles 3 and 8 rights for the whole period of his detention from 3 December 2011 until 21 March 2012, a total of 109 days. Overall, general, aggravated and exemplary damages are claimed.[225]This claim is advanced on 5 separate albeit inter-linked grounds. Ground 1 is that the SSHD failed to apply the policy relating to the detention of the mentally ill on these grounds:(1) S was, throughout his period of detention suffering from a serious mental illness. This was, or should have been clear to each decision-maker concerned with S’s immigration detention.(2) The SSHD failed to provide S with the requisite assessments, the necessary anti-psychotic medicine was not prescribed or provided or was withdrawn, no counselling or necessary therapies were provided, no monitoring of S’s mental health was undertaken and there was a failure to investigate the possible organic causes of his cognitive impairment and the overall environment in both Colnbrook and Harmondsworth was not conducive to S’s recovery.(3) These failures showed that neither Colnbrook nor Harmondsworth was able to provide reasonable management of S’s mental illness.(4) Neither Colnbrook and CH nor Harmondsworth and HH had provided any evidence to refute the conclusion that there was a wholesale failure and an inability to manage S’s mental illness.(5) In the light of these failings, and in the absence of any exceptional circumstances, each detention decision was unlawful.[226]The other Grounds are as follows:(1) Ground 2 is that the SSHD unlawfully processed C’s claim for protection and asylum within the DFT. This ground is based on the submission that however the policy in relation to suitability for transfer to the DFT is expressed, this case was clearly unsuitable. S was suffering from an acute psychosis, possibly Schizophrenia, he required immediate hospitalisation, and there was no possibility of his removal in the near future.(2) Ground 3 is that S’s immigration detention could not have been justified and was consequently unlawful by reference to the Hardial Singh principles since the only reasonable place for S to be located was in hospital, his removal was not imminent, there was no risk to the public and there was no risk of his absconding.(3) Ground 4 is that the SSHD failed to ensure that C was provided with adequate healthcare. The relevant failings are set out under Ground 1.(4) Ground 5 is that there were significant breaches of articles 3 and 8 caused by the SSHD’s failures to provide S with adequate treatment and to detain him in immigration detention when he reasonably required hospitalisation and psychiatric care outside the IRC setting.(5) Ground 6 is that there was a failure to conduct any or any adequate Rule 34 examination and to provide a Rule 35 report.(6) Ground 7 is that S is entitled to substantial and not merely nominal damages particularly because he would not have been detained in any event and, in particular, if the SSHD’s detention policies had been applied lawfully.[227]The SSHD maintains that the policy enshrined in EIG 55.10 was not engaged because S’s mental health condition was not serious enough to attract the presumption against detention enshrined in the SSHD’s mental health detention policy since S had not been sufficiently affected by his illness. Moreover, even though Dr Allen’s diagnosis was not fully known to CNLIT, it had taken reasonable steps to ascertain what his views were and what S’s mental health was and had taken an informed decision that S should be detained, being a decision which was within the ambit of its decision-making authority. In any event, S’s mental health condition was manageable by both CH and HH and he therefore remained fit for detention. The SSHD also maintains that Professor Katona’s views were taken into account but it reasonably preferred the contrary views of Dr Burrun that S’s illness was such that he was fit to be detained in immigration detention.[228]In relation to the other grounds, the SSHD contends:(1) Ground 2: HDFT took account of the guidance of healthcare colleagues in determining that S was fit to be detained and, hence, suitable to be included on the DFT.(2) Ground 3: The Hardial Singh principles were followed and applied. The only obstacles to S’s removal had been his lack of an ETD and his outstanding appeal against the SSHD’s removal decision. Since his mental health was being adequately managed, his removal could be reasonably effected once these two obstacles were removed, a removal which was reasonably considered to be imminent.(3) Ground 4: Adequate healthcare facilities were provided.(4) Ground 5: Articles 3 and 8 were not engaged.(5) Ground 6: A Rule 34 examination was carried out in CH by Dr Vara and a Rule 35 report was not required nor, had it been supplied, would not have led to S’s release from immigration detention.(6) Ground 7: Only nominal damages are recoverable if any breaches of the detention policy are established since, had those proved breaches not occurred, S would still have been detained.[229]In summary, therefore, S’s judicial review is mounted on seven separate grounds. These, albeit in a different order, make three cumulative challenges which can be summarised as follows:(1) The individual decisions being challenged. The various detention reviews resulted in S being unlawfully detained because they were unlawful because of a failure to apply the policies relating to detention generally and in respect of the detention of the mentally ill and detention in the DFT in particular;(2) The management of C’s mental illness. The management of C’s mental illness failed to comply with the SSHD’s policies concerned with the management of mental illness in detention in that he was not provided with Rule 34 examinations or Rule 35 reports or with adequate healthcare; and(3) C’s claim for damages. S is entitled to damages for both false imprisonment and as just satisfaction for the various failings of the SSHD. IV. Applicable Law and Policies (1) Power to detain[230]Someone who is apprehended by the immigration authorities or the police who is, or is suspected to be, unlawfully present in the United Kingdom may be arrested, charged and detained in custody by the police under the criminal law For committing an arrestable offence such as being in the UK without the authority of the SSHD provided for in s. 2(1)(b)(i) of the Immigration Act 1971. and may also be detained under immigration law by the SSHD pending their removal or deportation S. 10(7) and paras. 10 and 16 of Schedule 2 to the Immigration Act 1971. . Further, a person found by the police in a place to which the public have access who appears to be suffering from a mental disorder and to be in immediate need of care or control, may be removed to a place of safety for a period not exceeding 72 hours to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and for the making of any necessary arrangements for his treatment or care S. 136(1) of the MHA. . Since S was originally apprehended by a police officer who had arrested him lawfully and without the need to obtain a warrant, he was potentially capable of being detained by the officer exercising his power of arrest and detention pending charge, or by exercising the power to detain under the Immigration Act pursuant to an authority provided by an appropriate Officer of CNLIT or by exercising the power to detain and to remove to a place of safety pursuant to the MHA. CPS liaised with CNLIT and a CNLIT Chief Immigration Officer instructed the police to detain S under immigration powers at about 17.30 hours on 3 December 2011.[231]Until that time, S was being held in custody in CPS for a dual purpose, firstly under police powers to detain a suspected illegal overstayer for up to 24 hours pending a decision by an authorised IO whether to detain the overstayer under Immigration Act powers and secondly under police powers to detain a person suspected of having committed an arrestable offence pending a decision of whether to charge him A detainee being held in custody in immigration detention must be served with detention documentation authorised by an IO of appropriate seniority within 24 hours being detained (EIG Chapter 55.6.1) and one being held in police custody must be bailed or released unless charged within 24 hours (s 41(1) of PACE unless the period is extended by a magistrates’ court (ss 42 & 43)). . The second purpose, although entirely lawful, was in this case a secondary purpose since the custody officer on duty in CPS when S was brought in under arrest liaised and acted in concert with CNLIT throughout the period prior to CNLIT’s decision to detain him under immigration powers. In relation to S’s immigration detention both before and after he had been detained under immigration powers, the police were acting as detention agents for the UKBA, again under statutory powers, and under its overall direction. (2). Detention policy[232]The SSHD’s detention policy concerned with the immigration detention of mentally disordered detainees is contained in Chapter 55 of the SSHD’s Enforcement Instructions and Guidance (“EIG”). The relevant provisions must be applied in conjunction with the Hardial Singh principles R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704, CA per Woolf J at 706D. . In summary:(1) The principles that the SSHD must observe in order to detain someone in immigration detention lawfully were those that were restated by Dyson LJ in R(I) v SSHD [2002] EWCA Civ 888, CA, [2003] 1 INLR 196. “46. … the principles that fall to be applied … were stated by Woolf J in Re Hardial Singh ibid. … . This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97, HL, per Lord Browne-Wilkinson at page 111A-D. … In my judgment, …the following four principles emerge: 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. 47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.” 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.(2) Those suffering serious mental illness which cannot be satisfactorily managed within detention and who are not CCD Criminal Casework Directive. cases are normally considered suitable for detention in only very exceptional circumstances. 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 EIG 55.10 “Persons considered unsuitable for detention”. .[233]The interrelationship between these two policies has been examined in a number of cases. The following is a summary of the applicable principles as applied to a case such as S’s:(1) There must be available objective medical evidence that establishes that the detainee is, at the material time, suffering from mental health issues of sufficient seriousness to warrant consideration of whether his circumstances are sufficiently exceptional to warrant his detention. This involves considering the nature and severity of any mental health problem and the impact of continuing detention on it (LE (Jamaica) approving Anam and R (MMH) [2012] EWCA Civ 597, CA at paragraph 41 per Richards LJ; [2009] EWHC 2496 (Admin) at para 52 per Cranston J; [2007] EWHC (2134 (Admin) at paragraph 48 per Beatson J. .(2) To come within the policy protecting those suffering from mental health illnesses, the detainee must be significantly affected by those illnesses and they cannot be satisfactorily managed in detention by appropriate medication, therapy, monitoring and other suitable methods of mental health management Anam, ibid., paragraphs 51 – 52, R (Mustafa Moussaoui) v SSHD [2012] EWHC 126 (Admin), Lindblom J, paragraph 122. .(3) Where there are conflicting or inconsistent assessments of someone’s mental health at a particular time, the court should consider whether there was then a proper basis for relying on one rather than another. This will usually be an exercise of fact-finding and inference Mustafa Moussaoui,ibid, paragraph 121. .(4) The decision-maker must start with the strong presumption in favour of release and then weigh all the other factors in the balance that must be taken into account both in favour of, and against, the decision to detain. There is a general spectrum which near one end – against detention – are those with mental illness who are similar to the average asylum seeker with a presumption of release and, near the other end – in favour of detention – are those who present a high risk if not detained whether of absconding, further offending, causing harm to others or themselves or from any other cause Anam, ibid., paragraph 53. .(5) The effective and appropriate management of a mental illness in detention extends to the management of all forms of necessary and appropriate treatment including assessment, the determination of appropriate medication and its dosage, the handling of non-compliance with medication and the denial of the need for it, the handling of adverse reactions to medication, the availability of appropriate testing, necessary therapy or psychological intervention and the risk that continued detention might worsen or prolong the nature, extent and recovery of the detainee.(6) When considering whether it will be possible to effect removal within a reasonable period, the decision-maker must have regard to all the circumstances including the psychiatric condition of the person detained or being considered for detention, the conditions in which the detained person is being or will be kept and the risk to his or her health or to himself or herself or to others if he or she is detained or continues to be detained in immigration detention as opposed to being detained in a hospital or being looked after in the community (R (MH) v SSHD [2010] EWCA Civ, CA, per Richards LJ at paragraph 65. , Lumba v SSHD [2011] 2 WLR 671, SC, per Baroness Hale at paragraph 218. and R (Das) v SSHD [2013] EWHC (Admin) 682, per Sales J at paragraph 42. ). (3). Policies governing the decision-making process - Detention Centre Rules and Operating Standards[234]There are applicable to Colnbrook and Harmondsworth, as to other detention centres, the Detention Centre Rules (“DCR”) 2001, SI 2001/238. , made pursuant to the provisions of s.153 of the Immigration and Asylum Act 1999 which came into effect on the 2 April 2001. These supplement Chapter 55 of the EIG. The relevant provisions of the EIG and the DCR provided as follows:(1) The relevant paragraphs of Chapter 55 of the EIG may be summarised as follows: (i) Detention could only be exercised where there was a realistic prospect of removal within a reasonable period (55.2). (ii) In relation to the decision to detain (excluding pre-decision fast track and CCD cases), there was a presumption in favour of temporary admission or temporary release and there had to be strong grounds for believing that a person would not comply with conditions of temporary admission or temporary release for detention to be justified. All reasonable alternatives to detention had to be considered before detention is authorised (55.3). (iii) All relevant factors had to be taken into account when considering the need for initial or continued detention including the 12 listed factors. Once detention had been authorised, it had to be kept under close review to ensure that it continues to be justified (55.3.1). (iv) In all cases, caseworkers had to consider on an individual basis whether removal was imminent. As a guide, and for these purposes only, removal could be said to be imminent where a travel document exists, removal directions had been set, there were no outstanding legal barriers and removal was likely to take place in the next four weeks. Where the detained person was frustrating removal by not co-operating with the documentation process, and where that was a significant barrier to removal, these were factors weighing strongly against release (55.3.2.4). (v) Once it had been identified that the person was one who should be detained, consideration should be given as to what, if any, level or risk that person might present whilst in detention. It was vital to the integrity of the detention estate that all potential risk factors detailed on the IS 91RA form were addressed with the form being annotated appropriately. Conclusions should be recorded as to whether or not the individual circumstances might present a potential area of risk (55.6.1). (vi) It might not be possible to address all risk factors in advance if the potential detainee, for example, had been arrested by the police and either an IO cannot immediately attend or the checks cannot be completed due to the lateness of the hour, it will be appropriate to issue an IS91 to the police with the risk factors section of the form completed and forwarded to DEPMU as soon as possible and, in all cases, no later than 24 hours after entry into detention at a police station and always before entry into the immigration detention estate is sought (55.6.1). (vii) Risk was an on-going process. Should further information become available to the Local Enforcement Office which impacts on potential risk (either increasing or decreasing risk) during a detainee’s detention, that information should be forwarded to DEPMU using form IS91RA part C. On receipt of this form (which can be completed by other UKBA or removal centre management/medical staff) DEPMU would reassess risk and relocate detention location as appropriate. Any alteration in their assessment of risk will require a new IS91 to be issued on which up-to-date risk factors would be identified. The LEO must fax this new IS91 to the detention location on receiving DEPMU’s reassessment of alteration in potential risk (55.6.1). (viii) In all cases of persons detained solely under Immigration Act powers, continued detention must as a minimum be reviewed at the points specified in the table [set out in 55.8]. At each review, robust and formally documented consideration should be given to the removability of the detainee. Additional reviews may also be necessary on an ad hoc basis, e.g. where there is a change in circumstances relevant to the detention (55.8).(2) The relevant paragraphs of the DCR may be summarised as follows: (i) Rule 33 – Medical Practitioner and Health Care Team “(1) Every detention centre shall have a medical practitioner who shall be vocationally trained as a general practitioner … (2) Every detention centre shall have a healthcare team (of which the medical practitioner will be a member), which shall be responsible for the care of the physical and mental health of the detained persons at the centre.” (ii) Rule 34 - Medical examination upon admission and thereafter “34. - (1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with rules 33(7) or (10)) within 24 hours of his admission to the detention centre. (2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.(3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request.” (iii) Rule 35 - Special illnesses and conditions (including torture claims) “35. - (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. (2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State. ….(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.” (iv) Rule 45 - General duty of officers “45. - (1) It shall be the duty of every officer to conform to these Rules and the rules and regulations of the detention centre, to assist and support the manager in their maintenance and to obey his lawful instructions. (2) An officer shall inform the manager and the Secretary of State promptly of any abuse or impropriety which comes to his knowledge. (3) Detainee custody officers exercising custodial functions shall pay special attention to their duty under paragraph 2(3)(d) of Schedule 11 to the Immigration and Asylum Act 1999 to attend to the well-being of detained persons. (4) Detainee custody officers shall notify the health care team of any concern they have about the physical or mental health of a detainee. (5) In managing detained persons, all officers shall seek by their own example and leadership to enlist their willing co-operation.(6) At all times the treatment of detained persons shall be such as to encourage their self-respect, a sense of personal responsibility and tolerance towards others.” (v) Rule 49 – Contractors Staff “49. All contractors' staff employed at the detention centre shall facilitate the exercise by the contract monitor of his functions."[235]In addition, the DCR Rules were supplemented by the Detention Services Operating Standards introduced from 2002. In the foreword to the consolidated Manual, the Director of Detention Services stated that "the standards are designed to build on the Detention Centre Rules", that "they are also a means of achieving a level of consistency" and that "they are also a public document and this makes transparent the way we expect detainees to be treated and how our centres operate more generally". The relevant provisions are as follows:(1) Paragraph 6 of the Standard relating to Admission and Discharge The Centre must ensure that all detainees are medically screened (this must include an assessment for risk of self-harm/suicidal behaviour) within two hours of admission (see also the standards on and Health Care).(2) Paragraphs 8 and 9 of the Standard relating to Case Progress These paragraphs require that when information is received by the Immigration Service representative under Rule 35 of the Detention Centre Rules it must be passed on to the relevant caseworker so that detention can be reviewed. It is also provided, in paragraph 9, that when the information received is in respect of torture under Rule 35(3) and the detainee is an asylum applicant then that information must be passed to the relevant case worker considering the asylum application. (3) The Standard relating to Healthcare 6. The Centre must ensure that all members of the healthcare team attend training relevant to the identification of those presenting with mental illness and those who may have been tortured. Details of relevant training including who attended and when must be retained by the Centre. 14. The Centre must ensure that all detainees are medically screened within two hours of admission. 15. As required by Rule 34 of the DC Rules, the centre must ensure that arrangements are in place for detainees to have a physical and mental examination by the medical practitioner within 24 hours of their arrival at the removal centre. The purpose of the initial health assessment is to identify any immediate and significant mental or physical health needs, the presence of a communicable disease and whether the individual may have been the victim of torture.[236]As the SSHD was statutorily empowered to do, the running of both Colnbrook and Harmondsworth was contracted out to an independent contractor. One provision of the contract would have required that contractor to provide a healthcare system meeting the standards of the National Health Service and another provision would have stipulated that the contractor should at all times operate the service in accordance with all relevant statutory provisions of the Immigration Act 1971 and any subordinate legislation. The contractors in this case contracted out the running of CH and HH to other independent sub-contractors who, in turn, sub-sub-contracted out at least the provision of psychiatrist provision to an individual locum and/or other independent sub-sub-contractors. Everyone in these contractual chains would have been subject to the same terms and conditions as the head contractor with responsibility for running the IRC in question. (4). Contracting out healthcare services[237]The Immigration and Asylum Act 1999, as well as conferring powers to make rules such as the Detention Centre Rules, contained a number of other provisions relating to IRCs. For example, section 148 required that a manager had to be appointed for every such centre. Section 149 (as amended) included the following provisions: “Contracting out of certain removal centres(1) The Secretary of State may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides) for the running by sub-contractors of his, of any removal centre or part of a removal centre.(2) While a removal centre contract for the running of a removal centre or part of a removal centre is in force— (a) the removal centre or part is to be run subject to and in accordance with the provisions of or made under this Part; and (b) in the case of a part, that part and the remaining part are to be treated for the purposes of those provisions as if they were separate removal centres.(3) ….(4) The Secretary of State must appoint a contract monitor for every contracted out removal centre.(5) A person may be appointed as the contract monitor for more than one removal centre.(6) The contract monitor is to have— (a) such functions as may be conferred on him by removal centre rules; (b) the status of a Crown servant.(7) The contract monitor must— (a) keep under review, and report to the Secretary of State on, the running of a removal centre for which he is appointed; and (b) investigate, and report to the Secretary of State on, any allegations made against any person performing custodial functions at that centre.(8) The contractor, and any sub-contractor of his, must do all that he reasonably can (whether by giving directions to the officers of the removal centre or otherwise) to facilitate the exercise by the contract monitor of his functions.” (a) the removal centre or part is to be run subject to and in accordance with the provisions of or made under this Part; and (b) in the case of a part, that part and the remaining part are to be treated for the purposes of those provisions as if they were separate removal centres. (a) such functions as may be conferred on him by removal centre rules; (b) the status of a Crown servant. (a) keep under review, and report to the Secretary of State on, the running of a removal centre for which he is appointed; and (b) investigate, and report to the Secretary of State on, any allegations made against any person performing custodial functions at that centre. (5). Detention Fast Track[238]The SSHD has developed speeded-up procedures for the processing of asylum claims and decisions and immigration appeals from refusal decisions in asylum claims from those who, otherwise, were considered to be appropriate for administrative removal. The relevant considerations governing a decision to transfer a detainee or proposed detainee into the DFT were set out in the DFT & DNSA – Intake Selection document. The relevant provisions of these documents may be summarised as follows:(1) Any asylum claim might be considered suitable for DFT/DNSA processes where it appeared, after screening (and absent of suitability exclusion factors) to be one where a quick decision might be made (2.2).(2) Any assessment of whether a quick decision was possible in a case must be made in light of all the facts of a case. It would be wrong to apply the indicative timescales rigidly in isolation of other relevant information (2.2.1).(3) Certain individuals were unlikely to be suitable for entry or continued management in the DFT. Those persons include: (i) Those presenting with acute psychosis, e.g. Schizophrenia who required hospitalisation (to be determined based upon the information available regarding the nature of the medical issue, and – in cases of doubt at the time of assessment – on reference to DEPMU who would be able to ascertain capacity of the appropriate IRC to manage the specific issue). (ii) Those with a disability, except the most manageable. (iii) Those with an infectious/contagious disease which cannot be effectively and appropriately managed within a detained environment.(4) The applicant must be fully screened according to the guidance notes on the screening form. (6) Mental Health Act 1982 as amended[239]The following provisions of the Mental Health Act 1982 as amended were, or might have been, relevant in relation to someone detained or being considered for detention under the Immigration Act 1971:(1) Section 2 of the 1983 Act provided for the compulsory admission to a hospital and detention there of a person for the purpose of assessment where both the substantive and the procedural criteria in that section are satisfied. The maximum period for such detention for the purpose of assessment was 28 days (subsection (4)).(2) Section 4 of the 1983 Act provided for some of the criteria in section 2 to be dispensed with where assessment is needed in cases of emergency but this only permitted compulsory admission for up to 72 hours.(3) Section 136 of the 1983 Act provided for cases that may be even more urgent. Subsection (1) stated that, if a constable found in a place to which the public have access a person who appeared to him to be suffering from mental disorder and to be in "immediate need of care or control", the constable might, if he thought it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety. A person removed to a place of safety might be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care (see subsection (2)).(4) Section 3 of the 1983 Act provided for the compulsory admission to a hospital and detention there of a person for the purpose of treatment, where the substantive and procedural criteria in that section were met.(5) The governing principle determining whether a person should be subject to any of these statutory powers was that that person is suffering from a mental disorder of a nature or degree which warrants the detention of a person in hospital for assessment or assessment followed by medical treatment for at least a limited period and he or she ought to be so detained in the interests of his or her own health or safety or with a view to the protection of other persons (see section 2(2)).(6) It can be seen, therefore, that the 1983 Act sought to cater for the various scenarios that might arise, in which very urgent cases, cases calling for assessment and cases calling for treatment can be dealt with using compulsory powers if necessary and with appropriate safeguards and time limits for the use of those powers.(7) Section 47 of the 1983 Act addressed the situation where a person serving a sentence of imprisonment needs to be transferred to a hospital for treatment because he is suffering from a mental disorder. It enabled the Secretary of State to make a "transfer direction" where the substantive and procedural criteria in that section are satisfied. It did not directly address the situation of a person who is detained under administrative powers conferred by immigration legislation but this is cross-referred to in the next provision in the 1983 Act.(8) Section 48 of the MHA provided that: “Removal to hospital of other prisoners (1) If in the case of a person to whom this section applies the Secretary of State is satisfied by the same reports as are required for the purposes of Section 47 above that – (a) that person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and (b) he is in urgent need of such treatment; and (c) appropriate medical treatment is available for him; the Secretary of State shall have the same power of giving a transfer direction in respect of him under that section as if he were serving a sentence of imprisonment. …(9) This section applies to the following persons, that is to say – … (d) persons detained under the Immigration Act 1971 or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State). …." (9) Section 53 of the MHA provided that: “Further provisions as to civil prisoners and persons detained under the Immigration Acts (1) Subject to subsection (2) below, a transfer direction given in respect of any such person as is described in paragraph (c) or (d) of section 48(2) above shall cease to have effect on the expiration of the period during which he would, but for his removal to hospital, be liable to be detained in the place from which he was removed. (2) Where a transfer direction and a restriction direction have been given in respect of any such person as is mentioned in subsection (1) above, then, if the Secretary of State is notified by the responsible clinician, any other approved clinician or the appropriate tribunal at any time before the expiration of the period there mentioned— (a) that that person no longer requires treatment in hospital for mental disorder; or (b) that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may by warrant direct that he be remitted to any place where he might have been detained if he had not been removed to hospital, and on his arrival at the place to which he is so remitted the transfer direction and the restriction direction shall cease to have effect.” (a) that that person no longer requires treatment in hospital for mental disorder; or (b) that no effective treatment for his disorder can be given in the hospital to which he has been removed,[240]Singh J in HA (Nigeria) analysed the duty of the SSHD in relation to the use of section 48 of the MHA and the transfer of immigration detainees who require hospital treatment from immigration detention to hospital in this way: “Transfer to Hospital for Assessment and Treatment 165. The Claimant submits that the Defendant breached her duty to transfer him to hospital and, in particular, that the delay between 16 January, when Dr Spoto saw him at Brook House and shortly after recommended urgent transfer to hospital, and 5 July 2010, when in fact he was transferred, was unacceptable. 166. In support of this submission the Claimant relies, by way of analogy, upon the decision of Stanley Burnton J (as he then was) in R (D) v Secretary of State for the Home Department and another [2005] 1 MHLR 17. , which concerned a prisoner rather than an immigration detainee. At para. 33 Stanley Burnton J said: "Once the prison service have reasonable grounds to believe that a prisoner requires treatment in a mental hospital in which he may be detained, the Home Secretary is under a duty expeditiously to take reasonable steps to obtain appropriate medical advice, and if that advice confirms the need for transfer to a hospital, to take reasonable steps within a reasonable time to effect that transfer. In many cases, the medical advice as to the appropriateness of a transfer will serve as the reports required by section 47 [of the MHA]. The steps that are reasonable will depend on the circumstances, including the apparent risk to the health of the prisoner if no transfer is effected. Inappropriate retention of a prisoner in a prison or YOI [Young Offenders Institution] may infringe his rights under Article 8. If the consequences for the prisoner are sufficiently severe, his inappropriate retention in a prison may go so far as to bring about a breach of Article 3, in which case the State is under an absolute duty to prevent or bring to an end his inhumane treatment." 167. The Claimant submits that, even if (as I have already indicated) section 48 of the 1983 Act does not apply to detention under the 2007 Act, the Defendant has the means to transfer immigration detainees to hospital by a variety of other means:(a) granting temporary admission or bail to permit access to community services on a voluntary basis;(b) release on temporary admission or bail on condition of transfer to a specified hospital;(c) release on temporary admission or bail on condition of transfer to a specified hospital and, if considered necessary, under compulsion by virtue of section 2 and/or section 3 of the 1983 Act;(d) a direction for detention in a hospital, under what is now paragraph 3(1)(d) of the Immigration (Places of Detention) Direction 2011 (there was a similar provision in a Direction of 2009, which was in force at the material time). 168. The Claimant also relies on the policy governing the use of the power in section 48 of the 1983 Act in relation to immigration detainees in prison at the relevant time, which was contained in Prison Service Instruction (PSI) 50/2007 and Joint Guidance issued in conjunction with the Department of Health. No such specific policy was in place for detainees in IRCs but I was informed (without contradiction by the Defendant) that it was treated by the Defendant as equally applicable in that context. The following passages were emphasised by the Claimant: ‘Need for urgency in identifying and transferring mentally ill prisoners The Head of Healthcare (HHC) at the prison, in conjunction with the Prison Mental Health Team, must ensure that prisoners, who may need treatment in hospital, are identified as soon as possible. It is Government policy that people who are suffering from mental disorder who require specialist medical treatment need to receive it from Health and Social Services. The fact that the person is a prisoner must not prevent or delay access to appropriate care and treatment, in hospital if necessary. (p.11) […] Immigration Act Detainees For those detained under the Immigration Act, Border Immigration Agency (BIA) case-workers will need to be approached by the Healthcare Manager initially for a decision on whether Temporary Admission is appropriate. Admission may be by Sections 2 / 3 if the case-worker decides on Temporary Admission. Where continued detention is required transfer will be by Section 48. If Section 48 is used it is imperative that the Border Immigration Agency case-worker is informed by the Healthcare Manager and that there is good subsequent communication between the case-worker and the patients' RMO [Responsible Medical Officer]. (p.13)’ [Emphasis added] 169. I accept the Claimant's submissions on this point. Although I have already indicated that section 48 of the 1983 Act is not available in cases of detention under the 2007 Act, and so the policy in relation to that is not directly in point, the principle of law identified by Stanley Burnton J in D is, in my judgment, equally applicable in the context of detention in IRCs, including detention under the 2007 Act. It is a principle of public law. A public authority has a duty to act rationally and will not be acting rationally if it breaches the principle identified by Stanley Burnton J. This will be particularly important in the context of a person, like this Claimant, whose transfer is recommended by a psychiatrist as a matter of urgency. 170. It is the Defendant who is in law responsible for the decision to detain the Claimant. Moreover, the Defendant is in overall control and management of IRCs through the UKBA manager and his/her team who are on the ground in an IRC. Furthermore, it is clear that, on the facts of this case, the Defendant's officers (at a senior level) were aware of this particular case and the need for the Claimant's urgent transfer to hospital.” "Once the prison service have reasonable grounds to believe that a prisoner requires treatment in a mental hospital in which he may be detained, the Home Secretary is under a duty expeditiously to take reasonable steps to obtain appropriate medical advice, and if that advice confirms the need for transfer to a hospital, to take reasonable steps within a reasonable time to effect that transfer. In many cases, the medical advice as to the appropriateness of a transfer will serve as the reports required by section 47 [of the MHA]. The steps that are reasonable will depend on the circumstances, including the apparent risk to the health of the prisoner if no transfer is effected. Inappropriate retention of a prisoner in a prison or YOI [Young Offenders Institution] may infringe his rights under Article 8. If the consequences for the prisoner are sufficiently severe, his inappropriate retention in a prison may go so far as to bring about a breach of Article 3, in which case the State is under an absolute duty to prevent or bring to an end his inhumane treatment." (a) granting temporary admission or bail to permit access to community services on a voluntary basis; (b) release on temporary admission or bail on condition of transfer to a specified hospital; (c) release on temporary admission or bail on condition of transfer to a specified hospital and, if considered necessary, under compulsion by virtue of section 2 and/or section 3 of the 1983 Act; (d) a direction for detention in a hospital, under what is now paragraph 3(1)(d) of the Immigration (Places of Detention) Direction 2011 (there was a similar provision in a Direction of 2009, which was in force at the material time). ‘Need for urgency in identifying and transferring mentally ill prisoners The Head of Healthcare (HHC) at the prison, in conjunction with the Prison Mental Health Team, must ensure that prisoners, who may need treatment in hospital, are identified as soon as possible. It is Government policy that people who are suffering from mental disorder who require specialist medical treatment need to receive it from Health and Social Services. The fact that the person is a prisoner must not prevent or delay access to appropriate care and treatment, in hospital if necessary. (p.11) […] Immigration Act Detainees For those detained under the Immigration Act, Border Immigration Agency (BIA) case-workers will need to be approached by the Healthcare Manager initially for a decision on whether Temporary Admission is appropriate. Admission may be by Sections 2 / 3 if the case-worker decides on Temporary Admission. Where continued detention is required transfer will be by Section 48. If Section 48 is used it is imperative that the Border Immigration Agency case-worker is informed by the Healthcare Manager and that there is good subsequent communication between the case-worker and the patients' RMO [Responsible Medical Officer]. (p.13)’ [Emphasis added] (7). Human Rights Act 1998[241]On behalf of S it is contended that the SSHD, in relation to S’s detention and the manner in which his detention and his mental health were managed amounted to a breach of his rights protected by articles 3 and 8 of the European Convention of Human Rights as enacted by the Human Rights Act 1998 (“HRA”).[242]The relevant applicable law was helpfully set out by Mr Elvin QC sitting as a deputy judge of the High Court in R (S) v SSHD and 4 interested parties [2011] EWHC 2120 (Admin). , another claim for unlawful immigration detention where the detainee was suffering from mental ill-health. I can do no better than to set out verbatim the relevant passages from paragraphs 187 – 189, 200 – 202 and 208 of Mr Elvin QC’s judgment which, in turn, incorporate paragraphs 46, - 47, 49, 52, 92 – 94 and 110 – 112 of the decision of the ECHR in Pretty v UK :
“(1) Relevant legal principles 187. Articles 3 and 8 ECHR provide: ‘Article 3—Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 8—Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ 188. The approach required by Article 3 is set out in [a number of authorities The judgment cited the following authorities: Suppiah & others v. SSHD & others [2011] EWHC 2 (Admin) at [150] to [156]; Pretty v. UK (2002) 35 E.H.R.R. 1; Kudla v. Poland (2002) 35 E.H.R.R. 11; Bensaid v. UK (2001) 33 E.H.R.R. 1; C; Kalashnikov v. Russia (2003) 36 E.H.R.R. 34; Keenan v. UK [2001] 33 EHRR 913; and Savage v. South Essex Partnership NHS Foundation Trust [2009] 1 A.C. 681. ] … 189. In Pretty v. UK, the ECtHR observed in terms frequently repeated by that Court that: ‘49. Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe. In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention.’ 190. At [50] to [51] the ECtHR referred to both the positive and negative obligations under Article 3, namely "to refrain from inflicting serious harm on persons within their jurisdiction" (negative) and "to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals" (positive). 191. As to the threshold of severity of treatment which engages Article 3, at [52] the Court stated it in terms which included both the physical and mental aspects of treatment: ‘52. As regards the types of "treatment" which fall within the scope of Article 3 of the Convention, the Court's case law refers to "ill-treatment" that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. 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 and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’ 192. The latter part of that passage makes it clear that the exacerbation of existing mental illness by the conditions of detention may fall within Article 3. It appears to me that this formulation is wide enough also to encompass the effects of detention itself in a sufficiently extreme case, of which this is said to be one. … 194. The severity of the treatment is a relative question and must be assessed on the individual facts: ‘…it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.’ (Kalashnikov at [95]) 195. The relationship between Articles 3 and 8 was considered in Bensaid, where the ECtHR made it clear that even if the treatment of a mentally ill person did not cross the Article 3 threshold it might nonetheless breach Article 8 (though finding no breach on the facts): ‘46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity. 47. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.’ 196. In Kudla v. Poland the Court considered the implications of criminal detention: ‘92. ... the Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. 93. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that the execution of detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment. 94. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measures 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 wellbeing are adequately secured by, among other things, providing him with the requisite medical assistance.’ 197. In Kudla, where the fact that authorities were properly informed as to the claimant's mental condition and a psychiatric report had been obtained which found that his mental condition was compatible with detention meant there had not been ill-treatment at the level of severity required to breach Article 3, the Court noted at [99] ‘... that the very nature of the applicant's psychological condition made him more vulnerable than the average detainee and that his detention may have exacerbated to a certain extent his feelings of distress, anguish and fear.’ 198. Vulnerability will not of itself establish a breach, nor the mere fact that detention may exacerbate "to a certain extent" the mental suffering experienced. That does not mean, however, that any increase in suffering would not reach the requisite level of severity. 199. Further, it is not necessary that the authorities should have any intention to inflict suffering on the subject: ‘101. The Court accepts that in the present case there is no indication that there was a positive intention of humiliating or debasing the applicant. However, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot exclude a finding of violation of Art.3 ... 102. ... the Court finds the applicant's conditions of detention, in particular the severely overcrowded and insanitary environment and its detrimental effect on the applicant's health and well-being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment.’ (Kalashnikov at [101], [102]) 200. In Keenan v. UK the Court considered the implication of the suicide of the claimant's mentally ill son, serving a sentence of four months imprisonment, and who had received additional punishment for assaulting prison officers in the form of a period of segregation and an extension of his sentence by 28 days. The Court found a violation of Article 3 though not of Article 2. It considered both the duty imposed in cases of mental illness and the difficulty which may arise in assessing to what extent the illness is exacerbated by the conditions of detention. ‘110. It is relevant in the context of the present application to recall also that the authorities are under an obligation to protect the health of persons deprived of liberty. The lack of appropriate medical treatment may amount to treatment contrary to Article 3. In particular, the assessment of whether the treatment or punishment concerned is incompatible with the standard of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment. 111. The Court recalls that Mark Keenan was suffering from a chronic mental disorder, which involved psychotic episodes and feelings of paranoia. He was also diagnosed as suffering from a personality disorder. ... That he was suffering anguish and distress during this period and up until his death cannot be disputed. ... However, as the Commission stated in its majority opinion, it is not possible to distinguish with any certainty to what extent his symptoms during this time, or indeed his death, resulted from the conditions of his detention imposed by the authorities. 112. The Court considers however that this difficulty is not determinative of the issue as to whether the authorities fulfilled their obligation under Article 3 to protect Mark Keenan from treatment or punishment contrary to this provision. While it is true that the severity of suffering, physical or mental, attributable to a particular measure has been a significant consideration in many of the cases decided by the Court under Article 3, there are circumstances where proof of the actual effect on the person may not be a major factor. For example, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3. Similarly, treatment of a mentally-ill person may be incompatible with the standards imposed by Article 3 in the protection of fundamental human dignity, even though that person may not be capable of pointing to any specific ill-effects.’ 201. The factors which the Court considered of relevance to its finding of breach were: first, the lack of medical notes for a man known to be a suicide risk which showed "an inadequate concern to maintain full and detailed records of his mental state and undermines the effectiveness of any monitoring or supervision process" [113]; secondly, despite an examination on admission, no further expert psychiatric report was obtained whether before or after the assaults or the adjudication [114]; thirdly, the failures to carry out effective monitoring and obtain expert advice disclosed "significant defects in the medical care provided to a mentally-ill person known to be a suicide risk" [115]; and the additional punishment shortly before the due release date "which may well have threatened his physical and moral resistance" was "not compatible with the standard of treatment required in respect of a mentally-ill person" [115]. 202. The implications of Keenan for the positive duty are clear: in the case of severe mental illness, there must be in place effective monitoring of the detainee and the obtaining of suitable expert advice as to how that person should be dealt with and treated. … 208. In applying the positive duty under Article 3 it is not appropriate to "wait and see" what occurs if there are grounds for harm occurring which would pass the Article 3 threshold but to take an informed decision to prevent such harm occurring. See the decision of Collins J. in granting bail in the SIAC case of G Appeal SC/2/2002, bail application SCB/10, 20.5.04) at paras 11-12. , albeit exceptionally, where there was a real risk of harm to G if the subject were detained on the basis of expert evidence that detention had a damaging effect on his mental health. This was notwithstanding the fact that the Commission was satisfied there was a reasonable suspicion that G was an international terrorist and "was more dangerous than some". It nonetheless considered matters which were not considered by the SSHD in this case: ‘... it would in our view only be appropriate to consider granting bail if we were satisfied that a result of not granted it would be an overwhelming likelihood that the detainee's mental or physical condition would deteriorate to such an extent as to render his continued detention a breach of Article 3, because inhuman, or Article 8, because disproportionate. The imminence and predictability of any such breaches are obvious relevant factors.’” ‘Article 3—Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 8—Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ ‘49. Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe. In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention.’ ‘52. As regards the types of "treatment" which fall within the scope of Article 3 of the Convention, the Court's case law refers to "ill-treatment" that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. 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 and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’ ‘…it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.’ (Kalashnikov at [95]) ‘46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity. 47. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.’ ‘92. ... the Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. 93. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that the execution of detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment. 94. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measures 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 wellbeing are adequately secured by, among other things, providing him with the requisite medical assistance.’ ‘... that the very nature of the applicant's psychological condition made him more vulnerable than the average detainee and that his detention may have exacerbated to a certain extent his feelings of distress, anguish and fear.’ ‘101. The Court accepts that in the present case there is no indication that there was a positive intention of humiliating or debasing the applicant. However, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot exclude a finding of violation of Art.3 ... 102. ... the Court finds the applicant's conditions of detention, in particular the severely overcrowded and insanitary environment and its detrimental effect on the applicant's health and well-being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment.’ (Kalashnikov at [101], [102]) ‘110. It is relevant in the context of the present application to recall also that the authorities are under an obligation to protect the health of persons deprived of liberty. The lack of appropriate medical treatment may amount to treatment contrary to Article 3. In particular, the assessment of whether the treatment or punishment concerned is incompatible with the standard of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment. 111. The Court recalls that Mark Keenan was suffering from a chronic mental disorder, which involved psychotic episodes and feelings of paranoia. He was also diagnosed as suffering from a personality disorder. ... That he was suffering anguish and distress during this period and up until his death cannot be disputed. ... However, as the Commission stated in its majority opinion, it is not possible to distinguish with any certainty to what extent his symptoms during this time, or indeed his death, resulted from the conditions of his detention imposed by the authorities. 112. The Court considers however that this difficulty is not determinative of the issue as to whether the authorities fulfilled their obligation under Article 3 to protect Mark Keenan from treatment or punishment contrary to this provision. While it is true that the severity of suffering, physical or mental, attributable to a particular measure has been a significant consideration in many of the cases decided by the Court under Article 3, there are circumstances where proof of the actual effect on the person may not be a major factor. For example, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3. Similarly, treatment of a mentally-ill person may be incompatible with the standards imposed by Article 3 in the protection of fundamental human dignity, even though that person may not be capable of pointing to any specific ill-effects.’ ‘... it would in our view only be appropriate to consider granting bail if we were satisfied that a result of not granted it would be an overwhelming likelihood that the detainee's mental or physical condition would deteriorate to such an extent as to render his continued detention a breach of Article 3, because inhuman, or Article 8, because disproportionate. The imminence and predictability of any such breaches are obvious relevant factors.’”
[243]In summary, the relevant legal principles applicable to the facts of this case are as follows:(1) Whilst in detention, S was not to be subjected to inhuman or degrading treatment (article 3). This right was unqualified. It covered the negative obligation to refrain from inflicting serious harm on S and the positive obligation to take measures designed to ensure that S was not subjected to inhuman and degrading treatment.(2) The type of treatment falling within the scope of article 3 must have attained a minimum level of severity involving intense physical and mental suffering. Degrading treatment would have involved treatment that humiliated or debased S, that showed lack of respect for or diminished his human dignity or which aroused feelings of fear, anguish or inferiority. The suffering flowing from naturally occurring mental illness would be covered where its risk was or might have been exacerbated by treatment, whether flowing from conditions of detention or, in an extreme case, from the effects of detention or expulsion.(3) The severity of treatment is both relative and dependent on the facts of each case. Relevant considerations include whether the conditions of detention were compatible with respect for S’s human dignity, whether the manner and method of execution of the measures in question subjected him to distress or hardship exceeding the unavoidable level of suffering inherent in detention and whether he was provided with the requisite medical assistance.(4) Further relevant considerations included whether there was a lack of medical notes and inadequate concern to maintain full and detailed records of S’s mental state that undermined the effectiveness of any monitoring or supervision process, a failure to obtain up to date expert psychiatric reports, a failure to carry out effective monitoring and the imposition of additional measures such as punishment or those unnecessarily arising from the immigration and removal processes which were not compatible with the standard of treatment required in respect of a mentally ill person.(5) It was necessary in the case of severe mental illness for there to be effective monitoring and the obtaining of suitable expert advice as to how S should be dealt with and treated. It was not appropriate to “wait and see” whether harm that engaged article 3 occurred before taking steps to monitor or treat S. Instead, where there was a real risk that detention would have a damaging effect on S, an informed decision had to be taken to adopt measures that would prevent such harm occurring.(6) S also had the right to respect for his private life which was not to be interfered with save as was in accordance with the law, necessary in a democratic society in the interests of public safety or the country’s economic well-being, the protection of health or of the rights and freedoms of others (article 8). This right was qualified but any permitted interference with it had to be proportionate.(7) Not every act or measure which adversely affected S’s moral or physical integrity would have interfered with his right to respect to private life. However, that right would be interfered with if there were sufficiently adverse effects on that integrity even if the treatment did not reach the severity of treatment engaging article 3.(8) Mental health is a crucial part of private life associated with moral integrity. Article 8 protected the right to identity and personal development and the right to establish and develop relationships with other human beings and the outside world and the preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life. (8) Equality Act 2010[244]The amendment to EIG 55.10 that occurred from 26 August 2010 gives rise to a significant issue as to its lawfulness as it applied to S. He was suffering from a mental illness and he was also a foreign national and both of these characteristics are protected characteristics. The Equality Act 2010 consolidated and expanded upon existing legislation aimed at the elimination of all forms of discrimination, in this case being discrimination on racial and disability grounds. The particular provision of the Equality Act in this case is section 149 which imposes on the SSHD a public sector equality duty in these terms:
“149 Public sector equality duty (1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (a). tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act. (7) The relevant protected characteristics are— age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation.”
[245]Prior to the amendment, the policy relating to persons considered suitable for detention in only very exceptional circumstances included “the mentally ill”. After the amendment had taken effect, such persons were redefined to be “those suffering serious mental illness which cannot be satisfactorily managed within detention”. This amendment, whether or not it amounted to a change of policy, required the SSHD, as part of its public sector equality duty, to undertake an Equality Impact Assessment of the proposed reformulation of the policy to ascertain whether the reformulated policy increased the risk that its implementation would give rise to discrimination against those suffering from mental illness or whether the policy could or should be reformulated so as to reduce that risk. The risk in question was whether those immigration detainees who were suffering from serious mental illness could not or would not be satisfactorily managed in an IRC.[246]In HA [2012] EWC 979 (Admin). , it was submitted on behalf of the SSHD that the amendment did not, and was not intended to, amend the policy but instead was intended to clarify what had always been the policy but which previous judicial decision had misinterpreted. Singh J held that the objective meaning of the wording had the effect that there was a change of policy. Subsequently, in LE (Jamaica) ibid, per Richards LJ at paragraph 41. , the Court of Appeal held that the SSHD’s submission was correct and that, in its context in EIG paragraph 55.10, the amendment had not caused there to be a change in policy but rather it had been intended to and had achieved a clarification of the existing policy.[247]However, Singh J also held that even if the amendment had not changed the policy set out in EIG paragraph 55.10 as it affected the immigration detention of the mentally ill, there should have been an EIA assessment before the amendment was introduced. His reasoning and conclusion were as follows: “187. The understanding of the Defendant as to the intended effect of the reformulation of the policy was that it related to "a practical consideration" (see Mr Barrett's witness statement, para. 37) where "the evidence indicates clearly that intensive physical or mental medical management is needed as to whether, exceptionally, those conditions cannot be managed within the special conditions that apply within immigration detention". At para. 39 Mr Barrett explains the concern that led to the change in the EIG as follows: "the words (of the pre-August policy) led the Court to attribute a meaning to the guidance which did not reflect the actual policy. The Secretary of State was concerned that there was a disjuncture between the guidance as interpreted and the policy, so the terms of the guidance were updated by the addition of a few words to say explicitly what had always been understood as the policy". 188. The review and decision to reformulate the policy was introduced without any prior notice or consultation with relevant government departments, for example the Department of Health; or Primary Care Trusts, in particular those serving the main detention centres such as Hillingdon PCT; or relevant non-governmental organisations like MIND, the Medical Foundation, Bail for Immigration Detainees and Medical Justice. 189. Concern about the implementation of this and other policy changes without consultation and regard to the public sector equality duties was raised by the Immigration Law Practitioners Association in a letter dated 11 October 2010 with particular emphasis on the mentally ill at paragraphs 7-21. 190. A response to this letter was provided on 20 December 2010 by Alan Kittle, the Director of Detention Services, in which he confirmed that the reformulation of the policy was not "considered to be a change in policy rather it reflected more explicit statement of our existing policy. It follows that we did not consider it necessary to consult on the issue and that it was not necessary to prepare an equality impact assessment". It was acknowledged that there had never been any equality impact assessment [EIA] of the original policy and it was said that "we will undertake an EIA when we are in a position to do so." 191. A similar point is made in the evidence of Mr Barrett at para. 39, who states that there was no need to make any assessment of the impact of the change for the purpose of the equality and disability legislation as it would have produced nil returns since there "can be no impact if there is no actual change". 192. The Claimant submits that the following principles are now well-established in respect of the public sector equality duties:(1) The obligation to have due regard to the need to eliminate discrimination and promote equality of opportunity etc. is mandatory and is a continuing one.(2) The duty must be fulfilled before and at the time that a particular policy or decision is under consideration, not afterwards. For example, in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, at paragraph 274. : ‘It is the clear policy of section 71 [of the 1976 Act] to require public bodies to whom that provision applies to give advance consideration of race discrimination before making any policy decision that might be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter.’(3) The duty applies to both formulation of policy and decisions of public authorities: R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, at paragraph 29. and R (JL) v Islington LBC [2009] EWHC 458 (Admin), at paragraph 114. . 193. The Claimant also submits that on the evidence before the Court, which includes evidence filed on behalf of a number of relevant non-governmental organisations, it is clear that there are serious concerns which have been raised about the impact that the new wording of the policy in August 2010 may have on people with mental illness (hence the relevance of section 49A of the 2005 Act) and on people from minority ethnic communities, since detention for immigration purposes affects foreign nationals (hence the relevance of section 71 of the 1976 Act). 194. In my judgement there was a change in at least the stated policy. There was obviously a change of wording, in other words a reformulation of it. Even if the Defendant did not intend that to be a substantive change in her own policy, there are two reasons why the public sector equality duties were triggered by that reformulation. The first is that the meaning of a policy is an objective matter: whatever the subjective intentions of its authors, the formulation matters because the words which express a policy affect the public, not just officials within a department, for example individuals who are liable to detention and those who advise them. The reason why public law has in recent years come to recognise the importance of adherence (in general) to policy statements is that they serve an important function in maintaining the rule of law, which is of particular importance when fundamental rights such as the right to personal liberty are at stake. 195. The second reason is that, even on the Defendant's own evidence, she was seeking to reformulate the policy to re-align it to what had been thought within the department to be its practice all along. The courts had given an interpretation to the policy which did not accord with the practice of the Defendant's department. But that is implicitly to acknowledge that in fact there was a change of policy if not of practice. It was common ground before me that, in the present context at least, the meaning of a policy is ultimately a question for the courts, not one for the executive. If that is right, then when the words of a policy are altered, that is a change in policy. It was clearly intended to have some effect, otherwise it would have been a pointless exercise. 196. It was argued on behalf of the Claimant that, even if there was no change in policy, the public sector equality duties were applicable since they do not require there to have been a change: they apply in the exercise of a public body's functions generally. Although I see force in that submission, it is unnecessary to consider it further since the Defendant accepts in these proceedings that, if there was a change of policy in August 2010, the usual practice under the public sector equality duties was not followed. For example, there was no equality impact assessment. In my judgement, there was a breach of the duties in section 71 of the 1976 Act and section 49A of the 2005 Act. 197. It was common ground before me that, nevertheless, the Court has discretion whether to grant any remedy. I was invited to exercise that discretion in favour of the Defendant, especially since I was informed that the Defendant is currently in the process of carrying out an equality impact assessment. However, it became clear after the hearing that, in fact, this has not yet started. In a witness statement filed on 23 March 2012 Mr Kittle, who is the Director of the Returns Directorate of the UKBA, informs the Court, at para. 2, that: ‘… the Secretary of State takes the duties under the Disability Discrimination Act 1995 (DDA 1995) [sic] and Race Relations Act 1976 (RRA 1976) seriously across the full range of areas of responsibility. The Secretary of State benefits from a whole range of sources of ongoing information and advice on issues arising in relation to administrative detention generally and detention of those with mental illness in particular including public bodies and non-governmental organisations.’ 198. At para. 3, Mr Kittle provides an undertaking to the Court in these terms: ‘The Secretary of State is committed to undertaking a formal Equality Impact Assessment of the policy concerning the detention under immigration powers of those suffering from mental illness. I undertake to ensure that this EIA is commenced within 7 days from the date of this statement.’ 199. I do not consider that it would be appropriate to exercise the Court's discretion to refuse any remedy to the Claimant in this regard, for the following reasons. First, as has been acknowledged in the authorities, the duties are important ones and non-compliance cannot be regarded as unimportant. Secondly, they must normally be followed before a relevant decision is taken, not afterwards. This is in accordance with normal principles of administrative law: whenever a relevant consideration is not taken into account, the normal remedy will be for the Court to quash the resulting decision, or at least declare it to be unlawful: see e.g. Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655, 694A and 695A per Lord Diplock. ; and R (C) v Secretary of State for Justice [2008] EWCA Civ 882. . It is not normally for the Court to anticipate or pre-empt what a lawful decision would be if the correct process had been followed. This is precisely because the function of the court in judicial review cases is to assess the legality of the executive's actions and not to substitute its own view of the merits of a decision or policy. Thirdly, it seems to me that the context of personal liberty is important. It may well be that individuals have been detained under the new formulation of the policy who would not have been detained under the old one. Fourthly, although section 71 of the 1976 Act and section 49A of the 2005 Act have been repealed, they have been replaced by similar provisions in section 149 of the Equality Act 2010. As Mr Kittle's witness statement makes clear in the passages I have already quoted, the Defendant takes those duties seriously and is committed to undertaking a full EIA in the present context. The issue is on any view far from academic. 200. The Claimant further submitted that the policy was unlawful because it creates an unacceptable risk or serious possibility of unlawful decision making and, in particular, a risk of violation of human rights under Articles 3 and 8. However, it seems to me to be unnecessary to address that submission in the light of my decision that the policy was unlawful because it failed to comply with the public sector equality duties. There will have to be a reconsideration of the policy in the light of this judgment. Furthermore, the Defendant is committed to a consultation exercise, as Mr Kittle says in the passages I have quoted, in which the views of interested organisations will be taken into account. The policy may well end up in a form which is satisfactory to those organisations or which, on any view, does not carry the risks of which the Claimant complains.” (1) The obligation to have due regard to the need to eliminate discrimination and promote equality of opportunity etc. is mandatory and is a continuing one. (2) The duty must be fulfilled before and at the time that a particular policy or decision is under consideration, not afterwards. For example, in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, at paragraph 274. : ‘It is the clear policy of section 71 [of the 1976 Act] to require public bodies to whom that provision applies to give advance consideration of race discrimination before making any policy decision that might be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter.’ (3) The duty applies to both formulation of policy and decisions of public authorities: R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, at paragraph 29. and R (JL) v Islington LBC [2009] EWHC 458 (Admin), at paragraph 114. . ‘… the Secretary of State takes the duties under the Disability Discrimination Act 1995 (DDA 1995) [sic] and Race Relations Act 1976 (RRA 1976) seriously across the full range of areas of responsibility. The Secretary of State benefits from a whole range of sources of ongoing information and advice on issues arising in relation to administrative detention generally and detention of those with mental illness in particular including public bodies and non-governmental organisations.’ ‘The Secretary of State is committed to undertaking a formal Equality Impact Assessment of the policy concerning the detention under immigration powers of those suffering from mental illness. I undertake to ensure that this EIA is commenced within 7 days from the date of this statement.’[248]In summary, the relevant legal principles applicable to the facts of this case are as follows:(1) EIG Paragraph 55.10 had always, given its context, objectively only referred to those suffering from a serious mental illness which could not be satisfactorily managed within detention and the August 2010 amendment merely clarified the wording so as to make it clear that that is what it had previously meant.(2) However, in the light of court decisions and a wide-spread misunderstanding of the previous wording, many of those suffering from mental illness were released from detention even though they were not subject to release because their mental illness was not serious enough to engage the policy and/or the mental illness however severe could have been satisfactorily managed within detention. In short, it was now clear that some mentally ill detainees would have been detained before August 2010 since they were suffering from a mental illness but it was not sufficiently serious and/or was manageable in detention.(3) In those circumstances, the SSHD should have, but did not, undertake an Equality Act Impact Assessment before introducing the reformulated wording and was, thereby, in breach of its public sector equality duties. The policy, in its reformulated form was, and was declared to be in HA, unlawful.(4) The SSHD undertook to commence an EIA of the reformulated policy enshrined in EIG paragraph 55.10 within 7 days of 23 March 2012 and to complete and publish the results of that assessment. No such published results have yet occurred and there was no evidence from the SSHD as to whether the promised EIA had been started, as to whether it was still being carried out, as to when it would be published in the future or as to whether no EIA would ever be published.[249]No submissions were advanced as to whether the effect of LE (Jamaica) was to overrule Singh J’s determination that the reformulated wording in EIG paragraph 55.10 was unlawful and as to the effect, in this case, of the continuing failure to undertake and publish an EIA of the reformulated wording in the light of previous practice and any future changed practice following its promulgation in August 2010. In the light of my findings of fact, I do not have to decide this difficult issue of law See paragraphs 250 – 252 & 417 below for an explanation of why the issue does not arise and of the significance and relevance of the absence of an EIA in this case. . This is because I have concluded that S’s mental illness was, throughout his time in custody both serious and not capable of being managed satisfactorily by either CH or HH.[250]However, I acknowledge that there is no bright line that can be drawn between someone whose mental illness consists of florid or active psychosis and who requires continuous and long-term assessment, treatment and health management who is properly to be regarded as suffering from a serious mental illness that cannot be satisfactorily managed in detention and one who does not cross this threshold as a result of the less serious nature of his illness and/or the ability of an IRC to manage his illness. On the SSHD’s case, S falls into the latter category and, if that was so, would be someone who would still be subject to release from detention – absent exceptional circumstances – under the policy as previously applied since he was undoubtedly “mentally ill” even though he would not on this hypothesis have been suffering from a “serious mental illness” and/or was one whose illness however serious could be managed in detention.[251]To express the potential issue in these theoretical terms is somewhat unreal and impractical in a case such as this given the fluid nature of psychotic illness and its assessment, treatment and management. The test that must be applied, whether as originally or currently formulated, has to address the specific facts of a particular case. In the light of the foregoing analysis of Singh J in HA, it is clear that a mentally ill detainee must be presumed to fall outside the scope of the reformulated policy unless and until it is clear that the policy is applicable. This requires it to be shown that his illness is not serious on any objective application of that concept to his particular illness. It also requires it to be shown that the particular IRC that he is to be detained in has healthcare facilities which currently are capable of managing that illness which, in the context of a psychotic illness, includes its on-going assessment over the necessary period of assessment, its treatment including the potentially difficult and long-term task of identifying the appropriate medication and its dosage needed to obtain and maintain the stabilisation of the illness and the provision of all other reasonably necessary therapeutic measures.[252]In summary, therefore, I apply the relevant law in this way. The reformulated policy wording is to be applied to the facts of this case. It will only be applicable so as to justify detention if those facts clearly bring this case within its scope and ambit. Moreover, even if this case falls within that scope and ambit, the overarching Hardial Singh/I principles must still be applied so that detention would only be justified if it can be brought within the scope of a combined application of those principles and the scope and ambit of the reformulated EIG paragraph 55.10. V. Analysis of the Facts – General Matters (1). S’s mental illness[253]Diagnostic summary. The following is a summary of the progressive diagnoses of S’s mental illness starting not long before he was arrested and detained and culminating in his treatment after his release from immigration detention. The consistent series of diagnoses may be summarised as follows:(1) On 13 September 2010, S was provisionally diagnosed by a psychiatrist member of the BCLPS as suffering from a mild to moderate depressive episode.(2) On 3 December 2011, having been observed acting strangely in the street on 2 December 2011 and on arrest and in CPS after arrest on 3 December 2011, he was diagnosed by a General Practitioner FME who had been called into the police station to examine him in CPS as possibly suffering from Schizophrenia.(3) On 7 December 2011, he was diagnosed in Colnbrook by a locum CH psychiatrist Dr Allen as possibly suffering from Schizophrenia or other psychotic illness that required a full assessment by a psychiatric team in a hospital setting.(4) On 21 December 2011, he was diagnosed in HH by an independent psychiatrist Professor Katona Using the DSM-IV-TR diagnostic criteria. as suffering from a florid psychosis with symptoms of cognitive impairment, perplexity, suspiciousness and severe depressive symptoms that required urgent transfer to a psychiatric hospital for assessment and appropriate management and treatment.(5) On 24 December 2011, he was diagnosed in HH by a HH locum psychiatrist Dr Burrun as suffering from a mixed anxiety and depressive disorder.(6) On 6 March 2012, he was diagnosed by Professor Katona following a second assessment in HH as suffering from Schizophrenia of the paranoid subtype.(7) On 8 March 2012, he was diagnosed by Dr Burrun following a second assessment in HH as suffering from mixed anxiety and depression with possible psychotic symptoms.(8) On 10 May 2012, he was diagnosed by Dr Ahmad, a psychiatrist member of Yewcroft as suffering from Schizophrenia with schizotypal and delusional disorders Using the ICD 10 F200 diagnostic criteria. .(9) On 26 July 2012, a further Yewcroft assessment was carried out by an individual described as a “medical – basic trainee”. The report stated that he continued to have delusions of a nature that were consistent with Dr Ahmad’s diagnosis of Schizophrenia.(10) On 15 March 2013, in a report prepared by Professor Katona for this judicial review, he was confirmed as suffering at the time of his immigration detention from paranoid Schizophrenia whose increasingly prominent features were its depressive, delusional elements. That diagnosis was, in Professor Katona’s words, as follows: “6.1 I remain of the opinion that at the time of his immigration detention, [S] was suffering from paranoid Schizophrenia. It is clear from the documentation of [S’s] past documented episode of illness (in 2010) that although the prominent features were depressive, delusional elements were becoming increasingly prominent. In addition, the detailed descriptions of [S’s] symptoms and signs during his initial period of detention in December 2011 show clear evidence of prominent delusions and hallucinations in keeping with a diagnosis of Schizophrenia. 6.2. As I stated in my original report, it was clear by March 2012 that [S] had a psychotic illness. He had a complex persecutory delusional system as well as delusions of control and reference, and has both auditory and visual hallucinations (the former in the third person). As I stated in that report he fulfilled the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders for paranoid Schizophrenia 6.3. It is also clear that following his release from detention, [S’s] psychotic features continued to increase in prominence (as documented by Dr Ahmad and his colleagues) and that they came to the same diagnostic conclusion as I did. 6.4. I would however emphasise that it is surprising (and of clinical concern) that throughout [S’s] time in immigration detention, the possibility of organic psychosis secondary to HIV infection was not excluded in the context of repeated equivocal blood tests.” (2) The nature of Schizophrenia (2) The nature of Schizophrenia[254]Mental illness and mental disorders. It is now clear that S was suffering from paranoid Schizophrenia, a potentially serious mental illness, throughout his time in detention. EIG paragraph 55.10 refers to “mental illness” but since the extensive amendment of the MHA in 2007, mental illness is no longer a term that is used in the MHA which instead refers to “mental disorders” which are defined in the Mental Health Code of Practice Code of Practice MHA prepared in accordance with section 118 of the MHA. The Code came into force on 3 November 2008. as any “disorder or disability of the mind”. “Mental disorders” is a composite term that embraces the previous discrete categories provided for in the unamended MHA of “mental illness”, “mental impairment”, “psychopathic disorder” and “severe mental impairment”. Similarly, article 5 of the ECHR permits the lawful detention of persons of “unsound mind”, a concept which the European Court of Human Rights has held to be constantly evolving as a greater understanding of the problems of mental patients becomes more widespread. The flexibility of terminology found in the amended MHA The MHA 1983 was substantially amended by the MHA 2007. has not been adopted for use in EIG paragraph 55.10 which still refers exclusively to mental illness and the mentally ill. However, as Richards LJ stated in R(LE (Jamaica)) [2012] EWCA Civ 597, CA at paragraph 32. , the term “mentally ill” was apt to include any form of diagnosable mental illness and there could be no doubt that paranoid Schizophrenia was a mental illness within the meaning of the EIG Albeit an earlier version of the policy contained in paragraph 38.10 of the Operational Enforcement Manual but the relevant wording was transposed from that policy to EIG 55.10. . It follows that Schizophrenia, psychosis and delusional disorder are, whether considered in combination or separately, core mental disabilities that fall within each of the named categories of mental illness, disorder or disability of the mind or unsound mind.[255]Diagnostic criteria of Schizophrenia. Schizophrenia, like many mental illnesses, was diagnosed by Professor Katona by reference to the commonly used diagnostic criteria set out in the American Psychiatric Association Manual and which are similar to the other commonly used diagnostic criteria defined by the World Health Organisation The Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association (DSM- IV-TR) (2000) used by Professor Katona in his diagnoses in this case. A new version was published in May 2013 (DSM 5) (2013) and is now in use. The other diagnostic guide is the International Statistical Classification of Diseases and Related Health Problems (ICD), produced by the World Health Organization. . To be diagnosed with Schizophrenia, as defined in the APA Manual, a person must display characteristic symptoms of Schizophrenia, social or occupational dysfunction and an appropriate duration of the signs of disturbance. Thus:(1) Characteristic symptoms. Two or more of the listed characteristic symptoms must have each been present for a significant portion of time during a one-month period or less if successfully treated. These symptoms are (i) delusions; (ii) hallucinations; (iii) disorganised speech defined as frequent derailment or incoherence or speaking in abstracts; (iv) grossly disorganised behaviour - such as dressing inappropriately or crying frequently - or catatonic behaviour; (v) negative symptoms such as affective flattening defined as lack or decline in emotional response, alogia defined as lack or decline in speech or avolition defined as a lack or decline in motivation.(2) Social or occupational dysfunction. There must have been a markedly lower level of functioning in one or more areas of functioning such as work, interpersonal relations or self-care for a significant portion of time since the onset of the disturbance than that that was achieved prior to the onset.(3) Duration. Continuous signs of the disturbance must persist for at least six months, a period that must include at least one month of symptoms (or less if successfully treated). The paranoid subtype of Schizophrenia is where delusions and hallucinations are present but thought disorder, disorganised behaviour and affective flattening are absent.[256]Underlying causes. The underlying causes of these symptoms of Schizophrenia are only understood in general terms. So much so that, particularly in the early stages of diagnosis, they may often be referred to as the manifestation of a psychosis which is a generic psychiatric term for a mental state characterized by loss of contact with reality. These symptoms are thought to have multiple causative factors including genetic make-up and birth trauma. Acute episodes are often triggered by traumatic life events. However, the same symptoms can also have organic causes and it is often necessary, as in S’s case, to screen out or confirm possible organic causes such as HIV since the necessary treatment will be different and possibly more extensive. Similarly, there will often be a complex inter-relationship between a mental disability and physical ill-health so that the diagnosis, treatment, prevention and cure of a sufferer’s physical ill-health must go hand-in-hand with treatment for any mental disorder. A yet further difficulty is that mental disability is not neatly packaged into watertight compartments or clutches of symptoms so that the necessary assessment and treatment must be tailored to the full range of symptoms and disabilities that the sufferer presents with.[257]Insufficient was discovered about S’s life and its potentially causative events to enable anyone to identify with certainty the causes of his paranoid Schizophrenia but it is clear from what was learnt from him in the various interviews conducted by the several psychiatrists he was assessed by in the period September 2010 – August 2012 that there were many possible candidates for its triggering event or events. These could have included any of the following possible events which his remarks have on occasion alluded to: S’s possible ill-treatment when he was a child, the untimely death of both his parents in rapid succession, the deaths of four of his siblings at relatively young ages, his and his family’s experiences of the activities of pagan spiritualists whom he referred to as the “Fetish Tradition”, his self-reported unhappy marriage and its termination, his possibly ambivalent relationship with his sister who he lived with or close by to for a time in England and, as reported by him, her mental health difficulties, his isolation and his penurious and chaotic lifestyle whilst living in England, his terror of being returned to Ghana and his uncertainty as to whether he was an HIV sufferer. What is clear from the totality of the diagnoses is that Dr Burrun’s attribution of the trigger of S’s psychosis to his situational stress due to his immigration difficulties in his report dated 20 March 2012 was unduly limited albeit that his situational stress could have contributed to the enhancement of his symptoms whilst he was in immigration detention.[258]Nature of mental illness. Schizophrenia and other similar mental disorders affect each sufferer in different ways. Its initial manifestation can occur at any age, its intensity can vary over time and it can be subject to variable periods of remission and relapse often as a result of a patient’s failure to maintain his prescribed medication. Its ill-effects can usually be controlled by antipsychotic medication but its underlying symptoms are usually never eliminated. Diagnosis is often a long and difficult process. Many sufferers are and remain in denial of their mental disorder and of the need to take and maintain their prescribed medication particularly since there is still wide-spread cultural, historic and ill-informed aversion to mental ill-health. In an acute form and if untreated, its effects on the mental and physical health of a sufferer can be devastating. The purpose of medication is to control a patient’s psychotic, depressive, anxiety and other symptoms and to ameliorate their ill-effects. These ill-effects can include the impairment of a patient’s mental capacity, general health and ability to function. Many patients will be at risk of causing themselves or others harm.[259]The illness and its treatment. Assessment, diagnosis, stabilisation, treatment and long-term control of the illness are usually part of a lengthy and seamless process the whole of which can and should be regarded as part of the treatment and management of a patient’s mental disability or mental illness. The treatment will therefore usually consist of a combination of assessment, medication, monitoring, therapy of various kinds, education about the illness and the need to self-administer controlling medication indefinitely, occupational therapy and psychological and other interventions aimed at assisting a patient to live and cope with the illness in question, to minimise the re-occurrence of potential triggering events and to recognise and cope with the signs of re-occurrence if they re-appear in the future. The identification of the appropriate medications and their dosage is often a long process of trial and error and many patients suffer seriously debilitating and painful side effects from the antipsychotic medication that they are prescribed with which they must learn how to accept and live with.[260]The MHA provides a complex statutory structure to underpin the compulsory treatment of mental disorder. Treatment will always be voluntary if a sufferer will accept and participate fully in it. However, many sufferers will not acknowledge or even appreciate that they are ill, that they are a danger to themselves and to others or that they must accept and participate in long-term treatment in a confined environment involving medication which can be unpleasant in both its administration and its side effects. For that reason, many patients must be detained and treated compulsorily, albeit for as short a time as possible, a process which is often described as “sectioning”. Such compulsory action is only permitted if the sufferer is suffering from a mental disability which in its nature or degree requires treatment. If, but only if, that treatment can only be provided in a hospital setting, the sufferer may be detained subject to stringent statutory safeguards. The process of assessment, treatment, detention and discharge is administered by mental health teams, both in mental health units or wards in hospitals and in the community. These teams and the treatment and support that they provide, are led by psychiatrists with the assistance of psychologists, nurses, social workers, therapists and other professionals all of whom have had appropriate training to enable them to work with sufferers of mental disorders.[261]This is the complex psychiatric background to S’s symptoms and the operation of the policies relating to the immigration detention of those suffering from mental illness. The application of immigration detention in such circumstances is made more difficult still by the lack of any clear overall and comprehensive guidance for those involved in the immigration detention process and as to the training that they should receive about mental impairments and disabilities of all kinds. Unfortunately, there are many misconceptions and much mistaken thinking about the nature and treatment of mental illness. This is particularly unfortunate because of almost irreconcilable objectives of immigration control enforcement and the diagnosis and treatment of those who are suffering from a mental disability whose immigration status is being enforced. (3) Assessments[262]Each of the decisions being challenged in this case was, or should have been, reliant on all available appropriate healthcare assessments. These decisions were of different types and assessments prepared with that particular type of decision in mind should have carried much more weight than those prepared for other or more general purposes. In deciding what weight should be placed on any particular assessment, the decision-maker needed to take account of the purpose for which it had been prepared, the qualifications and expertise of the assessor, the detail it contained and all other relevant factors relating to its accuracy and reliability.[263]The different types of decision that are challenged in this case were as follows:(1) Whether S was fit to be interviewed in CPS and, if so, whether he required an appropriate adult to be present with him during the interview;(2) Whether S was fit to be detained in police custody in CPS;(3) Whether S was suffering from a mental illness and if so, what its nature and seriousness was;(4) Whether S’s mental illness could be satisfactorily managed in an IRC;(5) Whether S was reasonably likely to be removed from the UK before the expiry of a reasonable period;(6) Whether S’s mental illness was sufficiently severe that he should be transferred to hospital for assessment and treatment;(7) Whether S could be safely moved to Colnbrook, to Harmondsworth;(8) Where S should be located in the two IRCs he was detained in;(9) Whether S’s mental illness required a Rule 35 report to be prepared;(10) What risks to S and to others would arise whilst he was detained and how should they be described in an IS91 report;(11) Whether S could be safely placed in the DFT;(12) Whether S was well enough to engage in various different stages of the immigration enforcement process;(13) Whether S had capacity; and(14) Whether S was well enough to fly to Ghana.[264]Some but not all of these different types of decision could only properly be made with the benefit of a psychiatric assessment carried out by a psychiatrist. Such assessments were essentially risk assessments requiring a diagnosis of the patient’s symptoms undertaken by reference to the relevant mental health diagnostic and MHA detention criteria. This diagnosis therefore involved a mental state assessment and treatment prognosis based on all available historic evidence of the patient’s previous involvements with mental health services and of his relevant past history. In other words, the assessment was not merely a snapshot of the patient’s health at the time of the assessment but a diagnosis, a risk assessment and a prognosis of the treatment required based on the patient’s historic, present and predicted symptoms. (4) The respective responsibilities of CNLIT, HDFT and DEPMU[265]Because S was located and had been detained in Corby, his detention and the arrangements for his removal from the UK were assigned to CNLIT based in Peterborough, being the appropriate immigration enforcement team for that area. CNLIT remained responsible for the enforcement of S’s unlawful immigration status until his case was passed onto HDFT on 10 February 2012 after the decision had been taken to place S’s asylum appeal in the DFT. These two teams liaised with DEPMU who were responsible for arranging for appropriate placement for S whilst he was in immigration detention and for arranging his movement from police custody into immigration detention and between IRCs. However, during their respective periods of involvement, CNLIT and then HDFT were responsible for the management of S’s detention and removal and, in UKBA jargon, owned S’s case. (5) CNLIT, HH and HDFT’s evidence – general considerations[266]CNLIT. The only evidence that the SSHD served that related to CNLIT and its decision-making processes was a witness statement from the manager of the CNLIT Compliance and Enforcement Team, Mr Robin Humphreys. This statement was served as part of the additional evidence served after the oral hearing and before closing submissions were prepared. Mr Humphreys had only been appointed to this post in April 2012 after S had been released from detention and he had no personal knowledge of S’s case. He had, however, read and carefully reviewed S’s detention files and GCID records but had not been provided with a copy of the hearing bundle. He had also spoken to individual decision makers to clarify relevant points. He did not identify these decision-makers nor the relevant points that they had clarified for him. He reached the conclusion that CNLIT decision-makers paid due attention to the requirements of EIG 55.10 and the advice received from CH and HH professionals, that the same decisions would have been taken had any shortcoming in that advice not occurred and that S was correctly detained since he would not have complied with the conditions that he would have been subject to had he been granted temporary admission.[267]This evidence was very unsatisfactory. CNLIT had been responsible for all 8 detention decisions taken between 3 December 2011 and 14 January 2012. It had also had overall responsibility for the decisions leading to S not being interviewed yet spending 34 hours in immigration detention in CPS, in being transferred from Colnbrook to Harmondsworth 9 days after arriving in Colnbrook without seeking and obtaining sight of a psychiatric assessment report on S, in not insisting that HH produced a psychiatric assessment report that answered all points raised by Professor Katona’s letter, in pressing ahead with S’s ETD application, in resisting his bail application and in supporting his transfer to the DFT on 10 February 2011. It was also responsible for ensuring that HH could manage S and his mental illness and in monitoring that management. Despite all those points of involvement in S’s detention and the wide-ranging challenge made by this claim, CNLIT did not put forward any witness who had been directly involved in his detention or seek to answer the specific complaints about each of the decisions being challenged. Instead, the manager of CNLIT’s compliance team with no personal knowledge of the history of S’s detention provided vague and unsubstantiated general denials which did not address any specific complaint, which did not identify the evidence he had obtained from other sources, none of whom he identified and was not even based on a detailed perusal of HH files relating to S’s healthcare. This generalised evidence concluded with the wholly unsubstantiated assertion that CNLIT had no responsibility for any failures by HH to provide it with evidence which, had it been provided, would have made no difference to the decisions that were taken. I can therefore place no weight on this evidence.[268]Harmondsworth. The only evidence I was provided with about conditions in HH during the time when S was located in Harmondsworth was contained in a letter that HH had written to S’s solicitors that stated that Harmondsworth’s mental health team in December 2011 consisted of a privately sourced psychiatrist who visited Harmondsworth HH (“HH”) for one 3-hour visit every fortnight in order to undertake initial assessments and reviews of individual detainees and two full-time mental health nurses who, amongst their other duties, provided 1:1 sessions with their client group. The intended provision for a counsellor remained unfilled. It is clear from the correspondence and other documents emanating from HH that were in the hearing bundle that this evidence was neither complete nor wholly accurate. HH had no manager in post for at least most, if not all of the time that S was located in Harmondsworth and the documentary evidence suggests that throughout that time there was only one full-time mental health nurse, Nurse Dube, working there. Thus, the mental health team was, in reality, one full-time nurse and visit from a locum psychiatrist for a three-hour visit once a fortnight working within a Healthcare Centre which was also stretched in terms of its physical health team and which was being run by an interim manager.[269]I was provided with a transcript of the judgment of Ms Laing QC sitting as a deputy judge of the High Court in R (BA) v SSHD [2011] EWHC 2748 (Admin), judgment handed down on 26 October 2011. . In this passage of her judgment, she summarised the evidence that she had received and set out her findings about the conditions in HH in the period up to the end of 2010 in a judgment handed down 7 weeks prior to S’s arrival at Harmondsworth:
“(11) The healthcare available at Harmondsworth IRC 52. There are various reports in the documents I have seen which deal with the configuration of Harmondsworth IRC, and with the staffing of, and facilities in, its healthcare unit. Harmondsworth IRC consists of "prison-style wings" and "hostel-type" accommodation. I consider it improbable that BA was detained in the latter S was detained on A Wing which, by its name, shows that he was located on a “prison-style wing” rather than in “hostel-type” accommodation. . In 2010, it had capacity for 615 detainees. 53. The healthcare provided there was the subject of a "damning report" by an HM Chief Inspector of Prisons at the start of 2010. Many complaints were made by inmates, and a "recurrent theme" was the uncaring attitude of healthcare staff. During 2010, progress to improve had been slow. The induction and departure unit was overstretched. The provision for mental health was criticised, and said to require "urgent attention". The report made 60 recommendations which were accepted by UKBA, but by the end of 2010, only 22 had been fully put into effect. A report by the local primary care trust argued for better co-ordination between UKBA and the NHS. It identified increasing issues about mental health. 54. By the end of 2010, detention staff were still seen as more "caring" than healthcare staff. Each month, 30-40% of healthcare appointments were missed by detainees, including external appointments. At the end of 2010, Harmondsworth IRC's independent monitoring board expressed continuing concern about the care of those with mental health needs. Detainees with significant such needs "sometimes languish in Harmondsworth because external beds cannot be found for them, or because their needs, while significant, do not warrant their being sectioned.... This is distressing for them, for staff, and for other detainees." No counselling services were available. 55. There are 3 wards in the healthcare unit, with 6 beds each. In early 2010, two of those were being used for non-healthcare reasons. The permanent staff, including the manager, are all nurses. There were ten nurses, including, either one, or two with mental health training, but in early 2010, there was no dedicated registered mental health nurse. There were no nurse prescribers. The staff available include a GP who visited daily (but not, according to one report, at weekends), and was on-call at other times, and a psychiatrist, who visited once a fortnight. Detainees with an urgent psychiatric need could be seen "within a maximum of two weeks". There were no psychologists, counsellors, or other therapists. A report in early 2010 noted that record-keeping was poor. The same report observed that outside appointment hours, detainees were discouraged from going to the healthcare unit.”
[270]In the light of these findings, the corroborative evidence of the HH letter and other documents that I have summarised, I find that Ms Laing’s findings are equally applicable to the period in HH between 14 December 2011 and 21 March 2012 as they were to the period between 2010 and early 2011 that she was concerned with.[271]HDFT. The manager of the Case-Work Support Team, Asylum Directorate, DFT, who had held that position since October 2011, Mr David Crook, also made a witness statement. He undertook detention reviews to assess whether detainees should be detained in the DFT process. In his evidence, he repeated verbatim the relevant part of his detention review summary See paragraph 156 above. prepared on 10 February 2012 which was the only involvement with S and S’s immigration detention that he had had. Mr Crook applied what he stated to be the appropriate criteria to determine whether S should continue to be detained in the DFT process, namely “whether S was presenting with acute psychosis, e.g. Schizophrenia, who [was someone who] required hospitalisation”. These criteria were stated to have been agreed between the parties to be the only arguable criteria. However, they were not the only applicable criteria since the decision-maker was also required to check that the conditions of detention under both the Hardial Singh and EIG 55.10 guidelines applied and that their application resulted in a conclusion that S should be detained. Mr Crook does not mention these guidelines in his witness statement and there is no reference to them in the HDFT Detention Record as the criteria that had been applied by him in reaching his decision confirming S’s detention. Moreover, the Detention Record that he signed does not appear to have been counter-signed by a CIO or HMI as required by the SSHD’s detention policy.[272]I can therefore place little weight on this evidence. The only significance it has is the revelation that the decision to transfer S to the DFT was taken on what appears to be an incomplete basis and to highlight the inadequacies of the SSHD’s decision-making process. Mr Crook was, of course, hampered by his having been provided with incomplete and inaccurate reports by HH about S’s mental illness, HIV screening and the general care that HH had provided him with but that does not provide a defence to the judicial review challenge to the lawfulness of his decision. Therefore, Mr Crook’s decision was Wednesbury unreasonable since he had not, for whatever reason, taken into account highly material information about S’s mental illness which HH and CNLIT had failed to provide him with and he had also erred in law in not considering and applying, or in not appearing to have considered and applied, the Hardial Singh guidelines or EIG paragraph 55.10. (6). SSHD’s responsibility for the failings of CH and HH and any locum working there[273]An essential part of the SSHD’s response to S’s various claims is that its detention decisions were all taken on the basis of the information supplied to it by CH and then HH so that it was entitled to conclude that S was never suffering from a serious mental illness and that, therefore, the SSHD’s mental health detention policy enshrined in EIG paragraph 55.10 was never engaged. This contention flies in the face of both the applicable statutory and policy provisions and of judicial guidance in this area.[274]The following is a summary of the applicable law:(1) The SSHD has a statutory duty of care towards all those detained in IRCs. This duty of care arises as a necessary adjunct to the statutory entitlement to detain and the SSHD’s policy enshrined in the various statements of policy relating to immigration detention and it is reinforced by statutes such as the duties to those in detention provided for by articles 3 and 8 of the ECHR and the anti-discrimination provisions of the Equality Act 2010.(2) This duty is non-delegable and, with the possible exception of fraudulent concealment on the part of those responsible, it is no defence to a claim for unlawful detention that the decision-maker had not had drawn to his attention salient facts militating against detention or had no reasonable way of ascertaining those facts or of searching them out for himself.(3) In any case, the public services contract between the SSHD and the service provider of services within the IRC in question and between that contractor and the sub-contractor providing health care services and between that sub-contractor and any sub-sub-contractor providing mental health care services contained terms imposing obligations on each participant in each layer of the contractual chain to observe the same duty of care towards detainees as was imposed on the SSHD. Other terms in each layer of that contractual chain would have provided for the healthcare of each detainee to be such as to meet the standards of the National Health Service (see D ibid., per Davis J at paragraphs 55 – 62. ).(4) This collective or non-delegable liability was recognised by Laing J in EH ibid., per Laing J at paragraph 156. and Singh J in HA ibid., per Singh J at paragraphs 155 and 181. . The SSHD is responsible in law and liable in damages for the acts and omissions of those that had responsibility for a detainee’s care and treatment in detention even if that individual was not employed by it or the UKBA or was an independent contractor working under contractual arrangements whereby the SSHD had contracted out the service in question to a private contractor or a contractual chain. (7) The meaning and applicability of EIG paragraph 55.10[275]EIG paragraph 55.10 was reformulated with effect from 10 August 2010 so as to make it clear that that paragraph is to be read as originally intended by the SSHD since the SSHD considered that the meaning ascribed to the previous wording of EIG paragraph 55.10 by earlier High Court decisions and some UKBA decision-makers was unduly restricted. The SSHD contended that the reformulation of the policy did not change its meaning and that the reformulated policy had the same meaning as the meaning it had intended it to have and contended that it had had. It was held in HA ibid., per Singh J at paragraphs 194 – 196, see paragraphs 247 - 248 above. that the reformulated wording of the policy was unlawful since no equality impact assessment had been undertaken before it had been promulgated. However, it was subsequently held by the Court of Appeal in LE ibid., per Richards LJ at paragraph 41. that the SSHD was correct in contending that the original wording had the same meaning as the reformulated wording.[276]This case, if the reformulated wording of EIG paragraph 55.10 is interpreted in the way that the SSHD contended it should be, is one which could have resulted in S having been lawfully detained on the basis of the reformulated wording but unlawfully detained on the basis of the generally-held meaning of the old wording. The issue, a potential subject for considerable doctrinal debate, arises as to whether the effect of LE was to overrule that part of HA that had held that the wording of the reformulated policy was unlawful or whether that part of the decision in HA continued to stand, certainly until a retrospective EIA had been concluded and published. In that latter case, the further question also would arise as to what the effect, if any, was on a detention decision taken by reference to a promulgated but unlawful policy since, on that analysis, the decision should have been taken on the basis of the meaning of EIG paragraph 55.10 ascribed to it by the Court of Appeal in LE which was the same meaning in law as the new, reformulated but unlawful EIG paragraph 55.10.[277]In my judgment, these interesting and difficult questions do not arise on the facts of this case. If S was suffering from an active and florid psychosis for all or most of his time in detention, his illness involved a serious mental illness and its management involved assessment, observation, medication, therapy and psychological, occupational and other therapeutic interventions. All these consequences of his illness had to be satisfactorily managed by the Healthcare Centres located in Colnbrook and Harmondsworth. In other words, on the facts of this case, once mental illness had been diagnosed as a possible explanation for S’s bizarre behaviour and his other related symptoms, the self-evident seriousness of his illness was such that it was possible for a decision-maker to move straight to the question of its suitable manageability without dwelling upon the somewhat casuistical question of the difference between a mental illness and a serious mental illness and then to conclude that, on any objective view, neither CH nor HH could be regarded as being capable of managing that illness. If the facts showed that S’s illness was both serious and unmanageable by CH or HH, his detention was unlawful as it would have been had the appropriate test been one of suffering from a mental illness.[278]I am supported in my conclusion that S’s illness was a serious mental illness by the judgment of Cranston J in R (MD (Angola)) v SSHD [2011] EWCA Civ 1238, CA at paras. 13 - 14 quoting with approval Cranston J’s judgment in Anam v SSHD [2009] EWHC2496 (Admin) at paragraphs 51 -51. who concluded that a person suffers from a mental illness if he:
“… suffers from an illness if they are significantly affected by that illness … .”
Further guidance of the nature and extent of a mental illness which involves Schizophrenic symptoms which are florid and which involve depression, anxiety and stress which is neither stable nor fully diagnosed is provided by the judgment of Sales J in R v Pratima Das [2013] EWHC 682 (Admin), paragraphs 61 –63. where he said:
“61. In my view, "serious mental illness" connotes a serious inability to cope with ordinary life, to the level (or thereabouts) of requiring in-patient medical attention or being liable to being sectioned under the MHA, or a mental condition of a character such that there is a real risk that detention could reduce the sufferer to that state – for instance, if there were a real risk that they could have a break-down in prison. 62. Similarly, on proper interpretation in the context of paragraph 55.10, the words, "which cannot be satisfactorily managed within detention," indicate a standard of practical effectiveness of treatment, rather than treatment which avoids all risk of suffering mental ill-health or any deterioration in an individual's mental well-being. In assessing what is satisfactory, the Secretary of State is entitled to have regard to what may be expected to be effective in preventing a detainee from slipping into a state of serious inability to cope with ordinary life.”
[279]Here, the series of reports and diagnoses by the FME, Dr Allen, Professor Katona, Dr Burrun and Dr Ahmad coupled with the evidence of cognitive impairment throughout his time in Colnbrook and Harmondsworth and the other evidence already summarised show that S was significantly affected by mental illness comprising paranoid Schizophrenia, depression and anxiety so that the first limb of the reformulated policy is clearly applicable.[280]I accept the submissions made on behalf of the SSHD that the two requirements of a serious mental illness and its satisfactory management in detention identified in EIG paragraph 55.10 are conjunctive so that an illness, however, serious, that can be satisfactorily managed is not sufficiently serious to engage EIG paragraph 55.10. However, what had to be managed in this case was a psychotic illness that was developing and which was, in its early stages, florid, unstable, untreated by medication and becoming increasingly debilitating in relation to S’s cognitive functions. These difficulties were intensified by S being non-compliant, lacking in cognitive ability and in capacity and in denial. Thus, what had to be managed, certainly in the early stages of S’s illness, was an intensive and consistent regime involving a combination of assessment, monitoring and treatment. The purpose of this regime was to stabilise and control S’s symptoms and to identify a type, dose and method of administration of the relevant medication or medications, to establish a consistently and reliable method of administering that medication and to motivate and educate S to follow that regime, to take control of his fears, delusions and paranoia and to regain his cognitive abilities. As was subsequently shown to be the case, this regime required a lengthy period in which assessment and its associated treatments would be carried out in unison. S was, as it turned out, remarkably fortunate that the failure to provide this regime did not have very serious long-term consequences for him. It was, nonetheless, the case that neither CH nor HH had the capability of satisfactorily managing S’s mental illness nor, as they both proved, were they in fact able to so manage it. (8) Applicability of PACE Code C to S’s immigration detention in CPS[281]General. The rights of those held custody in a police station are governed by Code C of the Police and Criminal Evidence or PACE Codes of Practice entitled Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers. These were issued under section 66 of the Police and Criminal Evidence Act 1984 The PACE Codes of Conduct were issued under section 66 of the Police and Criminal Evidence Act 1984. . Code C was first introduced in1986 and it has been substantially revised on several occasions since then. The version of Code C in force when S was detained in CPS was the version issued in 2008. Subsequent versions were issued in 2012 and 2013 which amended but did not substantially change its content. However, paragraph 1.12(iii) of Code C provided that it did not apply to “people in custody whose detention is authorised by an immigration officer under the Immigration Act 1971”. Thus, it applied directly to S for his detention in CPS from his arrival at CPS until it was authorised by a CIO at CNLIT at about 17.30 on 3 December 2011.[282]Although Code C did not apply directly to S’s custody after 17.30 on 3 December 2011, its relevant provisions did apply indirectly by virtue of EIG Chapter 38 entitled Role of the custody officer whose effect was to require IOs and police custody officers acting as their agents who were supervising detainees held in a police station in immigration detention to apply some of the provisions of Code C including at least some of those concerned with the rights of detainees who were mentally disordered or vulnerable The provisions of Code C specifically mentioned in Chapter 38 were paragraphs 2.1A, 2.6A, 5, 6.6, 7, 8, 9 and 10 and Annexes B, C and H. . Some of these paragraphs cross-referred to other paragraphs not expressly referred to in EIG Chapter 38 Relevant cross-referenced paragraphs were paragraphs 3.6 and 3.10 and Annex H referred to in paragraph 9.3 of Code C. or, by necessary implication, were to be read with paragraphs referred to by EIG Chapter 38 and these further paragraphs must also be taken to have been applicable as a result of that Chapter. Yet further provisions of Code C, particularly those concerned with interviews held by an IO whilst a detainee was in police custody, were potentially applicable because the introduction to EIG Chapter 38 instructed IOs “When attending a police station you must comply with the PACE Codes”.[283]It followed that EIG Chapter 38 incorporated by reference some but not all of the provisions of Code C so that, strictly speaking, IOs and custody officers were required to apply those provision but not the other provisions of Code C to those such as S who were being held in custody under the Immigration Act 1971. This potentially gave rise to difficulties since Code C’s provisions were drafted so that provisions relevant to, say, those suffering from a mental disability, were spread across many of its paragraphs and annexes, not all of which were expressly referred to in EIG Chapter 38. Furthermore, Code C was applicable to those temporarily held in custody pending a decision by a CIO whether they should be served with immigration detention papers. Thus, S was subject to Code C for the first 3½ hours of his time in police custody in CPS but not for the remaining 30½ hours.[284]The potential mismatch between Code C and EIG Chapter 38 would only give rise to difficulty if a detainee remained in police custody for a long time and, during that period, their mental health deteriorated and they had not been seen by an IO, an appropriate adult, a solicitor or an appropriate social worker or healthcare professional such as a psychiatrist or an AMHP. This was because it would not have been clear to the custody officer in such a situation whether he should summon an appropriate adult to the police station to see the detainee or a psychiatrist or an AMHP to assess the patient’s mental health or whether he should arrange for a transfer to hospital for mental health assessment and treatment. This was because paragraphs directly relevant to that situation were not directly referred to in EIG Chapter 38. These paragraphs included those concerned with undertaking risk assessments to determine whether a detainee was likely to present a risk to himself, with the need to arrange a visit from the appropriate adult if the detainee was mentally disordered, with the need to ensure that a detainee who appeared to be suffering from a mental disorder received appropriate clinical attention from a health care professional in the police station or a hospital and with whether an appropriate adult should be arranged to attend an interview See paragraphs 3.6 – 3.8 and 3.10 (risk assessments), 3.15 (visit from an appropriate adult), Annex E – Summary of Provisions Relating to Mentally Disordered and otherwise Mentally Vulnerable People (care and treatment of mentally disordered detainees) and Annex G - Fitness to be interviewed (need for assessment for and content of assessment for fitness to be interviewed). . Given the considerations that I have referred to, these further provisions of Code C should be considered to have been incorporated into the EIG Chapter 38 policy governing the treatment of mentally disordered immigration detainees by necessary implication. Furthermore, it was necessary for them to be given effect to in appropriate cases so as to avoid possible unlawful discrimination arising from possible differences of treatment of those in immigration detention suffering from a mental disability and those in ordinary police custody with a similar disability.[285]FMEs. Although their use by custody officers is not mandatory, most police stations will call on the services of a FME to conduct medical examinations and police station-based medical treatment when custody officers arrange for a healthcare assessment in the exercise their duties in relation to the care of those detained in police stations. A FME is usually a GP who has had additional training in forensic medicine involving detention, assessment in custody and the interviewing of those detained.[286]In relation to detainees who are, or who appear to be, vulnerable or suffering from a mental disability, Code C provides guidance as to what type of assessment is required, as to what is being assessed and as to how it is to be carried out. Not surprisingly, the majority of detainees who are assessed by a FME whilst in police custody are those who appear to be vulnerable or suffering from a mental disability or the effects of alcohol or drugs.[287]Annex G of Code C advised that, in making an assessment, the FME had to consider whether the detainee might be at risk in a police interview because the interview could significantly harm his physical or mental state. In assessing whether the detainee should be interviewed, the assessor also had to consider whether the detainee’s physical or mental state might affect his ability to understand the nature and purpose of the interview, whether he could comprehend what was being asked and appreciate the significance of any answers he might give to questions in the interview and could make rational decisions about whether he wanted to say anything. In making this assessment, the FME had to consider the functional ability of the detainee and whether it would be possible for such a person, who was or appeared to be suffering with severe mental illness, to be fit for interview.[288]Appropriate adult. An interview in police custody of a mentally disordered detainee had to take place in the presence of an appropriate adult, even if the detainee had previously been visited by an appropriate adult.[289]FME’s assessment. It was of considerable significance that the FME who assessed S soon after he had been detained advised that S was probably suffering from Schizophrenia and was not fit to be interviewed and that he should be visited and his well-being and mental state should be checked at least once every 30 minutes in his police cell. This is because both recommendations were made with the provisions of Annexes E and G of the Code in mind and therefore showed how concerned the FME was about S’s apparent vulnerability and fragile mental state. (9) S’s assessment and transfer to hospital from police custody or immigration detention[290]Whilst S was detained in police custody in CPS, whether before being served with immigration detention documentation when Code C was applicable or afterwards when EIG Chapter 38 was applicable, the custody officer had a duty, as custody officer and as the police officer responsible for S’s health and welfare whilst in police custody as the SSHD’s detaining agent, to arrange for S to be assessed in custody by an appropriate healthcare professional such as an AMHP or a psychiatrist or to be transferred to hospital for that purpose if he reasonably required treatment (which would include assessment) for his mental illness. S could have been assessed or treated by psychiatric healthcare professionals in hospital or in the community whilst he was in police custody or immigration detention by the use of the powers available to those responsible for detaining him. This could be achieved by him being discharged or released with or without bail or being transferred from custody or detention to hospital and by his being detained in hospital either voluntarily or compulsorily following his being sectioned See the helpful summary of these available powers in paragraphs 167 – 170 of Singh J’s judgment in HA set out in paragraph 240 above. Whilst S remained in police custody in CPS, within the first 72 hours of his detention, the custody officer could, if necessary, have decided to hold him in CPS additionally under s 136 of the MHA for his own safety in CPS as a place of safety pending his transfer to hospital for assessment and treatment under the MHA. Furthermore, paragraph 3(1)(d) of the Immigration (Places of Detention) Direction 2011 authorised the immigration detention of S in hospital for up to 5 days after his detention. . VI S’s Grounds of Claim – Discussion and Findings (1) S’s detention in CPS: 3.12.2011 - 5.12.2011[291]Summary of relevant decisions. There were, in effect, three detention decisions taken on 3 and 4 December 2011 in relation to S’s detention. These were:(1) The CPS custody officer’s decision that he took at 14.50 on 3 December 2011 to detain S in custody in CPS pending CNLIT’s decision to detain him in immigration detention;(2) CIO Evans’ decision that was taken at 17.30 the same day that S should be detained in immigration custody. This was implemented by IO Neil Lawford at about 18.20 by issuing an IS91 and an IS151 which he faxed to CPS and which the custody officer then unsuccessfully attempted to serve on S; and(3) AHCO Dann’s 24-hour detention review decision that he took during the afternoon of 4 December 2011 to confirm S’s immigration detention. This decision was recorded in an IS91A and a Detention Review decision which were presumably faxed to CPS. They were sent to DEPMU and were placed on S’s CNLIT file.[292]It is also necessary to consider CNLIT’s failures to have S examined by a mental health practitioner, to arrange for his transfer to hospital for mental health assessment and treatment, to keep him in custody in CPS for 34 hours despite his obvious poor mental health and without anyone from CNLIT visiting and interviewing him, to move him in the middle of the night to Colnbrook without first ensuring that he would be located within CH and to check that CH could properly manage his mental illness.[293]Detention decision by the CPS custody officer at 14.50 on 3 December 2011. This decision was taken by the CPS custody officer following a police officer’s decision to arrest S for being an overstayer. The police were acting as the SSHD’s detention agents pursuant to its statutory powers to arrest and detain immigration overstayers. These powers allowed the police to detain S for a period of 24 hours without the UKBA taking a decision to detain him and serving him with an IS91 to enable the UKBA to make appropriate enquiries.[294]The evidence shows that it had become clear in the three hours following S’s initial detention that his lawful detention might not be possible due to his mental ill-health and that consideration should have been given to his being released from police custody and taken to hospital by the time that CNLIT’s detention decision was taken at about 17.30 that evening. S’s mental state worsened appreciably during the afternoon as can be seen by comparing the custody officer’s risk assessment made at 14.30 and the FME’s mental state assessment made at 16.30. Arrangements should have been made by the police in conjunction with CNLIT for S in the period immediately following receipt of the FME’s report to be assessed by a psychiatrist or an AMHP or to be discharged or moved to hospital for that purpose so as to enable a decision to be made as to whether to arrange for S to be sectioned, discharged or moved straight to a mental health ward in hospital.[295]Detention decision of CIO Evans taken at 17.30 on 3 December 2011 – general matters. S’s behaviour that had been observed by the police before, during and following his arrest and the assessment report of the FME of his physical and mental health that was handed to the custody officer at about 16.30 were highly relevant pieces of evidence that showed the nature and extent of the growing seriousness of the symptoms of his mental illness. This evidence should have been obtained for, and provided to, the CNLIT decision-maker who was to take a decision as to whether S should be detained in immigration detention and the decision-maker should have taken it into account in reaching that decision at about 17.30. The evidence should have been called for by the decision-maker because, as he knew or should have known, Corby police officers who had had contact with S had become aware of much detail about the symptoms of S’s mental illness.[296]Available information about S’s psychosis. By the early evening of 3 December 2011, the information about S’s possible mental ill health that was available to Corby police and which should, in consequence, have been available to CNLIT was, in summary, as follows. S had been observed by two police officers during the early evening of 2 December 2011 behaving in a strange manner. He appeared to be following a young woman in a strange manner and then gave them a bizarre explanation when they stopped and questioned him. The officers gave him a warning and took him home.[297]S again behaved and spoke in a bizarre manner when he was arrested at his home the next day and again whilst being booked into custody by the custody officer. Furthermore, the custody officer had had to explain to him a number of times what was happening and why it was happening and he had not appeared to understand what was being said and merely agreed with everything that the custody officer said to him. S’s behaviour was such that the custody officer considered that in addition to his being vacant and not understanding what was being said, he was at risk of harming himself and might be suffering from a mental illness so that he should be kept under CCTV surveillance and visited in his cell every 30 minutes. His mental state should also be assessed by a FME in the custody suite to check his mental health and to see whether he was fit to be detained and interviewed in police custody.[298]The FME’s assessment reinforced the concerns about S that had been observed by the police previously. He reported that he had found S to be presenting with strange behaviour, poor memory, a head that was “not right”, long term sleeping issues, throat and sight problems, inappropriate thoughts and with both auditory and visual hallucinations. He concluded that S was apparently suffering from Schizophrenia and his assessment referred to at least 6 of the schizophrenic symptoms that are set out in the APA Diagnostic Manual See paragraph 255 above. . Further indications of the existence and extent of S’s mental illness were provided by the FME’s overall advice that S was unfit to be interviewed thereby suggesting that S’s mental state was so fragile that it risked being harmed by an interview.[299]S’s mental health appeared to be deteriorating further during the afternoon and evening after he had been taken into custody. His lack of comprehension of what was happening to him appeared to be increasing, his thinking appeared to become more distorted and he was constantly restless and repeatedly refused food and drink. He was not observed to be resting or sleeping throughout the evening or during the night and he demanded to speak to his nominated person, Pastor Emeka, on three occasions during the night at what were obviously inappropriate times.[300]This information should have been provided to the CNLIT decision-maker when he came to decide at 17.30 on 3 December 2011 whether S should be detained in immigration detention and that decision should not have been taken without the decision-maker first ensuring that he had received all the available information about S’s mental state and mental health. This was particularly so since CIO Evans, an IO at the appropriate level to authorise S’s immigration detention, had accepted during the early afternoon that S’s apparently poor mental state might preclude his being detained and had informed the custody officer at 15.15 that CNLIT would await the outcome of the FME’s examination before deciding whether or not to serve S with immigration detention papers.[301]Decision was premature. At 17.00, the CNLIT duty officer was telephoned by Janice, a support officer in the custody suite, who gave the IO a regrettably imperfect and unduly partial verbal summary of the FME’s report and at 17.30, CIO Evans decided on the basis of that report from the support officer that S should be detained without seeing a copy of the FME’s report itself. However, the decision was in reality only a contingent decision since he gave instructions that S should be visited and given a so-called mitigating circumstances interview the following morning by an IO from CNLIT who should collect a copy of the FME’s report at the same time. CIO Evans also made it clear to his colleagues in CNLIT that his decision was subject to the condition that S should be detained in an IRC healthcare bed. Thus, S would only be detained, and then only in a healthcare bed, if the interviewing officer reached the conclusion that it was safe to detain him in immigration detention. In other words, S was not be taken into immigration detention unless and until he had been interviewed and there remained no concerns about his mental health in the light of that interview, the contents of the FME’s assessment report and anything else that was learnt about S’s behaviour and presentation from CPS.[302]CIO Evans should not have taken this decision at 17.30 since he was aware that he lacked essential information that he needed in order to take it and he still had nearly 20 hours left to obtain it before the detention decision had to be taken. Furthermore, since he concluded that his decision could only be a contingent one, he should have postponed taking it until after the proposed interview in CPS had taken place later that evening or the following morning and after S had been assessed by a psychiatric healthcare professional. The SSHD’s detention policy did not allow for a contingent decision to detain to be taken at a time when further relevant information would be available which could have a material influence on that decision and which could have been obtained within the first 24 hours of detention.[303]No structured decision. Having decided that he could and should take the decision, CIO Evans should have taken it by reference to the SSHD’s detention policy including EIG paragraph 55.10 and to have done so in a structured decision-making process that considered whether the presumption against detention was displaced, whether the Hardial Singh principles were applicable, whether S was suffering from a severe mental illness and, if so, whether, that illness could be satisfactorily managed in an IRC. The decision-maker did not address the question of whether S was suffering from a serious mental illness or whether that illness could be satisfactorily managed in detention. He merely noted without comment that the FME felt that S might be suffering from Schizophrenia and might also be suffering from HIV although there was no confirmation of this possibility. He therefore discounted these risks and applied the conventional test that S should be detained because he was an unlawful overstayer who would be administratively removed reasonably quickly without taking account of the possibility that S might be undergoing a serious psychotic attack requiring immediate hospital attention.[304]The decision-making process was also flawed because he did not take full account of the FME’s assessment. This had concluded that S was probably suffering from Schizophrenia, was displaying several of the symptoms of Schizophrenia and that his cognitive functioning was sufficiently impaired that he was not fit to be interviewed. Although it recommended that S was fit to be detained, that was a limited assessment since it only related to S’s detention in police custody which was inevitably time limited. Moreover, until S had been assessed by a psychiatrist, he was, or was potentially, unsafe to be released from detention so that detention in police custody could be regarded as being a safer option than releasing him. The appropriate conclusion that should have been drawn from that assessment was that until S had been assessed by a psychiatrist, it was not possible to conclude that it was safe to detain S in an IRC.[305]Inadequate and misleading summary of FME report. It can now be seen that CIO Evans, in taking the detention decision at 17.30, had been provided with a wholly inadequate and inaccurate summary of the FME’s assessment. He had no more than the CNLIT duty officer’s minute of a second-hand account of the FME’s assessment which had come from a support officer in the custody suite. That account was seriously misleading in four respects. Firstly, it referred to the possibility, attributed to the FME, that S might be feigning his symptoms that had led to a possible diagnosis of Schizophrenia. There is no other evidence that this was the FME’s advice and all the other evidence in fact pointed to the improbability of the FME expressing this opinion or that this opinion was rational even if it had been expressed. Thus, the possibility that S was feigning should not have been taken into account.[306]The second error in the note was the suggestion that the FME had stated that S would require an appropriate adult when he was interviewed. In fact, the FME had gone further and had stated that S was unfit to be interviewed at all. The assessment decision stated in terms that S was not fit to be interviewed and it made no reference to an appropriate adult save to tick the tick box so as to state that if S was interviewed, an appropriate adult would be required. Although the FME’s advice did not preclude the custody officer from, nonetheless, permitting S to be interviewed by the police so long as he was accompanied by an appropriate adult, such a decision could only properly have been made if there was a good reason to depart from the FME’s advice.[307]The third error in the note was the suggestion that S was fit to be transferred to an IRC. That suggestion was not contained in the FME’s report which did not consider that question at all. The tick in the tick box merely stated that S was fit to be transferred without stating whether that transfer was to the community, to a hospital or to an IRC. A fourth error was to word the advice that S might be an HIV sufferer in such a way as to suggest that the FME considered that S was making up that suggestion. The FME’s report, in fact, made no mention of HIV or that S had suggested that he was an HIV sufferer.[308]In reality, there was no immediate need to take a detention decision since S’s initial 24-hour period of holding detention would not have expired until 14.00 the following day and could in any event have been extended without the need for a formal detention decision if there was a good reason to extend this initial period. No reason was given why the decision was taken on Saturday evening without the mitigating circumstances interview having taken place rather than leaving it to be taken until after S’s interview the following morning. A deferred decision would have been able to take into account the contents of that interview, the submissions of the immigration duty solicitor, the observations of the appropriate adult, the full details of the FME’s assessment report and the details of the police officers’ observations of S’s behaviour including his detention behaviour over a 20-hour period.[309]If the only convenient time for CNLIT’s IO to attend CPS was at 10.00 on Sunday morning, it would have been possible for the custody officer to arrange for another appropriate adult to attend even though S’s responsible person was unavailable to attend as an appropriate adult.[310]Summary of flaws in decision. This decision was therefore flawed in four significant respects. Firstly, it was taken without waiting for sight of the FME’s report and on the basis of what was in fact a significantly erroneous summary of that report. Secondly, it failed to take full or sufficient account of the evidence of S’s psychiatric illness that was available to him but which would only be fully known once the CNLIT IO who was to visit CPS had attended and spoken to relevant officers and had examined the detention log and other relevant documents. Thirdly, it was taken before the forthcoming mitigating circumstances interview of S had taken place so that any such circumstances were not taken into account. Since the interview was to investigate whether S had any mitigating circumstances, including his mental health, this interview was, or certainly should have been, a vital part of the decision-making process.[311]The fourth reason that the decision was flawed was that it was taken without the decision-maker considering the SSHD’s mental health detention policy enshrined in EIG 55.10. No consideration was given to the possibility that S was suffering from a serious mental illness which could not be satisfactorily managed within detention. Assuming that that policy was lawful, it was incumbent on the decision-maker to consider whether the currently available evidence showed that S was or might be suffering from an active psychosis of a schizophrenic-type which constituted a serious mental illness and, if he was, whether that illness could be managed by an IRC. There was already sufficient evidence of S’s active psychosis to necessitate further investigation as to whether it amounted to a serious mental illness so that consideration should also have been given to whether it was appropriate to transfer S to a healthcare bed in an IRC at that time or whether instead his illness and its on-going assessment and treatment should be addressed in a hospital setting or in the community by a mental healthcare team.[312]Since an interview with an appropriate adult was due to take place at 10.00 the following day, there was no good reason for taking the detention decision before the results of that interview were available. In short, the decision to detain S was premature. It was irrational not to wait until S had been interviewed the following morning and the results of that interview and the contents of the FME assessment should have been factored into the detention decision.[313]Finally, the IS91 issued on 3 December 2011 contained a significant error in that it did not record CIO Evans’s qualification for giving his consent to S’s detention that it was reliant on S being located in a health care bed and on the contents of S’s forthcoming mitigating circumstances interview.[314]24-hour confirmatory immigration detention decision taken by AHCO Dann in the afternoon of 4 December 2011. This decision was significantly defective for these cumulative reasons:(1) For reasons that have not been provided to the court or to S, the decision to interview S in police custody had been rescinded. The only possible reason for this that is disclosed from the hearing bundle papers is that S’s nominated adult was not available to attend as an appropriate adult at the time fixed for the interview. Had that been the reason, the interview could readily have been moved back to later on the Saturday evening or forward to later on the Sunday morning and/or another appropriate adult could have been arranged.(2) S was deprived of the advantage of being interviewed in the presence of an appropriate adult and with a duty solicitor present. Both of these would have been available to him had the immigration interview taken place at CPS.(3) No assessment report from an appropriate psychiatric healthcare professional had been obtained and none was available for the decision-maker.(4) The interview, coupled with the evidence of the detention log and a psychiatric healthcare professional’s assessment, would have demonstrated to CNLIT how ill S really was and how desirable it was for S to be moved to a mental health ward in hospital or cared for by a community mental health team as soon as possible, whether as a voluntary patient or subject to the compulsory powers provided for by the MHA.(5) No, or no sufficient, account appears to have been taken of the contents of the FME report or the detailed and cogent submissions of the immigration duty solicitor in her letter sent to CNLIT at 11.30 on the morning of 4 December 2011. The solicitor’s letter addressed S’s reported mental illness and it applied for temporary admission or bail forthwith. A copy of the letter was included with the papers that were passed to the decision-maker but its contents were not addressed in the decision-maker’s reasons and they do not appear to have been taken into account in reaching the detention decision.(6) No account was taken of the SSHD’s mental health detention policy despite the evidence already available that suggested that S might be suffering from a serious mental illness.(7) The decision-maker appears to have overlooked and to have failed to give effect to the basis of the initial detention decision. The CIO who took that decision had premised it on his requirement – i.e. that is he had made it a condition - that S would be given a mitigating circumstances interview the next morning to consider, and if necessary to give effect to, any circumstances including his mental illness which showed that S should not be detained in immigration detention. If it subsequently turned out that that interview could not reasonably have taken place at 10.00 the next morning as planned, it should have been re-arranged for a different time when Pastor Emeka or another appropriate adult found by CPS could attend. If necessary, the 24-hour detention decision should have been postponed for a short time, an extension that could reasonably have occurred in reliance on s 136 of the MHA or by the CIO’s discretionary exercise of his implied powers arising out of the SSHD’s detention policies.[315]S’s mental health and his 34 hours in immigration detention in CPS. The custody officer should have decided to treat S as mentally disordered or otherwise mentally vulnerable from the moment he had been detained in custody since it was clear from the outset that he might be mentally disordered or otherwise mentally vulnerable. This was a requirement of paragraph 1.4 and paragraph 1 of Annex E of Code C which was applicable to S’s detention from its inception at 14.30 until the time that he was accepted for immigration detention by CNLIT at 17.30. Having done so, the custody officer should have ascertained who S wished to be his appropriate adult and then asked that person, who was Pastor Emeka, to come to CPS as soon as possible that afternoon to see him. If that had not been possible, the custody officer should have arranged for someone else, preferably with experience of dealing with mentally disordered or mentally vulnerable people Paragraph 3.15 and paragraph 3 of annex E. , to attend S in CPS as his appropriate adult.[316]Had Pastor Emeka attended CPS in the afternoon of 3 December 2011, he would have been informed of S’s entitlement to legal advice and, having been informed of that right, is likely to have requested access for S to such advice and obtained for S the telephone advice of an immigration duty solicitor during the afternoon of 3 December 2011 and that solicitor would probably have forwarded detailed submissions to CNLIT similar to those submitted on 4 December 2011 by S’s duty immigration solicitor in time to be considered when the initial detention decision was being taken.[317]The custody officer correctly arranged for a FME to attend CPS and assess S because he appeared to be suffering from a mental disorder and required clinical attention. This assessment was a requirement of paragraph 9.5 and paragraph 5 of annex E of Code C that was also applicable to S’s detention by virtue of EIG Chapter 38. However, the custody officer failed to draw the appropriate conclusion from the assessment report when he received it at about 16.30 on 3 December 2011, namely that S required further clinical attention in the form of a psychiatric assessment from a mental health professional, being either a psychiatrist or an AMHP, so that it could be ascertained whether he should be transferred to a mental health ward in an appropriate hospital for assessment and treatment A requirement of paragraph 9.5 and paragraph 5 of annex E. . This need was highlighted by the FME’s conclusions to the effect that S’s symptoms suggested that he was suffering from Schizophrenia, that his psychosis was florid or active, that he was unfit to be interviewed and that he was fit to be detained further in CPS pending a decision as to what should be done about him, a detention that was for his own safety and the safety of others given the apparent severity of his current mental disability.[318]The custody officer and CNLIT should have arranged for S to be psychiatrically assessed and also for an IO to interview him with an appropriate adult present, preferably on Saturday evening, 3 December 2011, but otherwise as soon as possible on Sunday morning, 4 December 2011.[319]These steps should have been undertaken before a detention decision was made. Had any of them been taken, and certainly had all of them been taken, CNLIT would have been able to take a fully informed decision as to whether S should be taken into immigration detention in an IRC, remain detained in CPS for further urgent psychiatric assessment or treatment, released unconditionally or on bail or relocated to hospital. This decision would have been based on his current mental state and mental disability. It is highly probable that the decision-maker would have concluded by the evening of 3 December 2011 that S should not be detained in immigration detention but should be transferred to a mental health ward in a hospital setting either voluntarily or under section to be fully assessed and treated for his Schizophrenia.[320]In any event, CNLIT should not have taken the detention decision until it had obtained a copy of the FME’S assessment report and all other relevant details of S’s behaviour both before and after he had been detained in custody in CPS.[321]CNLIT should not have allowed S to remain in CPS for 34 hours but should have arranged for his movement or release on Saturday afternoon or early evening. It should have undertaken a structured decision-making exercise that took account of EIG chapter 55.10 in order to decide whether to make S subject to immigration detention or some other form of voluntary or compulsory detention in a hospital. It should not have allowed S to be transferred to an IRC until it had been confirmed that there was a bed in a healthcare centre available for S and that that IRC was currently able to manage S’s illness satisfactorily, and should then have arranged the transfer during daylight hours and not in the middle of the night.[322]All these matters evidenced failures by CNLIT or for which it was responsible to comply with and to ensure compliance with the relevant provisions of Code C and EIG Chapter 38 and paragraph 55.10. (2) The decision to transfer S to Colnbrook[323]The relevant decisions. The SSHD’s transfer decision was taken in five stages. These were:(1) CNLIT’s initial telephone contact to DEPMU at 17.50 on 3 December 2011 during which DEPMU informed CNLIT that there was no problem in principle with S going into a healthcare bed and advised CNLIT to send it a detention request accompanied by a copy of the FME’s report that contained a request for a healthcare bed.(2) CNLIT sent BEO a Detention Referral Form requesting a placement for S in a healthcare bed in an IRC early in the morning of 4 December 2011. BEO passed the request to DEPMU who accepted the request. This acceptance was for a placement on ordinary location and not in a healthcare bed so that DEPMU subsequently placed S in Colnbrook without stipulating that he should be placed in a healthcare bed. CNLIT was notified by BEO by fax that an IRC place had been allocated to S. This notification made no reference to a healthcare bed.(3) CNLIT faxed BEO who forwarded to DEPMU a formal request for S to be received into a healthcare bed in an IRC accompanied by a completed IS91RA form and a copy of the FME report and accompanying initial custody officer’s risk assessment. The IS91RA inaccurately summarised S’s mental health complaints and did not refer to the requirement for a healthcare bed or for S to be fully assessed by a psychiatrist. DEPMU accepted the request and that acceptance was passed via BEO to CNLIT at 13.24 on 4 December 2011. The detention allocation form stated that the application for a ring-fenced detention bed had been accepted. This acceptance was understood by CNLIT to be for a healthcare bed.(4) DEPMU allocated S to Colnbrook and instructed its independent contractor to move S there. These arrangements were made in the period between about 13.30 and 22.00. At 22.41, UKBA in Manchester notified CPS that S would be moved to Colnbrook and would be collected at about midnight. DEPMU’s movement order which was copied to Colnbrook stated that S might be suffering from mental illness but made no mention of a healthcare bed requirement.(5) Colnbrook, following S’s initial reception interview, accepted S and decided that, in the light of his current presentation, he should be placed on general location in a single occupancy bed.[324]CNLIT’s decision-making errors. The cumulative effect of these decisions was that CNLIT decided that S was fit to be moved and detained in a healthcare bed in an IRC and applied for such a move although the accompanying IS91 did not stipulate the healthcare bed requirement. It did identify in general terms the known facts of S’s mental health condition and the FME’s report attached.[325]CNLIT’s decisions were based on several errors or misconceptions. They did not take account of the full significance of the FME’s report and his additional advice that had also been reported to CNLIT that S was possibly suffering from Schizophrenia and needed a full psychiatric assessment. CNLIT should have ensured that S was provided with the same standards of healthcare as would have been provided by the NHS or the police to someone presenting with S’s psychotic symptoms or to a person detained in police custody. In particular, S should have been provided with access to a properly trained appropriate adult – whether or not he was interviewed - and a psychiatric assessment as a matter of priority.[326]Although the FME had advised that S was fit to be detained, that advice in context was to the effect that S was fit to be received into detention at CPS for a maximum period of 24 hours pending a decision being taken whether to charge him or detain him in immigration detention. The advice was, therefore, severely constrained in both the period of time it related to and its scope since the FME had merely conducted a PACE assessment that was accompanied by advice that S’s cognitive functions were sufficiently impaired that he was unfit to be interviewed and that he should be fully assessed by a psychiatrist. Moreover, when the removal decision was taken, S had already been in custody for at least 26 hours, he had not been seen by anyone from CNLIT, the CIO approving his initial detention had previously made that decision conditional upon a mitigating circumstances interview being carried out as soon as possible in the police station, the FME’s advice was now 24 hours old and S’s detention behaviour had become increasingly more bizarre.[327]Although PACE Code C did not apply to S’s detention in the police station after he had been detained by CNLIT, CNLIT had a duty to ensure that the relevant provisions concerned with those who were suffering from mental illness or impairment were given effect to. This duty arose both by virtue of EIG Chapter 38 and because the SSHD had an Equality Act duty to ensure that S as someone with a protected characteristic was not discriminated against compared with others suffering from a similar disability. The SSHD was therefore obliged to provide equivalent standards of care to S whilst being detained in immigration police custody as would have been provided to those detained in police custody that were subject to PACE Code C or to section 136 of the MHA. Moreover, the SSHD accepted as a matter of practice that the provisions of Code C relating to vulnerable and mentally ill detainees would be given effect to for immigration detainees detained in police custody. It followed that CNLIT had a duty to ensure that S received appropriate clinical attention in CPS in the form of an appropriate psychiatric assessment, was considered for sectioning and was visited in custody by an appropriate adult who had been trained in the care of the mentally disordered Paragraphs 1.4, 1.7, 1.8 and Note 1D, 9.5 and paragraph 5 of Annex E. .[328]In addition, the decision to detain in an IRC should have been preceded by a structured decision involving a consideration as to whether S was likely to be removed to Ghana in the reasonably near future and whether his apparently serious mental illness could be satisfactorily managed in an IRC. In this context, the decision-makers in both DEPMU and CNLIT should have considered whether Colnbrook healthcare unit could have provided S with healthcare management that would include a full psychiatric assessment in the near future, round the clock monitoring and the means of stabilising his mental condition and identifying and ensuring the consistent application of appropriate medication for his diagnosed symptoms. It can now be seen that S would not have been moved to Colnbrook or any other IRC from CPS had an appropriate detention or removal decision been taken in the first 24 hours of his police custody.[329]Even if these considerations had been overlooked until mid-morning on Sunday 4 December 2011, they should then have been triggered by the full and accurate summary of S’s known mental condition and his rights that were set out in Wilson Solicitors’ letter received by CNLIT at about 11.30 that morning.[330]DEPMU’s decision-making errors. Furthermore, DEPMU was also and separately in error in taking its acceptance, allocation and movement decisions on 4 December 2011. It did not query or give effect to the IS91 which it had received before accepting S for detention in an IRC, it did not arrange a healthcare bed for S when booking him into Colnbrook and it did not stipulate that S should be assessed by a psychiatrist as a matter of urgency and that DEPMU and CNLIT should be provided with a summary of that assessment as soon as possible thereafter.[331]Conclusions – S’s detention in police custody 3 – 5 December 2011. The police were aware that S was mentally ill, or was apparently, suffering from a mental illness from the moment that he was stopped in the street on 2 December 2011 and that awareness rapidly increased during his arrest, custody reception and custody behaviour during his 34 hours in police custody. The police were acting as detention agents for the SSHD from the moment S was received into custody so that PACE Code C did not fully apply to his custody once he had been formally detained in immigration detention but its relevant provisions relating to the monitoring, treatment, assessment, access to an appropriate adult and legal advice, interviewing and continued detention of S as someone who was or who appeared to be mentally ill applied by virtue of SSHD’s policy throughout his time in police custody. The custody officers on duty throughout this period were authorised to apply these Code C provisions under the overall control of CNLIT. The evidence show that those officers were fully aware of those provisions and applied them as instructed by CNLIT, liaised promptly, regularly and appropriately with DEPMU initially and then with CNLIT and monitored S continuously by keeping his health and safety under constant review and otherwise following CNLIT’s instructions.[332]Had S been in police custody instead of immigration custody, it is likely that the custody officer would have arranged for an appropriate adult with appropriate mental health training to attend the police station during the afternoon or evening of 3 December 2011 and either such an appropriate adult, or the custody officer on his own initiative, would have arranged for S to be visited by an AMHP or to be moved forthwith to hospital and would not have permitted S to leave the police station save under escort and compulsorily to hospital under sections 2, 4 or 136 of the MHA. However, such decisions were for CNLIT given that S was in immigration detention throughout, albeit in holding detention until 17.30 on 3 December 2011.[333]EIG Chapter 38 gave clear guidance in relation to those subject to administrative removal who were detained in a police station and under police control and as to how to apply the applicable provisions of PACE Code C and those responsible for S’s detention at CNLIT and DEPMU had had, or should have had, training in how to recognise the signs and diagnoses that suggest that an immigration detainee is genuinely actively psychotic. It would appear that no guidance had been given to IOs in relation to the SSHD’s duty to avoid the discriminatory treatment of S as someone suffering from a mental illness compared to those suffering from such an illness who were detained in police custody or not detained at all. The risk that that might occur was apparently heightened by the change in wording of the relevant part of EIG paragraph 55.10 and it ought to have been, and should have been, mitigated had that change been subjected to an Equality Impact Assessment that the SSHD had previously been found to be under a statutory duty to perform but which does not appear to have been completed subsequently See paragraphs 247 – 252 above. .[334]The CIO who authorised S’s initial detention was sufficiently aware of these matters to instruct that S should be interviewed in CPS as soon as possible attended by an appropriate adult and that he should be received into a healthcare bed in an IRC if it was clear that he did not need to be hospitalised and it was safe to continue to detain him. Unfortunately, the interview did not take place and the IOs in CNLIT who dealt with his custody do not appear to have considered that S was genuinely mentally ill, possibly because they mistakenly misunderstood and failed to obtain the relevant details of his apparent illness.[335]The result was that S never saw an appropriate adult, an AMHP, a psychiatrist, a duty solicitor or an IO whilst in CPS. He was also detained there for up to 28 hours longer than he should have been and was not transferred to hospital under any of the available means of compulsorily detaining him available under the MHA. Instead, he was moved to Colnbrook without any thought being given as to whether Colnbrook could monitor and treat his psychosis appropriately. These decisions were taken despite CNLIT receiving full, clear and written representations at about 11.30 on 4 December 2011 from S’s solicitor that sought his immediate release from detention to a place of safety at his friend’s house and appropriate medical, psychiatric assessment and treatment. There is no evidence that these submissions were considered or acted upon and no reasons were given as to why they were rejected in favour of his removal to Colnbrook. Taken cumulatively, these failings amounted to significant breaches of the SSHD’s relevant policies relating to detention and to S being unlawfully detained at 17.30 and maintained in detention from then onwards. (3). General comments: S’s immigration detention in Colnbrook and Harmondsworth[336]This case exemplifies in full adverse findings and criticisms made in other judgments in unlawful detention cases involving a mentally disordered detained person’s involvement with IRCs’ Healthcare Centres. The complaints included the following in general terms:(1) The inadequate standards of care provided for immigration detainees, particularly in relation to mental health healthcare.(2) The inadequate, uncoordinated and disparate sets of documentation maintained by the UKBA and Healthcare Centres about an individual detainee which are neither fully logged in a central logging system nor maintained centrally in legible and accessible form.(3) The inadequate disclosure of material internal UKBA detention and treatment documentation and the SSHD’s reliance in fulfilment of its discovery obligations on redacted documentation previously disclosed to the claimant or the retained solicitor in a subject access requests made by or on behalf of the detained claimant.(4) The failure to transcribe relevant but illegible manuscript notes and records into legible word processed documents.(5) The lack of a chronological consolidated bundle of all documents indexed and paginated with a list and description of all those involved in the making of those documents or who are referred to in them.(6) An explanation of acronyms and an organisation chart showing the relationship between individual immigration officers and between different parts of the UKBA involved with the claimant detainee.(7) A lack of evidence provided by the SSHD from witnesses, including evidence from those involved with, and with a first-hand knowledge of, the claimant detainee’s assessment, monitoring, treatment and observation whilst in immigration detention and of the basis of individual detention and maintaining detention decisions.(8) Disclosure of the relevant documents that identified the contracted standards and levels of treatment applicable to the claimant, the numbers being treated in the relevant Healthcare Centre, staffing levels and publicly accessible information such as Healthcare monitoring reports about any relevant shortcomings in the particular Healthcare Centre or Centres involved.(9) Disclosure of information that identified the training and working conditions that the operator of, and the individual members working within relevant healthcare centres received and should receive.(10) An explanation of the recording obligations in relation to and the records maintained about the health of and the healthcare and medication provided to the detained claimant.(11) A summary of the relevant training, instructions and guidance given to relevant immigration officers and healthcare members including any training and guidance about mental illness and disability, equality and other relevant human rights issues relevant to the detention and its maintenance of those suffering or apparently suffering from mental illness or mental disability.(12) A summary of the relevant parts of any relevant protocols or practice concerning the assessment, treatment and healthcare record-keeping of mentally ill immigration detainees. Also, the law and practice pertaining to information access and sharing of health and treatment records of mentally ill detainees between decision-makers and healthcare services within the NHS, between individual healthcare centres, individual decision-makers of decisions taken about immigration detention and the population movement of such detainees and between the SSHD and UKBA and the detained claimant and his or her legal advisers.[337]It will not often be necessary to provide all of these requirements in relation to a complaint of unlawful detention arising out of alleged inadequate mental healthcare provision. However, centralised accessible and comprehensive healthcare information is available to all those treating NHS patients and can be readily accessed, subject to information access protocols, as necessary. In this case, the many failures to record, maintain and make available legible and comprehensive documentation and information was not in any way attributable to the SSHD’s legal team who discharged their respective disclosure obligations in an apparently exemplary fashion. However, there were, looked at cumulatively, UKBA, NCLIT, HFDT, DEPMU, CH and HH shortcomings in each of the categories I have identified.These shortcomings undoubtedly led to the series of mistakes and errors in assessment and treatment that occurred and they have prolonged the hearing, submissions and this judgment and have made the determination of the relevant facts an extremely difficult task.[338]I have prepared a schedule of all the recorded contacts that S had with CH and HH, of the prescriptions that were written relating to his mental illness and depressive condition and the medication that he was supplied whilst he was in immigration detention in Colnbrook and Harmondsworth. This schedule is annexed to this judgment. (4) Detained in Colnbrook: 5.12.2011 – 13.12.2011[339]The critical decisions. The critical decisions that were taken whilst S was detained in Colnbrook were as follows:(1) The decision to submit a revised IS91 on S’s arrival at Colnbrook.(2) S’s medical and psychiatric assessments.(3) The decision not to, or the failure to, submit an appropriately revised IS91 report and a Rule 35 report on 5 December 2011.(4) DEPMU’s decision to move S to Harmondsworth on 9 December 2011.(5) CNLIT’s 7-day detention review taken on 10 December 2011.(6) CH’s monitoring and care of S over the entire 8-day period of his detention in Colnbrook.[340]The revised IS91 dated 5 December 2011. The nurse who undertook S’s initial reception health assessment when S arrived at Colnbrook at 03.05 filled out and sent to CNLIT and DEPMU a revised IS91 as a result of receiving his movement order that stated that he might be suffering from mental illness and his very odd and strange behaviour on arrival at Colnbrook. The revised IS91 stated that it had been deemed appropriate for S to be in single occupancy until he had been fully assessed by the psychiatric team. The nurse must also have notified CH to arrange for an urgent psychiatric assessment since Dr Allen’s assessment took place later on during the day of arrival. Both CNLIT and DEPMU took on board these revised details since they both enquired subsequently whether they had been undertaken.[341]S’s medical and psychiatric assessments. S was given a reception assessment on arrival by the reception nurse, an induction assessment by one of CH’s RMNs and detailed assessments by one of CH’s GPs and CH’s locum psychiatrist, all within about 12 hours of his arrival at Colnbrook. Dr Allen also checked S on 9 December 2011 and found him unchanged but, as is now known, incorrectly recorded that he was taking the prescribed antipsychotic medication he had prescribed for him on 5 December 2011 See paragraphs 65 78 above. . Dr Allen should have seen S again on 11 December 2011 but was informed that he was sleeping and not well enough to see him as a result of S’s breathing difficulties during the preceding night. These assessments and the overall conclusion to be drawn as to S’s diagnosed state of health on 5 December 2011 have already been set out in detail See paragraphs 63 – 73 above. The conclusion is set out in paragraph 73. . Dr Allen’s overall conclusion was that S was suffering from a psychotic illness that might be Schizophrenia, he lacked capacity to consent and was unfit to be moved to healthcare or to be removed from Colnbrook. He required and had been prescribed antipsychotic medication and his health might rapidly deteriorate further so as to urgently require him to be admitted to hospital. Once his health permitted, he should be moved to a healthcare single occupancy bed. In the longer term, he also required a full psychiatric assessment and health monitoring over an appropriately lengthy period.[342]Dr Allen considered the possibility of S being transferred to hospital under section 48 of the MHA. He erroneously understood that such a transfer would take many weeks to arrange and therefore did not pursue this option. He had been misinformed or untrained about this option however. He should have been aware of the law and practice relating to such transfers which is helpfully explained in the relevant passages of the judgments in D and HA: R (D) v Secretary of State for the Home Department and another [2005] 1 MHLR 17, Administrative Court, Burnton J, paragraph 33. The relevant passage in the judgment was approved by Singh J in paragraphs 166 – 169 of HA (ibid.). Both passages are set out in paragraph 240 above. as soon as the UKBA and the relevant personnel in an IRC and its healthcare centre become aware or ought to have become aware that a detainee requires treatment in a mental hospital, the SSHD is under a duty expeditiously to take reasonable steps to obtain appropriate medical advice and, if that confirms the need for transfer to hospital, to take reasonable steps within a reasonable time to effect that transfer. In this case, such a transfer could have been achieved by the rapid obtaining of a second psychiatrist’s opinion which, if confirmatory of Dr Allen’s opinion could have rapidly led to the SSHD directing or arranging for a transfer to a hospital for mental health care. The transfer could have been directed under section 48 of the MHA or by way of release from immigration detention direct to hospital under sections 2, 3 or 4 of the MHA.[343]CH’s failings following this mental health assessment are significant. It failed properly to record or to ensure the recording of Dr Allen’s diagnosis or to obtain from Dr Allen a written report explaining his diagnosis in detail, it failed to pay regard to Dr Allen’s note dated 5 December 2011 that he wrote into the mental health records, it failed to issue a revised IS91 following that diagnosis or to ensure that a Rule 35 report was obtained and issued, it apparently failed to train or instruct Dr Allen on the reporting requirements imposed for IS91s by Rule 34 and the EIGs and for Rule 35 reports by the EIGs and the DCR and other policy guidance, it did not monitor S’s state of health, it placed him in a single occupancy bed rather than in a healthcare bed, it did not inform CNLIT or DEPMU of the full facts of S’s state of physical and mental health and misled them by suggesting that S had been assessed by a psychiatrist whose conclusions showed S to be in a satisfactory state of mental health and it failed to ensure that S took his prescribed antipsychotic medication or to pass on sufficient information to HH so as to put it on red alert with regard to S’s state of mental health.[344]It is unfortunate that Dr Allen was not consulted about S’s proposed move to Harmondsworth before that took place or informed that it was to take place prior to that occurring, particularly as he visited Healthcare on 11 December 2011 in an unsuccessful attempt to see him. Had he been consulted or informed, he is likely to have counselled against a move at that time due to S’s ill-health and that information, once relayed back to CNLIT, is likely to have triggered a review of his location and detention.[345]No further revised IS91 nor any Rule 35 report. The twin failures by CH to provide the appropriate information needed to ensure that S’s IS91RA was revised and reissued and that a Rule 35 report was issued are of particular concern. An IS91 was intended to record what if any risk a person might present to himself or to others whilst in detention. It had to be prepared by reference to the risk concerns specified in form IS91RA part A. If further information became available which impacted upon and altered the risk that a detainee posed to himself, to others or to his security in detention, a new risk assessment should have been undertaken and its results and the new information should then have been recorded in a revised Part C in a new IS91 which should then have been issued and forwarded to DEPMU and CNLT. These steps were not taken even though Dr Allen had drafted and signed a revised Part C which CH neither noted nor passed on nor gave effect to by issuing a new IS91. Part of that draft Part C stated that S should be moved to CH and treated with antipsychotic medication but was not well enough to be moved at present and his note in the mental health records stated that UKBA should be informed immediately of S’s seriously ill mental state and limited mental capacity.[346]The failure to issue a Rule 35 report was even more serious. These reports were required to be issued by Rule 35 of the DCR and paragraph 1.2 of UKBA’s Detention Rule 35 Process instruction where healthcare teams, including of course a psychiatrist undertaking a psychiatric assessment, were required to report cases when the relevant healthcare professional had concerns that the detainee had a special illness or condition. The report had to be provided to the healthcare manager and passed on by the manager to, in this case, CNLIT and DEPMU. The detainee’s case owner responsible for managing and reviewing his detention had to consider and act upon a Rule 35 report within 24 hours of receiving it if it showed that continuing detention was inappropriate. The SSHD’s policy in relation to Rule 35 reports also provided that if one was issued, a copy should also have been provided to any decision-maker considering any asylum or human rights claim of the detainee in question.[347]Dr Allen’s evidence was unequivocal. He stated that he had not been trained or informed about Rule 35 reports or their significance and only came to hear of them when he had ceased working in CH and had received assessment training from Medical Justice when he started to work for that organisation. He considered that had he been given equivalent training prior to starting work in CH and had then assessed S, he both should and would have submitted a Rule 35 report on him. It is clear that Dr Allen would, had he submitted one, have drafted it in the uncompromising terms already set out See paragraph 73 above. and it would have resulted in S being moved to hospital for further on-going assessment and treatment for his psychosis, stress and depression.[348]Mr Humphris, having been shown a copy of Dr Allen’s note in the mental health records, stated in his witness statement that, in his opinion, S would not have been released from detention had the decision-maker who was considering whether or not to confirm his detention been shown a copy of that note. That was an unsustainable conclusion. Mr Humphris had no personal knowledge of S’s case and, given the contents of the note and the further details of Dr Allen’s diagnosis that are now available, his conclusion appears to be both unreasonable and based on wholly inadequate information. However, Mr Humphris’s view is irrelevant since the relevant question is what CNLIT’s reaction would have been had it been provided, as it should have been, with a Rule 35 report and a revised IS91 in appropriately drafted terms. It is inconceivable that CNLIT would have confirmed S’s detention if the decision-maker had been provided with both documents.[349]Movement decision dated 9 December 2011. On 7 and 8 December 2011, CNLIT twice requested CH for further information about S’s mental health as follows:(1) On 7 December 2011, CNLIT emailed CH with a request that it should arrange for S to be assessed by a psychiatrist as had been suggested in the IS91 issued on 5 December 2011. This email was not responded to in writing but there is a handwritten note on CNLIT’s copy of the email which read that “all done already” suggesting that there had been contact by telephone to HH during which CNLIT was informed that the assessment had already been carried out. This note appears to be referring to Dr Allen’s assessment on 5 December 2011. However, CH neither asked for, nor was provided with, details of Dr Allen’s assessment nor his note in the mental health records.(2) On 9 December 2011, CNLIT asked HH to confirm whether there were any mental health issues relating to S. These details were being sought to enable that information to be accurately recorded in S’s file. CH did not answer this request and neither CH nor HH were subsequently chased up for an answer.[350]On 9 December 2011, DEPMU decided to move S from Colnbrook to Harmondsworth albeit that the movement order was not sent to the escort contractor until the morning of the 12 December 2011. The movement order stated that S had mental health concerns, was possibly suffering from Schizophrenia, had stated that he was HIV positive and had claimed that he had auditory and visual hallucinations, poor memory, sleeping issues and throat and sight problems. The movement order also wrongly asserted that S was not currently on medication. This wording did not explain that Dr Allen had also advised, in his note in the CH mental health records, that S appeared to lack capacity to consent “just now” and in his draft IS91 that he was currently too ill to be moved from single location to CH to be treated for his psychosis. More significantly, it did not set out the full extent of Dr Allen’s diagnosis that he would have set out in a Rule 35 report had he known that he was required to make such a report about detainees whose health was likely to be injuriously affected by their continued detention See paragraph 71 above. .[351]Furthermore, DEPMU was aware that S was due to have a psychiatric assessment on arrival at Colnbrook so that it should not have issued this movement order without first having obtained details of that assessment from CNLIT. Equally, CNLIT should have chased up CH for details of S’s psychiatric assessment and have informed DEPMU that no re-location should be attempted until these details were available. It is most unlikely that S would have been moved to Harmondsworth if DEPMU, CNLIT and CH had paid sufficient attention to S’s mental health and had kept each other fully informed about the up to date details of Dr Allen’s psychiatric assessment of S. Further, when moved to Harmondsworth, the movement order should have identified the full extent of S’s psychiatric diagnosis in Colnbrook so as to alert HH to the need to undertake a further such assessment as part of the Rule 34 medical assessment it was required to carry out.[352]7-day detention review dated 10 December 2011. The decision-maker taking the decision concerned with S’s 7-day detention review did not have a report of Dr Allen’s assessment and diagnosis, information about S’s non-compliance with his prescribed Olanzapine medication or his behaviour in Colnbrook since his arrival there on 5 December 2011, an up to date IS91 or a Rule 35 report. Furthermore, it does not appear to have been brought to the decision-maker’s attention that CH had failed to respond to two requests for information about Dr Allen’s psychiatric assessment that had been carried out on 5 December 2011. The confirmation of S’s detention was, therefore flawed since it did not take into account highly significant information which could have been, but had not been, chased up by CNLIT.[353]CH’s monitoring and care. CH’s mental healthcare was woefully inadequate. No revised IS91 or Rule 35 report had been obtained, S remained unmonitored and non-compliant in a single room on normal location, he remained too ill to be moved to a ward in CH, his appropriate adult had not been asked to attend his introductory assessment and CH did not raise any objections to S’s notified move to HH despite its inadequate mental health facilities and did not inform DEPMU that if S was moved to another IRC, he should be located in a healthcare bed in the IRC’s healthcare centre.[354]Conclusions – S’s detention in Colnbrook. Despite S’s mental health condition apparently worsening during his time in Colnbrook, he received no treatment for it, his detention review decision was Wednesbury unreasonable, CH’s standard of healthcare was wholly inadequate and his detention in Colnbrook unlawful. (5). Detained in Harmondsworth - Phase 1: 1.12.2011 – 24.12.2011- CNLIT[355]General complaints. The first phase of S’s detention in Harmondsworth consisted of the first 10 days that he was located there and culminated with his being psychiatrically assessed by Dr Burrun on Christmas Eve. As occurred when he was transferred to Colnbrook, S was transferred to Harmondsworth by the movement contractor in the middle of the night and arrived at that IRC at 02.21. On arrival and throughout his stay in Harmondsworth, S was located on A-wing on general location. He was not considered for location in a single occupancy room on general location nor until a few days before his release, in a healthcare bed in HH notwithstanding his active psychosis and the need for his condition and medication to be continuously assessed and monitored. This failure arose from a failure of those previously concerned with his mental health to bring S’s serious mental illness to the attention of HH and from HH’s failure to give S a Rule 34 examination within 24 hours of his arrival at Harmondsworth, to give him a psychiatric assessment as soon as possible after his arrival, to give effect to the information it received in his movement order and his healthcare introductory assessment that he was suffering from Schizophrenia or other active psychosis and to keep him under observation or to take appropriate action to treat his mental illness and to administer the live prescription for Olanzapine that had travelled with him from Colnbrook.[356]Rule 34 medical examination. S should have given, but was not given, a Rule 34 medical examination within 24 hours of his arrival at HH. Moreover, he was not examined by the HH team subsequently until he was given a psychiatric assessment on 24 December 2011, two weeks after his arrival at Harmondsworth, as a belated and inadequate response to the independently arranged psychiatric assessment that had been undertaken by Professor Katona on 21 December 2011. Rule 34 of the DCR required a detainee to be given a physical and mental examination by each IRC that he was detained at which was to take place within 24 hours of his admission to that detention centre. HH sought to excuse this failure on the grounds that S had already had a Rule 34 examination on his arrival at Colnbrook 9 days earlier. However, Rule 34 makes an initial examination mandatory whenever a detainee arrives at a different IRC location. S’s situation in this case was similar to that dealt with by Parker J in RT [2011] EWHC 1792 (Admin). where it was held that a Rule 34 examination was mandatory for all detainees and that detention without such an examination, which had to include an examination of the patient’s mental health, would be unlawful if it was shown that that examination would have revealed the full extent of a detainee’s mental illness and have led to his release. It is clear that had a Rule 34 examination of S’s mental health been undertaken on arrival at Harmondsworth, HH would have discovered the existence and severity of S’s mental illness and he would have been released, albeit that that release would have been to a hospital for appropriate assessment and treatment.[357]14-day detention decision. S’s 14-day detention was maintained in a decision taken on 17 December 2011. It was not surprising that this decision was taken because CNLIT had not received any up to date information about S’s mental health due to HH’s failure to carry out any assessment of S since his arrival in Harmondsworth. HH should have provided CNLIT with a report of S’s mental health for the 14-day detention review and it is likely that, had an assessment report been provided to CNLIT in time for that review, S would have been released forthwith.[358]The HMI, in deciding to maintain S’s continued detention in his 14-day detention review decision, made it clear that if there was any change in S’s mental health from what CNLIT took to be its satisfactory, quiescent and manageable state, S’s case should immediately be referred back to an HMI to consider whether he should continue to be detained. HH was, or should have been, aware of this instruction and should have responded immediately by arranging for S to have a psychiatric assessment forthwith. However, it did not immediately do so and it never reported to CNLIT as required although it should have been aware, and belatedly became acutely aware on receipt of Professor Katona’s report, that S was seriously mentally ill.[359]HH’s revised IS91. Following the 14-day detention review decision, CNLIT made strenuous efforts to obtain up to date information about the state of S’s mental health. It made at least 5 unanswered telephone calls to HH and also sent at least two emails to HH on 17 and 19 December 2011 asking for confirmation that S was mentally fit to be detained and fit to fly, both important questions given that CNLIT was at that stage intending to return S to Ghana imminently since it erroneously understood that the only matter holding up S’s return was his lack of an ETD which was expected imminently from the Ghanaian High Commission.[360]On receipt of these queries from CNLIT, HH should have arranged that Dr Burrun undertook a psychiatric assessment of S as a matter of urgency since it had not carried out a Rule 34 assessment, it had not followed up the information provided by S’s reception interview that he was suffering from a psychotic illness, it had not responded to the request for a referral back contained in the 14-day detention decision and it had then received an urgent request for information about S’s mental health. However, HH failed to respond as it should have done by arranging for Dr Burrun to attend HH and see and assess S forthwith and to have paid Dr Burrun to make a special visit to HH for that purpose.[361]Instead, HH acted in a wholly unsatisfactory fashion. The HH Healthcare Co-ordinator, a senior medical nurse, without consulting RMN Nurse Dube, Dr Burrun or S’s physical, mental health and prescription records, faxed CNLIT on 19 December 2011 with the information that S was fit to be detained and to fly and that HH had no concerns about S. This was followed up by the same nurse faxing a revised IS91 to CNLIT on 20 December 2011 which stated that S was fit to fly, was complying with his prescribed medication and appeared to be in a stable mental state. These statements were seriously erroneous and highly misleading and they had been made without any consultation with the mental health team at HH and, it would seem, without any proper consideration of S’s healthcare records.[362]In providing these documents to CNLIT, the Healthcare Co-ordinator did not take account of the fact that S had been re-prescribed by HH with Olanzapine on 19 December 2011 which was a clear indication that he was actively psychotic. Moreover, S was actively psychotic on 19 December 2011 as can be seen from the fact that, two days later on 21 December 2011, Professor Katona noted during his assessment of S that he was actively psychotic, cognitively impaired, perplexed and suspicious and describing episodes of intense panic during which he started to shake and was feeling things that, in S’s words, “I can’t describe”. Also on 21 December 2011, Nurse Dube noted in the mental health records following his meeting with S that he had a bizarre presentation and needed further assessment by a psychiatrist.[363]Finally, an examination of the physical care records would have shown that the IS91 was in error in stating that S was compliant with his prescribed medication. In fact, S had never been compliant with his prescribed medication since he had first been detained on 3 December 2011 even though he had been prescribed Olanzapine on 5 December 2011. Instead, he had secreted and had not taken his prescribed medication on 6 of the 7 days he was subject to that prescription in Colnbrook and had probably not taken it on the seventh day since that was the day that he was transported to Harmondsworth. Moreover he had neither taken nor been provided with that prescription on any day between his arrival in Harmondsworth and 20 December 2011 when the revised IS91was issued.[364]The ill-considered and factually erroneous information and the revised IS91 that HH faxed to CNLIT that suggested that S was fit to be both detained and to fly had particularly adverse and far-reaching consequences for S. In particular, CNLIT took these responses to be a clear indication that S’s claimed mental illness was not serious and that his behaviour that suggested otherwise was to be disregarded. This information also re-affirmed CNLIT’s view that S was fit to be interviewed, to remain in detention rather than being considered for release on bail, to be transferred to the DFT, to engage fully in his asylum claim and the immigration appeals process, to be safely removed by air to Ghana in the near future and to have no arguable case for being released from detention and for his removal to be deferred until his mental health had been fully assessed, treated and stabilised.[365]The three psychiatric assessments on 21 and 24 December 2011. It is necessary to consider the SSHD’s failings in relation to the psychiatric assessments undertaken on 21 and 24 December 2011 as they developed in the period leading up to and immediately following Dr Burrun’s assessment on 24 December 2011. These stages are:(1) By the time that S had been in Harmondsworth for 24 hours, CNLIT should have been in possession of the full details of the FME’s assessment on 3 December 2011 For no good reason, the FME’s assessment was not provided to either CH or HH and was not referred to in the mental health records of either of these healthcare centres. , Dr Allen’s assessments on 5 and 9 December 2012 and a report of the initial entries about S in the HH physical and mental health records. Taken together, these reports should have alerted HH to the fact that S was suffering from an active psychosis which was either Schizophrenia or was a consequence of HIV. At the very least, a Rule 34 psychiatric assessment should have, but had not, been arranged as a matter of urgency and the psychiatrist instructed by HH to undertake this assessment, whether Dr Burrun or some other psychiatrist, should have been provided with these earlier reports.(2) As soon as Professor Katona contacted HH to arrange an assessment of S, presumably a few days before 21 December 2011, HH should have alerted CNLIT that this appointment had been arranged and have taken urgent steps to arrange its own psychiatrist to assess S.(3) On 23 December 2011, on receipt of Professor Katona’s first report, HH should have provided a copy to CNLIT, placed a copy on S’s healthcare records, ensured that that copy was made available to Dr Burrun and instructed Dr Burrun to answer each point made in the report. Instead, it did none of these things.(4) On 24 December 2011, HH should have been on hand to receive an immediate report from Dr Burrun of his informed assessment of S, have made arrangements for his mental health to be monitored and treated over the Christmas period and have provided a full report to CNLIT of both Professor Katona’s and Dr Burrun’s assessments having given it warning that those reports would be forthcoming immediately before or during the Christmas period.[366]The SSHD’s response to these criticisms of HH’s failings is that the assessments of S that had been undertaken by the FME and during CH’s admission assessments, HH’s introductory assessment on 14 December 2011 and its RMN nurse’s assessment on 20 December 2011 had all concluded that S was fit to be detained. Moreover, it contended that there was nothing in Dr Allen’s recommendations to suggest that S was not fit for detention, that had his recommendations been made known to CNLIT, it would have continued to detain S because his illness was not sufficiently serious to engage EIG 55.10 and could have been satisfactorily managed by HH, that Dr Burrun correctly and reasonably concluded that S was fit to be detained in the light of his being aware of Professor Katona’s assessment and that it was entitled to rely on his assessment in preference to that of Professor Katona.[367]In reality, there had been a catalogue of failings that had left S detained in Harmondsworth instead of being transferred to hospital. The most notable failings were CNLIT’s failure to visit S in CPS and to appreciate and give proper effect to the contents of the FME report and its diagnosis that S was actively psychotic and probably actively schizophrenic. Following his transfer to Colnbrook, Dr Allen’s assessment was neither properly expressed nor acted upon, neither a Rule 35 report nor a revised IS91 were produced and CH did not provide S with a healthcare bed, monitor his mental illness or ensure that he was compliant with his prescribed medication. Following his second transfer to Harmondsworth, no Rule 34 assessment was carried out by HH, HH did not provide S with his prescribed Olanzapine despite it being prescribed for him on both 5 December 2011 by CH and 19 December 2011 by itself, S was not provided with a healthcare bed, HH did not monitor his mental illness or provide him with any, let alone any sufficient management of his mental illness and Dr Burrun did not prepare a legible, reliable or intelligible assessment report about S’s mental illness.[368]HH’s most serious shortcoming was its complete failure to consider, make available to CNLIT and Dr Burrun and act upon Professor Katona’s assessment and instead to simply ignore it. This shortcoming is compounded by a complete absence at any stage subsequently to respond to it or to explain why it was ignored. Instead, the SSHD instructed its counsel to contend that it had preferred Dr Burrun’s assessment to that of Professor Katona even though no-one connected with S’s detention was aware of its contents. Finally, Dr Burrun’s conclusions broadly agreed with those of Professor Katona save that he concluded that S did not require a full psychiatric assessment in a hospital setting. However, Dr Burrun reached that conclusion on the basis of inadequate information and without being requested to or having had the time to carry out a full structured mental state assessment or appropriate cognitive testing so that that element of his assessment, which was only revealed when Dr Burrun was asked for clarification of his assessment in 2013, was not considered by CNLIT and cannot now carry any weight.[369]Thus, I accept the contentions made on behalf of S and reject those made on behalf of the SSHD. S should never have been detained, should have been released from detention following each of the reviews of his detention that took place in this period and was provided by HH with wholly inadequate care, treatment and illness management.[370]HH’s management of S’s illness. It can be seen from the annex to this judgment that HH’s management of S’s illness in this period was both inadequate and very limited. In relation to the administration of S’s prescribed medication, it failed to note and give effect to S’s CH Olanzapine prescription that S had arrived with and it provided a re-prescription of Olanzapine on 19 December 2011 but never administered it during the following 28 days of its life. Moreover, it failed to provide S with a Rule 34 assessment and it made no record of the medication advice given to S by the HH GP who saw him on 20 December 2011. It also located S on A-wing away from HH and did not arrange for any member of the mental healthcare staff to visit him on A-wing or to see him in HH. Having repeatedly failed to answer CNLIT’s calls seeking an answer to its query as to whether S was fit to be detained and to fly, it provided CNLIT re-assuring but wholly erroneous answers from a medical nurse which were misleading and which were answers that the nurse was neither qualified nor sufficiently knowledgeable about S’s mental health to give at all.[371]HH’s inadequate management of S’s illness is exemplified by its failures in relation to Dr Burrun. It failed to arrange for Dr Burrun to assess S’s mental state or to provide S with necessary psychiatric care except reactively and inadequately in response to Professor Katona’s assessment and then only by arranging for him to squeeze an appointment into his crowded morning list on his next fortnightly visit to HH on Christmas Eve. Dr Burrun was the only psychiatrist visiting HH and his locum contract provided for one half day surgery visit a fortnight during which he would attend to as many patients as he had time to see and his time with each patient was inevitably limited. He was able to carry out initial assessments but he did not have the time to undertake a full mental state assessment and could only do so if specially instructed to undertake one, presumably during an additional visit or at the expense of other patients attending his regular surgery. Moreover, he only prepared and produced a written assessment report if instructed to do so as an extra service. Possibly because an extra fee would be payable, HH was unwilling to instruct him to undertake these additional services.[372]HH did not ask Dr Burrun to make a special visit to HH to see S prior to one of his regular visits on 24 December 2011, did not did ask him to provide S with a full psychiatric assessment, did not ask him to report in writing about the first preliminary assessment that he did carry out even though it followed soon after Professor Katona’s detailed assessment, did not provide him with a copy of Professor Katona’s first report that it had received on 23 December 2011 so that his assessment on 24 December 2011 was carried out without knowledge of its contents, did not place a copy of Professor Katona’s report or make any reference to it on S’s mental health records or show a copy at any time to a psychiatrist or GP despite the manager’s assurance to Professor Katona that these steps would be taken and did not ask Dr Burrun to respond to it in writing and in detail although it had been asked for such a report by CNLIT. Furthermore, Dr Burrun did not see S again and was not asked to conduct a follow-up assessment until he attended HH on 13 March 2012. His note in the mental health records about both these assessments is virtually illegible, he did not follow the first assessment up with a written report and his recommendations for blood tests and scans were not followed up until, in the case of blood tests, these were finally taken 7 weeks later and the tests results received by HH 9 weeks later following pressure from S’s detention solicitors. (5). Detained in Harmondsworth - Phase 2: 24.12.2011 – 10.2.2012 - CNLIT[373]HH’s failure to manage S’s mental illness. Between 24 December 2011 and 10 February 2012 when S was transferred into the HFTD, the HH mental health team only appears to have had direct contact with S on the one occasion that he saw RMN Dube which was at that nurse’s request. In that period, he was administered Mirtazapine but not Olanzapine medication intermittently on 13 of those 40 days On 3 – 5 and 13 – 16 January and 3 – 8 February 2012. Between 21 January and 2 February 2012 the prescription for Mirtazapine had expired and was not re- prescribed until 2 February 2012 and between 19 January and 14 March 2012 that for Olanzapine had expired and was re-prescribed until 14 March 2012. . As can be seen in the annex, Mirtazapine was administered between 3 – 5 and 13 – 16 January and 3 – 8 February 2012. Between 21 January and 2 February 2012 the prescription for Mirtazapine had expired and was not re-prescribed until 2 February 2012. Olanzapine was prescribed but not administered between 24 December 2011 and 19 January 2012 when the prescription expired, and was not administered between 19 January and 14 March 2012 when it was re-prescribed. In addition, S saw a GP on 31 January and 2 February 2012 at his request in relation to back pain, on the second occasion the GP took the opportunity to re-prescribe Mirtazapine but not Olanzapine. Throughout this period, S was located on A-wing and since HH was not monitoring his mental health, there is no record of the state of his psychosis, mental capacity, cognition or schizophrenic symptoms in that period. S’s intermittent attendance in HH to take his Mirtazapine suggests that his psychosis and cognitive state were fluctuating and that he only attended HH for his mood stabiliser when he could no longer put up with his hallucinations, depression and low moods.[374]Given Professor Katona’s diagnoses on 21 December 2011 and 6 March 2012 as to S’s serious mental illness on both occasions and the other available evidence of his mental health between those two dates, it is clear that S’s psychosis remained florid and unstable and was not in remission throughout and that there was a significant and inexcusable failure by the mental health team to track S down on A-wing, to relocate him to a bed in the healthcare centre, to ensure that Dr Burrun saw him, fully assessed his mental state, clarified what his medication and treatment should be and reported to HH and CNLIT, as required by CNLIT’s detention instructions, on the state of his mental health and required treatment. These failures were highlighted by the fact that the only assessment and report that Dr Burrun had previously provided on S was the hurried and incomplete assessment undertaken on Christmas Eve and the brief and barely legible handwritten notes in the healthcare records that he made immediately after completing that assessment. These inadequacies were compounded by Dr Burrun’s assessment being undertaken without his having been provided with a copy of Professor Katona’s assessment report that HH had by then received and by the confusing instructions that he left with regard to the continued prescription of Olanzapine.[375]Throughout S’s time in Harmondsworth, HH was overstretched and understaffed as can be seen from the limited contact it had with S, by its failure to monitor and manage his mental health and by its wholly inadequate administration of his prescriptions. HH was asked repeatedly by CNLIT and Pierce Glynn to provide current details of S’s mental health, for a detailed psychiatric response to Professor Katona’s first report and for details of the assessments and treatment it was providing S with. Such limited responses as were given were delayed, misleading and wholly uninformative. It is now clear that Professor Katona’s report was never shown to or considered by Dr Burrun or RMN Dube or by any GP member of HH’s health team. The failures to consider and make use of Professor Katona’s report and its summary that he wrote into HH’s mental health records were particularly serious and were explained, although not excused, by the sparse nature of its mental healthcare team at that time which appeared to have consisted of one resident mental health nurse, RMN Dube and one fortnightly 3-hour visit to attend to a pre-arranged appointments list by a locum psychiatrist, Dr Burrun.[376]HH did have contact with CNLIT and Pierce Glynn on several occasions and, on each occasion, provided inadequate and wholly misleading advice about S’s mental illness, depression and mental state. The first such occasion occurred on 27 December 2011 when a nurse informed an IO in a short telephone conversation initiated by the IO that S had been seen by CH’s psychiatrist on 24 December 2011 who had taken him off Olanzapine and advised that he was fit for detention in the IRC. This information was incorrect since S was in fact subject to a current antipsychotic prescription administered by HH, had not been taken off that prescription by Dr Burrun, had been assessed as being unfit and as needing urgent hospital attention by Professor Katona and Dr Allen, had not been given a mental state assessment by Dr Burrun who nonetheless had not disagreed with Professor Katona’s assessment of his mental state and had been seen by RMN Dube whose assessment coincided with that of Dr Burrun.[377]However, this misconceived and informal report from a medical nurse, coming soon after the erroneous report provided by HH on 20 December 2011, misled and misdirected the thinking of those involved with S at CNLIT and reinforced and had a major influence on its subsequent belief that S was not suffering from a mental illness to any significant extent, was fit to be detained and to be removed and was fully capacitous so far as his immigration claims, appeal proceedings and all other aspect of his detention and removal were concerned.[378]On 2 January 2012, the HH interim manager erroneously told CNLIT in a telephone call made by CNLIT that S had had his medication changed following a review and promised a detailed response to Professor Katona’s report which was never subsequently provided.[379]On 13 January 2012, the HH interim manager erroneously told CNLIT in a telephone call made by CNLIT that S’s mental health was currently stable, that he was complying with his medical treatment, would only give cause for concern if he was non-compliant and his condition deteriorated, was not on antipsychotic medication and HH was not aware of any underlying medical condition. She also advised, without any justification or explanation, that if S was released, he would not necessarily be hospitalised or receive mental healthcare from a community-based mental health team and that Professor Katona’s recommendations had been passed to S’s doctor at HH to consider whether further action was required.[380]Each of those statements was inaccurate or incorrect. S’s mental health was fluctuating and was not being monitored by HH. He was neither compliant with nor being administered regularly with his prescribed Mirtazapine and was not being administered his antipsychotic Olanzapine prescription which was still in place and which had not been terminated by Dr Burrun. HH had been advised by both Professor Katona and Dr Burrun to test S by both blood tests and scanning for HIV as a possible organic cause of his psychosis and had done nothing to implement this advice. He was still subject to the advice of both Dr Allen and Professor Katona that he should be immediately sectioned and transferred to hospital and he was lacking capacity to consent to, or to participate in, interviews and the immigration legal process. Finally, Professor Katona’s report had not been shown to any GP in HH and there is no record that it ever was.[381]On 16 January, RMN Dube’s inaccurate report was sent to CNLIT, being essentially a repetition of the interim healthcare manager’s report of 13 January 2012. On 6 February 2012, HH informed Pierce Glynn that S would be HIV tested, this being the first action it had taken to progress this testing since it had been recommended by Dr Burrun on 24 December 2011. The letter also incorrectly asserted that S had become more compliant with his changed medication without making it clear that the change referred to was the erroneous substitution of Mirtazapine for Olanzapine rather than the prescribed addition of Mirtazapine to Olanzapine and without taking account of the extensive non-compliance that had occurred with regard to Mirtazapine.[382]On 8 February 2012, RMN Dube wrote to Pierce Glynn and informed it that S had been found to have no clinical evidence or symptoms warranting a hospital referral as a psychiatric inpatient or sectioning under the MHA, was currently taking his medication and was being blood screen tested with an implication that any delay in testing was attributable to S’s failure to attend the blood clinic.[383]This letter was highly misleading. S had been found to have a variety of symptoms warranting referral to hospital by Dr Allen and Professor Katona, was and remained unstable and floridly psychotic, lacked capacity and suffered from impaired cognition, was both non-compliant with and was not being fully administered with his prescribed medication and had not been located in a healthcare bed despite his need for constant assessment, monitoring and treatment.[384]Effect on S and his immigration proceedings. The misunderstanding as to the state of S’s mental health had significant consequences to his immigration proceedings. In particular:(1) CNLIT attempted to arrange a telephone interview between S and the Ghanaian High Commission in connection with his application for an ETD to enable him to be removed to Ghana. These arrangements, made without prior consultation with S, included a telephone interview on 20 December 2011 which S declined to participate in because he needed time to think, a second appointment on 17 January 2012 which he declined to participate in because he wanted to speak first to his solicitor and a third appointment on 30 January 2012 when he was confirmed as being a Ghanaian. The CNLIT had erroneously gained the impression that S was being unco-operative in his participation in this process in order to delay his enforced return whereas he was in fact lacking in capacity, in need of support from an appropriate adult or legal representative and unfit to participate at that stage in his immigration case.(2) In early January 2012, S submitted a wholly inadequate notice of appeal against CNLIT’s decision to serve an IS151 notice of intention to remove him. This notice intimated a human rights claim which was so scantily drafted that the FtT struck out the appeal on 18 January 2012 even though it is clear that he was making such a claim but had totally failed to particularise it. At this time, S lacked the capacity to instruct solicitors to act for or advise him or to act for himself in his immigration process.(3) On 31 January 2012, CNLIT served S with a fresh IS151 notice at a time when he was still lacking in capacity to act, had no immigration solicitors acting for him and was not fit to fly. He instructed Fadiga & Co to act for him and that firm immediately notified an asylum claim. However, Fadiga & Co was only instructed, or was only able or prepared to act, in S’s immigration claim so that S remained throughout his time in detention without the advice or assistance of solicitors acting for him in his asylum claim.(4) On 8 February 2012, S was given an asylum screening interview, again without an appropriate adult or a legal representative present and despite lacking capacity to act.[385]Legal representation. S has had three different duty solicitors and three further firms of solicitors acting for him at different times or in different capacities whilst he was in detention. In relation to his detention in police custody, he received initial advice from a Criminal Defence duty solicitor followed by detailed and full telephone advice from an immigration duty solicitor from Wilson Solicitors who also sent CNLIT a follow-up letter before action which fully and fairly set out his case for immediate release. He instructed, through Medical Justice, Pierce Glynn, in early January 2012 to act for him in his continuing applications for release from detention and his claims based on his inadequate treatment and unlawful detention. That firm continued and still continues to act for him in those matters. He also instructed Fadiga & Co on 1 February 2012 to act for him in his immigration claim but that firm was unable or unwilling to act for him in his asylum claim.[386]In relation to his asylum claim, he consulted a duty solicitor in Harmondsworth about his asylum interview but lacked the capacity to instruct that solicitor to act for him. He then attempted unsuccessfully to obtain advice and representation for that interview from Fadiga & Co but lacked the capacity to extend their instructions to cover his asylum claim. He then attended the screening and substantive interviews without either an appropriate adult or a legal representative present and the asylum appeal hearing unrepresented. He was assisted in making his bail application by the charity Bail for Immigration Detainees and represented at the hearing pro bono by counsel instructed through that charity. He was unrepresented when interviewed for the decision that was taken to transfer his case into the DFT. Finally, he instructed solicitors, Bake & Co to act for him in his post-detention immigration hearings.[387]This hotchpotch of representation and self-representation arose as a result of his lack of capacity, poor cognitive state and the manner in which a detainee’s legal aid support is provided for by the public funding legislation. This manner of representation has been helpfully set out and explained by the then President of the Queen’s Bench Division, Sir John Thomas Now the Lord Chief Justice of England and Wales. , in the Queen’s Bench Division appeal in BA and others v SSHD [2012] EWCA Civ 944, CA. involving a claimant and her children who had brought a judicial review in relation to their proposed removal and a Queen’s Bench Division claim in relation to their alleged unlawful detention. The President said this:
“29. First, the position on the franchising of legal aid appears to have been a significant factor that has had an important influence on the course that this litigation took. Mr Hundt of Pierce Glynn helpfully at our request provided an explanation for the court after the conclusion of the hearing. His firm, Pierce Glyn held a public law franchise, but not an immigration franchise. Under the legal aid arrangements, it was generally the practice that only firms with public law contracts could bring a publicly funded claim for damages for immigration detention. Those firms without that franchise, but with a franchise in relation to immigration and asylum law, could generally only bring proceedings to challenge the removal directions. Fadiga & Co had therefore referred the claim for damages for detention to Pierce Glynn who held a public law franchise. Such a reference was quite common. 30. These arrangements made by the Legal Services Commission, as in other areas, have an important effect on access to justice and the fair and proper administration of justice. It is deeply regrettable that this consequence is not recognised by those who devise the arrangements at the Legal Services Commission. No doubt they have an eye on their own considerations for the operation of an efficient legal system without thinking properly about considerations of justice. Although it is plainly necessary for the Legal Services Commission and the Home Office to examine the rationality of the arrangements made by the Legal Services Commission for franchising its immigration claims, while they subsist the arrangements are an important factor in assessing whether the bringing of separate proceedings for damages for detention is an abuse of process. It cannot be just to penalise a litigant when the lawyers cannot by reason of funding arrangements made by the State through the Legal Services Commission give a full range of the advice and litigation services necessary for the fair and proper bringing of appropriate remedies. This factor counts very strongly against these proceedings being an abuse of process.”
[388]It is a coincidence that the two firms of solicitors in that case were Pierce Glynn and Fadiga & Co who are also involved in S’s detention and immigration claims in this case. However, given the exigencies of legal aid franchising, S had to be advised by a firm of criminal duty solicitors and a different firm of immigration solicitors in CPS, a firm with a contract concerned with unlawful detention and a different firm with an immigration duty solicitor contract and a second different firm with a contract concerned with immigration duty solicitors acting in Harmondsworth and a further different firm acting for him in his immigration appeal following his release from detention. Throughout these protracted legal proceedings, S was suffering from a serious and active psychosis, was assessed as being unfit to participate in his immigration proceedings and to be interviewed without an appropriate adult and as having impaired mental cognition. All these difficulties could have been ameliorated if not eliminated had CNLIT, CH and HH recognised, informed themselves about and given proper responses to the full nature and extent of S’s mental health difficulties.[389]CNLIT’s decisions. CNLIT considered and confirmed S’s continued detention on 4 occasions On 24 and 31 December 2011 and 7 and 14 January 2012. . It also served S with an IS 151 on 31 December 2011 and a further IS151 on 27 January 2012 and a revised IS91 on 10 February 2012 and it provided detailed answers to Pierce Glynn’s pre-action protocol letters on 23 January 2012. Each decision and the answer to Pierce Glynn were based entirely on the wholly inadequate, misleading and incorrect information about S’s current mental illness provided by CH and HH.[390]However, it is not a sufficient, albeit ineffective, response for CNLIT to contend that it took these decisions in good faith and as a result of reasonable reliance on the information provided by CH and HH. CNLIT had been aware from the outset of S’s detention, if only by virtue of having sight of the FME’s assessment, had knowledge that Dr Allen had assessed S, had had sight of Professor Katona’s first assessment report and had experienced HH’s repeated and persistent failures to communicate satisfactorily about S’s mental state or to provide any comments to refute or uphold the contents of Professor Katona’s written report. It was also aware that there were very considerable grounds for concern about S’s mental health and its potential causes of that ill-health. CNLIT could not reasonably have relied on the assurances of HH in those circumstances. This was particularly so since no IO from CNLIT had, remarkably, ever visited, seen or interviewed S and the first time that an IO from the UKBA undertook a detailed assessment or a detailed interview was when S was given his screening and asylum interviews on respectively 8 and 29 February 2012 and his DFT induction interview on 12 February 2012. By then, the received UKBA wisdom that S was not suffering from a mental illness, was fit to be removed and was acting strategically and not from the effects of a mental illness had become firmly and irretrievably entrenched. (6) Detained in Harmondsworth - Phase 3: 10.2.2012 – 21.3.2012 - HDFT[391]The decision to transfer S to the HDFT. As soon as S had been interviewed by the Ghanaian High Commission and had been confirmed as a Ghanaian citizen who would be issued with an ETD, the AIU who had conducted S’s asylum screening interview, no doubt in conjunction with CNLIT, notified the HDFT team that S could be moved into the HDFT for his removal to Ghana to be processed by that team. This decision should not have been taken, given S’s then poor state of mental health. However, given the wholly inadequate information that CNLIT had been provided with by HH and CH and its own inadequate dealings with S’s case, it is not surprising that the officer handling S’s case decided to refer it to HDFT on 10 February 2012.[392]HDFT initial review. In accordance with SSHD policy, S’s case was initially reviewed by a manager of the HDFT case-work support team. This was in the nature of a screening assessment of S’s suitability to be transferred into the HDFT. This assessment was undertaken by Mr Crook and its inadequacies have already been referred to See paragraphs 156 and 2 71 above. . Mr Crook could, and indeed should, have called for copies of Dr Allen’s, Professor Katona’s and Dr Burrun’s assessment reports, for an up to date assessment report from Dr Burrun and for a written report from HH of his fitness to fly and to be returned to Ghana that included a summary of its assessment and monitoring of S and of the on-going treatment that he was receiving. Without these reports, Mr Crook was not able properly to assess, as he professed in his witness statement that he had assessed, “whether S was presenting with acute psychosis e.g. Schizophrenia who was someone who required hospitalisation”. Equally, he was not entitled to conclude, as he apparently had concluded, that S’s claims to be suffering from active psychosis, probably Schizophrenia, should be disregarded and his mental health could be properly and safely managed in detention since he had already spent 69 days in detention without any report from HH that he was unfit to be detained without first obtaining and then taking into account the reports of the assessments that had taken place. Had he done so, he would have discovered that only Professor Katona had reported and that this report required answering since it revealed that S was seriously mentally ill and in urgent need of hospital treatment. In short, he should have concluded that no decision on a transfer to HDFT could be taken unless and until he received full and up to date assessment reports from Dr Burrun and HH.[393]S’s bail application. S had submitted a bail application with the assistance of Bail for Immigration Detainees on S’s behalf on or about 3 February 2012 See paragraphs 147 and 386 above. A copy of the application was not included in the hearing bundle. which contained a copy of Professor Katona’s report and relied principally on S’s poor mental state in support of the application. The UKBA’s bail summary and reasons for opposing bail served on 9 February 2012 made no reference to Professor Katona’s report or S’s written submissions save for a dismissive side-sweep that S when arrested had displayed ‘strange behaviour’. Given the terms of S’s application and the contents of Professor Katona’s report, it is inexcusable that the UKBA made no reference to the principal basis for S’s application for bail or to the mental state assessment from a practising psychiatrist submitted with those submissions which indicated how ill S was at the time of the assessment and which had not been answered directly or indirectly by any other available assessment. It is no answer to this finding that S was represented by counsel at the bail hearing. Counsel had been instructed pro bono to appear through Bail for Immigration Detainees, had had no involvement in the preparations for the application and would have been constrained by the terms of the UKBA’s written submissions.[394]No doubt re-assured, albeit erroneously re-assured, by the misleading lack of reference to S’s poor mental state in the UKBA’s bail summary, the immigration judge refused the application. The decision dismissed the psychiatric evidence on the surprising and wholly erroneous grounds that Professor Katona’s report was no more than a report of an “initial observation” of S which had recommended assessment. It is clear from the text of that report that it was a report of a full mental state assessment with a diagnosis of severe symptoms of acute psychosis which recommended, as is usual in such cases, continuing assessment and treatment in a hospital setting. In short, it was a psychiatric diagnosis of an on-going serious psychotic illness. It follows that both the UKBA bail assessment and the immigration judge’s reasons for refusing bail were seriously defective and that the consequence of these deficiencies was that S was refused bail when he should have been granted it.[395]S’s induction interview. S’s induction interview took place on 12 February 2012 without S being accompanied by an appropriate adult or legal representative. The HFTD interviewer should not have proceeded with the interview until one or other of these were present and, given the nature of S’s answers at the interview, it should have been stopped long before it was concluded or should have resulted in an assessment that S was not mentally fit enough to be transferred into the HFTD process. The interviewer recorded that S was unable to answer the risk factors question because he had stated that it was too difficult to answer, that he stated that he was experiencing mental issues that were already known to immigration, that he seemed to be a confused person who objected to the question of his suicide risk being raised and who had also stated that it was very difficult to say what the answer was. The interviewer did not record that S was feigning mental ill-health so that he should have checked with HH and CNLIT before reaching any conclusion as to S’s fitness to be transferred into the HFTD process and, had he done so, he would, or should, have received sufficient information, particularly from Professor Katona’s report, to satisfy him that it was inappropriate to transfer him at that time.[396]S’s possible CT or MRI scan. On 15 February 2012, HH booked an appointment for S to see one of the visiting GPs to discuss his possible CT or MRI scan, a scan that Professor Katona had recommended should be undertaken in his report that HH had received on 23 December 2011, some 7½ weeks previously. S does not appear to have been informed of this appointment, no attempt was apparently made to search him out or to re-book the appointment and no scan was ever carried out. This series of failures by HH formed part of the wider series of failures in relation to its ignoring Professor Katona’s report and its repeated failings to undertake appropriate blood and other testing, which both Professor Katona and Dr Burrun had recommended, in order to ascertain whether S’s psychosis had an organic cause from HIV or other serious medical illness.[397]HH’s shortcomings. HH’s many and repeated failings in their treatment and care of S were highlighted in the letter from HH dated 29 February 2011 upholding three of his four complaints about his treatment See paragraphs 166 – 168 above. . It is remarkable that HH’s interim manager who had sent this letter 26 days after the complaint had been delivered to HH, had not arranged for S to be fully psychiatrically assessed as soon as the complaint had arrived or even after it had been fully researched, answered and substantially upheld. The terms of the complaint and of HH’s reply provide good evidence of the inadequate nature of its care, assessment and treatment of S and his mental illness and its deep-seated inability to manage his mental ill-health.[398]S’s asylum interview. S’s asylum interview finally took place on 29 February 2012 at the fourth attempt. It is remarkable that the HFTD team maintained its attempts to conduct this interview as part of the fast-track process and without S being accompanied by a responsible adult or a legal representative. His reported bizarre behaviour and his lack of representation due to a combination of his lack of capacity to instruct a solicitor and representation for his asylum claim not being covered by legal aid were such as to have put the interviewers on notice that S lacked capacity, was unfit to be interviewed, required the support of an appropriate adult and needed a legal representative to accompany him to any re-arranged interview once his health had improved See generally on these matters paragraphs 161, 164 – 165 and 169 – 171 above. .[399]The interview answers provided by S were taken at face value by the interviewers despite their delusional, bizarre and dysfunctional nature. Given the similarity of many of those answers to the reported answers given by S to Professor Katona during the mental state examination, a copy of which should have been made available to, and considered by, the interviewers, it can be seen that S was displaying similar cognitive dysfunctional and delusional symptoms that he had displayed to Dr Allen and Professor Katona which had led each of them to diagnose S as suffering from an active schizophrenic or other psychotic illness. A further deficiency was that the interviewers for both his asylum interviews should have had available to them a Rule 35 report but this was not available due to previous shortcomings by CH and HH.[400]Following the interview, the UKBA dismissed S’s asylum claim in a decision dated 5 March 2012 and received by S on 9 March 2011. The decision was heavily reliant on the contents of the asylum interview. Its summary of the available psychiatric evidence was brief and the summary was inevitably inaccurate as a summary of S’s actual psychiatric condition given the inadequacies relating to its assessment, diagnosis and reporting that had previously occurred. The decision concluded erroneously that S remained suitable for detention, had understood the questions he had been asked in his interview and had engaged with solicitors in relation to his asylum claim. None of these conclusions was correct. The decision did not consider whether, even if S had no grounds for claiming asylum, he had grounds for his return to Ghana being deferred until his mental health had improved.[401]The decision was flawed in a number of respects. It did not consider whether S had been fit to be interviewed or whether his answers could and should be relied upon given their bizarre content and the reported signs of his mental impairment. It failed to identify the serious nature of his mental illness disclosed by Professor Katona. It wrongly asserted that S had understood the questions he had been asked, notwithstanding the interviewer’s report to the contrary. It also wrongly asserted that S had engaged with solicitors in relation to his asylum claim when, as the interviewers and HDFT were aware, he had not been legally represented for his claim or the subsequent interviews about it. Finally, the decision erroneously concluded that S was fit to be detained and it did not consider whether he was fit to fly or whether his illness was so severe that he should be removed from the DFT and his asylum claim re-processed in the normal way once he had been released from detention and had recovered his full cognitive function and been appropriately treated.[402]In short, the interview should not have taken place and the asylum refusal decision should not have been issued at that time given S’s then current seriously impaired mental state. Furthermore, his asylum claim should not have been decided until the UKBA had obtained a full and up-to-date assessment of his mental condition and he had been shown to be fit to be interviewed.[403]HH’s provision of further information about S’s mental illness. On 6 March 2012, one of HH’s GPs, Dr Oza, sent a signed response to HDFT’s telephoned request for information as to S’s fitness for detention that had been made on 2 March 2012 following its receipt of Pierce Glynn’s letter of the same date again referring to S’s then current serious mental illness. Dr Oza stated that S seemed fit for detention and had expressed some hallucinatory thoughts which would need to be reviewed with HH’s mental health team. This letter, although partially reassuring in its content, was not based on any assessment that Dr Oza had undertaken or of any review by him of the somewhat inadequate and scanty mental health records held by HH. Dr Oza should not have sent any response, save a holding response, until he had obtained from Dr Burrun an up to date assessment which would have required HH to arrange for Dr Burrun to make a special and urgent visit to HH for that purpose. Furthermore, since it must have been known by Dr Oza, and certainly should have been known to him, that S had already been re-assessed by Professor Katona earlier that in the day that he wrote his letter to HDFT and that Dr Burrun had been asked to re-assess him on his next scheduled visit to HH on Friday 9 March 2012, Dr Oza’s response should have referred to these forthcoming assessment reports and have given no further opinion as to S’s fitness for detention.[404]S’s assessments by Professor Katona and Dr Burrun. These assessments and the shortcomings in Dr Burrun’s reporting about his assessment are dealt with at length above See paragraphs 176 – 180 and 190 - 193 above. . The principal complaint about Dr Burrun’s assessment is the unduly lengthy time it took to arrange and to be reported on, the illegibility of his notes in the HH records of his assessment and his failure to engage with Professor Katona’s report. Although HH first arranged for Dr Burrun to see S on about 2 March 2012 soon after S’s FtT hearing date had been fixed for 21 March 2012, he did not actually see him until 13 March 2012 and his report was not received until 20 March 2012.[405]The lowest common denominator shared by both reports was that S was seriously ill and was suffering from a psychotic illness overlaid by both anxiety and depression. Professor Katona agreed with this summary of the lowest common denominator identified by these two assessments so far as it went but, based on more detailed diagnostic criteria and a more rigorous assessment technique, he considered that S’s illness was even more serious than Dr Burrun’s assessment suggested it was. However, given the lowest common denominator to be gleaned from both reports, it was or should have been clear as soon as they were both available that S was unfit to remain in detention, to participate in his asylum appeal, to travel or fly to Ghana or to give reliable instructions to his legal team if and when he obtained one. It is a matter of further criticism that HH had not obtained an assessment report from Dr Burrun at least 21 days prior to the date of its receipt since, if it had, S could, and certainly should, have been released from detention before he was transferred to HDFT or the processing of his asylum claim had started. He would certainly have been spared the agony of his unrepresented appearance at what he would have anticipated to have been the hearing of his asylum appeal.[406]HDFT’s detention decisions. S’s detention was maintained in decisions taken by HDFT on 10 and 12 February in accepting him into the HDFT process and on 24 February 2012 when his detention was reviewed. The first two-part decision has already been dealt with above and the second was, given all the previous inadequacies in S’s treatment, assessment and reporting already dealt with, Wednesbury unreasonable.[407]S’s FtT appeal hearing. Having read Professor Katona’s two reports prior to the hearing and on seeing S’s condition on his arrival at the hearing room for the hearing of his appeal unaccompanied and without representation, the immigration judge conducting the appeal in the hearing room in Harmondsworth instantaneously directed an adjournment of the hearing and gave the UKBA representative the strongest possible indication that S should be released from detention forthwith into the care of his pastor and nominated adult.[408]In truth, S should not have been put through the ordeal of a hearing and should have been released prior to the hearing. The immigration judge’s reaction was both inevitable and foreseeable and it is a matter of regret that the HDFT representatives present at the hearing did not immediately accept that the immigration judge was correct in the view that he or she expressed that S should be released immediately into the care of his appropriate adult and pastor. Instead, HDFT decided after the hearing to grant S temporary admission but released him into NASS accommodation and subject to conditions without any arrangements for psychiatric treatment being made, without ensuring that he left Harmondsworth with an appropriate supply of his prescribed medication and without providing for his release to the only contacts that he had in the UK who were contacts that were apparently reliable, trustworthy and willing to ensure that his mental ill-health was properly treated.[409]S was, in consequence released without medication, without any arrangements for his on-going treatment to accommodation where he knew no-one and without any resources save for the limited resources provided to asylum-seekers who have had their application for asylum refused. The available evidence clearly shows that his release and the adjournment of the hearing were strenuously opposed by the SSHD representative present at the hearing and was in fact directly linked to, and was the result of, those comments. Moreover, no thought was given to where, on what terms and how that release should take place.[410]General matters. HH has the principle responsibility for the almost complete lack of any care, assessment, treatment or illness management that S was subjected to. This inattention can be seen by considering the annex which charts these inadequacies on a day by day basis. However, CNLIT, HDFT, the AIU, Dr Burrun and the GPs, nurses, RMN nurse, HH’s interim director and UKBA in its handling of both S’s bail application and his FtT hearing all share some of the responsibility for those shortcomings. The overall result was that S’s detention from about 4.00pm on Saturday 3 December 2011 until his release on 21 March 2012 was unlawful. (8) S’s release from detention in Harmondsworth: 21.3.2012[411]The decision to release from detention. HDFT decided after the hearing to grant S temporary admission and to release him from detention. This decision was taken as a direct result of the immigration judge’s reasons that he or she gave to explain why he or she had decided to adjourn the hearing, direct S’s release from detention, his removal from the HDFT process and his release into the care of his pastor and church. The judge’s reasons for these decisions were, as reported, clear and trenchant. S was clearly seriously unwell, was wholly incapable of representing himself, lacked capacity to participate in the hearing and required legal representation to assist him in the presentation of his case. Moreover, it was clear from the psychiatric evidence, which in the case of Dr Burrun’s report had only been made available at the hearing, that S was suffering from serious mental impairment and his case could not proceed until his health had improved.[412]The SSHD did not produce any evidence from its representative at the hearing but the Treasury Solicitor referred in general terms to the absence of any evidence of a direct link between the judge’s comments and strictures about the UKBA in the representative’s notes that had been sent to the UKBA. The Treasury Solicitor declined to disclose these notes on the grounds that the SSHD’s legal privilege in them had not been waived. This refusal was clearly erroneous since in law privilege had been waived in full by the partial waiver provided by the Treasury Solicitor’s comments about their contents. Once there is partial waiver of legal privilege in the contents of a document, the entire contents of that document become disclosable. The decision to withhold full disclosure suggests that an inference adverse to the SSHD’s interests should be drawn about those undisclosed contents.[413]In short, HDFT decision to release S from immigration detention was made solely as a result of the significant criticism and adverse comments of the immigration judge and the reasons expressed by that judge to explain the adjournment and release decisions that he or she had made at the hearing.[414]The release from detention. HDFT released S into NASS accommodation and subjected him to bail conditions as to residence and reporting without making any arrangements for his psychiatric treatment in the community and without ensuring that he left Harmondsworth with an appropriate supply of his prescribed medication. There was no liaison with Pierce Glynn about his release arrangements even though they were his detention solicitors or with his nominated and appropriate adult and pastor, Pastor Emeka or with anyone else who might know him such as his friend Bruno Edorh See paragraphs 7, 9, 24, 34 , 38 and 46 above. .[415]HH’s shortcomings were further highlighted in letters it wrote to S dated 10 July 2012 and 6 August 2012 See paragraphs 210 - 211 above. . Despite HH’s admitted shortcomings in these letters and in its earlier letter dated 29 February 2012, neither HH nor the SSHD has accepted that it was incapable of managing S’s mental illness, that the standard of healthcare he was provided with was in breach of the SSHD’s relevant policies, that those shortcomings contributed in any way to any period of unlawful detention or that S should be recompensed for what, on analysis, amounted to serious and prolonged failures to provide S with the minimum standards of healthcare required by the SSHD’s relevant healthcare and detention policies, the common law and by articles 3 and 8 of the ECHR. VII. Conclusion[416]Unlawful detention. S’s detention from about 4.00pm on Saturday 3 December 2011 until his release on 21 March 2012 was unlawful.[417]Inadequate treatment. The treatment and care provided by the SSHD whilst S was in police custody and immigration detention was inadequate in many, varied and extensive ways. Given the appropriate tests to be applied that have already been set out See paragraphs 242 - 243 above. , his treatment amounted to significant breaches of both articles 3 and 8 of the ECHR in each of the ways summarised above. There were extensive failures to apply and comply with the various applicable policies, some of which can only be described as wilful or grossly negligent. It is particularly clear that many of the shortcomings that occurred were the result of HH’s inability to manage S’s mental illness or to rectify any of the faults identified in the judgment of Ms Laing QC in BA See paragraphs 247 - 252 above. , indeed those faults appear to have intensified following the handing down of judgment earlier in 2011. It is also clear that many involved with S had little understanding of mental illness or of the assessment process needed to provide adequate assessments of the nature, extent, treatment and after-care of psychotic illness and no inclination to treat S, albeit an overstayer who should be removed to Ghana, with dignity or respect or to provide him with the minimum standards of care, assessment and treatment that he was entitled to. These failings were exacerbated by the lack of any clear, comprehensive and readily intelligible guidance produced by the SSHD that is concerned with the care and treatment of mentally ill people whilst their cases are being considered by the immigration and asylum authorities and its appeal processes and whilst they are detained in immigration custody, are on bail or temporary release or awaiting the processing of their immigration or asylum cases and applications. This shortcoming is further exacerbated by the continuing absence of an EIA relating to EIG55.10 promised by the SSHD in court and endorsed by the judge in his judgment in HA .[418]Nominal or substantive damages. S is undoubtedly entitled to substantial damages for both his unlawful detention and for the significant breaches of his rights that are protected by the ECHR and, if recoverable, for the breaches of policy and other shortcomings highlighted in this judgment. Had the many breaches of duty and of the various relevant policies that were applicable to his detention not occurred, S would have been released from detention at an early stage or at any of the many subsequent stages when further breaches occurred and his mental health would have been assessed and treated appropriately. It follows that he is entitled to substantial damages.[419]Assessment of damages. The parties will be given a limited time in order to attempt to agree the damages that S should recover in the light of this judgment. If agreement cannot be reached, I will myself assess those damages following the submission of any further necessary evidence, reports and submissions by the parties. I will give directions for that assessment including a direction as to whether the assessment should be undertaken pursuant to a paper or oral hearing at the handing down hearing of this judgment.[420]Final concluding remarks. S has only been able to bring this case, and indeed was only able to secure his release from detention, because he had the good fortune to be advised by a duty immigration solicitor who was far-sighted enough to seek Medical Justice’s assistance to arrange for an independent psychiatric assessment of him in Harmondsworth who then arranged that assessment and S’s representation by experienced detention solicitors. He was also fortunate that those representing the SSHD did so with similarly high standards of professionalism. It is to be hoped that the SSHD will ensure that the difficulties that this case has been bedevilled with are eradicated so that unlawful detention claims involving healthcare issues can be processed and conducted fairly, expeditiously and with appropriately qualified and resourced representation See paragraphs 336 - 337 above for a summary of those difficulties. . HH Judge Anthony Thornton QC 510. Annex – Chart Showing S’s Treatment and Medication in CH & HH Date Italics Supplied/Not supplied Bold typeface – SSeen in HH or visit for blood test Olanzapine Supplied/Not supplied as per prescription & drug chart Mirta-zapine Supplied/not supplied as per prescription & drug chart Prescription Seen in CH/HH Blood Test Comments(1) 5/12(2) 5/12 (1) O 10mg n “Diagnosis-Psychosis No of days-on-going” [i.e. no review date given] (2)Seen by Dr Allen, GP Dr Vara & RMN (1) Taken under supervision 6/12 10mg Not supplied Non-compliant. Found in S’s room 11/12 7/12 10mg Not supplied Non-compliant. Found in S’s room 11/12 8/12 10mg Not supplied Non-compliant. Found in S’s room 11/12 (1) 9/12 (2) 9/12 (1) 10mg Not supplied (2) Seen by Dr Allen (1) Non-compliant. Found in S’s room 11/12 10/12 10mg Not supplied Non-compliant. Found in S’s room 11/12 11/12 10mg Not supplied Compliant or non-compliant not known (1) 12/12 (2) 12/12 (1) 10mg Not supplied (2) Seen by nurse during night – breathing difficulties (1) Compliant or non-compliant not known 13/12 Not supplied 13-14/12 Moved to Harmondsworth 14/12 10mg Not supplied 10mg supplied by HH – only noted in Physical care Records 15/12 -18/12 Not supplied Prescription taken to HH – No indication as to why not supplied 19/12 Not supplied 10mg n – No diagnosis 28 days (i.e. until 18/1) Prescribing Dr not identified and initials indecipherable. Was not Dr Burrun (1) 20/12 (1) Not supplied (1) Indecipherable comment in Pharmacy space - ?Qrd’d village (1) 21/12 (2) 21/12 (1) Not supplied (2) Seen by Professor Katona And RMN (2) Professor Katona recommended blood test for HIV and CT or MRI scan (1) 22/12 (2)22/12 (1) Not supplied (2) GP in HH. Purpose of appointmentnot given 23/12 Not supplied (1) 24/12 (2) 24/12 (1) Not supplied 15mg n Supplied (1) Olanzapine prescription not withdrawn although HH subsequently contended this prescription had been withdrawn Mirtazapine 15mg n – 28 days (i.e. until 20/1) – Mixed anxiety and depression (2) See by Dr Burrun (1) Withdrawal of prescription not referred to in HH “Prescriptions not in possession” or in Dr Burrun’s typed-up note or in any other disclosed contemporary document. Started by Dr Burrun – see notes in mental health records. (2) Blood tests recommended 25/12 – 31/12 & 1.1 -2/1 Not supplied Not supplied No reason given for non-supply 3/1 – 5/1 Not supplied 15mg n Supplied 6/1- 12/1 Not supplied Not supplied 12/1 Seen by RMN Dube 13/1 – 16/1 Not supplied 15mg n Supplied 17/1 – 20/1 18/1 Not supplied 19/1 – 20/1 NLP Not supplied 21/1 – 2/2 NLP NLP No live prescription (NLP) in this period following expiry of 28-day prescription for Mirtazapine HH and SSHD did not disclose the section of the “Prescriptions Not in possession” between these dates. However, the prescription expired on 20/1 31/1 Seen by GP Dr Aslam for back pain GP noted a prescription of Mirtazapine but not given until represcribed on 2/2 2/2 Seen by GP Dr Naqui for back pain 3/2 – 8/2 NLP 15mg n Supplied Mirtazapine 15mg n 28 days (i.e. until 29/2) Prescribed by Dr Naqui Prescribed on 2/2 – by GP Dr Naqui having read Dr Burrun’s notes 6/2 Appointment for blood test. Not kept. S did not receive notification of this appointment 9/2 – 12/2 NLP Not supplied 10/2 Bloods taken RMN had contacted A Wing where S was located on 8/2 and asked them to bring S over for blood sample. This did not occur on 8/2 because of S’s asylum interview on that day but it did occur on 10/2 13/2 - 15/2 Supplied 15/2 CT/MRI scan booked for S S did not attend but it appears he was not informed of appointment 16/2 - 22/2 Not supplied 23/2 - 26/29 15mg n Supplied 24/2 HIV test results seen by Dr Oza in HH. Not discussed with S until 6/3 27/2 - 29/2 Not supplied 1/3- 5/3 No prescription 6/3 - 13/3 10mg n Supplied 10mg n No diagnosis 28 days (i.e. until 1.4) Prescribed on 5/3 - Dr indecipherable. Dosage reduced from 15mg n 6/3 (1) –(3) (1) Seen by RMN Dube (2) Seen by GP Dr Oza who reported halluc-ination thoughts (3) Seen by GP Dr Oza to go through blood test results (2) Dr Oza subsequently notified “To whom it may concern” that S was fit for detention although hallucination thoughts reported. This was not referred to in notes or seemingly part of the consultation 8/3 Further bloods taken No blood test results provided to S because he had been discharged from Harmondsworth before these were available – not sent on 13/3 Seen by Dr Burrun 14/3 – 18/3 (1) Not supplied (2) Not supplied (1) Olanzapine 10 mg n No of days – not specified Diagnosis –Psychosis (2) Mirtazapine 30mg n No of days - not specified Diagnosis – Mixed anxiety and depression (1) - (2) Prescribed on 14/3 by Dr Burrun 15/3 S seen by a Senior Medical Nurse on A-Wing to try and persuade him to relocate to in-patient unit in HH S not prepared to move since he would be bored in HH 16/3 HH learn HIV test results equivocal. Tests sent to Reference Laboratory for results. S not informed of this. These Reference Lab results not given to S since he had been discharged from Harmondsworth before available. 18/3 (1) 10mg Not supplied (2) 30mg n Supplied (1) Olanzapine 10 mg n No of days – not specified Diagnosis –Depression (2) Mirtazapine 30mg n No of days - not specified Diagnosis – Depression (1) – (2) No explanation in prescriptions chart or in HH Mental Health Records who the prescribing doctor was or why this prescription was made – it repeats existing prescription of 14.3 save that Olanzapine prescribed for “depression” and not “psychosis” 19/3 (1) 10mg n Supplied (2) 30mg n S 20/3 Not supplied Not supplied 21/3 Not supplied Not supplied HH failed to supply S with supply of meds to take away from HH on being discharged

order

D v SSHD [2006] EWHC 880 (Admin), Davis J; Anam v SSHD [2009] EWHC 2496 (Admin), Cranston J; S v SSHD [2011] EWHC 2120 (Admin), Mr Elvin QC; BA v SSHD [ 2011]EWHC 2748 (Admin) Ms Laing QC; Mustafa v SSHD [2012] EWHC 126 (Admin), Lindblom J; HA (Nigeria) v SSHD [2012] EWHC 979 (Admin) Singh J; LE ( Jamaica) v SSHD [2012] EWCA Civ 597, CA; EH v SSHD [2012] EWHC 2569 (Admin), Lang J;Aziz Lamari v SSHD [2012] EWHC 1630, Judge Cotter QC and Pratima Das v SSHD [2013] EWHC 682, Sales J. . II. The Facts (1) S’s diagnosed mental illness order: firstly Dr Oza, secondly RMN Dube and thirdly Professor Katona. RMN Dube’s comments to Professor Katona suggest that his conclusion expressed in his handwritten note in the HH mental health records that he had written up immediately following his own meeting with S should be read with some care and as being qualified by his statement to Professor Katona that S “continued to show evidence of severe mental illness”. Similarly, Dr Oza’s “to whom it may concern” letter was written on the same day as, but without knowledge of, Professor Katona’s structured psychiatric assessment. In the light of Professor Katona’s detailed reasoned diagnosis that S was unfit to participate in his immigration proceedings and was in urgent need of hospital treatment, little weight can be given to Dr Oza’s hastily expressed opinion in his open letter.

Cited in 2 later judgments