ASK v The Secretary of State for the Home Department [2017] EWHC 196 (Admin)

“satisfactory management”

“The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prison: … Those suffering from serious mental illness which cannot be satisfactorily managed within detention … In exceptional cases it may be necessary for detention at a removal centre or prison to continue whilst individuals are being or waiting to be assessed or are awaiting transfer under the Mental Health Act.”

“71. It has not been necessary for the determination of this appeal to consider the submission that a restrictive interpretation of the policy risks conduct in breach of Article 3 of the European Convention on Human Rights. Nor has it been necessary to decide whether it suffices for satisfactory management of mental illness in detention that deterioration is prevented or whether, as Miss Rose submitted, it involves facilitating recovery, so far as is possible. Mind's view (see Ms Nash's statement, paragraph 35) is that there would not be satisfactory management where a person's mental health could be improved by a particular treatment, such as counselling, but that treatment is not available in detention, or is not available without delay. I strongly doubt that the framers of the policy intended it to have this meaning or that it is the natural construction of the words used. It also appears inconsistent with the view taken in the previous decisions of this court and the Administrative Court where the question addressed was whether detention would result in deterioration. It raises broad policy questions of a kind which Miss Anderson informed the court is the subject of an investigation being undertaken on behalf of the Secretary of State by the Tavistock Institute. It also seems impractical as a test given the likely effect on an individual's mental health of the prospect of his or her involuntary removal from the United Kingdom in the very near future and given the variability of what treatment is available in different parts of the country to those with mental illnesses who are not detained. If Mind's position represents a general view among mental health clinicians, it may be an example of where legal policy and medical opinion diverge.”

“(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention. … (4) The manager shall send a copy of any report under 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) for his supervision or care.”

“19. If it were shown that a mentally disordered defendant was held in prison, that he was there denied medical treatment, available in hospital, which his mental condition required and that he was suffering serious consequences as a result of such denial, he would have grounds for seeking judicial review of the Home Secretary’s failure to direct his transfer to hospital under Section 47 of the 1983 Act: Keenan v United Kingdom (2001) 33 EHRR 913. But this would not be a challenge based on the compatibility of Section 109 and 37 with Article 3, nor is it the ground of challenge which the appellant makes, or could make, in this case, since the Home Secretary exercised his transfer power promptly. While the interruption of the appellant’s medication during the 8 days following sentence caused him ill effects, these were not in our opinion of sufficient severity to engage the operation of Article 3: see Ireland v United Kingdom (1978) 2 EHRR 25, 79, para 162; Aerts v Belgium (1998) 29 EHRR 50, 90, para 66.”

“The following principles relating to Article 3 are well-established in the Strasbourg jurisprudence and can be summarised by reference to the decision of the European Court of Human Rights in Kudla v Poland (2002) 35 EHRR 11, although many other cases could be cited: (1) Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (para 90). (2) However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (para 91). (3) The Court has considered treatment to be inhuman because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either bodily injury or intense physical or mental suffering (para 92). (4) It has deemed treatment to be degrading because it was such as to arouse in the victim feelings of fear, anguish and inferiority capable of humiliating and debasing them (para 92). (5) On the other hand, the Court has consistently stressed that the suffering and humiliation involved must go beyond that inevitable element connected with a given form of legitimate treatment or punishment (para 92). Measures depriving a person of liberty may often involve such an element (para 93). (6) It cannot be said that Article 3 lays down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to receive a particular kind of medical treatment (para 93). Nevertheless, the state must ensure that a person is detained in conditions which are compatible with his dignity and that the manner and method of execution of measures used do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (para 94).”

“... 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.”

“... found no gaps or overlaps in the policy framework, and the individual policies are regularly reviewed”

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) The lawful arrest or detention… of a person against whom action is being taken with a view to deportation…”

“(c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent him from committing an offence or fleeing after having done so…”

“The Court recalls, however, that any deprivation of liberty under Article 5 para 1(f) will be justified only for as long as the deportation proceedings are in progress.

“72. Similarly, where a person has been detained under Article 5(1)(f), the Grand Chamber interpreting the second limb of this sub-paragraph, held that, as long as a person was being detained ‘with a view to deportation’, that is, as long as ‘action [was] being taken with a view to deportation’, there was no requirement that the detention be reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing (Chahal… paragraph 112). The Grand Chamber further held in Chahal that the principle of proportionality applied to detention under Article 5(1)(f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held (paragraph 113) that ‘any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible’…”

“74. To avoid being branded as arbitrary, therefore, such detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that ‘the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country’… and the length of detention should not exceed that reasonably required for the purpose pursued.”

“40. In my view, however, the most important Strasbourg authority is the Grand Chamber decision in Saadi which was plainly intended to set out authoritative guidance as to the correct approach to article 5(1). Para 74 states that the requirement that the detention ‘must be closely connected to the purpose of preventing unlawful entry’ is distinct from the requirement that ‘the place and conditions of detention should be appropriate’. The latter requirement is referred to in para 78 as ‘the third criterion’. Mr Roe seeks to interpret the third criterion as if the court had said that the place and conditions of detention should be ‘appropriate for the relevant article 5(1) purpose’. But that is not what the court said. 41. In my view, para 78 shows that the court had in mind a broader evaluative exercise than that for which Mr Roe contends. On Mr Roe's approach, it would have been irrelevant that the Oakington Centre had the various recreational and other facilities mentioned by the court. The use of the phrase "suitable conditions" in para 80 also indicates that the court had in mind a broader exercise. 42. The national court must, therefore, decide whether the place and conditions of detention are appropriate or suitable. I find support for this broad approach in (i) the plain and natural meaning of the language used by the court in paras 69 and 74; and (ii) the fact that in para 74 the court stated that the place and conditions of detention should be appropriate ‘bearing in mind that the measure is applicable “not to those who have committed criminal offences, but to aliens who, often fearing for their lives, have fled their own country”

“105. … In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge. 106. Further, the legality of detention may in principle be tested in court at any time while it continues, (when the court invited to assess it will of necessity have regard to the circumstances as they present themselves at that time) as well as after it has come to an end. But Miss Dubinsky's proposed approach would mean that the answer about the legality of detention at a given point in time could vary, depending on when the individual went to court. In my view, this would be profoundly wrong as a matter of principle. The individual's detention must either be lawful or not at that given point in time; it cannot be (apparently) lawful when tested then but at the same time be inchoately or potentially unlawful, depending on events occurring perhaps months or years later. Indeed, on the logic of Miss Dubinsky's argument, it would also be relevant if later still the individual did in fact engage in further criminal behaviour (as is now alleged against the Claimant, in respect of incidents in 2009) – then the lawfulness of the individual's detention on date x could change depending on whether a court looked at the position on date x itself (when the court would necessarily have to look at the circumstances as they appeared at that time and might, say, have found the detention to be lawful), or at a later date (when, perhaps, the individual had been released and had not re-offended, so that – according to the argument – the detention on date x might be found in fact to have been unlawful), or at a later date still (when, perhaps, having abstained from offending for a period, the individual had gone back to crime, so that – on the logic of the argument – the detention on date x might be found in fact to have been lawful again). That cannot be correct. The law creates rights which are stable, rather than rights which are subject to radical uncertainty of this kind.”

“71. I can see that at first sight it might seem counter-intuitive to hold that the tort of false imprisonment is committed by the unlawful exercise of the power to detain in circumstances where it is certain that the claimant could and would have been detained if the power had been exercised lawfully. But the ingredients of the tort are clear. There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised. Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed.”

“if at the material time he is unable to make a decision for himself in relation to a matter because of an impairment of, or disturbance in the functions of, the mind or brain”

“The Act also aims to balance an individual’s right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves”

“Applicant treatment for schizophrenia is ongoing. His health was reviewed on 27/01/12 (13?), by a doctor who stated that his mental illness had stabilised. However when he was transferred back to the detained population, his mental illness began to deteriorate again and he was subsequently transferred back to healthcare medical hold. Bearing in mind, applicant’s severe mental illness and the likelihood he may not be well enough to attend his F to F interview on 06/02/12 (13?). I recommend release to afford him the opportunity to get the vital treatment and family support he requires. We will be able to remove applicant on a further date. Next Charter is on 15/02/13.”

“There is no suggestion that this is being caused primarily by his detention (i.e. that the very fact of detention is influencing his failure to comply).”

“It is debatable whether the subject’s symptoms as detailed in Dr Sultan’s report on 9 March 2013 engaged the policy but even assuming that it does it is clear that the steps which have been taken by healthcare (close monitoring, varying medication and access to a psychiatrist) and the consequence, albeit gradual, improvement clearly demonstrate that the subject’s illness is being satisfactorily managed in detention. The healthcare team still believe that he is fit to be detained.”

“I accept that there is a presumption in favour of release but I do not see anything in the evidence before me which suggests that the subject would comply with any conditions attached to temporary admission or bail. His medical history clearly gives rise to a very strong suspicion that he would not be able to comply. There does not appear to be any close friends or family member who could assume responsibility for ensuring his compliance. He does not appear to have a settled address. There are no outstanding applications which could reasonably be said to act as inducement. In those circumstances it could also be said that it would be in his best interest to remain under the care of the healthcare team.”

“Absconding with associated serious risk of suicide, homicide or vulnerable (e.g. due to sexual dis-inhibition or over-activity) in the context of a serious mental disorder”

“Multidisciplinary strategies within the acute ward have been unsuccessful in managing the presenting problems and associated risks”

“3. We are on difficult ground here. The healthcare team has told us that the subject is not fit to be detained and in the ordinary course we would simply release him from detention. However, we cannot release him because he needs to be admitted to hospital because of the state of his mental health. A relapse caused it would appear by his failure to take his medication. So he is going to have to remain in detention.”

“… his symptoms were manageable”

“It is well recognised in psychiatry that external stresses such as a change in environment, or an environment which is perceived as stressful (including detention), may precipitate a deterioration in mental health...including a deterioration in pre-existing psychotic illness.”

“7. Detention pending transfer to hospital under the Mental Health Act can constitute exceptional circumstances. But as the Detention Services Policy Unit points out, it is for us to prove that exceptional circumstances exist. That ultimately depends upon whether we can release [the Claimant] into the community, if stringent safeguards are put in place, whilst transfer to a psychiatric unit is awaited. ...in the light of our overall duty of care to [the Claimant] I do not think we should consider releasing him from detention without clear advice from healthcare as to whether that would be in his best interests. I would reserve judgement on the 55.10 EIG point until I receive healthcare’s substantive response.”

“Throughout the assessment sessions he appeared preoccupied with his detention in hospital and his legal situation, and required frequent prompts to re-focus him when other topics were being discussed. Due to the degree of [the Claimant’s] thought disorder and his preoccupation with his detention, the scope of this assessment was necessarily somewhat limited.”

“[The Claimant] repeatedly described himself as being well and not needing to receive further treatment in hospital. He did not give a clear reply as to whether he agreed with his diagnosis and he denied experiencing any physical psychotic symptoms. Whilst [the Claimant] was obviously preoccupied with his detention and expressed his view that he has been treated unjustly by healthcare services, the police and the government, no clear delusional beliefs were elicited over the course of the assessment.”

“On 17th January 2013 [the Claimant] was discussed at the community team allocation meeting. Dr F Carranza, Sarah Griffiths (Senior Social Worker), Rashmi Chandna (Administrator) and a decision made to discharge Mr Khan’s 117 status. I can find no documentation of the reasoning behind the decision in the notes...However, from my own discussions with Dr Morrison, the belief of the team at that time appeared to be that Mr Khan did not have a mental illness but a personality disorder exacerbated by cannabis use. Dr Dent records, elsewhere in the report, that there was a history of cannabis use dating back to the age of 14. Dr Dent records progress made following admission. He summarises the conclusions of Dr Stokes. It is recorded that the Claimant had shown a good response to treatment with an anti-psychotic Aripiprazole and the mood stabiliser Sodium Valproate but, nonetheless, he remained profoundly thought disordered at times. As of 14th January 2014 though his mood had plainly improved he remained thought disordered with a tendency to revert to ruminations regarding the circumstances of his admission to Lakeside Hospital in 2012 and he had variable insight into his illness accepting at times that he had been depressed and that medication had helped but he attributed this entirely to a physical accident he sustained and failed to recognise the difficulty people had understanding his thought disordered speech patterns.”

“... it seems that [the Claimant] wants to be transferred back to the detention centre because he thinks he will get deported back to Pakistan much faster from there rather than from the ward. Dr Maier explained to him that if he were in his situation, he would prefer to stay on the ward as the conditions in the detention centre can be difficult. Care plan: (1) Staff to assist him in getting additional clothing. (2) Dr Maier will contact his solicitor to explore options of transferring him back to detention centre and/or Pakistan. (3) Team will liaise with his SW regarding the above. (4) Team to contact Pakistani embassy regarding necessary passport/travel documents. (5) Explore available options for therapeutic activities while he remains on the ward. (6) Continue to encourage him to comply with his medication and refrain from cannabis use. (7) Continue to monitor mental state.”

“The decision to accept a person to a particular psychiatric hospital (under section 48 of the 1983 Act or otherwise) is a matter for the responsible clinicians, employed by the applicable provider. It is not a commissioning matter. In this case, the Claimant’s transfer could, at different times depending on the medical recommendations of the responsible clinicians in his case, have been to a PICU commissioned by the local CCG or to a secure mental health facility commissioned by NHS England. Commissioned providers will have internal processes by which a case can be escalated if there is concern that delays are occurring, or if there is clinical disagreement. Providers also have internal mechanisms which allow them to manage capacity issues. In secure mental health cases, NHS England’s commissioning role enables it to assist providers in identifying spare bed capacity; but in non-secure (e.g. PICU) mental health cases providers would be expected to liaise with each other to deal with any capacity concerns because NHS England has not commissioned the non-secure services. Similarly, as indicated above, providers or other interested persons will sometimes seek the involvement of NHS England to assist in the resolution of any transfer issue. NHS England considers it is able to provide advice as a neutral body under its section 2 general incidental power, but as no legal power to direct a particular outcome. For the same reasons as those set out above, responsibility for providing assistance to a detainee in an IRC under the Mental Capacity Act 2005 cannot be a matter for NHS England as the commissioning body. Providers are commissioned to provide a reasonable level of health care. This includes health care to those lacking mental capacity, and the assessment process to determine capacity. Individual decisions of capacity are not, and could not be, a matter for NHS England because it is a matter of expert judgment on the part of the responsible clinician or other appropriate person.”