MD (Angola) & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

These three appellants (to whom we grant permission to appeal) are unconnected with each other. They are linked in this litigation because (1) they have no leave to be or remain in this country; (2) the Secretary of State has decided to remove or deport them to their home countries; (3) decisions were taken to detain them prior to, and in order to carry out, removal; and (4) they had each been diagnosed as HIV+ prior to their detention. Their primary case (and the first ground of appeal) is that that diagnosis ought to have led the Secretary of State to conclude that detention was inappropriate in the light of the Secretary of State’s own policy. It is also submitted on their behalf (as the second ground of appeal) that their detention was unlawful because the Secretary of State did not have in place an adequate system for dealing with the needs of HIV+ detainees. Finally, it is said that, in any event, their detention was or became unlawful because their needs were not in fact satisfactorily met whilst in detention. This third ground of appeal requires a high degree of factual analysis, as to which we are being invited to depart from the factual conclusions of the judge in the Administrative Court. It is common ground that our task in this regard is directed solely to the issue of the lawfulness or otherwise of the detention. This is not a common law claim for damages in respect of specific allegations of negligence.

I shall leave the factual detail until later. However, it is appropriate at this stage to outline the undisputed factual framework. It demonstrates that, leaving aside their medical conditions, the appellants are somewhat undeserving immigration claimants.

MD is a national of Angola. He arrived in the United Kingdom on 29 July 1993. He made an asylum claim but it was rejected. He mounted a number of unsuccessful legal challenges. Eventually, the Secretary of State decided to remove him and removal directions were set for 10 August 2009. With a view to securing that removal, he was detained on 5 August 2009. At that time, he had been diagnosed as HIV +. The planned removal was aborted when MD became disruptive. Further removal directions were set for 8 September, 20 November and 30 December but they did not proceed because of successive legal challenges. Issues then arose as to MD’s fitness to travel. The Secretary of State experienced some difficulty in obtaining medical information relating to that issue and the difficulty was compounded when, on 20 April 2010, MD instructed the clinicians not to provide medical information. By then, MD had issued the present judicial review proceedings on 12 April. On 13 May 2010, MD was released from detention as it had become clear that these proceedings would not achieve finality for some time. MD also has a pending appeal to the First Tier Tribunal which I understand to be, at least in part, a human rights claim based on an alleged unavailability of appropriate medication in Angola. That appeal stands adjourned pending the outcome of these proceedings.

CJ is a national of Dominica who arrived in the United Kingdom on 30 November 2000. He had leave to enter and remain for six months but became an overstayer after that. He was diagnosed as HIV+ in 2005 and in 2009 he made an application for leave to remain on that basis. His application was refused and subsequent appeals and other legal challenges were unsuccessful. In January 2008 he pleaded guilty to two offences of possession of a Class A drug with intent to supply and was sentenced to 18 months imprisonment. Whilst in prison he was served with a deportation notice and, on completion of his custodial sentence on 21 November 2008, he was placed in immigration detention. Removal directions were set on a number of occasions but they had to be withdrawn in the face of (largely unsuccessful) legal challenges. On one occasion his removal was restrained by the Administrative Court on terms, including a requirement that the Secretary of State supply him with 3 months’ medication for use on return to Dominica. He issued his claim in the present proceedings on 1 April 2010. He remained in detention until released on bail on 9 March 2011.

TN is Vietnamese. He entered this country illegally on 9 March 2004. When apprehended he claimed asylum and was therefore granted temporary admission. Almost immediately he absconded and his whereabouts were unknown until 23 November 2005 when he was arrested for cultivating cannabis. He was sentenced to four months imprisonment. He was arrested again for a similar offence in February 2007 and, upon conviction he was sentenced to 15 months imprisonment. The judge recommended deportation. He completed his custodial sentence on 2 October 2007 and was thereupon placed in immigration detention where he remains. He has been a heroin addict for many years and was first diagnosed as HIV+ in 2005. He issued his claim in the present proceedings on 1 April 2010.

On 30 July 2010 Cranston J dismissed the applications for judicial review which had been advanced on a number of grounds, including what are now the first and third grounds of appeal to this Court, as I described them in paragraph 1, above. He rejected the first ground of appeal because he considered that, as a matter of construction, the Secretary of State had not acted inconsistently with her policy. As to the third ground, he made factual findings which defeated the appellants’ cases. What is now the second ground of appeal to this Court was not advanced in its present form at first instance, when the appellants were represented by different leading counsel.

Immigration detention is effected not by judicial direction but by executive decision. MD was detained under paragraph 16(2) of Schedule 2 to the Immigration Act 1971, which provides power to detain individuals subject to administrative removal from the United Kingdom. Paragraph 2 of Schedule 3 to the Immigration Act 1971 includes a general power to detain where a deportation notice or a notice of an intention to make a deportation is extant, and, where there is a judicial recommendation for deportation, as in TN’s case, there is a presumption that, if the person is not or is no longer serving a custodial sentence, he will be placed in immigration detention, unless the court by which the recommendation was made otherwise directs or the Secretary of State directs him to be released pending further consideration of the case or he is released on bail.

Section 32 of the UK Borders Act 2007 introduced the concept of “automatic deportation” in relation to foreign nationals who are sentenced to imprisonment of at least 12 months (as was CJ). In such a case, the Secretary of State must make a deportation order (subject to exceptions, including international obligations, which do not arise in the present case) and she must exercise the power of detention under Schedule 3 to the 1971 Act, unless in the circumstances she considers it inappropriate.

From an early stage, the powers of the Secretary of State to detain received judicial limitation in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 which decided that the power could only be used as an adjunct to removal, that the period of detention was implicitly limited to the period reasonably necessary to achieve that purpose and that the Secretary of State should exercise all reasonable expedition to ensure that all necessary steps are taken for removal within a reasonable time. On this basis, when the Secretary of State exercises the power to detain, she does so in the hope and expectation that the detention will be relatively short (but long enough to enable the detainee to instigate a legal challenge). In the event of a legal challenge that hope and expectation will be frustrated and the question of release will arise, as has happened in the cases of MD and CJ.

The Secretary of State publishes Enforcement Instructions and Guidance (EIG) which sets out her policy on a whole range of issues and is designed to govern the acts and decisions of officials. The relevant part of the EIG in force at the times when these appellants were taken into detention was paragraph 55.10, headed “Persons considered unsuitable for detention”. It states:

“Certain persons are considered suitable for detention only in very exceptional circumstances, whether in dedicated immigration accommodation or elsewhere. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control. In CCD cases [Criminal Casework Directorate], the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention.

The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention centres or elsewhere:

•

unaccompanied children and young persons under the age of 18 …;

•

the elderly, especially where supervision is required;

•

pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this …;

•

those suffering from serious medical conditions or the mentally ill – in CCD cases, please contact the specialist Mentally Disordered Offender Team;

•

those where there is independent evidence that they have been tortured;

•

people with serious disabilities;

•

persons identified by the Competent Authorities as victims of trafficking … ”

I have emphasised the parts directly relevant to these appeals.

The question here is: when is a person suffering from a serious medical condition for the purposes of paragraph 55.10? The construction contended for on behalf of the appellants is that “suffering from” is synonymous with “having”. In other words if there is a current diagnosis of a serious medical condition, the person will normally be considered suitable for detention only in very exceptional circumstances. Circumstances would be “very exceptional” if, for example, the person constituted a serious risk to national security. The case for the Secretary of State is that, in the context of paragraph 55.10, “suffering from” denotes more than “has” and that it assumes that, at the material time, the condition is not susceptible to satisfactory management in an Immigration Removal Centre (IRC).

There are two points of common ground in relation to this issue of construction. First, the construction of a policy such as this is ultimately a matter for the Court. Secondly, a person who has a current diagnosis of HIV+ has a “serious medical condition”, even if it is well controlled by medication.

Cranston J concluded that the construction proffered on behalf of the Secretary of State is correct. He said (at paragraph 51-52):

“… the policy requires that a person be ‘suffering’ from a serious medical condition. That contrasts with the other category in the relevant bullet point in paragraph 55.10, the mentally ill, where the presence of that condition alone triggers its application. As a matter of ordinary interpretation, all the words in the policy must be given application. In my view, a person suffers from an illness if they are significantly affected by that illness … human aid in the form of modern medicine means that persons need not suffer from many serious medical conditions. Treatment by anti-retroviral drugs … has transformed the lives of many HIV sufferers, as well as reducing the stigma attached to admitting HIV infection. In the case of each of these claimants, anti-retroviral drugs have, on the whole, meant that they are no longer suffering from their HIV infection … Those with a serious medical condition which is satisfactorily managed, albeit that its impact may vary, are not suffering from it … ”

I have emphasised “significantly affected” and “satisfactorily managed”.

In my judgment, this construction is essentially correct. I respectfully agree with the judge’s analysis but I put at the forefront of my reasoning the context of the words and the purpose of the provision. Although, as Sedley LJ observed when granting permission to appeal, we are not construing a statute, context and purpose remain important. The context is the use of the power to detain in order to effect a lawful removal. It generally arises where there is a risk that the person in question will abscond, fail to co-operate or resort to crime during an anticipated short period prior to removal. The purpose is to ensure that the lawful removal of a person who has no right to remain in this country is not frustrated. As counsel for the Secretary of State put it in their skeleton argument:

“If a person’s ill-health is controlled by medication to an extent that permits detention; and if that person otherwise meets the criteria for detention pending removal from the United Kingdom; the effective application of immigration control strongly favours the conclusion that the person should be detained.”

On the same basis, there is no reason why a person whose diabetes or epilepsy is well controlled by medication but who constitutes a significant absconding risk should not be detained for an anticipated short period during which detention is unlikely to have a significant effect on his condition and there are facilities for its satisfactory management.

Is there anything in paragraph 55.10 or elsewhere in the guidance that militates against this purposive and pragmatic construction? In my judgment, there is not. On the contrary, it is significant that “serious medical conditions” are qualified by the words “suffering from”, whereas the words “mentally ill” are not. It is true that other sub-categories of “suitable for detention only in very exceptional circumstances” are not qualified by wording that limits their exclusion to circumstances where they would be “significantly affected”, or their problems could not be “satisfactorily managed” during detention. I refer, for example, to the “mentally ill”, those with independent evidence that they have been tortured, those with serious disabilities and victims of trafficking, as well as unaccompanied children. However, the fact remains that, in relation to “serious medical conditions”, the draftsman used the words “suffering from” but, in relation to the other criteria, he deployed no such qualification. Mr Michael Fordham QC submits that if the draftsman had wanted to give an expanded meaning to “suffering from” to embrace such things as “manageability”, it would have been easy to do so by express provision but he cannot explain why the “suffering from” formulation was confined to “serious medical conditions”.

In the event, paragraph 55.10 was later amended with effect from August 2010. In particular, those suffering from serious medical conditions, those suffering from serious mental illness and people with serious disabilities each now have their categorisation limited by the words “which cannot be satisfactorily managed within detention”. This has prompted predictable rival submissions. Mr Fordham submits that the amendments plug the gap which existed in the earlier wording; Mr Jonathan Swift QC responds, by reference to contemporaneous documentation, that the amendments do not constitute a change of policy but represent merely “a more explicit statement of existing policy”. Whatever may be said about the mentally ill and disabled categories, which did not previously have the “suffering from” limitation, it seems to me that Mr Swift’s submission at least holds good in relation to serious medical conditions.

The second ground of appeal is that if (as I have concluded) the appellants are wrong about the construction of paragraph 55.10, and the policy permits detention on the hypothesis that a particular detainee’s HIV+ can be “satisfactorily managed”, it is incumbent upon the Secretary of State to have in place appropriate arrangements prescribing appropriate standards which ensure such satisfactory management. Mr Fordham seeks to conceptualise this as an obligation to provide continuity of care, arising under the positive obligations deriving from Articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). He submits that this requires (a) a supply within the IRC of sufficient anti-retroviral drugs to ensure that doses are not missed through lack of availability; (b) a regime which secures that the daily dose is always administered; (c) proper access to secondary care to monitor the progress of the detainee’s condition and make appropriate changes to the treatment regime; and (d) record-keeping which demonstrates continuity of treatment with no gaps. He further submits that, in this case, there was an absence of such arrangements and standards and that that, in itself, constituted a breach of the positive obligations. In other words, the focus here is not on any alleged shortcomings in the treatment or management of these specific appellants. It is on the general arrangements.

I am bound to say that I initially found this ground of appeal to be somewhat elusive but in the course of oral submissions it appeared to come down to a criticism of the Secretary of State for failure to adopt as policy as the prescribed standard the British HIV Association (BHIVA) publication Detention, Removal and People Living with HIV of June 2009, the sub-title of which is “Advice for healthcare and voluntary sector professionals”. I shall refer to it as “the BHIVA advice”. Mr Fordham says that it is very important to identify a practical and effective standard which protects the individual and the BHIVA advice (or something equivalent to it) amounts to such a standard. I, of course, accept that the corollary of my conclusion on the first ground of appeal, which presupposes that there are HIV+ detainees whose medical condition can be satisfactorily managed in detention, assumes that it is necessary for there to be “satisfactory management” of their medical needs in detention. The question is whether it is obligatory for the Secretary of State to implement the BHIVA advice or something equivalent to it as a universal standard.

IRCs do not exist in a legal or regulatory vacuum. For example, the Secretary of State has promulgated the Detention Centre Rules 2001 which, among other things, require that every detention centre has a medical practitioner who has been trained as a general practitioner and a healthcare team. They are required to pay special attention to the need to recognize medical conditions which might be found among a diverse population and the cultural sensitivity appropriate when performing their duties (Rule 33(1), (2) and (3)). The medical practitioner “may consult with other medical practitioners at his discretion” (Rule 33(6)). The provisions, which are more extensive than I have set out, are mainly general in their content. They do not refer to specific medical conditions except mental illness. In addition, there are Detention Centre Operating Standards which prescribe minimum auditable requirements. They include:

“17.

Following the initial assessment, the healthcare team must, where necessary, make care plans to manage the needs of detainees …

19.

The Centre must have in place arrangements for access to 24 hour health cover …

20.

Arrangements must be in place to ensure that when emergency treatment is required patients have appropriate and prompt access to care, such as ambulance, accident and emergency departments and through appropriately trained healthcare staff locally …

22.

Every effort should be made to avoid cancelling appointments made with local hospitals and other healthcare services …

25.

The Centre must arrange access to specialist services for the care of detainees in respect of dental, maternity … , optical, psychiatric, genito-urinary care, X-ray and pharmaceutical services and any other secondary care services in order to meet the needs of the detainees. The Centre must arrange for these to be provided either within the Centre … or from outside services … ”

These brief extracts will suffice for present purposes. There are also Detention Services Orders which regulate, for example, outside medical appointments and the need to ensure that, save in exceptional circumstances, they are kept.

IRCs are operated or managed by outside contractors. The tender documents, which give rise to contractual obligations, include detailed requirements relating to healthcare provision. Their starting point is that the service provider “shall provide a detainee with access to the same range and quality of services as the general public receives from the NHS”. There is also a specific requirement to

“provide clinical services for the diagnosis, assessment, treatment and care of a detainee with HIV/AIDS, Hepatitis B or Hepatitis C.”

together with general requirements relating to pharmaceutical services, medication and medical records.

The question that arises under this ground of appeal is whether the positive obligations which arise under Articles 2 and 3 require more than this combination of Rules, Standards, Orders and contractual obligations. Although we were referred to a number of Strasbourg authorities, they seem to me to boil down to simple propositions. For the purposes of this case, the following are material.

In Slimani v France (2006) EHRR 49, the Court stated (at paragraph 24):

“The obligations on Contracting States take on a particular dimension where detainees are concerned since detainees are entirely under the control of the authorities. In view of their vulnerability, the authorities are under a duty to protect them …

… the Convention requires the state to protect the health and physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance.”

This formulation appears in a number of earlier and later cases. In the recent case of Aleksanyan v Russia (2011) 52 EHRR 18, which was concerned with failure to provide highly active anti-retroviral therapy (HAART) free of charge to a prisoner who was HIV+ and had developed AIDS, the Court said (at paragraph 139-140):

“The ‘adequacy’ of medical assistance remains the most difficult element to determine …

On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis.”

This emphasis on a fact-sensitive approach was also apparent in Kudla v Poland (2002) 35 EHRR 11 (see paragraphs 91, 93 and 99). We have not been referred to any Strasbourg authority which insists on the adoption of a specific, a priori, standard.

The leading domestic authority is Savage v South Essex Partnership NHS Foundation Trust [2009] 1 AC 681, a sad case involving the suicide of a detained mental patient. Having reviewed relevant Strasbourg jurisprudence, Lord Rodger of Earlsferry said (at paragraph 45):

“These passages show that a state is under an obligation to adopt appropriate (general) measures for protecting the lives of patients in hospitals. This will involve, for example, ensuring that competent staff are recruited, that high professional standards are maintained and that suitable systems of work are put in place. If the hospital authorities have performed these obligations, casual acts of negligence by members of staff will not give rise to a breach of article 2.”

Lord Rodger contemplated that, absent a human rights claim, there might nevertheless be a cause of action in negligence in a suitable case: see also paragraph 70 and Powell v United Kingdom (2000) 30 EHRR CD 362, 364. It is noticeable that he used the word “general” not only parenthetically in paragraph 45 but also openly when referring to the same matters as “general obligations” in paragraph 69.

Against this background, can it be said that the Secretary of State was under a legal obligation to adopt the BHIVA advice as a universal standard? It is first necessary to say a little more about the BHIVA advice. It is the product of undoubted expertise. Amongst other things, it advises that

“IRCs should prioritise continuity of ARV therapy for HIV treatment. Any interruption or delay in taking treatment doses may quickly cause the therapy to become less effective and drug resistance to develop, which limits future treatment options.”

It is noted that in many developing countries the range of treatment options is limited, “so maintaining the efficacy of the current treatment regimen is often highly critical”. The advice describes differences in practice as to whether detainees are permitted to keep prescribed medication with them in their rooms. It further states that staff should be proactive in ensuring that detainees take their medication.

No one questions the appropriateness of this advice. However, it is clear from its foreword that it is intended to be an outline of “best practice” and a “resource of practical advice”. For my part, I cannot see how it can be elevated as a universal minimum standard. It seems to me that by taking the steps to which I have referred in paragraphs 20-22 above, the Secretary of State has put in place an ECHR compliant system. Of course, it is dependent upon healthcare staff in and outside the IRCs doing their jobs competently. They include in-house doctors and nurses, as well as others outside the IRCs. There are no doubt areas that are left to the clinical and professional judgment of those involved. It is not suggested that they are not properly qualified and trained. Whatever may be the position in relation to the detailed treatment of the appellants, I am satisfied that there is no basis for a human rights claim based on the failure of the Secretary of State to adopt the BHIVA advice or something equivalent as a legal standard.

This point arises on the basis that detention in each case was consistent with the Secretary of State’s policy and that the Secretary of State was not in breach of his obligations under Article 3 or otherwise by not adopting a standard such as the guidance contained in the BHIVA report. The point was expressed as follows in Mr Fordham’s skeleton argument.

“Insofar as otherwise entitled to invoke immigration detention powers, has the [Secretary of State] secured in the appellants’ cases the appropriate standard of proper management of their HIV+ condition?”

It is important to keep in mind the context in which we are considering this question. These are not negligence actions alleging breach of a common law duty and consequent damage arising out of substandard treatment. They are cases in which the allegation is one of unlawful detention, if not at its inception then subsequently when, it is said, the failings were such as to impact on the lawfulness of the continued detention. Ultimately, this is a question of fact. Cranston J concluded that the evidence did not sustain the claims.

The legal landscape is both domestic and the ECHR. The domestic matrix derives from the principles established in Hardial Singh, including the proposition that a person can only be detained for a period which is reasonable in all the circumstances. In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 Dyson LJ observed (at paragraph 48) that, when considering the reasonableness of the detention, the impact on the detainee is a relevant factor. In M v Secretary of State for the Home Department [2008] EWCA Civ 307, he said (at paragraph 39):

“… if it is shown that a person’s detention has caused or contributed to his suffering … illness, this is a factor which in principle should be taken into account in assessing the reasonableness of the length of the detention. But the critical question in such cases is whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering.”

The Strasbourg jurisprudence includes Slimani (paragraph 24, above) and Mouisel v France (2004)38 EHRR 34, in which the Court said (at paragraph 40):

“Although Art 3 … cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of the execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment.”

See also Dzieciak v Poland, 77766/01, 9 December 2008, at paragraph 91, and Gelfmann v France (2006) 42 EHHR 4, at paragraph 50.

In order to evaluate the cases of the present appellants, it is necessary to examine their factual circumstances, albeit with the disadvantage, shared by the judge, that there are significant disputes and the cases have been and are being considered without the benefit of live evidence. I remind myself that this is not a retrial. The task of this Court is to investigate whether the judge was wrong in his conclusions on any of them. With this in mind, I turn to the individual cases.

TN

I deal first with TN because his case is the most straightforward. The conclusions of the judge are set out in paragraphs 64-65 of the judgment. He considered the allegation of mismanagement to have been overstated because Dr Wood, upon whose report reliance was sought to be placed, had taken the chronology prepared by TN’s solicitor at face value and this had “led him into error”. The judge said:

“For example, the records show that TN was provided with three months of medication on 6 August 2009 and that he was given a further 2 weeks on 12 October 2009. There was a request by the clinic at the Immigration Removal Centre requesting further medication for TN on 30 October 2009, when TN is recorded as having 1 month left. There is no record of his informing Dr Narouz that he had missed three weeks of medication at this time. There was no adverse effect as a result of his viral testing. He was seen by a community nurse on 17 September but there was no report that he had no medication. In my view, the key to TN’s missed medication is contained in the medical notes of 17 March 2010, when Dr Narouz discussed with TN the issue of missed medication through an interpreter … At that point, TN told Dr Narouz that he had not missed any medication. The medical notes read:

‘No report of missing tablets. He keeps his medication at his room.’ ”

Dr Narouz did not work at the Centre. He was the Consultant in GU/HIV medicine employed by West Sussex Hospitals NHS Trust at Crawley Hospital to whom TN was referred.

The judge referred to a brief gap in supply of medication in 2008 and might have added there was evidence that “strenuous efforts were made over a weekend to obtain further supplies” (Professor Gazzard). In any event this “did not adversely affect his HIV treatment” (Professor Gazzard again). Although the judge referred to Dr Wood, Professor Gazzard (the Secretary of State’s expert) and Dr Narouz, he did not in terms refer to the witness statements of Dr Geraint Thomas, the senior partner at Saxonbrook Medical Centre in Crawley, which was contracted to provide primary healthcare services at the IRC. They provide a credible account to the effect that there was no significant interruption in the supply of medication to TN at the material times. To the extent that there was an issue about one or more missed appointments the explanations are consistent with misunderstanding or inadvertence without adverse consequences.

In my judgment, TN’s case on mismanagement was and is hopeless. It cannot be said that the judge was wrong to reject it. Indeed, on the entirety of the material before him, he would have been wrong to accept it.

CJ

The judge’s conclusions about CJ’s management are set out in paragraphs 62-63 of the judgment in the following terms:

“… there were occasions when he did not take his medication. There seems to be some degree of over-reporting by CJ since, as Professor Gazzard explains, Dr Narouz switched CJ from two doses to one dose a day. The system for recording taking doses at the Immigration Removal Centre did not always note when CJ arrived late to obtain his medication. In CJ’s own witness statement, he concedes that there were earlier occasions when he forgot. CJ had had adherence problems outside of detention when he was still in the community. Dr Wood attributes the problem to the lack of adequate supervision … he commends the dosette box, in which a patient has his supplies in advance in a separate container for each day. Professor Gazzard comments that, if anything, CJ was in a better position in detention as compared with the position he was in when in the community. I note that the Secretary of State’s operating standards favour patients taking responsibility for their own medication since, once detainees are in the community, they will need to develop their own mechanisms for taking medication on a regular basis. I also note that, on 16 September 2009, the medical notes record that it was suggested to CJ that he should set his mobile phone on an alarm to remind him of the need to take medicines on a regular basis.

In my view, CJ forgetting to take his medication does not show treatment failure arising from detention. The experts on both sides agree that any medication failure has had no long-term detrimental effect on CJ’s health … Overall, there was no breach … of the common law or ECHR standards in CJ’s case.”

The judge also referred to a disagreement between Dr Wood and Professor Gazzard about an alleged need for neurological and other assessments and therapy, noting that “in any event, the therapies Dr Wood suggests were available to CJ in detention, through the NHS”.

The central complaint about the judge’s conclusions in relation to CJ is concerned with gaps in medication and missed appointments. As regards gaps in medication CJ was not supplied with a stock of medication for him to keep in his room. In his case, there was a conscious clinical decision which required him to collect his medication each day. In his witness statements, Dr Thomas explains the factors that are taken into account when deciding upon the appropriate procedure for each detainee. It cannot be said that this approach was irrational in concept or in its application in CJ’s case. Dr Thomas describes how CJ forgot to attend for collection on occasions and how increasingly pro-active measures were taken by staff, albeit falling short of entrusting him with custody of a stock. Whilst this may have fallen short of the best practice advised in the BHIVA guide, in my judgment it does not approach evidence of breach of a common law or ECHR duty such as to impact on the lawfulness of detention.

The evidence about missed appointments, taken as a whole, is not such as would enable this Court to say that the judge was wrong not to have made adverse findings. Dr Thomas provides a detailed account of when and why some hospital appointments were missed. The explanations include security, transport and weather conditions. Missed appointments were generally rearranged and, in any event, did not have an adverse effect on CJ’s health or treatment. There is some conflict or at least tension between Dr Thomas and Dr Narouz about some of these events, but nothing that required the judge or us to reject the account of Dr Thomas.

I am entirely satisfied that the judge reached a permissible, indeed the correct, conclusion in relation to CJ.

MD

In the case of MD there was evidence of missed medication in November 2009 and February 2010 and of an increase in viral load in April 2010, shortly before his release from detention in May 2010. The judge’s conclusions, set out in paragraphs 59-61 of his judgment, were as follows:

“He started his therapy in October 2009 … By February 2010 the viral load had fallen to be undetectable, indicating that the therapy was working. In April, however, there was an increase in viral load. The medical records are not in such a state as to enable me to make definitive findings but, doing the best I can and applying the civil standard, it seems to me that certain conclusions are possible. First, there is no basis for Dr Wood’s suggestion that in November/December 2009 MD missed 1 to 2 weeks of medication but secondly, there is good evidence that in a three day period from 21 to 23 November 2009, MD ran out of his medication. His patient print-out reveals that, on 12 November, he had only a week’s supply left. Why this is the case is unclear because his next appointment was to be on 24 November 2009. In any event, in the following week, he saw the clinic at the Immigration Removal Centre twice about his medication, but that was so that he could have supplies on his return to Angola, his removal directions having been set. Then, on 23 November, there is a note that he had run out of medication three days previously, which coincides with what the note of 12 November suggests.

There is then what Dr Wood describes as ‘several days’ of missed drugs in February 2010; MD’s solicitor says two days. On MD’s account it seems that there was only one day of missed medication. He was given his drugs on 12 February and Dr Narouz records that he had not been taking his ‘meds’ yesterday and today, ie on 12 February 2010. I cannot speculate what their conclusions would have been if they had based them on the more likely factual premises. In my view, Professor Gazzard comes closest. He says explicitly that the loss of one day in February 2010 was not significant. He continues that the apparent several days gap in late 2009

‘is much more serious and there would be an approximately 10 per cent chance that drugs resistance to one of the elements of the contradiction would have developed when therapy was restarted.’

Given this, it cannot be said, in my view, that in MD’s case, the ‘management failure’ in November constituted such a breach of the Hardial Singh principles as to make MD’s detention unlawful. Assuming that the increase in viral load in April 2010 was attributable to the three day gap in medication supply in November 2009, this in my view … still does not constitute a breach of the Hardial Singh principles. In April 2010, MD refused his consent for the Secretary of State to see medical information. He was released in May. We are in the dark about the viral load after the April measurement. Nor, in my view, was MD’s health at any point at a sufficient level of severity to constitute a breach of the standards which the Strasbourg Court has established in the case of detainees.”

Mr Fordham submits that these findings ignore or do not sufficiently take account of aspects of the evidence. First, on 8 January 2010, one of Dr Thomas’ colleagues had reported to the immigration authorities that MD was “not fit to fly” and that “his treatment is failing”. Secondly, the evidence about viral load went further than the findings suggest. Dr Narouz stated:

“On 15 February 2010, MD’s viral load … was undetectable. However, it was detectable on 7 April (1891 copies/ml) and in his last testing on 10 May (947 copies/ml). This indicates failure of treatment. As MD did not report vomiting or diarrhoea the most likely explanation is the repeated missing of medication. Missing tablets can lead to the development of viral resistance which can lead to failure of treatment. Resistance testing of his blood, which was done on 29 September 2009 before starting his antiretroviral therapy, did not show any viral resistance. However, his viral resistance testing, which was done on the blood sample that was taken on 7 April 2010 and also on 10 May, after failure of his treatment, showed viral resistance. We had to stop his current failing medication. He started a new regimen of HIV medication on 5 July.”

Professor Gazzard, having described the medication gap in November 2009 as “much more serious”, opined that “the cause of this apparent interruption in November 2009 is as often multi-factorial”. By that he meant that responsibility for it was split between community nurses, Saxonbrook and Dr Narouz.

I accept Mr Fordham’s submission that the judge’s consideration ought to have contained more reference to this material. However, it did not stand alone. The judge did not refer to the evidence of Dr Thomas who made three witness statements in which the case of MD was addressed. When reading his account, it is helpful to keep in mind that in November 2009 MD had unsuccessfully challenged the second removal directions by an application that was rejected as being totally without merit. Further removal directions had been set for 20 November. Dr Thomas states that at a hospital appointment on 21 October, MD had been provided with one month’s medication. This should have lasted until about 20 November. The community staff reviewed him on 12 November. He expressed concern that he only had one week’s medication left and that he had removal directions set “for a few days time”. The hospital records disclose that further medication was requested on 12 November, that it was made available in the hospital pharmacy on 13 November but only delivered on 23 November. It seems that the primary or community care staff had been leaving messages in the intervening period but with no immediate response. On 15 November steps had been taken with a nurse to provide MD with a supply of medication to take to Angola. The UKBA had confirmed to him that he could receive appropriate treatment there. In the event, he was not removed and he received further medication on 23 or 24 November.

The mere fact of a three-day interruption in the availability of MD’s medication does not in itself establish that his detention became unlawful in or at some point after November 2009 but before his release in May 2010. Whilst it tends to show that mistakes were made and to justify an inference that there was a causal connection between the November interruption and the later increase in viral load and antiretroviral resistance, these matters were detected and addressed. Even if one or more of those involved was negligent (and it is not necessary to make a finding about that), whilst that might, subject to causation, sustain an action for damages, it does not by itself lead inexorably to a finding of unlawful detention.

I have not lost sight of the evidence that MD has developed an immunity to his previous medication probably as a result of the interruption in supply in November 2009, that it is likely to be difficult or impossible for him to obtain continuity with his present medication in Angola and that this will be deleterious to his health and life expectancy (although it is not suggested in these proceedings that his removal would breach Article 3 of the ECHR for this reason alone). However, the continuing lawfulness of his detention between November 2009 and May 2010 must be assessed not just on the basis of what happened in November but also in the context of all the circumstances to which I have referred, including the anticipated removal of MD on 20 November. It cannot be said that the medical arrangements for detainees which had been made by the Secretary of State by contracting with primary healthcare providers and a NHS hospital were inherently inadequate, nor that he knew or ought to have known of systemic difficulties at that time. Moreover, the evidence about the events in November is not entirely consistent or clear as to where any fault lay and judicial review proceedings are not designed to resolve such issues in the face of differences in explanation from, in particular, Dr Narouz and Dr Thomas.

In my judgment, it was open to the judge to conclude that the November interruption (with or without the later one-day interruption in February) was not sufficient to require the Secretary of State to bring the detention to an end. Neither the common law nor the ECHR is so simple as to provide that medical error in relation to a detainee must lead inevitably to the ending of his lawful detention. I think that this is what the judge had in mind when he said that MD’s state of health did not at any point reach a sufficient level of severity to constitute breach of the standards in relation to detention. Although MD’s case has caused me more concern than those of TN and CJ, once the case was lost on the construction of the Secretary of State’s policy and the adequacy of the system (the BHIVA guidance point), the allegation of unlawful detention was always going to be difficult to sustain, even on the assumption that mistakes were made.

It is appropriate to record that we received submissions on the question whether this was a “very exceptional circumstances” case in the context of paragraph 55.10 of the Secretary of State’s policy. However, in the light of my conclusion on the construction of “those suffering from serious medical conditions”, it is not necessary to decide that issue. Also, it was made clear by Mr Fordham at the outset of his submissions that he reserves the right to pursue other matters in separate proceedings. It would be inappropriate to comment upon that.

It follows from what I have said that I would dismiss the appeals of all three appellants.

I agree with the clear and cogent judgment of Maurice Kay LJ. Where there has been any violation of Article 3, a release from detention is ordered only in exceptional circumstances (Aleksanyan, above, at para 136), which I am satisfied were not present here in the case of any of the appellants for the reasons which Maurice Kay has explained.

However, I leave open the question whether, in view of the potentially very serious consequences of the treatment received by MD during his detention (his expert’s opinion is that his life expectancy may have been reduced from several decades to one to three years in the event of his return to Angola), there was a violation of Article 3 of the Convention in his case such as to entitle MD to claim damages against the (appropriate) Secretary of State. That issue does not arise on the relief claimed in these proceedings and may raise some difficulties given that it is not yet finally decided whether he is to return to Angola. It was, moreover, outside the scope of these proceedings to investigate fully the adequacy of the systems adopted in this case, and those systems were not, as I read the evidence, fully investigated before the judge. Happily there have been some changes in practice which should help reduce the risk of a similar occurrence in future.

As to the weight to be given to the BHIVA guidelines, while they have not in this case enabled the appellants to succeed, it is clear that authoritative documents of this nature can provide a court with important background information as to the healthcare needs of certain persons, in this case, persons who are HIV+. Such information can provide the essential foundations for determining whether medical treatment given to a person results in a violation of Article 3.

I agree that the appeals should be dismissed for the reasons given by Maurice Kay LJ.