Nyang v G4S Care & Justice Services Ltd & Ors [2013] EWHC 3946 (QB)

Case No TLQ/12/0554[2013] EWHC 3946 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/12/2013
Before
MR JUSTICE LEWIS
Between
AMADOU NYANGClaimant
Simon Readhead QC (instructed by Bindmans LLP) for ClaimantMichael Kent QC (instructed by Berrymans Lace Mawer LLP) for First DefendantPhilip Havers QC (instructed by Kennedys Law LLP) for Third, Seventh and Eighth DefendantsHearing Hearing dates: 12th, 13th, 14th, 15th, 20th, 21st, 22nd, 25th November 2013
JudgmentMr Justice Lewis :INTRODUCTION
[1]Amadou Nyang is a national of Gambia. In January 2008, he was being detained at Tinsley House, an immigration removal centre, prior to being returned to Gambia. At approximately 16.47 on 30 January 2008, Mr Nyang ran head first into a concrete wall. He suffered catastrophic injuries. He broke his spine. He is now tetraplegic and dependent on others for all the activities of daily living.[2]Tinsley House is operated by the first defendant, G4S Care and Justice Services Limited, pursuant to a contract with the Secretary of State for the Home Department. Healthcare services were provided by staff employed by Dr Thomas, the third defendant, trading under the name of Saxonbrook Medical. The seventh defendant is Ms Gwyn Ashworth-Pratt who was a registered mental health nurse employed by Dr Thomas and who provided medical services to detainees at Tinsley House in the relevant period. The eighth defendant is Dr Jarek Pytel who is a general practitioner employed by Dr Thomas and who also provided medical services to detainees at Tinsley House in the relevant period.[3]This claim contends, in summary, that at the time of his detention, Mr Nyang was suffering an underlying mental health condition. The claim is, broadly, that Ms Ashworth-Pratt and Dr Pytel were negligent on a number of occasions and failed to identify that Mr Nyang had that underlying mental health condition. In particular, it is alleged that Dr Pytel failed to carry out an appropriate assessment of Mr Nyang on 11 and 16 January 2008; that Ms Ashworth-Pratt and Dr Pytel were negligent in respect of the assessment carried out on 23 January 2008 and Dr Pytel was negligent in terms of a consultation he carried out with Mr Nyang on 30 January 2008 and in his actions later that day. It is said that, had they not been negligent, Mr Nyang would have been the subject of further assessment, received appropriate treatment and been appropriately managed within the detention centre and he would not have harmed himself on the afternoon of 30 January 2008.[4]It is also alleged that Mr Ian Macdonald, the Acting Supervising Officer working at Tinsley House was negligent in that he failed to commence the carrying out of an Assessment, Care in Detention and Teamwork (“ACDT”) process on 29 January 2008 following an incident in which Mr Nyang threatened to kill himself. It is also alleged that he delayed in commencing an ACDT process on 30 January 2008 and in continuing with a random search of Mr Nyang’s room on that morning. It is further alleged that Mr Kendall, the Duty Manager at Tinsley House was negligent in failing to provide information to the healthcare staff about Mr Nyang’s threats to kill himself to healthcare staff on 29 and 30 January 2008. Further allegations of negligence are made in connection with the arrangements for removing Mr Nyang from association with other detainees on 30 January 2008. It is alleged that, but for that negligence, Mr Nyang would have been prevented from harming himself or, alternatively, that the alleged negligent acts made a material contribution to the personal injuries suffered by Mr Nyang on 30 January 2008.[5]By an order made on 1 May 2010, a preliminary issue was to be tried as to(1) whether or not the Defendants were liable to the Claimant by reason of the matters alleged in the particulars of claim and(2) if so whether any of injuries pleaded in those particulars were caused by those matters. The order also referred to determination of the extent of the injuries but those matters are not in dispute and are not considered in this judgment.[6]By way of background, I should record that I heard a number of witnesses on factual issues and I deal with their evidence below. I would also record that I heard from Professor Gournay (who is a registered nurse and an emeritus professor of psychiatric nursing) and Mr Robin Mudford (who is amongst other things a registered mental health nurse) who were instructed by the Claimant and the healthcare defendants (that is, Dr Thomas, Ms Ashworth-Pratt and Dr Pytel) respectively. I also heard evidence from Dr Fluxman (who is a general practitioner) and Dr Grummit (who is a general practitioner with experience of general practice in a detention centre) instructed by the Claimant and the health care defendants respectively. I also heard from Dr Christie Brown (who is an emeritus consultant psychiatrist at the Maudsley Hospital) and Dr Latcham (a consultant psychiatrist) who were instructed on issues of causation by the Claimants and the healthcare defendants respectively. I was provided with details of their curriculum vitae. I received a written report from each expert, a joint report from each pair of experts and I heard them give oral evidence.[7]First this judgment deals with the facts. In many instances, the facts are not in dispute or are evident from the contemporaneous record. In some instances, however, there are factual issues in dispute and I set out my conclusions and findings on those issues. Secondly, the judgment deals briefly with the law. Save for one matter, the legal principles are not in dispute. It is their application to the facts that is in issue. Thirdly, this judgment then deals with whether any of the alleged negligence is established and, if so, whether that was the cause of any failure to prevent Mr Nyang from harming himself.

THE FACTS

[8]The material facts are these. Mr Nyang is a national of Gambia who was born on 6 July 1974. He has been in the United Kingdom since 1995. In August 2007, Mr Nyang was arrested and remanded in custody. He was subsequently convicted of the possession and use of a false passport. He was sentenced to 90 days imprisonment and recommended for deportation. Taking account of time spent on remand, he spent 2 months and 9 days in custody at Her Majesty’s Prison Blakenhurst. Mr Nyang’s wife and children returned to the Gambia at some stage prior to the 14 November 2007.

The Period in HMP Blakenhurst and Campsfield

[9]Mr Nyang’s medical notes show that, on 14 November 2007 whilst at HMP Blakenhurst, he attempted to dive on the buffer wire in the prison wing. Prison officers are recorded as having said that Mr Nyang was trying to kill himself. The medical notes subsequently record that, on 15 November 2007, he was assessed by three doctors, one of whom was a psychiatrist. A mental state examination was carried out. The medical notes record that Mr Nyang was animated and agitated although not intimidating. He is recorded as worrying about his wife becoming involved with a man in Gambia but the notes record that he had no ideas of harming his wife and had no intent to kill himself although he had had such thoughts. The notes record that his sleep was poor. The notes end by recording that Mr Nyang had stress associated with being in prison and not seeing his family. He was diagnosed as “adjustment reaction/acute stress reaction”. Mr Nyang was prescribed a drug, olanzapine, to manage his agitation.[10]Acute stress reaction is recognised as a psychiatric condition. It appears in the International Classification of Diseases issue 10 (known as ICD10). Paragraph F43 describes reaction to severe stress and adjustment disorders. Paragraph 43.0 identifies acute stress reaction. IDC10 also recognises a condition of “adjustment disorders” F43.2 but the reference in the medical notes to adjustment reaction/acute stress reaction is, on the balance of probability, a reference to “acute stress reaction” in F43.0 and is not a reference to adjustment disorder. The version of F43 of ICD10 in force at the material time is in the following terms:
“F43 Reaction to severe stress, and adjustment disorders This category differs from others in that it includes disorders identifiable on the basis of not only symptoms and course but also the existence of one or other of two causative influences: an exceptionally stressful life event producing an acute stress reaction, or a significant life change leading to continued unpleasant circumstances that result in an adjustment disorder. Although less severe psychosocial stress (“life events”) may precipitate the onset or contribute to the presentation of a very wide range of disorders classified elsewhere in this chapter, its etiological importance is not always clear and in each case will be found to depend on individual, often idiosyncratic, vulnerability, i.e. the life events are neither necessary nor sufficient to explain the occurrence and form of the disorder. In contrast, the disorders brought together here are thought to arise always as a direct consequence of acute severe stress or continued trauma. The stressful events or the continuing unpleasant circumstances are the primary and overriding causal factor and the disorder would not have occurred without their impact. The disorders in this section can thus be regarded as maladaptive responses to severe or continued stress, in that they interfere with successful coping mechanisms and therefore lead to problems of social functioning. F43.0 Acute Stress Reaction A transient disorder that develops in an individual without any other apparent mental disorder in response to exceptional physical and mental stress that usually subsides within hours of days. Individual vulnerability and coping capacity play a role in the occurrence and severity of acute stress reactions. The symptoms show a typically mixed and changing picture and include an initial state of “daze” with some constriction of the field of consciousness and narrowing of attention, inability to comprehend stimuli, and disorientation. This state may be followed eother by further withdrawal from the surrounding situation (to the extent of a dissociative stupor-F44.2), or by agitation and over-activity (flight reaction or fugue). Autonomic signs of panic anxiety (tachycardia, sweating, flushing) are commonly present. The symptons usually appear within minutes of the impact of the stressful stimulus or event, and disappear within two to three days (often within hours). Partial or complete amnesia (F44.0) for the episode may be present. If the symptons persist, a change in diagnosis should be considered. Acute: • Crisis reaction • Reaction to stress • Combat fatigue • Crisis state • Psychic shock”
F43.0 Acute Stress Reaction • Crisis reaction • Reaction to stress • Combat fatigue • Crisis state • Psychic shock”

F43.0 Acute Stress Reaction

[11]Dr Pytel also gave his understanding of acute stress reaction. It involves symptoms of agitation, anxiety and depression caused by external factors. When the external factors are removed or the patient adapts, the symptoms abate. If external factors are not removed, the symptoms might progress.[12]On 14 November 2007, an officer at HMP Blakenhurst also commenced an Assessment of Care in Custody and Teamwork (“ACCT”). That is a parallel process to the ACDT used in detention centres. That ACCT noted an incident whereby Mr Nyang is recorded as having attempted to hang himself by wrapping an electrical cord or cable around his neck and having stated that he wanted to die and staff had physically to restrain him and remove the cable. It appears that that is a second episode of attempted self-harm. Dr Grummit and Dr Latcham thought it possible that there was only one episode of self-harm which had been misdescribed. In my judgment, the likelihood is that there were two incidents. There was the incident described in the ACCT (involving an attempt at hanging with an electric cord or cable). The medical notes state that the personal alarm had gone off and whilst Mr Nyang was being escorted he then attempted to dive on the wire. The medical notes do not refer to events prior to Mr Nyang being escorted from his cell. The ACCT appears to be addressing an earlier, different incident. The description of the two incidents is very different. It appears that there was first the incident in the cell in which Mr Nyang attempted to hang himself and then, whilst Mr Nyang was being taken to the health unit, he attempted to dive on to the wire. Ultimately, however, nothing turns on the issue as Dr Grummit and Dr Latcham both accept that even one episode of attempted self-harm is significant in medical terms.[13]The ACCT document completed on the 14 November 2007 records that Mr Nyang wanted to die, that he felt in a hopeless situation due to not seeing his family and his only wish was to go back to Gambia (where his wife and children were) and he was “clearly low in mood”. There were case reviews. They record, for example, that on 15 November 2007 Mr Nyang wanted to kill himself and that he felt that he was “ a dead man walking and feels dead inside and wants to kill himself peacefully”. Again, on 17 November 2007, he is recorded as saying that he is determined in his view that he had two options: either return to Gambia or kill himself and there was no middle ground. On 19 November 2007, he is recorded as saying that he felt in his heart that he would never see his wife again and that he would never believe that he would go home again. His mood subsequently improved when it appeared that he was to be transferred to a detention centre near Heathrow airport. Later entries in this period at HMP Blakenhurst note that he did not want to kill himself and had no thoughts of suicide or self-harm at that stage.[14]On 23 November 2007, Mr Nyang had served the custodial part of his prison sentence. He became eligible for release on licence. As he had been recommended for deportation, the Secretary of State determined to detain him pending removal to Gambia. On 23 November 2007, he was transferred to an immigration removal centre at Campsfield House, in Kidlington in Oxfordshire.[15]On 25 November 2007, the medical notes record that Mr Nyang was refusing to take the drug, olanzapine, which had previously been prescribed for him. On 29 November 2007, the medical notes record that Mr Nyang had poor sleep, was keen to return to Gambia but noted “no self harm” or “preoccupying thoughts”.[16]The ACCT process, begun in HMP Blakenhurst, continued (as an ACDT) at Campsfield. On 7 December 2007, the last case review records that:
“Amadou will be leaving today for Tinsley which is what he requested. Very positive about the move and has come to terms with waiting for travel documents. We feel there is no longer any risk and therefore are closing his ACDT. Have explained the process about post closure and if he has any concerns to talk about it then.”
[17]The ACDT file was therefore closed on 7 December 2007 by staff at Campsfield House with a note that there would be a post-closure interview on 11 December 2007 to be conducted by a member of staff at Tinsley House. The ACCT file was contained within Mr Nyang’s detention records.

Tinsley House

[18]On 11 December 2008, Mr Nyang was transferred to Tinsley House. That is a immigration removal centre close to Gatwick operated in accordance with the Detention Centre Rules 2001 (“the Detention Rules”). At the material time, it had capacity for approximately 119 male detainees and eight families (a total capacity of approximately 152 detainees). Accommodation for the males was provided in rooms accommodating between two and five people. Mr Nyang was accommodated in room 49 which he shared with at least one other detainee.[19]Medical services were provided pursuant to arrangements made with Dr Thomas, who operated what was known as Saxonbrook Medical. There was a single room at Tinsley House for use as a GP surgery. There was no other ward or other facility where patients could be accommodated. General practitioners, including Dr Pytel, were employed by Dr Thomas and were available for four hours a day on weekdays and two hours per day on weekends. There was a registered nurse available full time in the daytime and one registered nurse at night. A doctor was on call and could be contacted by telephone. There was one registered mental health nurse who was Ms Ashworth-Pratt. A consultant psychiatrist visited Tinsley House and, if an urgent referral were made, the psychiatrist would see the patient the same day either, if there was time, during the working day or in the early evening after completing his appointments.[20]There was one room, room 12, used for temporary confinement of patients pursuant to rule 42 of the Detention Rules. A second room, room 13, was used when detainees were removed from association with other detainees pursuant to rule 40 of the Detention Rules. This comprised one room, a corridor area and toilet. The detainee could walk out of his room and around the corridor area. There were, however, secure gates preventing a detainee from leaving that area and returning to the rest of the detention centre.[21]The period of time spent at Campsfield House and Tinsley House awaiting removal to the Gambia was largely a result of the time taken by the Gambian High Commission in dealing with the request for travel documentation to enable Mr Nyang to be removed to the Gambia.

General Matters

[22]There are common issues which arise at a number of points in relation to the actions of the healthcare staff at Tinsley House in this case. One is whether or not sufficiently thorough mental state examinations of Mr Nyang were (or were required to be) carried out at various stages and, as a matter of fact, what examinations were carried out at various dates. The second is the issue of what are the key symptoms of a depressive illness. The third is the relevance of poor sleep patterns. It is convenient to deal with the general position in relation to those three matters at this stage.[23]In relation to mental state examinations, there are of course a large number of psychiatric conditions. They include psychosis. They also include depression. It may be that there is depression coupled with psychosis. If a general practitioner or registered mental health nurse were conducting a mental state examination to assess whether or not a patient was suffering from psychosis or depression or both, then I find that, in broad terms, having regard to the expert evidence, the examination would consider the following issues(1) appearance and behaviour(2) speech(3) mood(4) thought content on the part of the patient(5) perceptions such as hallucinations on the part of the patient(6) intellectual function and(7) insight on the part of the patient. I accept the evidence of Dr Fluxman and Dr Grummit (the expert witnesses on general practice) and Dr Christie Brown and Dr Latcham (the expert witnesses in the field of psychiatry) that a medical practitioner cannot make or exclude a diagnosis of significant mental illness purely on the basis of observation. There will usually be a combination of observation and brief pertinent questions. The range of matters, and the attention devoted to them at any particular consultation may differ depending on the circumstances. I set out below the findings of fact as to what examinations were undertaken at the consultations on 11, 16, 23 and 30 January 2008. I deal with the question of whether or not a failure to carry out, or carry out appropriately, a mental state examination on any of those occasions constituted a failure to exercise reasonable care later in this judgment.[24]Thirdly, in relation to depression, based on the evidence from the expert witnesses and indeed of Dr Pytel, two key symptoms of depression are sadness or low mood, and a loss of interest. Indicators of that may be loss of energy, loss of appetite, and sleep disturbance.[25]In relation to sleep, I find, based on the expert evidence, that persistent poor sleep may be (but is not necessarily) an indication of an underlying mental health condition such as depression. It may also be attributable to other factors. I find that early morning waking is likely to be more characteristic of a depressive illness (but may in fact be attributable to other causes). In that regard, I accept the evidence of Dr Latcham (the healthcare defendants psychiatric expert) that sleep disturbance can be a symptom of a depressive disorder and that if a person is depressed, then early morning waking, rather than difficulty falling asleep, is more characteristic of depression. Dr Christie Brown (the healthcare claimant’s psychiatric expert) broadly agrees with that conclusion. The expert witnesses on nursing (Professor Gournay and Mr Mudford) agree that persistent poor sleep and early morning waking are common and typical symptoms of depression but also agree that they occur in other circumstances and are not necessarily diagnostic of depression. The two expert witnesses on general practice (Dr Fluxman for the Claimant and Dr Grummit for the healthcare defendants) agree that persistent poor sleep, early morning waking and frustration are common complaints in detention centres and are not necessarily indicative of mental health problems. Dr Grummit accepted in oral evidence that early morning waking would be more likely to indicate an underlying problem.

Mr Nyang’s Arrival at Tinsley House

[26]The move to Tinsley House appeared to have been seen by Mr Nyang as a positive step. Mr Nyang had asked to move to Tinsley House. The last case review records that he was “very positive” about the move. He appeared to believe that it was a step closer to enabling him to return to the Gambia. Furthermore, he had family members who lived close by and would be more able to visit him.[27]He arrived at 5 a.m. He was accompanied by his medical notes which were in a sealed envelope marked confidential and would be kept at the health centre. The healthcare staff at Tinsley House had access to these notes. He was also accompanied by his detention notes which included the ACDT file (that is the ACCT begun at HMP Blakenhurst and continued as an ACDT at Campsfield House). The detention notes would be kept in the control room. The detention staff and the healthcare staff would have access to the ACDT file.[28]On his arrival, Mr Nyang was seen by Nurse Calver. The medical notes for that day record the following:
“ Date 11/12/2007 Done by Mrs Sandra Calver Where Seen Seen in GP’s surgery Comments 05.05hrs NPC transferred from Campsfield. Whilst in prison in Nov 07 attempted self harm and was on an open ACDT until the 07/12/07. Very happy to be transferred to tinsley as has family living nearby here, has been requesting the move for many days. No thoughts of any self harm at present. Has good eye contact, and a positive manor even though very tired. Uses Amitriptyline at night. Gets occasional headaches and general body pains. No known allergies. Declines to see MO.”
Done by Mrs Sandra Calver Comments 05.05hrs NPC transferred from Campsfield. Whilst in prison in Nov 07 attempted self harm and was on an open ACDT until the 07/12/07. Very happy to be transferred to tinsley as has family living nearby here, has been requesting the move for many days. No thoughts of any self harm at present. Has good eye contact, and a positive manor even though very tired. Uses Amitriptyline at night. Gets occasional headaches and general body pains. No known allergies. Declines to see MO.”[29]The two expert witnesses on nursing instructed by Mr Nyang and the healthcare defendants respectively agree that it would have been inappropriate for Nurse Calver to have subjected Mr Nyang to a full mental health assessment of any kind given that he arrived at 5 a.m. in the morning and was obviously tired. Nurse Calver was performing a triage assessment and both experts agreed that Nurse Calver’s health assessment of Mr Calver was appropriate. The claim against Nurse Calver was subsequently discontinued and no allegations are made against Nurse Calver in this case.[30]The post-closure review of Mr Nyang, referred to in the ACDT that was scheduled to take place following the closure of the ACDT file by a member of staff at Tinsley House on 11 November 2007 never took place.

The Period between 11 December 2007 and 11 January 2008

[31]During the period between 11 December 2007 and 11 January 2008, Mr Nyang frequently attended the health centre at Tinsley House, primarily to obtain medication. Detainees were not permitted to retain medication in their possession and had to attend the health centre to obtain medication. Initially, this was medication primarily for headaches and cold symptoms and also amitriptyline which had been prescribed to assist with sleep. Mr Nyang’s medical records at HMP Blakenhurst of 15 and 29 November 2007 record he was experiencing poor sleep. On 29 November 2007, he was prescribed 25 mg. of amitriptyline to assist with sleep.[32]Difficulties with sleep are recorded in the medical notes as continuing at Tinsley House. On 29 December 2007, Mr Nyang was seen by a nurse as he could not sleep and then by Dr Hussan who noted the following “Insomnia On Amitriptlyline still Not Sleeping For Zopiclone”.

The Consultation on 11 January 2008

[33]On 11 January 2008, Mr Nyang saw Dr Pytel in the surgery and the notes record this:
“ Date 11/01/2008 Done by Dr Jarek Pytel Where Seen Seen in GP’s surgery Comments Says that still cannot sleep. Takes tabs at 10.30 and wakes up at 2.00 in the night. Takes zopiclone 7.5mg and Amitriptilline 25. Frustrated. States that his family has already been sent home and he would like to go home asap. Immigration keeps him here for no reason. Increase amitriptilline to 50mg nocte. Coding, Details Frustration. Poor sleep.”
Done by Dr Jarek Pytel Comments Says that still cannot sleep. Takes tabs at 10.30 and wakes up at 2.00 in the night. Takes zopiclone 7.5mg and Amitriptilline 25. Frustrated. States that his family has already been sent home and he would like to go home asap. Immigration keeps him here for no reason. Increase amitriptilline to 50mg nocte. Coding, Details Frustration. Poor sleep.”[34]The note is the one record of early morning waking by Mr Nyang. It records that he went to bed about 10.30 and woke up at about 2 a.m.[35]I have considered the note and the evidence of Dr Pytel. I am satisfied that Dr Pytel did not carry out a mental state assessment of the sort described in paragraph 23 above. I do accept his evidence, and find as a fact, that he did consider that Mr Nyang was not depressed based on the fact that he was not agitated, were able to interact, that body language and eye contact was normal, his appetite was good and Mr Nyang indicated that he did not have feelings of guilt or decreased self-esteem.

The Consultation on 16 January 2008

[36]Mr Nyang saw Dr Pytel in the surgery at Tinsley House again on 16 January 2008. The medical notes made at the time record:
“ Date 16/01/2008 Done by Dr Jarek Pytel Where Seen Seen in GP’s surgery Comments Detainee still cannot sleep. States that increasing amitriptilline dose did not help. He sleeps during the day usually between 10-12.00 so I advised that this is the most likely reason. Advised to avoid sleeping in the day. Also discussed avoiding caffeine drinks, regular going to gym. Will reduce dose of amitriptilline back to 25 as higher dose not better. Coding details Poor sleep”
Done by Dr Jarek Pytel Comments Detainee still cannot sleep. States that increasing amitriptilline dose did not help. He sleeps during the day usually between 10-12.00 so I advised that this is the most likely reason. Advised to avoid sleeping in the day. Also discussed avoiding caffeine drinks, regular going to gym. Will reduce dose of amitriptilline back to 25 as higher dose not better. Coding details Poor sleep”[37]Dr Pytel reduced the dose of amitriptyline back to 25 mgs. Dr Pytel did not carry out a mental state examination of the sort described in paragraph 23 above. Dr Pytel considered that Mr Nyang was eating meals regularly, interacting well and showed interest as to what would happen to him and his self-esteem was good. Dr Pytel gave evidence, which I accept, that he considered whether depression was a possible cause of the sleep problems. However, Dr Pytel considered, at the consultation on 16 January 2008, that Mr Nyang did not show either of what he regarded as the two core symptoms of depression. He considered that the problems were sleep problems associated with sleeping during the day and he gave advice intended to address that problem. 16 to 20 January 2008[38]Mr Nyang attended at the GP surgery at 22.10 on the night of 16 January 2008 to collect his medication. Due to an error, the prescription chart showed that Mr Nyang should receive 10 mg of amitriptyline not the 25 mg that Dr Pytel had in fact prescribed. The nurse advised that the doctor would have to confirm the prescription was 25 mgs not 10 mgs. The medical notes record that, in the opinion of the author of the note (who was one of the nurses), Mr Nyang became verbally aggressive and intimidating. Detention staff were called and Mr Nyang was persuaded to take the Zopiclone at least.[39]Mr Nyang did not collect medication on the following day. The notes record that he was paged 9 times but did not attend. He did not attend to collect medication after 16 January 2008. The health care staff did not seek to investigate the reasons why Mr Nyang did not collect his medication. 20 to 22 January 2008[40]The Gatwick Detainees Welfare Group (“the Group”) is a charity which seeks to provide emotional and practical support to asylum seekers detained at Tinsley House and Brook House Immigration Removal Centres. Detainees usually contact the Group and then visitors are assigned to visit them in detention.[41]As appears from the contemporaneous notes kept by the Group, Mr Nyang first contacted the Group on 12 December 2007 and indicated that he did not need visitors at that stage but asked for some slippers and a phone card. There was further telephone contact. On 18 January 2008, the notes record that “AP”, a member of staff at the charity, made a telephone call, probably after Mr Nyang contacted the Group by telephone. The following is recorded:
“18.1.08 AP rang. He is in a bad way. Paranoid. Can’t sleep. Pacing. No help with bail appn forthcoming from sol. Told him he can do it himself. We can talk it through with him and his brother or sister (as he can’t read or write). He feels immig are conspiring against him. Had a row with the Gambian embassy about slow issue of docs. Spoke to Lyn Gaston Parry. She will visit.”
[42]Mrs Lynn Gaston-Parry was asked to visit Mr Nyang. I heard evidence from Mrs Gaston-Parry. She had visited him once before and on that occasion he had been calm and sad, had not understood why he was in detention and was missing his wife and family. She visited again on 21 January 2008. She said that she was shocked by the change in his demeanour. He was very agitated and disturbed and he kept saying that people were playing with his mind. She said that he seemed to have lost any sense of reality and he talked of taking his own life. She was so concerned that she telephoned Anna who worked in the office of the charity to convey her concerns and ask someone to contact the health centre at Tinsley House. Mrs Gaston-Parry said that this was the only time in 9 years of visiting that she had ever felt the need to ask someone to contact the health centre about a detainee that she was visiting. The information was passed to the Director, Mr Nicholas Eadie,who telephoned the health centre to inform them of the concerns on the 22 January 2008. I heard Mr Eadie give evidence. He indicated that it was very rare for the Group to contact the health centre in this way and he had done it less than 5 times in over 6 years.[43]I found Mrs Gaston-Parry and Mr Eadie to be honest, thoughtful witnesses who were not exaggerating their concerns about Mr Nyang. Furthermore, their evidence is confirmed by the contemporaneous notes made at the time by staff at the Group and indeed by a relevant entry in the medical notes at Tinsley House. The Group’s notes record this:
“21.1.08 Lyn rang-she is very concerned about him. He needs help. He can’t concentrate on anything to talk. Is very paranoid. Talks about people playing mind games with him. Lyn thinks his stress is outside the normal range. She is very worried about him. AP NE spoke to Gwynn in the medical centre to relay our concerns. She said she would look into it.”
[44]The medical notes at Tinsley House record this:
“ Date 22/01/2008 Done by Gwyn Ashworth-Pratt Where Seen Administration Comments 13.33hrs. Phone call from Nick at Gatwick Welfare. They are concerned about Amaduo’s mental state as his visitor found him “odd” to try and communicate with, as if there were possibly some mental health concerns around his version of reality and awareness To see the Doctor.”
Done by Gwyn Ashworth-Pratt Comments 13.33hrs. Phone call from Nick at Gatwick Welfare. They are concerned about Amaduo’s mental state as his visitor found him “odd” to try and communicate with, as if there were possibly some mental health concerns around his version of reality and awareness To see the Doctor.”[45]The note of 21 January 2008 does not record that Mr Nyang said that he threatened to kill himself. I am satisfied that Mr Nyang did tell Mrs Gaston-Parry that. Whether Mrs Gaston-Parry did not mention that in her call to the office, or whether the person in the office did not record that fact, is unclear. I accept that Ms Ashworth-Pratt was not told by Mr Eadie that Mr Nyang had said he was going to kill himself. What she was told is recorded in the note of 22 January 2008 set out above. As it happened, Ms Ashworth-Pratt knew, certainly before the consultation on 23 January 2008, that the medical notes and the ACDT recorded attempted self-harm at HMP Blakenhurst, as Ms Ashworth-Pratt accepted in evidence. The Consultation on 23 January 2008.[46]Ms Ashworth-Pratt received the telephone call from Mr Eadie at about 13.33 p.m. on 22 January 2008. She arranged for Mr Nyang to be seen by her and Dr Pytel in the GP surgery on the next morning, 23 January 2008, at 11.15 a.m. Prior to the consultation, Ms Ashworth-Pratt had spoken to the UK Borders Agency to obtain information about his case and what difficulties were being encountered. The consultation was largely led by Ms Ashworth-Pratt with Dr Pytel present, listening to the conversation and interjecting from time to time to seek clarification on various matters relating to Mr Nyang’s physical and mental wellbeing. At the end of that consultation, Ms Ashworth-Pratt and Dr Pytel concluded that there were no mental health concerns in relation to Mr Nyang.[47]The question of what happened during that consultation in terms of what questions were asked, what matters were discussed and considered, and what was the basis for the conclusion reached, are amongst the most disputed factual issues in this case. The contemporaneous note of the meeting says this:
“ Date 23/01/2008 Done by Gwyn Ashworth-Pratt Where Seen Seen in GP’s surgery Comments 1115hrs. Follow up from concerns yesterday, having contacted Immigration first to get details about case. Amaduo attended HCC following request. No mental health concerns. Amaduo is frustrated+++ and wants to get back to his wife and family in Gambia, he is meeting others here who are not delayed in the same way and feels his Immigration detention situation is not being given the attention he needs. His demeanour is certainly over-excitable with plenty of gesticulation and rapidity/volume of speech, however, culture and speech appropriate. Advice given on stress reduction and he has responded about what he finds helpful. No changes in treatment and he is free to choose whether to attend for meds or not without a problem. Dr Pytel present and involved throughout the ½ hour interview. One to one time given. Coding Details Seen by Nurse”
Done by Gwyn Ashworth-Pratt Comments 1115hrs. Follow up from concerns yesterday, having contacted Immigration first to get details about case. Amaduo attended HCC following request. No mental health concerns. Amaduo is frustrated+++ and wants to get back to his wife and family in Gambia, he is meeting others here who are not delayed in the same way and feels his Immigration detention situation is not being given the attention he needs. His demeanour is certainly over-excitable with plenty of gesticulation and rapidity/volume of speech, however, culture and speech appropriate. Advice given on stress reduction and he has responded about what he finds helpful. No changes in treatment and he is free to choose whether to attend for meds or not without a problem. Dr Pytel present and involved throughout the ½ hour interview. One to one time given. Coding Details Seen by Nurse”[48]There are certain facts that are clear. First, the consultation lasted ½ hour. Secondly, the consultation was primarily conducted by Ms Ashworth-Pratt. Dr Pytel was present and listened to the conversation and interjected from time to time. Thirdly, prior to the consultation, Ms Ashworth-Pratt had spoken to UKBA to obtain information about Mr Nyang’s case. I deal first with the matters covered during the consultation and the questions that were asked. The note of the consultation itself does not specifically indicate that questions were asked about the range of matters referred to in paragraph 23 above.[49]I am satisfied, having heard the evidence of Ms Ashworh-Pratt and Dr Pytel, that they did make physical observations of Mr Nyang’s body language, his ability to make eye contact and the content of his speech. I am satisfied, from the evidence of Dr Pytel, that they also screened Mr Nyang for the symptoms of psychosis, in particular, for symptoms of delusions, hallucinations, disorientations and impaired attention, bizarre behaviour or impaired memory. Dr Pytel gave evidence of that. It is consistent with the contemporaneous note which records that speech content was appropriate. It reflects the fact that the consultation had been arranged following a call from Mr Eadie indicating features of a possible psychotic incident.[50]I am satisfied that Ms Ashworth-Patel did not ask questions about whether or not Mr Nyang had thoughts of, or the intention to commits acts of, self-harm or suicide. There is nothing in the contemporaneous note to suggest that such questions were asked. Ms Ashworth-Pratt and Dr Pytel stated that they only made notes of factors that positively indicated a mental health problem and not the absence of factors indicating that there were no problems. Given the importance of matters such as self-harm and suicide, I do not find the explanation for the absence of any reference to suicide or self-harm credible. If the questions had been asked, and even if the answers had been no, it is more likely than not that the answers to those questions would have been recorded. The absence of any reference to these matters is, in my judgment, more likely to be because questions about suicide and self-harm were not asked. Ms Ashworth-Patel indicated in her written evidence that she would have asked such questions and in oral evidence she said that she had in fact asked such questions. I found Ms Ashworth-Pratt to be an unreliable witness of fact. On other important matters, her evidence changed as she gave it. It is also unlikely that Ms Ashworth-Pratt did not remember specifically asking these questions when she made her written statement in April 2011 but did specifically remember asking them when she came to give her evidence in November 2013, more than two years later. I do not regard her factual account of what happened at the consultation on 23 January 2008 as reliable. Of more significance is the evidence of Dr Pytel. I did find him to be an honest, reliable witness who, when he was able to recall matters, did give accurate and honest answers. Dr Pytel did not suggest in his evidence that Ms Asworth-Pratt asked questions about suicide or self-harm.[51]I am also satisfied that neither Ms Ashworth-Pratt nor Dr Pytel asked direct questions about mood and, in particular, they did not ask questions about sadness or loss of interest. The contemporaneous notes does not record this. Ms Ashworth-Pratt and Dr Pytel did not suggest in evidence that they had asked specific questions about these matters. A reference to mood comes in paragraph 46 of Ms Ashworth-Pratt’s witness statement when she indicates that stress reduction was discussed but that did not indicate any problems with reality orientation or depressed mood or illness. That evidence does not suggest that direct questions were asked about mood.[52]The most difficult factual issue is whether or not sleep problems were discussed. Mr Nyang had had continuing sleep problems, he had twice visited Dr Pytel about sleep problems and had been prescribed medication to assist with sleep problems. The contemporaneous note does not record whether Mr Nyang continued to have sleeping problems or whether they had been resolved. There is a reference to there being no changes in treatment and Mr Nyang being free to choose whether he attended for medication. The only treatment he was receiving, and the only medication he was prescribed (amitrptiline), was for sleeping problems. The most natural interpretation of the note is that Mr Nyang continued to have sleeping problems and the medication, at the level previously prescribed, would continue to be prescribed for him but it was a matter for him to determine whether to take it or not. If the sleeping problems had been resolved, one would have expected that to be recorded and the prescription changed. Ms Ashworth-Pratt’s evidence on this matter was contradictory. At times she indicated that she had asked Mr Nyang about sleep but at other times she thought she had not or could not guarantee that she had. She assumed, from the note, that the problems had been resolved and that the prescription was only maintained in place in case Mr Nyang had problems in the future. On balance, in my opinion, one of two things occurred. Either sleep was not discussed with Mr Nyang, and existing prescriptions were simply continued without regard to whether or not the sleeping problems had resolved and the emphasis was simply on reminding Mr Nyang that it was his choice as to whether to take the medication. Or, alternatively, the question of sleep was raised with Mr Nyang and that he continued to have sleep problems and the existing prescription was continued. On balance, I find that the former is more likely to have happened.[53]In terms of the conclusions reached by Ms Aswhorth-Pratt and Dr Pytel, they considered that he was extremely frustrated. They considered that the content of his speech was appropriate. They considered that his demeanour was unusual as he was, as the note records, “ certainly overexcitable” with plenty of gesticulation and rapid and loud speech as appears from the note. I find that they did regard that as a departure from normal behaviour which needed to be explained (as Dr Pytel said so in evidence). I find as a fact that one of the significant factors leading to the conclusion that the behaviour was not abnormal and did not need further investigation was Ms Ashworth-Pratt’s view that the behaviour was “culturally appropriate”. I find that it was a significant factor used in reaching the clinical judgment on whether Mr Nyang had a mental health condition as that factor was specifically referred to in the contemporaneous note. Furthermore, Dr Pytel gave evidence that Ms Ashworth-Pratt was very keen to include the reference to the behaviour being culturally appropriate in the note because of her experience on such matters. Ms Ashworth-Pratt also said in her evidence that “Many Africans speak loudly and gesticulate when trying to get their point across, this does not frighten me as it is a culture behaviour and not taken as a direct threat”.[54]Ms Ashworth-Pratt gave evidence as to her experience of cultural matters. She has a keen interest in amateur Egyptology and has visited Egypt, and other countries in eastern and southern Africa. She has never been to the Gambia. Ms Ashworth-Pratt also spent time reading about different religions, cultures and languages on the African continent in the period between learning of her appointment at Tinsley House in the four months or so before taking up the appointment.[55]I also find that Ms Ashworth-Pratt had seen Mr Nyang on a number of occasions (it seems seven) in the surgery prior to the consultation on 23 January 2008. As she admitted in evidence, he had not behaved in such an exaggerated form on any of the other occasions.

The Period Between 23 and 29 January 2008

[56]Mr Nyang did not attend the health centre again after the consultation on the 23 January 2008 and the 30 January 2008. He was not seen by staff from the health centre during that period.[57]Mr Eadie visited him twice, once on 24 and once on 29 January 2008. Mr Eadie said that he found Mr Nyang to be very upset and, at times, crying. He wanted to see his wife and children and the separation was distressing him. He was, in the words of Mr Eadie (who is a lay person and was not using words in a strict medical sense) singularly very paranoid and appeared mentally unwell. He thought everybody was out to get him and there was a conspiracy to keep him in detention. Mr Eadie said that, having notified the health centre of his concerns, he then sought to help Mr Nyang in a practical way by trying to speak to his solicitor. Mr Eadie said that he saw Mr Nyang again on 29 January 2008 and, in his view, Mr Nyang remained desperate and in a bad way. The contemporaneous notes from the Group record this:
“29.1.08 NE saw A again. He gave me the right phone number 02084785678. His sol’s name is Patrick. He said that his TA was turned down due to removal being imminent, dependent on the Gambian High Commission producing travel docs. I suggested they apply for bail, but he said that he does not think they could get funding for this. He also does not think it will be successful. He says that if they have heard nothing more by Friday next week, they could look at applying for funding for a bail application.”
[58]Mr Eadie accepted in evidence that his notes were brief and do not refer to the matters in his statement. He recognised that he should have recorded more detail about his views of Mr Nyang’s mental health in the note but Mr Nyang was one of only many people that the Group saw. However, he explained that his experience with Mr Nyang was like nothing else that had happened and it had stuck in his mind and he said that he was not exaggerating Mr Nyang’s condition. Having heard Mr Eadie give evidence, I am satisfied that he is describing what he saw and heard and the impressions he had at the time and is not exaggerating. I bear in mind, of course, that Mr Eadie is not a qualified medical practitioner. I do not attribute any particular significance to the use of words such as paranoid by him, or Mrs Gaston-Parry or any one else at the Group for that matter. But I do find that Mr Nyang was behaving as Mr Eadie describes on 24 and 29 January 2008. The Morning of the 29 January 2008.[59]On the morning of 29 January 2008, Mr Nyang was in the refectory having breakfast. At one stage, he began shouting and said that he would jump over the counter and grab a knife and cut his throat.[60]The Acting Supervising Officer, Mr Ian Macdonald, was also in the refectory. He heard Mr Nyang say that he would jump over the counter. Detention Custody Officer Mitchell had heard the whole of the remarks and reported their content to Mr Macdonald who then spoke to Mr Nyang himself. Mr Macdonald made a written security information report timed at 8.20 a.m. on that day stating that Mr Nyang had threatened to grab a knife and cut his own throat. Mr Macdonald wrote an additional report on 1 February 2008 in which he confirmed that Mr Nyang had said to him that he, Mr Nyang, would jump the counter, grab a knife and kill himself and he was “losing my mind” in the detention centre. The additional report records that Mr Nyang said to Mr Macdonald that immigration did not care and the Gambian High Commission wanted money. Mr Macdonald took steps to inform the kitchen staff to be vigilant and to ensure that no knives were visible when Mr Nyang was present.[61]The Tinsley House policy on ACDT provides that:
“F. Management of “At Risk Detainees”
When a detainee commits an act of deliberate self-harm, attempts to commit suicide, or is identified as being at risk of doing either, an ACDT book will be opened in all cases – regardless of how minor any attempt may have been. When the ACDT document has been completed the Duty Manager must be informed for the purpose of allocating a Log number, an Assessor and an Initial Case Manager. All incidents of deliberate self-harm must be entered onto the ACDT log. If any member of staff has any concerns about a detainees well being and feels the intention is there to self-harm, they must open an ACDT document immediately.”[62]I have no doubt that, on 29 January 2008, Mr Macdonald believed that Mr Nyang was at risk of committing an act of deliberate self-harm. Mr Macdonald did not, however, commence the procedures for opening an ACDT, which would have involved, amongst other things, input from the health care staff. Instead, Mr Macdonald chose to put Mr Nyang on what was called “disceet watch”. This was an internal practice operated at the time within Tinsley House. There were no written documents setting out how this practice operated, when it was to be instituted or what observations had to be made and recorded. It was variously described by witnesses as a means of alerting detention staff to the need for keeping a close eye on a vulnerable detainee or a means of sharing information between detention staff.[63]The fact that a detainee was placed on “discreet watch” was recorded in the written notes for shift handover and those records were read at the shift briefing at the start of each shift. In the case of Mr Nyang, the fact that he was on discreet watch was included on the shift handover records for the 29 and 30 January 2008.

The 30 January 2008

[64]The shift handover on the morning of 30 January 2008 took place shortly before 7 a.m. The Duty Manager was Mr Geoffrey Kendall who was assisted by the Acting Supervising Officer Mr Macdonald. Mr Kendall read out to the staff due to start their shift the information on detainees including, in relation to Mr Nyang, that he had been placed on discreet watch on 29 January 2008 as he had threatened to jump the refectory counter, grab a knife and slash himself.[65]Between about 7.30 and 8 a.m., Mr Macdonald arranged for random room searches that day. The Tinsley House Policy at the time provided that there would be 5 random bedroom searches a week. In fact, at this time, there were 6. The search includes a search of the room and also of the occupants. The rooms to be searched were selected at random. There was a chart which indicated which rooms had been searched and a room that had not been searched was taken off the chart. Mr Macdonald gave evidence that he took a room at random which had not been searched. That room was room 49 which was Mr Nyang’s room. Mr Macdonald then printed out the paper work and a photograph of the occupants. At that stage, he realised that the room he had selected for a random search was Mr Nyang’s.[66]At about 8.15 a.m, Mr Nyang was in the refectory. He was standing in the middle of the refectory. Detainee Custody Officer Harris was also present. She said that Mr Nyang was “ranting and raving about immigration and how the detainees were being slowly killed by immigration”. Ms Harris wanted to try and calm Mr Nyang down and she asked Mr Nyang to go with her. He was happy to do so and they went to room 12. Mr Nyang explained that he wanted to go back to Gambia where his wife and children were waiting but that it was taking too long. He said that he would go back there in a box. Ms Harris tried to reassure him and to get him to focus on positive matters and said that his wife and children needed him and that was a good reason to keep going. Mr Nyang said that they “would be reunited in heaven” and was adamant that that is what would happen. Mr Nyang thanked Ms Harris for listening and left.[67]Ms Harris gave evidence that she was deeply concerned after her conversation with Mr Nyang. She thought that he was “completely on the edge” and at “breaking point”, more so than any other detainee at Tinsley House that she had dealt with. She immediately went to the control room to speak to Mr Kendall and Mr Macdonald. This would be at approximately 8.40 a.m.[68]There is no doubt in my mind that Ms Harris told Mr Macdonald and Mr Kendall of her concerns that Mr Nyang was on the edge and at breaking point. There is equally no doubt that Mr Kendall instructed Mr Macdonald to open an ACDT. I reach those conclusions for the following reasons. First, Ms Harris was, in my judgment, a clearly honest witness. She is also a capable officer and was genuinely concerned about Mr Nyang’s condition. It is entirely consistent that she would have reported her concerns to her senior officers. Secondly, Mr Kendall confirmed that Ms Harris is a good officer and that he had no cause to doubt the accuracy of her evidence. Mr Kendall too struck me as an honest witness. He said that the information that Mr Nyang was “on the edge” and “at breaking point” was information which was very much relevant information and an ACDT should have been opened straight away . He said that he asked Mr Macdonald to open an ACDT.[69]Mr Macdonald did not open an ACDT straightway, or indeed at all, on 30 January 2008. Ms Harris, who was concerned about Mr Nyang, did ask Mr Macdonald later in the morning if he had opened an ACDT and Mr Macdonald said no, he had not because he had been busy.[70]Mr Macdonald also gave no thought to rescheduling the random room search of Mr Nyang’s room and person. He knew before Ms Harris came to see him and Mr Kendall at about 8.40 a.m. that the room scheduled to be searched that day was Mr Nyang’s. He was told of Ms Harris’ concerns. He was instructed to open an ACDT. He gave no thought, however, to whether or not the random room search of Mr Nyang’s room should be rescheduled. Mr Kendall had not been informed of which room was to be searched.[71]At about 11 a.m. Detainee Custody Officers Penfold and Coleman went to room 49 to carry out the random search. Mr Nyang was in bed, but sitting up, when the officers entered the room. Ms Penfold’s note of the incident, timed at 13.50 on 30 January 2008, noted that Mr Nyang became agitated and said that the officers would not find any drugs in the room. He stated repeatedly that he would jump over the kitchen counter, grab a knife and kill himself and everyone else. Mr Coleman’s evidence and contemporaneous record is broadly to the same effect.[72]At about 11.14 a.m., Mr Kendall and Mr Macdonald were called to room 49, Mr Nyang’s room, to deal with the situation that had developed. Mr Kendall went in and Mr Macdonald waited outside. Mr Kendall was not able to calm Mr Nyang down fully and he remained agitated. Mr Kendall immediately decided to take Mr Nyang to the health centre to seek medical assistance. On the way there, he asked Mr Macdonald if he had opened the ACDT. Mr Macdonald admitted that he had not done so. Mr Kendall then had a radio call put out for Detainee Officer Gibbs to come to the health centre to open an ACDT as she was an experienced assessor.[73]When they arrived at the healthcentre, Mr Kendall went into the surgery with Mr Nyang. Dr Pytel was in the surgery. Mr Kendall told Dr Pytel that Mr Nyang had become agitated during a room search. Dr Pytel was not told that Mr Nyang had made threats to kill himself during the room search. He was not told about the incident in the refectory that morning or of the incident on 29 January 2008 when Mr Nyang had threatened to jump the counter, grab a knife and kill himself. Mr Kendall then left Dr Pytel and Mr Nyang alone in surgery and went to wait outside.[74]The consultation between Dr Pytel and Mr Nyang lasted ½ an hour. The contemporaneous note says this:
“ Date 30/01/2008 Done by Dr Jarek Pytel Where Seen Seen in GP’s surgery Comments Frustrated. Cannot see way out from the situation he is in now. He wants to go home but his embassy has not issued his travel documents yet. He cannot understand why it takes so long (since October). Wants to see his wife and child and the prolonged detention makes him more and more frustrated. Stated that solicitor cannot help him and he lost his faith. Does not want to apply for bail because thinks that it will not help him to be released. Talked to detaine for ½ hour, explained that we can help him to find a new solicitor and will speak to immigration to chase up his travel documents. Offered medication to calm him down but he refused. See prn. Start ACDT hourly. Coding Details Feeling frustrated Seen by GP OOH attendance note- No Mental health disorder”
Done by Dr Jarek Pytel Comments Frustrated. Cannot see way out from the situation he is in now. He wants to go home but his embassy has not issued his travel documents yet. He cannot understand why it takes so long (since October). Wants to see his wife and child and the prolonged detention makes him more and more frustrated. Stated that solicitor cannot help him and he lost his faith. Does not want to apply for bail because thinks that it will not help him to be released. Talked to detaine for ½ hour, explained that we can help him to find a new solicitor and will speak to immigration to chase up his travel documents. Offered medication to calm him down but he refused. See prn. Start ACDT hourly. Coding Details Feeling frustrated Seen by GP OOH attendance note- No Mental health disorder” Seen by GP OOH attendance note- No Mental health disorder”[75]I find that Dr Pytel considered the situation to be one where Mr Nyang was frustrated because of his immigration problems. I find that Dr Pytel did not conduct a mental health assessment of the kind described in paragraph 23 above. He was satisfied that Mr Nyang was not showing any signs of psychosis and his behaviour was the same as on 23 January 2008. He believed Mr Nyang’s behaviour was consistent with Mr Nyang being extremely frustrated and angry about his immigration status. Notwithstanding that, Dr Pytel agreed that it would be appropriate to open an ACDT. Dr Pytel and Mr Kendall discussed the situation and discussed whether ½ hour or 1 hourly checks or watches on Mr Nyang would be appropriate and decided that 1 hour checks on Mr Nyang would be appropriate.[76]At about 12.15 to 12.20 p.m. Ms Gibb began the process of completing the ACDT. Present initially were Mr Nyang, Mr Kendall and Mr Little (the nurse on duty that day). I found Ms Gibb to be an honest witness with a good recall of the process of doing the ACDT. Furthermore, she explained that she kept notes during the process, and those notes set out the time that the notes were prepared. When Ms Gibbs wrote up the ACDT she transferred that information, with the times, onto the form. The ACDT therefore forms a good, and in my judgment, accurate record of what happened. Before turning to the ACDT, Ms Gibb explained that Mr Kendall was called away at about 12.40 p.m. and Mr Nyang reacted very badly to that. His demeanour changed completely. Further, Ms Gibb explained that she included one piece of information (how Mr Nyang was reacting after 12.40) on the first sheet which times events at 12.24. She did that because she understandably, and in my judgment very properly, was anxious that anyone reading the ACDT record would see immediately what Mr Nyang’s state of mind was rather than having to read into the whole document.[77]At 12.24, the form notes that it is being opened because of(1) suicide attempt or statement of intent to kill self(2) self injury statement or intent to self-harm(3) unusual behaviour or talk. Mr Nyang is described as follows:
“Amadou is very angry, refusing any medication and convinced that both immigration and Gambian Embassy are ‘playing with his mind’. He has threatened to jump over counter in refectory and use knives to kill himself. Also states if placed on constant watch he knows how to hit his head on the wall and how to kill himself that way. He also states he will take “the officer” with him. Amadou is totally unable to comprehend anything being said to him.”
[78]At about 12.40, Mr Kendall left and Mr Nyang’s demeanour changed. He became insistent that he would kill himself. He said that he knew how to do that as he had been shown in prison how to run into a wall and kill himself. He said that he would take officers with him. Ms Gibb said that Mr Nyang was not comprehending anything that she or Mr Little, the nurse, were saying. Mr Nyang then stopped and left to go to lunch. Ms Gibb said that she and Mr Little realised that this was serious and Mr Nyang could not be left in association and that he was now a threat to the safety of officers and detainees. She considered that Mr Nyang would have to go on the highest level of watch available that is 2 officers on constant watch.[79]Those factors emerge too from the ACDT record which says, amongst other things that: “Amadou believes immigration have the power to release him to his brothers care in UK, and that the Gambian Embassy are holding up his travel documents to stop him leaving the centre. ….. “Threatened to jump over counter in refectory and kill himself with a knife. Stated very clearly in interview that if he is placed on constant watch he knows exactly how to hit his head on the wall to kill himself and that he would take the officer on watch with him. ….. “He is very angry. Unable to comprehend what is being said to him. Mind very one tracked. Believes Immigration and Embassy playing with his mind. ….. “Will kill himself unless he is bailed or returned to Gambia. …. “Should not be allowed into refectory have concerns about him being allowed to remain in community. He should, ideally, be on constant watch with two officers present at all time. ….. …..[80]Ms Gibb immediately went to find Mr Kendall the Duty Manager and explained her concerns. He immediately went to see Dr Pytel. It was now about 1 p.m, or perhaps a little later and Dr Pytel was about to leave the immigration removal centre to attend patients at another surgery. Mr Kendall explained the situation to Dr Pytel and told him about the threats of suicide.[81]Dr Pytel gave evidence which I accept, that he understood that the threats of suicide were genuine. He recognised now that Mr Nyang had lost hope. Mr Nyang was refusing medication. He had stopped engaging with staff. He had made threats to kill himself and he had said that he knew how to do it. Dr Pytel said that he and Mr Kendall agreed that Mr Nyang should now be placed on constant watch with the maximum security, that is 2 officers watching Mr Nyang. Dr Pytel then decided that he could leave the centre. In his evidence, he said that he thought Mr Nyang was now in safe hands. Mr Nyang would be on constant watch and he considered that Mr Nyang would be looked after in a safe way and was in safe hands. He considered that there was a qualified nurse on site who could call a doctor for advice. He did not consider it necessary for him to visit Mr Nyang himself or to arrange for an immediate referral to a consultant psychiatrist. He considered that it was best to allow Mr Nyang to calm down and review him the next day.[82]Mr Kendall did not remove Mr Nyang immediately from association. Mr Nyang was then having his lunch and Mr Kendall considered that there would be a greater risk to safety if Mr Nyang was disturbed during his lunch. He arranged for Ms Harris, who had previously established a good rapport with Mr Nyang, to go to the refectory and to ask Mr Nyang to accompany her to room 13. That was the room to which persons removed from association were taken. That comprised room 13 itself, a toilet and corridor area for the detainee to walk about in and, in this case, for two officers to sit as Mr Nyang was on a 2:1 watch. There were barred gates preventing someone from going to other parts of the centre.[83]At about 13.30, Ms Harris took Mr Nyang to room 13. He remained there during the afternoon of 30 January 2008. Between that time and approximately 16.35, Mr Nyang appeared calm. At that stage, Mr Nyang wanted to be allowed to go to see a football match on television but was told that he would not be able to. In addition to the two officers on constant watch, Mr Macdonald also came to the room 13 area together with Ms Weston, a representative of UKBA. As appears from the incident report prepared by Detainee Custody Officer Murrell, one of the two officers on constant watch at the time, Mr Macdonald told Mr Nyang that he had to stay in room 13 because he had threatened to self-harm and they had a duty to protect him and others. Mr Nyang became agitated and said that Mr Macdonald was a liar. Mr Macdonald continued to say that Mr Nyang had said he would harm an officer. Mr Nyang became more agitated. Mr Macdonald asked Ms Weston to go to get handcuffs in case it proved necessary to restrain Mr Nyang. At about 16.57 p.m., Mr Nyang said he was going to leave to go and watch the football. He was told he could not leave. He took a deep breath, turned and ran, head first, into the wall. He suffered severe injuries including breaking his spine. The nurse was called and an ambulance summoned and Mr Nyang was taken to St George’s hospital. Mr Nyang’s Mental Condition.[84]I heard evidence from Dr Christie Brown and Dr Latcham, for the Claimant and the healthcare defendants respectively, specifically on the question of whether Mr Nyang had developed a psychiatric disorder and, if so when, and what would have been the management of this condition. I also heard evidence from Dr Fluxman and Dr Grummit on the question of whether or not Mr Nyang had a mental illness.[85]I found Dr Christie Brown to be an impressive witness. He was careful and methodical in his assessment of the factual situation. Where he felt able to, he expressed conclusions which reflected the evidence before him. Where it was not possible to be categoric, Dr Christie Brown was careful to recognise that opinions may have to be qualified. Where new factual evidence emerged, as it did during the trial, Dr Christie Brown was prepared to re-evaluate and, if appropriate, modify his view. By contrast, I did not find Dr Latcham to be as impressive a witness. In my judgment, he had formed a view of the position, namely that Mr Nyang did not have a depressive illness at Tinsley House and the situation was not different from the position in HMP Blakenhurst where he had not been diagnosed with depression but had attempted self-harm. Dr Latcham, in my judgment, overlooked, or on occasions simply dismissed, facts which were not consistent with his primary thesis. To give but two examples, Dr Latcham was adamant that there was no record of low mood at either HMP Blakenhurst or Tinsley House and relied on that as evidence that the condition was the same at both places. When it was drawn to Dr Latcham’s attention that there were a number of records at HMP Blakenhurst indicating that Mr Nyang’s mood was low (see paragraph 13 above), Dr Latcham then took the view that low mood only applied to HMP Blakenhurst not at Tinsley House. Thereafter, he equated the absence of a diagnosis of depression at HMP Blakenhurst with the absence of a record of low mood at Tinsley House. The impression left was that Dr Latcham was not prepared to address whether different facts caused him to review his theory. Similarly, he was adamant that there were no new features of Mr Nyang’s presentation at Tinsley House. He minimised the evidence of Mr Eadie’s visit on the 24 January 2008 by concentrating solely on the contemporaneous note rather than the evidence as that note supported his views whereas the other evidence did not. Dr Latcham also did not appear to address whether or not other apparent changes such as the situation which emerged on 30 January 2008 were indicative of a changed situation. Having considered carefully, the written reports, the joint statements and the oral evidence, I consider Dr Christie Brown to be the most reliable witness in relation to Mr Nyang’s mental condition.[86]I accept Dr Christie Brown’s finding that:
“The above brief résumé, being of course a compression of greater detail recorded elsewhere in this report, indicates that from the first record of insomnia Mr Nyang developed a persistent difficulty in sleeping that was not responsive to a combination of a standard night sedative and the use of an antidepressant, amitriptyline, in what I believe was intended to be a sedative dose. There were other indications of a worsening of his mental condition from the time when the visitor expressed concern and a further escalation from 29.01.08 with threats of self-harm and increasing agitation. This pattern is consistent with his having developed a mental illness, in all probability a depressive illness with agitation and some paranoid features.”
[87]I find that, on a balance of probabilities, by 16 January 2008, Mr Nyang had begun to manifest symptoms of a depressive illness. As Dr Christie Brown noted, by this time there was insomnia continuing over some weeks which had not responded to adequate doses of medication. I find that those symptoms increased in severity after that date and Mr Nyang’s condition had deteriorated by 23 January 2008 and that he was suffering a depressive illness on that date. I accept that, on a balance of probability, from 23 January 2008 there was a further deterioration in his condition. As Dr Christie Brown put it in his report:
“In my opinion, it is highly likely that Mr Nyang was indeed suffering from depression which became worse with the passage of time and which was probably also associated with paranoid thinking at times and with increasing agitation and threats of self-harm. ….. There was deterioration by 23.01.08 and by 29.01.08 it was clear that there had been a further deterioration….”
[88]By 30 January 2008, as Dr Christie Brown put it, a psychiatric emergency had arisen. Dr Fluxman and Dr Grummit agreed that a psychiatric emergency had occurred, that is, that Mr Nyang was in a highly disturbed mental state with attendant high risk.[89]Dr Latcham (and Dr Grummit) considered that Mr Nyang had attempted self-harm in HMP Blakenhurst and had not been diagnosed as being depressive. The only diagnosis was of acute stress reaction which would have been a temporary condition. They considered the same situation prevailed when Mr Nyang was at Tinsley House and considered that the attempts at self-harm there were not due to any underlying depression or mental illness suffered by Mr Nyang.[90]Dr Christie Brown, however, was careful to emphasise, in evidence, that with psychiatric conditions, you consider the symptoms in order to diagnose a condition. There may not have been sufficient clinical evidence in terms of the symptoms at HMP Blakenhurst to have permitted a diagnosis of depressive illness. The position at Tinsley House was, in Dr Christie Brown’s view, different in that there were such symptoms. Further, the situation as he saw it was one where Mr Nyang’s condition improved after HMP Blakenhurst when he was moved initially to Campsfield House and then Tinsley House, and then worsened and deteriorated at Tinsley House. The condition at Tinsley House was unlikely to be a different condition from that at HMP Blakenhurst (although that possibility could not be ruled out entirely) but the condition differed in severity and worsened, with some similarities and some differences to the position at HMP Blakenhurst. At Tinsley House, Dr Christie Brown was of the opinion that Mr Nyang was developing a depressive illness. I accept Dr Christie Brown’s views. I find that, on the balance of probabilities, by the 16 January 2008, Mr Nyang was manifesting the symptoms of a depressive illness. That illness deteriorated by the 23 January 2008 and deteriorated further by the 29 January 2008. By the 30 January 2008, Mr Nyang was in a highly disturbed mental state with attendant high risk of self-harm.

THE LAW

[91]The position on the law is agreed between the parties, save on one point, and can be summarised relatively briefly. In relation to the 1st Defendant, and the detention staff employed by the first defendant and for whom it is vicariously responsible, the position is this. The detention staff owed a duty to take reasonable care to prevent Mr Nyang from committing acts of self-harm: see Reeves v Commissioner of Police of the Metropolis [2000] 1 A.C. 360 and Kirkham v Chief Constable of Manchester [1990] 2 Q.B. 283.[92]In assessing the scope of the duty of care, and whether the standard of care has been met, it is necessary to bear in mind that this was an immigration removal centre being operated in accordance with the Detention Rules. The detainees are not, of course, in custody. They are in detention under the immigration legislation. There are limitations on the powers available to detention staff. By way of example, rule 39 of the Detention Rules provides that security “shall be maintained, but with no more restrictions than may be required for safe custody and well ordered community life”. The detention staff will also need to be mindful of the interests and safety of others, including staff and other detainees.[93]The position in relation to the 7th and 8th Defendants is, again, well established. The standard of care is set out in Bolam v Friern Hospital Management Committee[1957] 1 WLR 582 at page 586: “The test is the standard of the ordinary skilled man exercising and professing to have that special skill … It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”.[94]The principle was formulated in this way by Lord Scarman in Sidaway v Bethlehem Royal Hospital Governors [1985] A.C. 871: “The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment”.[95]Again, Lord Scarman formulated the principle in this way in Maynard v West Midlands RHA [1984] 1 W.L.R. 634 at p. 638e-h:
“A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper … a court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence.”
[96]The third defendant, who employed Ms Ashworth-Pratt and Dr Pytel, admits he is vicariously liable for any negligence on their part. The 1st Defendant is required by rules 33 of the Detention Rules to have a medical practitioner and a health care team responsible for the care of the physical and mental health of detained persons. The 1st Defendant arranged for that duty to be discharged by entering into arrangements with Dr Thomas, who in turn employed the 7th and 8th Defendants and others, to provide health care. In the light of that, the 1st Defendant conceded at the hearing that it is liable for any negligence on the part of the 7th and 8th Defendants as the duty to provide care for the physical and mental health of detainees is a non-delegable duty owed by the 1st Defendant to Mr Nyang: see Woodland v Essex County Council [2013] UKSC 66.[97]All parties reminded me of the importance of not using hindsight when assessing whether there has been a breach of a duty of care.[98]Against that background, I consider now the questions of whether or not there has been negligence and, if so, whether that negligence caused the harm suffered by Mr Nyang. That is, I consider whether, but for any negligence that I find to have occurred, the events of the afternoon of 30 January 2008 would not have occurred and Mr Nyang would have been prevented from harming himself.[99]Mr Readhead Q.C. for the Claimant contended that even if the but for test were not satisfied, this was one of those cases where it was appropriate to depart from that test and consider whether any act of negligence made a material contribution, relying on the following passage from Bailey v Ministry of Defence [2009] 1 W.L.R. 1052 para. 46: “46 In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson's case exemplifies such a situation. If the evidence demonstrates that “but for” the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that “but for” an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the “but for” test is modified, and the claimant will succeed. “[100]This case is not one where there are inadequacies in the state of medical science which means that the cause of the injury cannot be established. It is not a case where medical science cannot establish the probability that but for the negligent act the injuries would not have happened. In my judgment, therefore, the appropriate question on causation is whether, but for any negligence that I find occurred, the harm would have occurred.

BREACH OF DUTY AND CAUSATION

[101]There are a number of allegations of breach of duty in the re-amended particulars of claim. For convenience, it is easiest to work through the claims chronologically, taking each relevant act or omission in turn and assessing whether the various claims of breach of duty in relation to that act or omission are made out. It is convenient at the same time to consider causation and to consider what would have happened if any negligent act or omission had not occurred. For completeness, if I find that an act or omission was not negligent, I will, where appropriate, make the appropriate findings of fact as to what would have happened if that act or omission had not occurred in any event.

Failure to conduct a review post-closure on 11 December 2007

[102]Staff at Campsfield House closed the ACDT on Mr Nyang on 11 December 2007. As Mr Nyang was going to be moved to Tinsley House, it appears that a member of staff at Campsfield House indicated that a follow-up interview should be conducted at Tinsley House on 11 December 2007. It is correct that no follow-up interview was conducted.[103]I do not, however, consider that the failure to arrange for a follow-up interview involved any breach of duty. The staff at Tinsley House were not involved with the ACDT. That had closed by the time that Mr Nyang arrived at Tinsley House. There were no arrangements or policies indicating how staff at Tinsley House would deal with a person transferred from another centre who had a closed ACDT but where that centre had not carried out a follow-up interview. In all the circumstances, in my judgment, it cannot be said that staff at Tinsley House were negligent in failing to carry out a review fixed by staff at a different detention centre following closure of an ACDT in that centre.[104]In any event, the absence of a follow-up interview cannot in any sense be said to have been causative. There is no evidence to suggest that Mr Nyang was exhibiting symptoms of any underlying depressive illness on 11 December 2007 (or for some time thereafter). Dr Christie Brown did not consider that Mr Nyang was suffering a depressive disorder on the 11 December 2007. A follow-up interview would not have detected such signs. Indeed, the evidence is that Mr Nyang improved at first at Tinsley House and the move was seen by him as positive. There would have been no change in the management of Mr Nyang at Tinsley House even if a follow-up interview had been carried out.

The Consultations on 11 and 16 January 2008

[105]The next allegation is that Dr Pytel was negligent in not carrying out a mental state examination on 11 January 2008 or on 16 January 2008. There are a series of allegations of negligence in relation to the failure to recognise the significance of sleeplessness or early morning waking or to diagnose depression. There are complaints about the prescribing of amitriptyline for insomnia or not prescribing adequate dosages.[106]In my judgment, Dr Pytel was not negligent in his treatment of Mr Nyang on 11 January 2008. There was, in my judgment, nothing to indicate that a mental state examination was called for on that occasion. Dr Pytel was aware that sleeplessness could be a symptom of depression. He considered whether or not depression was a possible cause but considered that the core symptoms of depression were not, so far as he could tell, present. He prescribed medication to assist with sleeping in quantities that he considered medically appropriate. Dr Fluxman did not consider that the situation was acute on 11 January 2008. Dr Fluxman also gave evidence that if Dr Pytel carried out the consultation in the way that I accept that he did on this occasion, he would regard that as an appropriate assessment on that occasion. In all the circumstances of this case, in my judgment, Dr Pytel was not negligent in his treatment of Mr Nyang on 11 January 2008.[107]Similarly, in my judgment, Dr Pytel was not negligent in his treatment of Mr Nyang on 16 January 2008. Mr Nyang had returned complaining of continued sleeping problems. Dr Pytel did consider depression but considered that the core symptoms were not present. He considered that he had discovered the likely cause, namely that Mr Nyang was sleeping during the day. He gave advice about sleep hygiene (i.e. not sleeping during the day, going to the gym, avoiding caffeine). Professor Gournay, for example, said that that was good advice and advice that he would give. Dr Fluxman gave evidence that if Dr Pytel carried out the consultation in the way that I accept that he did on the 16 January 2008, then that was an appropriate assessment. In all the circumstances of this case, in my judgment, Dr Pytel was not negligent in his treatment of Mr Nyang on 16 January 2008.[108]As there was no negligence on 11 January 2008, causation does not arise. For completeness, however, I find as a fact that Mr Nyang was not manifesting symptoms of a depressive illness on that date. Had Dr Pytel carried out a more extensive assessment on 11 January 2008, he would not, therefore, have found any symptoms of a depressive illness on that date and would not have treated Mr Nyang differently from the way in which he did treat him.[109]By 16 January 2008, however, Mr Nyang still had been unable to sleep and that had continued for some time. The increased dose of the prescribed medication had not worked. By that stage, in my judgment, Mr Nyang was then manifesting the symptoms of an underlying depressive illness. For the reasons given above, Dr Pytel considered that he had identified the problem and I find that he was not negligent in not diagnosing an underlying depressive illness. If, however, such an illness had been diagnosed, then, on a balance of probabilities, Dr Pytel would, as a minimum, have prescribed anti-depressant medication. The evidence of Dr Christie Brown is that early intervention is important and that anti-depressant drugs would have been likely to produce significant improvement and that improvement would usually have been apparent 14 days after the start of the treatment. On a balance of probabilities, therefore, I find that if Mr Nyang had been diagnosed with a depressive condition on 16 January 2008, he would have been prescribed anti-depressant medication, that that would have had a significant, beneficial medical effect by 30 January 2008, that Mr Nyang would not have behaved in the way that he did on 30 January 2008 and he would not have suffered the injuries he suffered in the process of trying to inflict harm on himself.

The Period Between 16 and 23 January 2003

[110]The next set of allegations relate to the fact that between 17 January and 23 January 2008, Mr Nyang did not attend the surgery to collect his medication, and the health care staff did not investigate the reasons why that was the case. It is said that Mr Nyang had been a frequent attender at the health centre until then and, given his medical history, health care staff should have followed up his failure to collect his medication.[111]In my judgment, the health care staff were not negligent in not investigating Mr Nyang’s non-attendance at the health centre during this period. The medication that he had been prescribed was sleeping tablets to take as he required. As Professor Gournay accepted in evidence, if a person with Mr Nyang’s history had been prescribed such medication by a general practitioner in the community, there would have been no expectation that there would have been any follow-up to check that the patient took the prescription to a pharmacist and obtained the medication. In my judgment, there was no obligation on the health care staff to undertake such inquiries at Tinsley House. Furthermore, in any event, the failure to follow up the investigation did not cause the events of 30 January 2008. Even if they had followed up matters immediately on the 17 January 2008 (and that is unlikely), there is, in my judgment, no evidence that doing so would have affected the course of events. Even if there had been a further consultation and depression diagnosed, any medication would not have had time to produce beneficial effects by 30 January 2008.

The 23 January 2008

[112]The next set of allegations is that Ms Ashworth-Pratt and Dr Pytel were negligent in not carrying out a sufficiently thorough mental state examination on 23 January 2008 and in particular, in not screening Mr Nyang for depression, psychosis or assessment of risk.[113]In my judgment, the consultation carried out by Ms Ashworth-Pratt and Dr Pytel on 23 January 2008 was carried out negligently. That is, I find that they failed to act with the ordinary skill and care of a competent registered mental health nurse or a general practitioner, respectively. They acted in a way in which, in my judgment, no responsible body of medical practitioners would have acted. I reach that conclusion for the following reasons.[114]First, a sufficiently thorough mental state examination should have been conducted which should have considered possible psychosis and possible depression. The assessment arose when concerns over Mr Nyang’s mental health were raised by Mrs Gaston-Parry and which, all the expert witnesses and Dr Pytel and Ms Ashworth-Pratt agree, were indicative of a possible psychotic episode. The background was that Mr Nyang had been recorded as having previously attempted self-harm. He had continuing sleeping problems including one episode of early morning waking and the expert witnesses on general practice and nursing, and Dr Pytel and Ms Ashworth-Pratt, are agreed that that is a possible symptom of depression. In those circumstances, Dr Fluxmann and Dr Grummit agreed in their joint statement that a sufficiently through mental state examination should have been carried out for depression, the presentation of psychotic symptoms and an assessment of risk. Professor Gournay and Mr Mudford agreed that the call from the Gatwick Welfare Group merited further investigation. Those four expert witnesses are also agreed that it would not be appropriate to rely on physical observations alone in conducting such an assessment and would involve, as a minimum, direct, brief and pertinent questions.[115]Secondly, in my judgment, the assessment did not include questioning on areas that were relevant to an assessment of the mental state of Mr Nyang. Ms Ashworth-Pratt and Dr Pytel did not ask specific questions about suicidal intent or intent to self-harm. They did not ask questions to obtain information about mood or the core symptoms of depression. Professor Gournay was adamant that these were basic, standard questions which a medical professional should ask. Mr Mudford broadly agreed on the topics to be covered in a mental state examination of this kind. Dr Grummit agreed in his oral evidence that it would be important to ask questions and record findings about whether a patient intended to self-harm. Dr Grummit also said in oral evidence that he would expect an assessment to consider mood. Dr Fluxman also gave evidence that a sufficient mental health assessment would include questions about mood and intent to self-harm. The factual issue for determination was whether or not Ms Ashworth-Pratt and Dr Pytel did ask such questions. I have found as a fact that they did not ask questions about intent to self-harm or commit suicide or about mood. In the circumstances, therefore, I find that Ms Ashworth-Pratt and Dr Pytel did not carry out a sufficiently through mental state examination and their failures in this regard fell below the standard of reasonably competent medical practitioners.[116]There is one further matter. Ms Ashworth-Pratt and Dr Pytel either did not ask questions about Mr Nyang’s sleeping problems or, if they did, the sleep problems were continuing and the existing prescription was continued. On balance I consider that the former is more likely to be the case. If so, that too would have constituted a failure to ask the questions necessary for a sufficiently thorough mental state examination in the circumstances. Given the contradictory state of the evidence in relation to whether or not the question of sleep problems was raised, I have not based my conclusion that the assessment was carried out negligently on this factor.[117]Thirdly, Mr Nyang’s physical presentation was, and was noted to be, unusual on the day of the consultation in that he was over-excitable and had an unusual volume and rapidity of speech. Dr Pytel accepted that Mr Nyang’s presentation was such that one would need to ask if it was normal for that person or indicative of a potential problem. Both the expert witnessess on nursing gave evidence that over-excitability and gesticulation may be indicative of some underlying mental health condition. A significant factor in concluding that the behaviour was normal, however, was Ms Ashworth-Pratt’s view that his behaviour was, based on her experience, culturally appropriate. The views of the two expert witnesses on nursing were divided as to whether or not it was appropriate to refer to cultural factors in assessing demeanour. Professor Gournay was firmly of the view that, given the limited experience of Ms Ashworth-Pratt in relation to matters of culture, it would not be appropriate to treat culture as a basis for assessing the presentation of a patient to see if he had mental health problems. Professor Gournay said he was bewildered by Ms Ashworth-Pratt’s explanation that Mr Nyang’s presentation was significantly attributable to African culture. Mr Mudford considered it might be appropriate to have regard to cultural factors. However his evidence is that cultural assessments were not something that one could use as a basis for clinical conclusions. He considered that the experience that Ms Ashworth-Pratt had would not be a basis for excluding the possibility of mental illness. No evidence was advanced at all to suggest that the kind of experience possessed by Ms Ashworth-Pratt would be appropriate for assessing if Mr Nyang’s presentation on the day was usual or possibly attributable to some other factor.[118]In my judgment, the fact that Ms Ashworth –Pratt considered that Mr Nyang’s behaviour was culturally appropriate was clearly significant. It was expressly referred to in the contemporaneous note and in Ms Ashworth-Pratt’s evidence. Dr Pytel said that Ms Ashworth-Pratt was very keen to include the reference to culturally appropriate behaviour because of her experience. In my judgment, it was negligent to place reliance on the very limited experience of cultural matters relating to parts of the African continent possessed by Ms Ashworth-Pratt in forming a clinical judgment on Mr Nyang. No body of competent medical experts would, in my judgment, be prepared to regard the limited experience of visiting parts of Africa (not the Gambia) and a few months private reading or study as being sufficient or relevant to enable them to treat culture as a significant factor enabling them to determine whether or not particular behaviour was appropriate.[119]A further consideration is this. Ms Ashworth-Pratt had seen Mr Nyang on seven previous occasions. He had never behaved in such an exaggerated fashion before. Even Mr Mudford, who considered that cultural factors may have a limited part to play in assessments, gave evidence that if a person had not exhibited certain behaviour before, the overwhelming indication was that the behaviour was not attributable to culture but to some other problem.[120]In my judgment, the assessment carried out by Ms Ashworth-Pratt and Dr Pytel was negligent and fell below the standards of anybody responsible medical practitioners by reason of the fact that to a significant extent, they relied on cultural perceptions which Ms Ashworth-Pratt was not experienced to make. I should say that I do not regard Ms Ashworth-Pratt’s comments as intended to be dismissive. Rather the reverse. Ms Ashworth-Pratt obviously has an interest in, and has visited, parts of the African continent. That is not the point, however. The experience she has is limited and could not possibly have been used to draw significant clinical conclusions about Mr Nyang’s presentation.[121]I turn then to causation. If a sufficiently through mental state examination had been carried out, then, on a balance of probabilities, Mr Nyang would have been diagnosed as having a mental health condition, probably a depressive condition. The diagnosis would not have been that Mr Nyang was extremely frustrated and there were no mental health concerns. However, even if Mr Nyang had been diagnosed on 23 January 2008 with a depressive condition and prescribed anti-depressant medication, the evidence is that that medication would not begin to produce beneficial medical effects for 14 days. That was the clear evidence of Dr Christie Brown which I accept. Consequently, there would have been insufficient time for the medication to produce any amelioration in Mr Nyang’s condition before the events of 30 January 2008. Dr Christie Brown also referred to possible benefits in the sense of additional contact with the health care staff. However, in my judgment, any additional contact would not have prevented the events of 30 January 2008 occurring. In my judgment, therefore, even if Ms Ashworth-Pratt and Dr Pytel had not been negligent in the carrying out of the mental state assessment on 23 January 2008, that would not have prevented the events of 30 January 2008 occurring. The negligence on 23 January 20008 was not, therefore, causative of Mr Nyang’s injuries.

The 29 January 2008

[122]In my judgment, Mr Macdonald was negligent on the 29 January 2008 when he failed to commence the process of opening an ACDT. Mr Macdonald knew that Mr Nyang had threatened to kill himself on 29 January 2008. He took that threat seriously as appears from his own addition dated 1 February 2008 to his incident report. I do not accept that Mr Macdonald merely feared another outburst. Mr Macdonald was familiar with the policy on ACDT and had been given training on the ACDT procedure. The policy makes it clear that where a detainee is identified as being at risk of attempting self-harm or suicide, an ACDT will be opened in all cases. Mr Macdonald believed that Mr Nyang was at risk. He said in evidence that he did not know why he did not commence the process of opening an ACDT.[123]Mr Kent, for the 1st Defendant, submitted that it is important to consider the purpose underlying the policy not merely slavishly apply the wording. I agree. However, one of the principal purposes of the policy is to ensure a proper assessment, including medical assessment, of a detainee who is manifesting an intention of self-harm or suicide. That was precisely the case here. Mr Macdonald chose instead to put Mr Nyang on what was a discreet watch. That would require officers to keep an eye on the detainee. It would not lead to any medical involvement. Mr Macdonald was, in my judgment, negligent in failing to commence the ACDT process on the morning of 29 January 2008. I deal with the question of causation below. The 30 January 2008. Failure to Open the ACDT[124]The first allegation of negligence relates to the failure by Mr Macdonald to commence the ACDT process at approximately 8.40 a.m. on 30 January 2008. The ACDT process was not commenced until approximately 12.24 when Mr Kendall re-assigned the task to Ms Gibb.[125]In my judgment, Mr Macdonald was negligent in failing to commence the ACDT process that morning. He knew from Ms Harris that Mr Nyang was “at breaking point” and “on the edge”. He knew that Mr Nyang had threatened to cut his throat the previous morning. He was instructed to open an ACDT by the duty manager. He did not do so. The 1st Defendant accepts, in its pleadings, that the delay in opening was a breach of duty. I deal with causation below.

Failure to Postpone the Random Room Search

[126]The second allegation concerns Mr Macdonald’s failure to consider postponing the random room search of Mr Nyang. Mr Macdonald said that he simply never considered postponing the room search. In my judgment, Mr Macdonald was negligent in failing to consider postponing the search. Had he considered the matter, he would, in my judgment, have postponed the search at least until after the ACDT had been completed. Mr Macdonald knew that Mr Nyang was at breaking point. He had been instructed to open an ACDT which would have involved input from the health care staff. The search was not simply a room search: it would include a search of Mr Nyang’s person. The search was a random room search. There was no intelligence indicating that Mr Nyang was in possession of any thing that he should not have been in possession of. Deferring the room search of Mr Nyang’s room would not have been contrary to the interests of other detainees or security. The random room search policy was intended to operate on the basis that a certain number of rooms would be searched each week and every detainee’s room would, periodically, be searched. All that Mr Macdonald needed to have done on 30 January 2008 was to open the ACDT immediately and defer the room search until a later date. In my judgment, Mr Macdonald was negligent in failing to consider deferring the random room search of Mr Nyang’s room.

Failure to Inform Dr Pytel of the Threats to Self-harm or His Behaviour that Morning

[127]The third allegation concerns the failure by Mr Kendall to give information to Dr Pytel about Mr Nyang when he took him to the health centre at about 11.30 on the 30 January 2008. Mr Kendall did not inform Dr Pytel that Mr Nyang had made threats to harm himself during the room search, or of the concerns of Ms Harris as to Mr Nyang’s behaviour that morning or the incident when he threatened self-harm on the previous day. Dr Pytel was consequently unaware of that important information when he carried out his medical assessment of Mr Nyang on the morning of 30 January 2008.[128]In my judgment, Mr Kendall is a good officer. He is clearly well respected by his officers. His actions on the day of 30 January 2008 showed both good management and a consideration for the interests of Mr Nyang himself. He instructed Mr Macdonald to commence the ACDT process as soon as he was informed of Ms Harris’s concerns and he was unaware that Mr Macdonald had failed to do so until some time after 11 a.m.. As soon as he learnt of that failure, he immediately assigned the task to another trained officer. Mr Kendall was instrumental in trying to calm Mr Nyang down in his room during the search (and Mr Kendall did not know that Mr Nyang’s room was to be searched). He immediately decided to take Mr Nyang to the health centre to seek medical advice. In all the circumstances, it would have been preferable for Mr Kendall to have given Dr Pytel all the relevant information about Mr Nyang’s behaviour, and, indeed, Mr Kendall accepted in evidence that he should have. In my judgment, however, it would be artificial to separate out the taking of Mr Nyang to Dr Pytel from the events of the morning as a whole. First, Mr Kendall was taking Mr Nyang to the health centre for immediate assistance after Mr Nyang had become agitated during the room search. Secondly, and importantly, Mr Kendall had already instructed Ms Gibb to commence immediately the process of an ACDT at which he, Mr Kendall, and a representative of the health care staff would be present and all the information about Mr Nyang would be collated and assessed. Thirdly, as soon as he was told of Mr Nyang’s behaviour during the ACDT, he immediately went to see Dr Pytel and gave him all the information. In all those circumstances, it would, in my judgment, not be right or fair to regard the failure to give the information about Mr Nyang to Dr Pytel as negligent.

The consultation with Dr Pytel

[129]The fourth set of allegations relate to the consultation carried out by Dr Pytel at around midday on 30 January 2008. It is important to bear in mind that Dr Pytel had not been given the information about Mr Nyang’s threats of self-harm. He had simply been told that Mr Nyang was agitated. That fact only emerged during the trial and the two expert witnesses on general practice had prepared their reports, and agreed their joint statement, assuming that Dr Pytel had been given this information when in fact he had not. Against that background, Dr Pytel did not carry out a mental state examination of Mr Nyang. He did consider whether or not the symptoms of which he knew indicated depression or psychosis but considered that they did not (although he did note that Mr Nyang could see no way out of his situation). He again considered that Mr Nyang was frustrated because of his immigration difficulties and the contemporaneous note indicates that he spent some time trying to assist Mr Nyang with suggestions as to how this might be resolved. He also offered medication to calm Mr Nyang down but this was refused. Seeing his state of agitation, Dr Pytel did agree that an ADCT should be commenced and that he should be on an hourly watch.[130]Given the state of Dr Pytel’s knowledge on the morning of 30 January 2008, it would, in my judgment, be wrong to categorise the consultation that he carried out as negligent. It would also be artificial, in my judgment, to separate out the consultation from the ACDT process and events immediately after it. About 30 to 40 minutes after Dr Pytel’s consultation, Mr Kendall saw him and told him of Mr Nyang’s behaviour. At that stage, Dr Pytel said that he recognised that the threats of self-harm were genuine, that Mr Nyang had lost hope, had refused medication and stopped engaging with staff and made threats to kill himself and was saying he knew how to carry them out. Dr Pytel then agreed that the maximum level of security should be instituted, namely constant watch with two officers constantly watching Mr Nyang. On balance, it would not be right or appropriate, in my judgment, to regard the consultation carried out at around midday on 30 January 2008 as having been carried out negligently.

Dr Pytel’s Actions After the ACDT Was Carried Out

[131]There are also allegations that the failure by Dr Pytel to refer Mr Nyang for an urgent opinion from a consultant psychiatrist was negligent. Dr Pytel considered that Mr Nyang was now safe. He had been placed on the maximum level of security, namely constant watch with two officers. Dr Pytel considered that that would enable Mr Nyang to calm down. He did not consider that Mr Nyang would be able to harm himself. As he said in evidence, he believed Mr Nyang was in a safe place. Dr Pytel was only in the immigration removal centre in the morning and was about to leave to see other patients. There was no consultant psychiatrist on site (although the evidence is that the consultant psychiatrist would have been able to see a patient the same day, during the day if other appointments permitted, or early in the evening if they did not). Mr Nyang had been offered medication but refused. In all the circumstances, Dr Pytel’s decision that, given that Mr Nyang was now on constant watch with two officers, the appropriate course of action was to review his case the next day was not negligent and did not fall below the standards of a reasonably competent medical practitioner. I bear in mind that Dr Grummit, who has experience of working in a prison, gave evidence that as Mr Nyang was then in a place of safety, he, too, would have assumed that there was no need for immediate action and would have carried out a review at the first reasonable opportunity and then see if a referral to a consultant psychiatrist was needed.

The Decision to Remove Mr Nyang from Association

[132]The final set of allegations relate to the removal of Mr Nyang from association with other detainees. Initially, the claim indicated that the decision to remove was negligent. Mr Readhead, in my judgment correctly, withdrew that allegation in the light of the evidence that emerged at trial. In my judgment, Mr Kendall and others were clearly entitled to take the view after the ACDT concluded at about 12.40 p.m. that Mr Nyang was now presenting a danger to himself and to others. He needed to be on constant watch. The evidence is that the only way in which that could be achieved, given the practical constraints of Tinsley House, was by placing him in room 13.[133]There were also allegations that the failure to review the removal from association was negligent. Reliance was placed on the relevant policy dealing with removal. Paragraphs 9 to 12 provided that:
“9. Removal from association will only remain in force as long as is necessary before return to normal association can be resumed safely. 10. Detainees will be removed from association for the shortest time possible. We will ensure there is opportunity to review that decision at regular intervals. 11. One important part of this process will be visits to the Detainee to assess his temperament and demeanour in order to judge whether continued removal from association is necessary. 12. Assessment and reviews will commence as soon as the behaviour of the detainee is commensurate with discussion and interview by the relevant staff. These may include on or more of; Chaplain, Duty Manager, Senior Manager. Other supervisory staff may also be involved. ”
[134]Paragraph 15 provides:
“15. Where the Centre Manager is of the view that a Detainee can safely be returned to normal association, he will authorise and arrange to agree with the Detainee that his or her behaviour will improve which will result in a return to normal location.”
[135]Mr Nyang went to room 13 at about 13.30 on 30 January 2008. The decision that he should remain in association that afternoon was, in my judgment, reasonable and did not involve a breach of the relevant policy. Given the level of risk to his own safety and the safety of others, it was reasonable for those concerned to take the view that Mr Nyang could not safely be allowed to return to association with others. Mr Nyang did appear to be calm after completing the ACDT. He had his lunch and went calmly to room 13. He was calm and chatted to the officers who were on constant watch with him. However, the pattern of behaviour on that day was the result of what has been described as a highly disturbed mental state with high risk. He had reacted to what appeared to be internal anxieties on the morning of 30 January 2008. He had reacted adversely to external events during the room search. He responded adversely to events which, to an observer, would not appear significant such as Mr Kendall leaving the ACDT when he was called away to another incident. Indeed, his behaviour changed rapidly over a very short time during that period. He appeared to be calm at the start of the ACDT, then he responded adversely on Mr Kendall’s departure with threats to kill himself and others, then calmed down and had lunch. In all those circumstances, it was reasonable for the detention staff to consider that it was not yet safe to allow him to return to association with others.

Causation

[136]I turn then to the question of causation. For present purposes, I consider what the position would have been in any event on 30 January 2008. In my judgment, Mr Nyang’s mental condition had deteriorated by the 29 and 30 January 2008. Mr Nyang’s had an underlying medical condition of a depressive illness with, at times, paranoid thinking and increasing agitation and threats of self-harm. By 30 January 2008, that situation had reached what Dr Christie Brown called a psychiatric emergency and Dr Fluxmann and Dr Grummit described as a highly disturbed mental state with attendant high risk. Mr Nyang would, in my judgment, have reached that state at some stage on or about the 30 January 2008 whether or not an ACDT process had begun on 29 January 2008 or the morning of the 30 January 2008. He would have reached that stage whether or not the random room search had taken place on the morning of 30 January 2008.[137]At that stage, anti-depressant medication, even if his condition had been recognised on 29 January 2008 or earlier on 30 January 2008, would not have had time to produce any beneficial medical effects. Contact with, and increased monitoring by, health care staff would not have prevented the events of 30 January 2008 occurring.[138]It would not have been possible to arrange for him to be admitted to a psychiatric unit in accordance with the provisions of the Mental Health Act 1983 on 29 or 30 January 2008. The evidence was that that process would have taken up to about two weeks.[139]Mr Nyang would, therefore, have had to be removed from association given that he was a threat to himself (and was reasonably believed to be a threat to others). In order to place him on constant watch, there was no option but to remove him from association. The physical constraints of Tinsley House would not have enabled Mr Nyang to remain on constant watch and to be on association in Tinsley House.[140]Mr Nyang had refused medication to calm his agitation on 30 January 2008. He became agitated again when he was not allowed to return to association with others. In those circumstances, there was no possibility of steps being taken to prevent him from engaging in the act of self-harm which led to his tragic injuries. Medication to sedate him could only have been administered if he had been assessed as lacking capacity and sedation as being in his best interests. There was no consultant psychiatrist available in the few minutes between the agitation returning and the act of self-harm. Furthermore, in my judgment, there was simply no possibility of a consultant psychiatrist, even if one had been available, being able to assess Mr Nyang as lacking capacity and compulsorily administrating sedation in the few minutes between the agitation returning and the self-harm occurring. It is unrealistic in my judgment, to suggest that if an earlier referral had been made on 29 January 2008 and if a psychiatrist had seen Mr Nyang that day or early on 30 January 2008, events would have taken a different course on 30 January 2008. Furthermore, all are agreed that the officers who were on constant watch on the afternoon of January 2008 could not possibly have done any thing to prevent the actions occurring. In the circumstances, in my judgment, given the state of Mr Nyang’s mental condition, and the practical constraints operating at Tinsley House, the events of the afternoon of 30 January 2008 could not have been prevented even if the detention centre staff and the health care staff had acted differently.[141]In the event, the negligence that I have found was the failure to commence the ACDT process on the morning of 29 January 2008 or earlier on 30 January 2009, and the failure to postpone the random room search which took place on the 30 January 2008. Even if that negligence had not occurred, the events of the afternoon of 30 January 2008 would not have been prevented. More generally, even if, contrary to my conclusion, I had found that the other alleged failures of the detention staff and the health care staff on 30 January 2008 had been negligent, those failures did not cause the harm to Mr Nyang. Even if the detention staff and health care staff had acted differently, they would not have been able to prevent Mr Nyang from harming himself on 30 January 2008.

CONCLUSION

[142]Mr Nyang was detained at an immigration removal centre pending his removal to Gambia. The detention staff at such centres owe a duty to take reasonable care to prevent detainees harming themselves or trying to commit suicide. The medical staff responsible for providing the care for the physical and mental heath of detainees are also required to exercise reasonable care and skill in the performance of their duties. By about 16 January 2008, My Nyang had developed a mental health condition, namely a depressive illness with paranoid thinking at times and increasing agitation and threats of self-harm. He came to believe that he would never return to the Gambia and he would not see his wife and family again. At times, because of his disordered mental state, he believed that officials were playing with his mind and deliberately keeping him in detention rather than returning him to the Gambia. That, of course, was not true and the time that it was taking to return Mr Nyang to the Gambia was largely due to the time taken by the High Commission to process the necessary travel documentation. Nevertheless, Mr Nyang’s mental condition deteriorated further. Tragically, on the afternoon of 30 January 2008, Mr Nyang took what he then believed to be the only way out of his situation and tried to commit suicide by running head first at a concrete wall. He sustained very severe injuries in that he broke his spine.[143]This trial has dealt with two preliminary issues, namely was there negligence on the part of the immigration removal centre staff or the medical staff in dealing with Mr Nyang and would his injuries have been prevented but for that negligence.[144]With one exception, the detention staff at Tinsley House were not negligent and acted reasonably and responsibly in their dealings with Mr Nyang. The exception is that I find that Mr Ian Macdonald was negligent in the following ways:(1) by failing to commence an ACDT process on 29 January 2008;(2) by failing to commence the ACDT process on 30 January 2008; and(3) by failing to consider postponing the random search of Mr Nyang’s room which took place on the morning of the 30 January 2008.[145]With one exception, I find that the health care staff at Tinsely House acted reasonably in their care and treatment of Mr Nyang. The one exception is that I find that the mental state assessment carried out by Ms Ashworth-Pratt and Dr Pytel on 23 January 2008 was carried out negligently.[146]The acts of negligence did not, however, cause the harm to Mr Nyang. Even if those acts of negligence had not occurred, the events of the afternoon of 30 January 2008 would not have been prevented.

Cited in 1 later judgment