Drammeh, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 2754 (Admin)

Case No CO/8758/2013

[2015] EWHC 2754 (Admin)

IN THE HIGH COURT OF JUSTICE ADMIN

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 02/10/2015

Before

MR JUSTICE HAYDEN

Between

THE QUEEN (on the application of OUSMAN DRAMMEH)Claimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Ms Stephanie Harrison QC & Ms Lionie Hirst (instructed by Bhatt Murphy Solicitors) for Claimant

Mr Alan Payne (instructed by Government Legal Department) for Defendant

Hearing Hearing dates: 10 th, 11 th& 15 th December 2014

Judgment

Mr Justice Hayden :

BACKGROUND HISTORY

[1]Ousman Drammeh, the Claimant in this application (hereafter C), arrived in the United Kingdom on the 18th September 2007, having been granted a visa, valid until the 18th December 2007. C had obtained leave to enter in order ‘to visit his fiancée’. Having failed to leave the UK in accordance with that visa after his entry clearance expired C became an overstayer and has therefore remained illegally in the UK since that date.

[2]Between 2008 and 2012 C was convicted of criminal offences on five separate occasions. Some of these convictions appeared to indicate that C had begun to misuse alcohol and drugs: i) 6th October 2008. Being drunk and disorderly, fined £80; ii) 13th August 2010. Breach of the peace, fined £130; iii) 9th March 2011. Possession of Class A drugs (received an admonishment from the Glasgow City Justices); iv) 19th March 2012. Threatening and abusive behaviour, resisting arrest and obstructing police, acting in a racially aggravated manner intending to cause distress. 3 months imprisonment.

[3]On 21st May 2012 C was arrested for an offence alleging his involvement in the supply of cocaine. On the 10th August 2012 he pleaded guilty to being concerned in the supply of Class A drugs, at the Glasgow Sheriff Court and received a sentence of 12 months imprisonment. Whilst awaiting trial C had been remanded at HMP Barlinnie. On remand there he was interviewed by an immigration officer and claimed asylum on the basis of his sexuality which he asserted as bisexual. C was served with an IS151A (illegal entrant) notice on the 21st May 2012 and a form IS91 authority for ‘dual detention’. On the 28th May 2012 he was referred to the Fast-track Intake Unit (FIU). The National Asylum Intake Unit (NAIU) advised that the case be accepted by the New Asylum Model team (NAM) Glasgow.

[4]On the 24th November 2012 C was transferred to the Harmondsworth Detention Centre having completed his custodial sentence. The Discharge Summary prepared immediately before transfer from HMP Addiewell, where C had served his sentence after conviction, noted that C was suffering from ‘Schizo-affective disorder’. The clinical manager for mental health at HMP Addiewell noted that the condition was ‘very well controlled using Olanzapine’. He also highlighted the need to ‘ensure medication regime continues’. During his time as a convicted criminal C had made reference, at medical checks, to having had hallucinations for a period of five years and to having been told by his family to seek help. On the 7th August 2012 at an assessment he stated that he had been hearing voices that sometimes screamed at him or threatened to kill him. This was said to have been on a daily basis. It was at this point that he was first prescribed Olanzapine set at a dose of 5mg daily. In a subsequent assessment (2nd October 2012) C gave a history of feeling depressed and continuing to suffer from hallucinatory experiences. The dosage of Olanzapine was increased to 15mg daily.

[5]On the 10th December 2012 the first detention review was undertaken. C was assessed as representing both a very high risk of absconding and a high risk of reverting to involvement in the supply of drugs. There was no evidence that he had obtained any employment whilst at large and, though it was considered that there was some incentive for him not to abscond pending his appeal against a Deportation Order, listed for 19th December 2012, that would fall away were the appeal to be unsuccessful.

[6]The appeal was repeatedly adjourned by the First Tier Tribunal but on the 21st May 2013 it was finally rejected. C was considered to lack credibility. By the 3rd June 2013 C had exhausted all avenues of appeal. On the 23rd May 2013 Miriam Mavia-Zajac, a mental health practitioner, made a note that there had been concerns about C’s compliance with his medication. Review of the records reveals that between the 25th November 2012 and 16th May 2013 the Claimant had missed taking his anti-psychotic medication approximately 41 times. On the 4th June 2013, on review by a mental health practitioner, C agreed to recommit to compliance with his medication. Following a discussion on 7 June 2013 between the mental health practitioner and Dr Burrun (a psychiatrist) a decision was taken to ‘re-refer’ C for counselling.

[7]Two days later (this appears to be common ground between the parties) the Claimant began to refuse food and, as best I can determine, drastically reduced his fluid intake. The detention review on 19th June 2013 recorded that C was ‘currently fit to be detained’ and, particularly emphasising C’s refusal to cooperate with an Emergency Travel Document interview (ETD), concluded the risk of absconding to be ‘very high’. By the 11th June, C now having missed two consecutive days of food and/or fluid, a food log was commenced.

[8]On the 17th June Ms Mavia-Zajac noted C ‘was reviewed today in health care. His lips appeared dry and there was evidence of self neglect’. She also noted ‘he was not distracted but reported that he hears voices telling him not to eat’. On the 20th June C was recorded as being ‘calm and cooperative’, his speech was ‘coherent and relevant’, ‘cognition intact’, ‘insight is good’. It is recorded that ‘he (C) is not eating because he wants to get out of here’. (each of these is my emphasis). It was agreed that C should be admitted to health care, the dosage of Olanzapine to be increased. C is also recorded as having agreed to start eating again albeit after some persuasion. Though he denied any feelings of self harm or of any desire to harm others he stated that he ‘hears voices and sees someone sitting in his room’. The documentation also notes ‘he says that the voices tell him not to eat’. Notwithstanding this, the following day, i.e. 21st June 2013, C was provided with a form known as a ‘model advance decision’. I am told this is a form which records that the risk of food and fluid refusal have been explained and which provides authorisation for steps to be taken in the event that the individual becomes incapacitous. It would appear by the 21st June that C had returned to food refusal. The GP, Dr Naqvi, conducting the review on that day reports that C was ‘sometimes drinking’ and that this was ‘Day 14 food refusal’. On the same day C, when seen by a Home Office official, appears to have told him (Mr Jas Panesar) that he had been refusing to eat for the past 11 days and had been taking small amounts of fluid.

[9]Enquiry about the reasons for C’s protest lead to C stating that he was ‘fed up’, ‘hears voices’, ‘had been in detention for 6 months and wanted to be released’. I note that C was accurate in distinguishing between the length of his detention as opposed to incarceration consequent upon his conviction. That degree of precision no doubt reinforced the prevailing medical assessment that he was functioning competently from a cognitive perspective. On the same day he refused to sign the ‘Model Advanced Decision’ and further refused to comply with the ETD process. When specifically asked if he wished to receive medical treatment he is recorded as replying ‘Don’t know’.

[10]Ms Stephanie Harrison QC, who appears on behalf of the Claimant, highlights that on the 25th June 2013 Mr Jonathon Nancekivell-Smith the Director of Returns Immigrations and Enforcement wrote a report for the Immigration Minister setting out the Secretary of State’s policy with regards to the management of food and fluid refusals. The report emphasised that genuine refusal of food and fluids could lead to deterioration in health so serious that the person concerned might no longer be fit to be detained or removed from the UK which could, in consequence, render any continued detention unlawful. The report further notes that Harmondsworth Healthcare had in the past referred cases to the Care Quality Commission where detainees had been deemed unfit for detention by treating medical practitioners but a decision had been made by the UKBA not to release them. Foreshadowing her primary argument Ms Harrison emphasises that the report does not address the situation of detainees with co-morbid mental illness.

[11]Tests on C undertaken on the 24th and 25th June 2013 revealed a high level of ketones which was perceived as consistent with C not having consumed sufficient nourishment. There is reference in the medical notes on these dates to C refusing his medication and his weight is recorded as 56kg. Twelve months earlier, whilst in criminal detention, C’s weight had been recorded as 70kg. In what seems to be a rather striking anomaly C’s weight is recorded on the 1st July 2013 as ‘61kg (initial 57kg)’. Dr Oozeerally assessed C on that date and the records refer to his opinion, namely that C was ‘capable of understanding the consequences of his actions but intent on continuing to refuse intervention to protest against deportation’. Dr Oozeerally was joined by Dr Arsiwala and both appeared to consider that C was not fit for detention. They discussed with C the possibility of his going to hospital but though C is recorded as having initially agreed he subsequently refused ‘unless he was released’. The records, inevitably, record doubt as to the accuracy of the earlier recorded weight of 57kg. The completed case referral refers to C showing signs of ‘moderate/severe dehydration’.

[12]From this point on the medical records at Harmondsworth all refer to the view that C was not fit for detention. There is in fact one exception on the 7th July 2013 where the doctor reviewing C considered him fit to be detained under close supervision. He also confirmed that C retained mental capacity. Following his assessment, Dr Oozeerally had completed a rule 35 report, indicating his view that C’s continued detention risked adversely affecting his health. In response to that report and doubtless in light of the clinical anomalies and inconsistent views, the Harmondsworth team were asked to clarify how confident they were that C was not eating and the extent to which their assessment was based on, in effect, uncorroborated self report. As is clear from the above history C appeared to have lost a modest 3kg in weight in over twelve months, notwithstanding his own case that he had been refusing food and taking in limited fluid since 9th June 2013 i.e. one month. Unsurprisingly, to my mind, the healthcare department responded by confirming that C had not been under continuous observation. An email response also questioned C’s authenticity by suggesting that he had been observed deliberately to slow the pace of his movement when he perceived himself as being watched.

[13]A proposal that C be released was prepared and submitted to the Home Secretary’s Director of Compliance and Returns, Mr Hugh Ind on the 2nd July 2013. I note from the various law reports that have been cited to me that Mr Ind is frequently charged with decisions of this sort. The proposal stated that C’s removal from the UK was not imminent as there was no timescale for obtaining travel documentation and a high risk of further deterioration in C’s health. Mr Ind, it is agreed, did not present the recommendation to the Immigration Minister for consideration and queried whether C had in fact been fasting as he contended.

[14]A further Release Submission was prepared on the 4th July 2013, stating that it was not possible to give a timescale for the obtaining of a Gambian travel document. The grant of travel documentation was dependent on C being interviewed by the Gambian authorities. That submission referred to Chapter 55.10 of the Home Office Enforcement Guidance, which I will set out below. It was contended that ‘no exceptional circumstances’ contemplated within that guidance arose to justify the Claimant’s detention under the policy. Mr Ind declined to refer the further submission to the Minister remaining of the view that there was a lack of evidence as to the Claimant’s true condition and that were he to start eating again and taking normal fluid levels he could be removed, to use his phrase, ‘in short order’. His suspicions about what he plainly regarded as a confusing situation caused Mr Ind also to query whether C had been taking his medication. In his detailed email (04.07.13, 21.25 hours) Mr Ind sets out the reasons why, in his view, release from detention was not appropriate. In summary he identified: i) The lack of hard physical evidence; ii) C’s refusal to submit to examination which contributed to the uncertainty concerning his situation; iii) The significant risk of absconding; iv) Risk to the public

[15]On the 5th July 2013 the Immigration Enforcement Unit requested that C be placed under constant observation and that there be daily reports providing hard evidence of food/fluid intake, or opportunity for food/fluid intake and/or other observations. On the 8th July 2013 the Defendant served a letter by way of response to C’s letter before action, setting out why he would not be released. Mr Payne summarises these succinctly in his Skeleton Argument: a) The absconding risk posed by C, as evidenced by his continuing refusal to cooperate with the EDT process, his use of false identity when arrested by the police, his previous pattern of absconding and failing to leave the UK when required to do so, and the FTT’s rejection of the credibility of his claim for asylum; b) The fact that he had not been under 24 hour observations until 6 July 2013, that his condition was not consistent with someone who had not been taking any fluid for in excess of 10 days, and his weight appeared to be unchanged/slightly increased. c) The fact that whilst there was some evidence of dehydration (in the form of observations of cracked lips and a dry tongue) the day before the letter was written (7 July 2013) C had been deemed fit for detention. d) The evidence did not suggest that C was at the point of expiry.

[16]On the 8th July 2013 C served a report from Dr Naomi Hartree, a General Practitioner and a member of the Royal College of General Practitioners. Dr Hartree records her experience in mental health as follows:

“During my hospital and general practice career, I have worked extensively in the care of patients with mental illness. The psychiatric problems which I have treated cover a broad spectrum including: depression, anxiety states, post-traumatic stress disorder, psychotic illness, bipolar disorder, dementia, alcohol misuse, drug and alcohol withdraw states and personality disorders. My hospital psychiatry experience included all these conditions. This post involved clinical responsibility, since when on duty I was the first contact for all the psychiatric emergencies on the ward or in the accident & emergency department, without a more senior colleague on-site. ”

[17]Dr Hartree was asked specifically to comment on the reasons for C’s food and fluid refusal. She considered that there were a number of factors that were likely to have contributed to his decision. A “His underlying level of psychological distress: he has symptoms of psychosis depression, PTSD and anxiety. These are likely to have been exacerbated by his immigration detention (this is known to adversely affect mental health –Rojant 2009). This mental state tends to reduce appetite and is not conducive to caring for oneself.” B “The psychotic illness itself – he describes hearing voices telling him not to eat. This is clinically plausible as part of schizoaffective disorder or psychotic depression (in both conditions, ‘voices’ can tell patients to harm themselves). He has some paranoia symptoms and these have contributed to his decision not to taking medication. The psychosis is likely to have worsened as a result of stopping medication, so his refusal of food, fluid and treatment is likely to have caused a spiralling deterioration of his mental health.” C “The plans for his removal for his removal from the UK, his resulting (subjective) fear of persecution and his perceived helplessness to do anything about his situation (after his former solicitor stopped representing him). These appear (from his stated history) to have been the precipitating factors for his initial decision to refuse food.” D “There is some evidence that the state of fasting itself makes people more prone to continuing food refusal because it pushes thinking towards anger and lack of self care (Fessler 2003); and fasting reduces the sense of thirst.”

[18]In respect of C’s hydration Dr Hartree noted that his ‘lips were dry, cracked and coated’. His mouth and throat were dry and his ‘teeth were also coated’. ‘His hands were cold, his skin was dry and had reduced turgor on palpitation’. Dr Hartree considered all these to be signs of dehydration and observed that with such signs it was likely that C would be at least 10% dehydrated. She also noted capillary return to be normal, respiratory rate to be normal, blood pressure to be normal, pulse to be regular, abdomen to be normal. Neurologically C was ‘alert’, ‘coherent’ and ‘moving all limbs’. As I have observed in exchanges with counsel this assessment relies very heavily on ‘self report’. C is rarely challenged on the history he provides and it is notable that Dr Hartree draws conclusions from symptoms in circumstances where there are obvious wider differential diagnostic alternatives at least to be considered e.g. ‘yawning often although looking alert (suggesting some degree of reduced respiratory effort for which yawning is a physiological compensatory mechanism)’; ‘generalised abdominal pain and tenderness without other abnormal findings is common in people refusing food or fluid’; ‘a weakness in one of the eye muscles. If not present before… then this eye muscle weakness maybe a sign of thiamine deficiency – a serious vitamin deficiency that can cause brain damage and death in prolonged fasting’; ‘lungs clear… and this indicates that he is dehydrated and his peripheral circulation (to the skin muscles and soft tissues of the limbs) is reduced so as to compensate for the effects of fasting and fluid depletion’.

[19]In relation to her assessment of C’s physical appearance Dr Hartree observes:

“Para38. Nutrition: Mr Drammeh appeared to have lost weight. His cheeks and eyes sockets looked hollow. His thighs and lower legs showed signs of muscle wasting and his abdomen was thin. His upper arms were less thin with reasonable muscle bulk, but with no sign of subcutaneous fat. He weighed just under 60kg.[These are signs of weight loss. If he did weigh 8kg previously then he has lost 25% of his body weight. It is likely that both fasting and dehydration have contributed to this weight loss. Given the height of 1.7 metres recorded in the healthcare records, his body mass index is 20.8, which is not underweight (normal BMI is 20-25) but the % weight loss is nevertheless serious, and the history suggest that Mr D was previously well-built and muscular since he describes using the gym regularly while detained, until he started fasting.]”

[20]From this Dr Hartree considered that the most serious and immediate risk to C’s life was his continuing fluid refusal. She describes C as ‘seriously and dangerously dehydrated’ and observes :

“All this puts [C] at imminent risk of collapse from dehydration and circulatory failure and at imminent risk of kidney failure. If nothing is done, he could collapse and die at any time now and is likely to die from dehydration within days. In hot weather (as there is currently) fluid loss is faster, so [C’s] survival time maybe further shortened (depending on the temperature in the healthcare units).”

[21]In relation to C’s risk from malnutrition, Dr Hartree interpreted her observations and the history she was given to conclude:

“[C] is severely malnourished and is at an advance stage of food refusal. Although not underweight according to his Body Mass Index, there is evidence that he has lost a great of deal of weight (the precise loss is unknown since his base line weight was not accurately recorded, according to the Health care records). He may have lost about 25% of body weight according to his own estimate of his normal weight (some of this may be fluid loss due to dehydration, since on clinical assessment he is at least 10 % dehydrated. ”

[22]Finally in her recommendations for treatment Dr Hartree observes:

“Para68. If he stops his fluid and food refusal, Mr Drammeh is at high risk of electrolyte imbalance (deranged blood chemistry) and refeeding syndrome (the complications of refeeding after a long fast, which are dangerous). He should be refed and rehydrated initially in hospital, in a setting where blood tests are immediately available, as stipulated in DoH guidelines.”

The litigation history

[23]On the 8th July the C lodged his application for judicial review. The papers came before Burnett J who considered the urgent application for interim relief. The application was rejected, and the Defendant ordered to respond to the claim by the following day (9th July 2013). Burnett J noted:

“On the basis of Dr Hartree’s report, C’s position appears critical. He is refusing to agree to transfer to a hospital unless he is released from custody. Despite his underlying mental illness, Dr Hartree does not suggest that the refusal is a manifestation of that illness...I am not being asked to order C’s transfer against his will”

[24]On the 9th July 2013 the application came before Lang J. The application for interim relief was refused. The reasons recorded are: “On the basis of his past immigration history, the Defendant is justified in not granting him bail or temporary admission. His deportation is imminent and he has expressed a strong desire not to be returned to Gambia, so there is a high risk that he will abscond. He has a past history of absconding, failing to comply with conditions of his stay, giving a false name to police, and failing to co-operate with immigration authorities. He has been convicted of a serious criminal offence and he has been assessed as posing a serious risk of harm to the public. Whilst those who are medically unfit should not be detained, hunger strikes cannot be used as a means of securing release which would not otherwise be appropriate. He has mental capacity and I cannot order him to be transferred to hospital or treated against his will. There may come a time when the defendant has to consider an application to Court to seek a declaration as to his medical care and treatment. C has failed to establish arguable grounds for judicial review of the Defendant’s decision to detain him and therefore there is no basis for the grant of interim relief”.

[25]It is pertinent to note, as Mr Payne observes, drawing my attention to the medical records for the 9th July 2013, the recording of C’s ‘weight as 59.5kg, skin turgor good, witnessed flushing toilet today’.

[26]In response to these matters, in a letter dated the 9th July 2013, Dr Hartree observes:

“Home Office letter says, “…one report states that Mr Drammeh has not passed urine… when under 24 hour observation Mr Drammeh did go to the toilet on 06 July.”

I should explain that “going to the toilet” in the observations recorded does not necessarily mean that Mr Drammeh passed urine. ”

[27]This proposition is pursued by Dr Hartree during the course of her visit and indeed later:

“During my visit and subsequently over the telephone, he has repeatedly told me that he has been to the toilet and attempted to pass urine or to open his bowels, but despite straining, has been unable to do so.”

[28]On the 12th July Mr Hugh Ind received Dr Hartree’s report noted that she had concluded that the Claimant remained capacitous and authorised continuation of the detention. On the 13th July 2013 C is recorded as having been found in possession of two vitamin drinks in the name of another detainee. On the 14th July 2013 a food and fluid refusal interview had been arranged but C declined to participate, contending that he was too weak to be interviewed. On the 15th July 2013 Dr Hartree referred to C being ‘coherent’, ‘understanding his situation’ and stating that he had started taking very ‘small amounts of water’. On the 16th July 2013 Dr Hartree filed a further report (erroneously dated the 12th July):

“3.37 The extent of his weight loss was unclear. As discussed in my report dated 12 July2014, his weight on arrival in Harmondsworth was recorded as 57Kg, but this was later considered by the IRC doctor as probably erroneous. His weight on 08 July was noted in IRC records as 60K and on 15 July as 55Kg. His weight in Hillingdon is given as 60.5Kg on 20July – this is recorded in the doctor’snotes as weighed wearing clothes, though on the nutritional assessment form, this value was placed in the ‘usual weight’ box. According to prison medical records, Mr Drammeh was 70Kg on 06 July 2012, with a body mass index of 24.2 at the upper end of normal (normal range 18-25). That was long before his food refusal began, and his weight could feasibly have altered meanwhile… 3.38 It is clinically plausible that Mr Drammehs’s recorded weight could increase by 5.5Kg between 15-20 July, even if Mr Drammeh refused food until 19 July. This is because during starvation or if a patient is taking limited fluid, there will usually be some degree of dehydration, which can increase weight loss considerably. If the patient increases fluid intake, weight can increase rapidly even if there is still malnutrition in terms of energy and vitamins. 5.5 Kg is equivalent to 5.5 litres of fluid, or 10% of his body weight at 55Kg. Severe dehydration is usually defined as the loss of 10% of more body weight, so this increase in weight between 15 and 20 July quite plausibly reflects a change form severe dehydration to normal dehydration. Rehydration could have taken place during the first day of his hospital admission. The hospital records record his weight as 60.5 Kg in the doctors entry at midday on 20 July , but as far as I could see there was no record of his being weighed in hospital before this, for example on arrival in the emergency department. The initial assessment handfilled page has an unfilled box for weight (page 127 of the pagination in my scanned copy). He was given a saline infusion of one litre shortly after arrival, and if drinking fluids would also have been rehydrating by the oral route as well as the intravenous one. Muscle bulk, etc, is unlikely to cause such rapid changes in weight gain, so these recorded weights support the clinical concerns raised in July 2013, that Mr Drammeh was severely dehydrated, which was noted in my assessment and in the IRC doctors’ notes on various dates. 3.39 Mr Drammeh’s body mass index on 20 July 2013 is given as 21, in the normal range. A normal body mass index does not exclude malnutrition, because nutrition is not only about body mass; the levels of vitamins and micronutrients are for great importance. A person who was previously at the higher end of normal for body mass, or was overweight, could undertake a prolonged fast and become severely malnourished in terms of vitamin/mineral levels, without becoming underweight. 3.40 It is unclear at what point Mr Drammeh started taking nutrition. He had told me that he attempted to drink milk on or around 16 July, but said he had vomited it. In Dr Barnes’s ward round he is noted as having drunk milk on 16 July, without mentioning vomiting. However during a busy ward round, some of the history may be missed, as in that setting often only a brief history is taken. It is possible that Mr Drammeh may have covertly taken nutrition prior to being hospitalised; the hospital records cannot either confirm or refute this. However his fast pulse rate on arrival and the subsequent fall in blood pressure suggest he was not physically well or stable, in keeping with refeeding commencing at around that time.”

[29]Dr Hartree also considered that C had become ‘severely depressed’ and ‘hopeless’. She reiterated her opinion that C’s continued food and fluid refusal could not be looked at in isolation from the deterioration in his mental state. She concluded:

“‘it is therefore imperative that [C] be assessed and treated in hospital urgently, without delay’. ”

Accordingly, an application to revoke the Deportation Order was made.

[30]C’s detention was further reviewed on the 18th July and on the same day Swift J ordered an urgent oral hearing for interim relief. The matter was listed the following day (19th July 2013) before Jeremy Baker J. A transcript of that hearing has been filed in this application as well as a transcript of the short judgment

[2013] EWHC 2980 (Admin)

. Understandably, Jeremy Baker J was very concerned by what he read in Dr Hartree’s reports, her opinion forms the mainstay of his reasoning, underpinning his decision to release C on bail (on the conditions set out in his order) to enable him to attend the local Accident and Emergency Department for assessment and treatment. The Defendant was also ordered to make all necessary arrangements and to take all reasonable steps to secure C’s transfer to hospital as soon as possible and in any event no later than 6pm on the 19th July 2013. The cornerstones of the judge’s reasoning are:12. As Ms Stephanie Harrison QC acknowledges, it is an unattractive position for the claimant to take and one which ordinarily will not only be viewed which scepticism but refusal by this court. However, she also properly reminds the court that there is in the background of all of this matter, objectively clear evidence that the claimant does suffer from mental illness. He has been diagnosed with a schizoaffective disorder from an early stage. It is likely that that is schizophrenia. He is suffering from auditory and other hallucinations, indeed the description of the symptoms has some parallels with paranoid schizophrenia. He also suffers from depression and it may also be, post traumatic stress disorder. In those circumstances, although he appears to retain capacity, Ms Harrison urges the court to view this case as one of some exceptionality on the basis that his stance, which appears objectionable, should be ameliorated against the background of that mental illness.

13. Perhaps of even more concern is another matter which Dr Hartree has provided an opinion about, namely that those who have over a prolonged period of time refused food and/or water intake can reach a stage, which she considers as likely to be reached in this case, where the very effect of that initial desire to refuse food and water can in itself affect the brain, whereby the individual becomes incapable of reversing that decision, and that is a matter which again ought to be taken into account in this case.

14. The view that I have reached, having heard the most recent medical evidence from Dr Hartree and also considering the evidence medically provided by the detention centre is that the situation has now reached a sufficiently critical point whereby the court must closely scrutinise as to whether it is appropriate for the claimant to remain in detention. In addition, clearly, I do take into account the most recent evidence from Dr Hartree, which, at least on the face of it, although I make no firmer view than that, appears to provide some objective evidence to support the fresh claim for asylum in country. Whether or not in reality it does have that effect will be a decision for another day by the Secretary of State. However, in view of her policy in relation to those who are indeed suffering from serious medical conditions, it seems to me that there are not here sufficiently exceptional circumstances for his continued detention in the detention centre. On that basis, I am exceptionally in this case prepared to grant bail. It will be in the terms of the draft order which I have already discussed with counsel and will provide for his release on bail on conditions, primarily so that he can receive treatment at hospital and thereafter at an address which is approved by the Secretary of State. It will also provide, lastly, for liberty to apply by either party on 24 hours' written notice so far as the provisions of the order are concerned.

The Judge also expressed his concerns about the court being manipulated:

[31]11. In my judgment, therefore, the situation is materially different to that which was considered by Lang J on 9 July 2013. Having said that, I remain of concern in this case because the reality is that if the claimant had agreed to do so, he could have been transferred at any time up to now to a hospital so that treatment could be effected on him for his lack of food and fluid intake but he has chosen not to, and I entirely endorse the sentiments which were expressed in writing by Lang J when she refused interim relief, namely that the courts should stand firm against manipulation of the situation by individuals within the immigration system, because the situation is that apparently the claimant will agree to go to hospital if he is granted bail.

[32]In accordance with the Judge’s order C was transferred to Hillingdon Hospital, where he consented to medical investigation and treatment. On arrival in A&E he immediately ate without any apparent difficulty a sandwich and crisps and drank a soft drink. The medical check up established only mild dehydration and all major observations were recorded as within normal limits. C was prescribed ‘snack box and water’. It is also stated that he did not appear confused and seemed able to make decisions for himself. Before discharging C the medical staff wanted to review blood results and it is recorded:

“review of blood results is normal and urine ketone <3; patient can be discharged safely.”

[33]The following day the Hillingdon records show C’s general presentation. Again Mr Payne has succinctly summarised them and I adopt his summary. i) C ate breakfast, had a negative result in terms of Ketone (a high Ketone score suggests lack of food) and was fully mobile. ii) C’s weight was recorded as 60.5 kg. iii) “Bloods & no electorite imbalance…NOT clinically dehydrated”. iv) C had passed urine on two occasions. v) C informed staff that whilst detained he intermittently had had water, and having had milk on 16 July 2013. vi) C’s “gait” was “independent and normal”. vii) There was “no obvious evidence of weight loss”. viii) Under management it is recorded “aim for early discharge”.

The Detention Centre Rules 2001

[34]On the 22nd July C was discharged. I have been told that since being discharged C has been arrested and subsequently sentenced to 4 months imprisonment for a public order offence. His custodial sentence came to end on the 21st November 2014.

Special illnesses and conditions (including torture claims)

[35]Summary Grounds of Defence were lodged on 5th August 2013. Permission was granted on the papers by Hadden-Cave J on the 30th April 2014. Detailed Grounds of Defence were served on the 12th June 2014.

The Claimant’s case

[36]Mr Harrison identifies five grounds upon which she contends that C’s detention under immigration powers from the 12th November 2012 to the 19th July 2013 was unlawful. These grounds are set out in greater detail in her Skeleton Argument of the 27 November 2014 but they can fairly and conveniently be distilled as follows: Ground 1 It was contrary to the Defendant’s published policy in respect of those with a serious mental illness in Chapter 55.10 EIG; Ground 2 The changes to detention policy relating to food and fluid refusal were unlawful and incompatible with S149 of the Equality Act 2010; Ground 3 The Claimant’s detention was unlawful under the Hardial Singh principles; Ground 4 The Defendant breached the Detention Centre Rules 2001 by failing to ensure an effective system and/or proper implementation and compliance with Rule 35; Ground 5 Detention breached the Claimant’s human rights under Articles 5(1), 2, 3 and/or 8 ECHR.

[37]Each of these grounds really, to my mind, are different facets of one central premise, namely that where there is medical evidence to confirm that C is suffering from a serious, pre-existing mental health illness and where fluid/food refusal either is or may be interrelated, detention is unlawful. Conversely the Secretary of State’s position is that the deliberate refusal of anti psychotic medication renders this case indistinguishable from IM v Secretary of State for the Home Department 2013 EWHC (Civ) 1561 therefore rendering detention lawful.

The Legal Framework

[38]The Secretary of State’s policy on persons considered unsuitable for detention is set out at Chapter 55.10 of the published Enforcement Instructions and Guidance (EIG) “55.10 Persons considered unsuitable for detention … The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: …  those suffering from serious medical conditions which cannot be satisfactorily managed within detention  those suffering serious mental illness which cannot be satisfactorily managed within detention (in CCD cases, please contact the specialist Mentally Disordered Offender Team). 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 Mental Health Act;  those where there is independent evidence that they have been tortured.

 those suffering from serious medical conditions which cannot be satisfactorily managed within detention

[39]Chapter 55.10.1 (Criteria for detention in prison) was further amended on or around 29 May 2013 to include the following:

“…Separately to the issue of transferring individuals held in prison, detainees held in IRCs who are refusing food and/or fluid may be transferred to prison medical facilities, if this is considered necessary to manage any resulting medical conditions.”

Chapter 55.8A incorporates Rule 35 of the Detention Centre Rules 2001, and states that:

“…The purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. The information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case…. Upon receipt of a Rule 35 report, caseworkers must review continued detention in light of the information in the report (see 55.8 – Detention Reviews) and respond to the centre, within two working days of receipt, using the appropriate Rule 35 pro forma.”

Chapter 55.8 (Detention Reviews) requires that continued detention must be reviewed at specified points. At each review “robust and formally documented consideration” should be given to the removability of the detainee and to “all other information relevant to the decision to detain. Additional reviews “may also be necessary on an ad hoc basis, e.g. where there is a change in circumstances relevant to the reasons for detention.” Section 149 of the Equality Act 2010 40. 149 Public sector equality duty 41. E+W+S (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). 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. (8). A reference to conduct that is prohibited by or under this Act includes a reference to— (a). a breach of an equality clause or rule; (b). a breach of a non-discrimination rule. (9). Schedule 18 (exceptions) has effect. The Hardial Singh principles:

Section 149 of the Equality Act 2010

[40]The Hardial Singh principles, first set out in R v Governor of Durham Prison, ex p Hardial Singh

[1984] 1 WLR 704

at [706] and very conveniently distilled in R (I) v Secretary of State [2003] INLR 196 at [46], are well known: i) The Secretary of State must intend to deport the detainee 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 reasonable diligence and expedition to effect removal.

[41]To these principles can be added two further points. Firstly, the emphasis given to the importance of the ‘reasonable period’. See R (Amin Sino) v SSHD

[2011] EWHC 2249

; Bizimani v Secretary of State for the Home Department

[2012] EWHC Civ 414

. There is no doubt that the effect of detention on a detainee’s mental health is a very relevant factor to the evaluation of what constitutes ‘a reasonable period’ see: R (M) v Secretary of State for the Home Department

[2008] EWCA Civ 307

; R (Anam) v SSHD

[2012] EWHC 1770 (Admin)

. Secondly, I very much bear in mind that when applying the Hardial Singh principles, the Court acts as de facto decision maker in determining what is reasonable i.e. it does not apply a Wednesbury test see LE (Jamaica)

[2012] EWCA Civ 597

. The Detention Centre Rules 2001 Medical examination upon admission and thereafter34. —(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. 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. (3). The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture. (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.

[42]In response to my intervention, both legal teams were able to refine the key issues in this application. On the 10th December 2014 they produced a document headed ‘agreed list of issues’ which I found to be helpful. Six questions were identified, which I replicate here: i) Was the Defendant entitled to conclude that the mental health of the Claimant could be satisfactorily managed in detention until 9 June 2013? ii) Post 9 June 2013, was Chapter 55.10 of the Enforcement Instructions and Guidance (EIG) and the Rule 35 policy applicable to the Claimant during his food and fluid refusal? iii) If so, was his detention lawful during his food and fluid refusal? iv) Was the policy relating to food and fluid refusal cases lawful as compatible with s149 of the Equality Act 2010? v) Was the Claimant’s detention lawful under Hardial Singh principles 2 and/or 3 after 1 July 2013? vi) Did the detention of the Claimant on or after 1 July 2013 subject him to degrading treatment in breach of article 3 and/or was it a disproportionate interference with his right to moral and physical integrity contrary to

article 8 ECHR

[43]There is no doubt that the policy in chapter 55.10 imposes upon the Secretary of State a duty to inquire into the relevant circumstances of a detainee to assess whether serious mental illness existed and whether it could be satisfactory managed in detention. In R (Das) v Secretary of Statefor the Home Department (Mind and another intervening) ( CA)

2014 EWCA Civ 45

, the Court of Appeal emphasised that the broad guidance of Chapter 55.10 was to be seen as such and not to be subjected to fine analysis or interpreted like a statutory provision. Instead it required purposive and pragmatic construction. Reviewing the earlier case law Beatson LJ observed:

“57. These cases take the words of the phrase "suffering from a serious mental illness which cannot be satisfactorily managed within detention" as a whole. It is clear from them that the diagnosis is not in itself the key to the applicability of the policy, even if the individual has been referred for treatment by specialist secondary services. It is also necessary for the individual concerned to be "suffering" and for the illness to be one which "cannot be satisfactorily managed within detention". Accordingly, although (see Sullivan LJ in R (MC (Algeria)) v Secretary of State for the Home Department [2010] EWCA Civ 347 at [41]) the policy is in principle capable of applying to anyone with a "mental disorder" within the definition in the Mental Health Act 1983 as amended by the Mental Health Act 2007, the mere fact that they are does not suffice. The effects of the illness on the particular individual, the effect of detention on him or her, and on the way that person's illness would be managed if detained must also be considered.” 58. The effect of mental illness on an individual does not follow as a necessary consequence of a particular diagnosis. It can vary according to its particular features, the particular characteristics and circumstances of the individual, and the treatment provided. The Royal College of Psychiatrists' position statement states (p 6) that whether mental illness is serious is a fact-sensitive question. The facilities for managing detainees may also vary. For example, the court was informed that some detention centres do not have counselling services. Additionally, as Miss Rose recognised, whether mental illness can be "satisfactorily managed" in detention may depend on the duration of detention contemplated. Where it is clear that there is only to be a very short time of detention before removal, there may well be no significant difference to the patient's condition during that short period.”

[44]Beatson LJ also highlighted the danger of conflating terminology and using criteria developed for one purpose for a very different purpose. “The purposes of and criteria for detention under the Mental Health Act 1983 differ substantially from the purposes of and criteria for immigration detention and for the operation of the policy in the bullet point in §55.10 of the policy about those with mental illness. The 1983 Act does not use the concept of a "serious" mental illness. Moreover, as a result of section 3(2) of the Mental Health Act 1983 and its requirement that "appropriate medical treatment" is available, those whose condition is serious but whose condition is not treatable cannot be detained in hospital under the Act. As Miss Rose submitted, the criteria in the 1983 Act seek to identify those who, because of their mental illness, are suitable for detention in a hospital in order to enable treatment to be given for the benefit of the patient, whereas the policy seeks to identify those who, because of their mental illness, are not suitable for detention in an immigration centre. To in substance align the criteria in the policy with those in the 1983 Act by regarding the policy as broadly only applicable where the criteria in the 1983 Act are met glosses over these important differences.”

[45]Later Beatson LJ harvested from the authorities the kind of factors that might indicate circumstances in which a mental illness could not be satisfactorily managed in detention. I emphasise, as I believe he did, that this is intended to be illustrative and by no means prescriptive:

“67. The authorities also show that the threshold for the applicability of the policy is that the mental illness must be serious enough to mean it cannot be satisfactorily managed in detention. As to satisfactory management, at the time detention is being considered, the Secretary of State, through her officials, should consider matters such as the medication the person is taking, and whether his or her demonstrated needs at that time are such that they can or cannot be provided in detention. Account should be taken of the facilities available at the centre at which the individual is to be detained, and the expected period of detention before he or she is lawfully removed. R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909 at [33] shows that some of those suffering significant adverse effects from mental illness may be managed appropriately in detention. OM had attempted suicide by hanging herself. She was diagnosed as having recurrent depressive disorder and emotionally unstable personality disorder which was not suitable for treatment under the Mental Health Act 1983. The views of the experts were divided but Richards LJ stated that the balance of expert advice was that her illness could be managed appropriately in detention.”

[46]It is self evident in a mature, democratic society that particular care is required when dealing with mental illness across the spectrum. Miss Harrison particularly emphasises, as do I, Beatson LJ’s observation at para 69:

“69. I add that, whether or not the policy is strictly engaged, as part of the operation of the Hardial Singh principles (see [16] above), in assessing whether to detain a person known to have a mental illness, particular care is needed. The Secretary of State, through her officials, should consider whether, if the decision is taken to detain, particular arrangements will need to be made for the detainee's welfare and to monitor him or her for signs of deterioration.”

[47]In IM v Secretary of State for the Home Department EWCA Civ 1561 Lloyd Jones LJ considered the application of the various policies in contemplation here. The appellant in that case was a Nigerian national who had refused food and refused fluids intermittently. He had issued an application for permission to apply for Judicial Review focusing on the published policy on detention claiming that his ‘serious medical condition’ could not be managed satisfactorily in detention (it was also said to be in breach of Articles 2 and or 3 ECHR).

[48]At para 43 Lloyd Jones LJ observed:

“However, as the judge explained, the premise for the assessment of an individual as unfit for detention in a removal centre leading to removal to a hospital for treatment is that the detainee will consent to treatment. In light of the appellant's refusal to receive medical treatment (a refusal which, it should be noted, extends not only to treatment of his condition but also to any medical care that would make him more comfortable) I consider that the respondent is entitled to conclude, as matters presently stand, that notwithstanding the appellant's serious medical condition, the policy does not require his removal in detention to hospital. While it could be concluded, as the judge did, that as long as the appellant continues to refuse medical treatment of any kind his condition can be as satisfactorily managed within an IRC as in a hospital, I should prefer to put it on the ground that the continuing refusal of the appellant to accept any medical treatment removes his case from the scope of the policy statements relied on by the appellant because they simply did not envisage such a case.”

[49]In that case the appellant did not seek to claim that continued detention was made on the basis of the existence of ‘very exceptional circumstances’. The Claimant here follows that approach. In IM Lloyd Jones LJ did not find it necessary to determine whether very exceptional circumstances existed. Nonetheless he observed: “44. However, if it were necessary to decide it I should conclude, in agreement with the judge, that the facts of the present case are capable of amounting to very exceptional circumstances justifying such a departure. I come to that conclusion, not because the appellant's condition can be considered to be self-inflicted, but because of his continuing refusal to consent to medical treatment unless released, a refusal which, as matters presently stand, is a matter of his freechoice made with capacity to make it.” (my emphasis)

[50]Of course these issues of ‘capacity’ and ‘free’ choice also resonate when evaluating the broader picture of whether the condition can be satisfactorily managed. Mr Payne crystalises the Secretary of State’s position in his concluding paragraph to his submissions in this way:

“This case is, in truth, indistinguishable from IM (Nigeria) in which the Court of Appeal held that the detention of an individual who was suffering from the consequences of FFR was lawful in circumstances where the individual had mental capacity. Applying the principles in IM (Nigeria) to the facts of this case C cannot establish that his decision to refuse food, made with capacity to take it and as a protest against his detention and/or proposed removal to Pakistan, should have led to his earlier release. ”

[51]Miss Harrison, in order to meet the above argument, prepared a further document, again at my request, on the 11th December. That document is headed ‘Claimant’s Distillation of Propositions on EIG 55.10 Policy’ again I think it is helpful to replicate these without amendment. They require to be read conjunctively: At all times Chapter 55.10 EIG is engaged in a case of food and fluid refusal: 1. Where there is a pre-existing serious mental illness; 2. Where the mental illness causes and/or influences and/or is linked to the food and fluid refusal; 3. Even if the mental illness does not cause and/or influence and/or is not linked to the food and fluid refusal, but the consequences of the food and fluid refusal impact on the mental health of the detainee; 4. The position above is the same if the person refuses to take prescribed medication. The Secretary of State has a duty, under EIG 55.10, to make adequate enquiries into the mental health of the detainee and must decide if EIG 55.10 applies:(a) Whether the mental illness can be satisfactorily managed in detention;

(b) If not, whether there are very exceptional circumstances that justify detention in a detention centre.

[52]Miss Harrison submits that no rational decision maker could treat a medical condition or mental illness as satisfactorily managed where there is a risk of it deteriorating to the point where a doctor concludes that a detainee is not fit for detention because his healthcare needs cannot be met. This ambitious submission simply cannot be reconciled with those passages of the judgment of Lloyd Jones LJ in IM that I have set out above, particularly his observations at paragraph 43. The submission, to my mind, creates an artificial link between ‘risk of deterioration’ and ‘satisfactory management’, as if the two had some inextricable nexus. They do not, they are completely separate and only reconcilable on a case by case basis. In other words, the relationship between risk and management is entirely fact specific, it always is. Miss Harrison, it seems to me, recognises her difficulty on this point. She confronts it by gently suggesting that Das v Secretary of State for the Home Department in someway undermines the analysis in IM, pointing out that Das was ‘decided after IM’. This simply does not hold, both cases seem to me to reveal a seamless evolution of the same approach.

[53]In the history that I have set out, at least as I find it to be, what emerges is not a pattern of deteriorating mental or indeed physical health but, at best, a confused clinical picture. The medical records are liberally scattered with references that point to periods of ‘improvement’, inconsistent with prolonged starvation. Indeed, the word ‘improvement’ is to be found, for example, in the assessment undertaken by Dr Burrun on the 20th June 2013.

[54]In any event the Court of Appeal has clearly established that detainees fall outside the scope of Chapter 55.10 where: i) they have capacity to take decisions; ii) they decline to engage in medical treatment;

[55]I agree with Mr Payne that this must render C’s compliance or non compliance with his medical regimen in the period before his decision (I use that word carefully), to decline food and fluids as largely, indeed arguably entirely, irrelevant to this claim.

[56]Miss Harrison contends that there are important distinctions between IM and the facts of this case. She sets these out at paragraph 102 of her Skeleton Argument. In summary: In contrast to IM, it is not suggested in this case that Chapter 55.10 is a comprehensive statement of the Defendant’s policy. The Claimant in this case accepts that DSO 03/2013 and the report of 25 June also form part of the Defendant’s policy with regard to the management of food refusal in detention and that the Defendant’s published and unpublished policies must be considered as a whole. It is convenient to consider these here: “DSO 03/2013 (‘Food and Fluid Refusal in Immigration Removal Centres: Guidance’) was also amended in or around May 2013, to add sections entitled ‘Clarify medical assessment’, ‘Additional Medical Advice’ and ‘Transfer to prison medical facility’. The amended sections provide inter alia that:” i) Where a doctor has given an opinion that a detainee is no longer fit to be removed and/or fit to be detained, the doctor should be asked for details of the basis for the assessment, in order to ensure that the doctor’s opinion can be given due weight in deciding how to proceed. A sample assessment record was annexed to the guidance; ii) Doctors’ professional views are important, but it is for the Secretary of State to make an independent decision about whether an individual is suffering from a serious medical condition (the consequences of prolonged food and/or fluid refusal) which cannot be managed satisfactorily in detention, and if so, whether there are very exceptional reasons for maintaining detention [that is, to apply the policy in Chapter 55.10]; iii) Where an IRC doctor assesses a detainee as no longer fit to be removed or fit to be detained as a consequence of food and/or fluid refusal, consideration may be given to seeking a second clinical opinion from a doctor with more experience of assessing or managing food and fluid refusal cases in custody. A second assessment may be arranged in any case where the reasons for the IRC doctor’s assessment are unclear, where there is other evidence tending not to support the assessment, or where it is otherwise considered appropriate; iv) Detainees may be transferred to a prison medical facility at the point at which they require in-patient care, in order to access the more extensive medical facilities available and to ensure better care and management. i) Where a doctor has given an opinion that a detainee is no longer fit to be removed and/or fit to be detained, the doctor should be asked for details of the basis for the assessment, in order to ensure that the doctor’s opinion can be given due weight in deciding how to proceed. A sample assessment record was annexed to the guidance; ii) Doctors’ professional views are important, but it is for the Secretary of State to make an independent decision about whether an individual is suffering from a serious medical condition (the consequences of prolonged food and/or fluid refusal) which cannot be managed satisfactorily in detention, and if so, whether there are very exceptional reasons for maintaining detention [that is, to apply the policy in Chapter 55.10]; iii) Where an IRC doctor assesses a detainee as no longer fit to be removed or fit to be detained as a consequence of food and/or fluid refusal, consideration may be given to seeking a second clinical opinion from a doctor with more experience of assessing or managing food and fluid refusal cases in custody. A second assessment may be arranged in any case where the reasons for the IRC doctor’s assessment are unclear, where there is other evidence tending not to support the assessment, or where it is otherwise considered appropriate; iv) Detainees may be transferred to a prison medical facility at the point at which they require in-patient care, in order to access the more extensive medical facilities available and to ensure better care and management.

[57]In the category of other ‘non published documents’ Miss Harrison contemplates the internal report by Mr Nancekivell-Smith to which I have referred in my summary of the background and which sets out amendments to the Defendant’s policy in respect of FFR. Key amongst its provisions are: i) Refusal of food and fluids will not automatically preclude detention, but could lead to a deterioration in health which is so serious that the person concerned can no longer be satisfactorily managed in detention [the wording of Chapter 55.10 EIG] and may no longer be fit to be detained or be removed from the UK, in which case continued detention could be unlawful; ii) Reviews of detention must take account of a detainee’s removability, but consideration must also be given to all other information relevant to a decision to detain (Chapter 55.8 EIG); iii) A Tactical Tasking Group meeting weekly to ensure all food and fluid refusal cases were prioritised for documentation or appeal, were managed consistently and that senior managers were aware of “these potentially high profile cases”; iv) The decision on release for all food refusal cases would be referred to a strategic director, Mr. Hugh Ind and then to the Minister.

[58]Miss Harrison also emphasises that Mr Nancekivell-Smith’s report contains legal opinion to this effect:

“….there must come a time in even the most serious cases when an individual is so weak or ill as a result of food or fluid refusal that they no longer pose any risk of absconding or reoffending. In such cases, detention will be unlawful and it will be necessary to consider release with conditions designed to mitigate any residual risks the individuals may pose, for example as and when they recover.”

[59]Returning to what are contended, by Miss Harrison to be distinctions between IM and this case (see para 59 above). i) The report of 25 June 2013 was not before the court in IM or W and so did not form part of the court’s reasoning. The Claimant submits that the report indicates that in food refusal cases where a detainee is refusing medical treatment, the Defendant’s procedure is to consider release as an alternative to detention in an IRC, rather than transfer to hospital as the court concluded in IM; ii) In both IM and W, removal was clearly in prospect within a reasonable time. There were no barriers to removal and travel documents were thought to be quickly obtainable. In W, removal directions had previously been set. There was no argument in either case that the Hardial Singh principles had been breached because removal was not in prospect. By contrast, in the instant case the Claimant’s appeal against deportation was pending until June 2013, and after that a travel document could not be obtained without the Claimant being interviewed. At best the timescale for a travel document was 3-6 months; by 27 June 2013 this had changed to ‘medium term’ [2-194] and from 1 July onwards there was no timescale [2-216, 2-248]; iii) Most importantly, neither IM nor W involved a detainee with a pre-existing serious mental illness, where there was clear evidence of significant mental health problems prior to food refusal. There was no evidence in IM or W that the detainee’s food refusal was anything other than a rational decision made with the capacity to do so in order to bring about a desired outcome. In the instant case, on the contrary, the consistent medical evidence is that the Claimant was suffering from a serious psychotic illness prior to the food/fluid refusal, that was deteriorating. Furthermore the medical evidence (particularly Dr Burrun’s assessment and the reports of Dr Hartree and Dr Vermeulen) also indicates that the Claimant’s food refusal was or may be related to his mental illness and was contributed to by the further deterioration in his mental health; iv) There is a clear difference, in fact and law, between a healthy detainee who engages in food/fluid refusal as a protest and a detainee with a serious mental illness to whom Chapter 55.10 already applies, whose decision-making is or may be affected or influenced by pre-existing serious mental illness, and where the medical evidence indicates that both physical and mental health will deteriorate as a result.

[60]The reference to W (iii above) is to R (W) v SSHD

[2014] EWHC 3485 (Admin)

. There Bobbie Cheema QC applied the Court of Appeal’s interpretation of Chapter 55.10 to the facts of the case before him in these terms: “C fails in his attempt to distinguish his case from that of IM. In IM the correct interpretation of Chapter 55.10 was addressed by the Court of Appeal. At [37] Lord Justice Lloyd Jones stated: ” "37. As the judge held, Chapter 55.10 is clearly directed to the normal circumstances in which the policy is required, ie detention in removal centres and prisons. When read in this way the consequence of the applicability of the policy is not that those to whom it applies become unsuitable for detention anywhere simply because their conditions are unsuitable for treatment in a removal centre or prison. Its effect is not that, in the absence of very exceptional circumstances, continued detention is unsuitable but that the detention in the removal centre or prison is unsuitable. As both Ouseley J and Stewart J observed, the result is not that a detainee must be released unless there are very unusual circumstances but that the detainee must be moved to a suitable place of detention. A person may be fit to be detained in a hospital even if not fit to be detained in an IRC. 38 ……The failure of the policy to make express provision for those who require removal to hospital but who otherwise remain in detention is, as the judge observed, because it was so obvious as to be not worth saying that those who needed medical treatment not available in an IRC or prison would pursuant to the proper application of the policy be transferred to hospital in detention. Furthermore, any failure to state in a published policy that those not suitable for detention in an IRC should be removed in detention to hospital where their medical needs could more suitably be met does not limit the exercise of the power conferred on the respondent. She does not need to announce a policy covering a particular situation or to act in accordance with it in order to make the exercise of her powers lawful." On this construction of the relevant policy the fact that C refused medical treatment was not a reason for finding that under D's policy the only option open to her was to release him in the absence of exceptional circumstances but rather for finding that his situation, like that of IM, was outwith the policy statements relied on by C. D must apply her policy but where the case falls outside the policy she must behave reasonably and lawfully. C's deliberate protest against detention and removal at a time when he had capacity to make the decision to reject food/fluid and necessary treatment did not require D to release him. His medical issues arose from his food/fluid refusal and fell outside Chapter 55.10. D did provide adequate medical care and the chronology shows that regular assessments were made, passed on and considered. C stated he would refuse medical treatment unless transferred to hospital without prospect of being returned to detention and returned to Pakistan. It is hard to see on what basis his forcible removal to hospital where he planned to refuse treatment was required in order for D to comply with her legal obligations towards him. It is necessary to repeat that C's likely early removal was always anticipated by D and it was not unreasonable for D to detain him. Alternatively, there were exceptional circumstances in C's case justifying detention because the absence of consent to treatment in hospital while capacity to decide remains amounts to an exceptional circumstance. As to illegality of the policies per se the challenge does not arise on the facts because as discussed above, the authority of IM makes plain that the policies C says are engaged are not in fact engaged in C's circumstances. "37. As the judge held, Chapter 55.10 is clearly directed to the normal circumstances in which the policy is required, ie detention in removal centres and prisons. When read in this way the consequence of the applicability of the policy is not that those to whom it applies become unsuitable for detention anywhere simply because their conditions are unsuitable for treatment in a removal centre or prison. Its effect is not that, in the absence of very exceptional circumstances, continued detention is unsuitable but that the detention in the removal centre or prison is unsuitable. As both Ouseley J and Stewart J observed, the result is not that a detainee must be released unless there are very unusual circumstances but that the detainee must be moved to a suitable place of detention. A person may be fit to be detained in a hospital even if not fit to be detained in an IRC. 38 ……The failure of the policy to make express provision for those who require removal to hospital but who otherwise remain in detention is, as the judge observed, because it was so obvious as to be not worth saying that those who needed medical treatment not available in an IRC or prison would pursuant to the proper application of the policy be transferred to hospital in detention. Furthermore, any failure to state in a published policy that those not suitable for detention in an IRC should be removed in detention to hospital where their medical needs could more suitably be met does not limit the exercise of the power conferred on the respondent. She does not need to announce a policy covering a particular situation or to act in accordance with it in order to make the exercise of her powers lawful." On this construction of the relevant policy the fact that C refused medical treatment was not a reason for finding that under D's policy the only option open to her was to release him in the absence of exceptional circumstances but rather for finding that his situation, like that of IM, was outwith the policy statements relied on by C. D must apply her policy but where the case falls outside the policy she must behave reasonably and lawfully. C's deliberate protest against detention and removal at a time when he had capacity to make the decision to reject food/fluid and necessary treatment did not require D to release him. His medical issues arose from his food/fluid refusal and fell outside Chapter 55.10. D did provide adequate medical care and the chronology shows that regular assessments were made, passed on and considered. C stated he would refuse medical treatment unless transferred to hospital without prospect of being returned to detention and returned to Pakistan. It is hard to see on what basis his forcible removal to hospital where he planned to refuse treatment was required in order for D to comply with her legal obligations towards him. It is necessary to repeat that C's likely early removal was always anticipated by D and it was not unreasonable for D to detain him. Alternatively, there were exceptional circumstances in C's case justifying detention because the absence of consent to treatment in hospital while capacity to decide remains amounts to an exceptional circumstance. As to illegality of the policies per se the challenge does not arise on the facts because as discussed above, the authority of IM makes plain that the policies C says are engaged are not in fact engaged in C's circumstances.

[61]In my judgement this analysis applies with equal force to the facts of this case. The only basis upon which it could be distinguished requires me to accept the proposition that C, who has been assessed as capacitous throughout, is nonetheless so irrational in his decision making in respect of FFR that his refusal of food or fluids ‘was or may have been related to his mental health’ as Miss Harrison puts it.

[62]Attractively packaged though the argument is, it requires me to approach C’s decision making in a manner which is ultimately disrespectful to his personal autonomy. Either C had the capacity to take decisions, good, bad, flawlessly logical or tainted by irrationality as they may have been, or he did not. If he does, those decisions require respect. If he had lacked capacity the whole situation would be different and it would be strongly arguable that Chapter 55.10 applied. I say strongly arguable as opposed to conclusively because even in those circumstances the obligation might be to promote his return to capacity. Even Dr Hartree whose reports, I regret to say, did not strive for balance or objectivity, stopped short of the suggestion that C lacked capacity.

[63]Mr. Ind, who is plainly very experienced in these cases, was entitled to have regard to the broad canvass of information available to him when advising the Secretary of State. Along with the opinion of Dr Hartree and the other doctors involved it was reasonable for him to consider the wider picture such as the evidence of C’s alert well oriented presentation, his normal pattern and content of speech, his own assessment of Dr. Hartree’s forensic objectivity. It is important to emphasise that it was Mr Ind not Dr Hartree who was the decision maker. Dr Hartree plainly relied on C as providing an accurate account of his symptoms. Mr Ind was entitled to be more sceptical and of course, as events transpired, was entirely right to be so.

[64]This claim really falls into two parts: the period between March and the 10th June, where C was irregular in his compliance with his medication, and the period between 10th June -19th July 2013 (i.e. date of release) when he refused food, medical tests and/or treatment and, at least intermittently, fluids. The argument that he was suffering from a serious mental condition (falling short of lacking capacity) really centres upon that first period. The second period is where it is suggested that C’s decision making was corrupted by serious mental illness. In that broader canvass to which I have referred it is informative to highlight some key features: i) 20th June 2013. C complained he ‘he is not eating because he wanted to get out of here’; ii) 23rd June 2013. C ‘drinking but maintaining food refusal’; iii) 28th June 2013. C ‘fed up with detention’ and having decided to FFR ‘as a protest’; iv) 1st July 2013. C understands consequences of his actions (Dr Oozeerally); v) 9th July 2013. C observed to have ‘skin turgor good’, ‘mouth dry’, ‘witnessed flushing toilet’ vi) 10th July 2013. C may have indeed taking some fluid; vii) 12th July 2013. C told Dr Hartree he had started taking very small amounts of water; viii) 13th July 2013. C apparently found in possession of two vitamin drinks; ix) 14th July 2013. C refuses FFR interview; x) 15th July 2013. C ‘coherent, understanding his situation’ and repeated that he had started taking ‘very small amounts of water’; xi) 17th July 2013. Body Mass Index within normal range.

[65]It is also apposite to recall Lang J’s observations when refusing C’s application for interim relief on 9th July 2013:

“On the basis of his past immigration history, the Defendant is justified in not granting him bail or temporary admission. His deportation is imminent and he has expressed a strong desire not to be returned to Gambia, so there is a high risk that he will abscond. He has a past history of absconding, failing to comply with conditions of his stay, giving a false name to police, and failing to co-operate with immigration authorities. He has been convicted of a serious criminal offence and he has been assessed as posing a serious risk of harm to the public. Whilst those who are medically unfit should not be detained, hunger strikes cannot be used as a means of securing release which would not otherwise be appropriate. He has mental capacity and I cannot order him to be transferred to hospital or treated against his will. There may come a time when the defendant has to consider an application to Court to seek a declaration as to his medical care and treatment.”

Lang J is there summarising Mr Ind’s own wider evaluation of risk all of which is of course relevant to the decision taking process.

[66]I have been constrained to review the background facts here in such detail because for the Claimant’s argument to gain any traction they require to be established within a sound factual framework, otherwise we are merely addressing a hypothesis. If the facts do not establish a ‘serious’ mental health condition that could not be managed satisfactorily in detention or that C’s food and fluid refusal was or might have been ‘influenced’ by a serious health condition then all the grounds of the claim fall away. I agree with Mr Payne, these issues ‘underpin every ground of challenge’.

[67]I am perfectly clear that the preponderant evidence does not come close to establishing these two propositions. Indeed, the facts point compellingly towards C having calculated and executed a plan to avoid deportation. Quite how cynical it was did not emerge until his discharge. As C himself put it, he had gone ‘on hunger strike because his immigration case was hopeless’. The decision making process on behalf of the Secretary of State was, for the relevant periods that I have identified, in my analysis, rational, fair and subsequently entirely vindicated by the facts. Even the risk of reoffending was properly taken into account as C went on, following his release to be convicted on the 18th September 2014 of further criminal offences, albeit ones of a different complexion to those specifically contemplated in the risk evaluation.

[68]In simple terms the grounds of claim and supporting arguments, elegantly presented though they have been, simply do not begin to fit the facts of this case. They are good points on bad facts. For these reasons Grounds II to V, in forensic terms, do not get to the runway let alone take flight. It is unnecessary for me further to overburden this judgment by traversing them individually.

Cited in 1 later judgment

Drammeh, R (on the application of) v The Secretary of State for the Home Department 2015