ASK v The Secretary of State for the Home Department

Introduction, Issues and Conclusion

The issue in this case concerns an allegation that in 2013 the Claimant – “ASK” – was unlawfully detained in an Immigration Removal Centre (“IRC”) pending removal from the United Kingdom and, once he was definitively declared unfit to fly, detained for an unreasonably long period of time before eventual transfer to a psychiatric unit. I was told that there are a growing number of similar cases before the Courts.

The case raises a number of issues.

First, the implications of the recent judgment of the Supreme Court in R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department [2016] UKSC 19 (“O v SSHD”) and the change that it has brought to the law relating to detention, in the light of R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ 45 (“Das”). In O v SSHD the Supreme Court modified the test for when a person awaiting removal could be detained in a detention centre by rejecting the view of the Court of Appeal in Das that the Defendant was not required to take account of the possibility that a detainee would receive better care and treatment in a psychiatric unit relative to that available in the IRC.

Second, the extent of the duty on the Secretary of State to make inquiries as to a person’s mental health before she transfers an immigration over-stayer to an IRC and whether it is sufficient to complete the medical assessment only once the person has been detained?

Third, whether there is a duty upon IRC caseworkers when they complete their records to refer expressly to HO policy and the questions they need to address and whether the omission of such information or entries in recorded form has significance in law?

Fourth, how a court is to assess the point in time at which a detainee must be treated as definitively unfit to fly for the purpose of determining when an otherwise legitimate rationale of detention for the purpose of removal ends?

Fifth, once a decision is taken that a detainee must be transferred to a psychiatric unit under the Mental Health Act 1983 (“MHA 1983”) what is meant by “prompt” transfer and in particular what happens if there is disagreement between the transferring clinicians who issue certificates under sections 47 and 48 MHA 1983 and the receiving clinician(s) to whom the IRC wishes to transfer and entrust the detainee?

Sixth, how the Court should evaluate different types of evidence including: caseworkers reviews and notes, contemporaneous clinical notes and reports, and subsequent (ex post facto) expert reports which rely upon earlier notes and clinical reports.

Notwithstanding the range and complexity of the legal issues raised I have ultimately concluded, on the evidence, that howsoever the legal complaint is formulated, the claim fails. I can summarise my conclusions in the following way:

In the course of argument a major dispute arose as to the allocation or division of responsibilities as between various Government departments and entities for various aspects of the treatment of detainees in detention centres suffering from mental health problems. Ms Julie Anderson, for the Secretary of State, argued that many of the alleged errors were in law and fact if established, the responsibility of bodies or entities other than the Defendant. To take one illustration the process for effecting a transfer from an IRC to hospital is regulated by the MHA 1983 and is a clinically driven process. The psychiatric opinions of doctors, the hospital units where (and to whom) a patient should be sent, and whether the target hospital (or clinician) was obliged to accept a patient if the resident clinicians disagreed with the clinical assessment of the transferring doctors, were all issues said to be beyond the remit and control of the Secretary of State for the Home Department. Because of the potential ramifications of this issue for this case and generally, at the completion of the main hearing, proceedings were adjourned to enable the various Government Departments said to be affected and the Claimant to address a series of questions on this issue. Because of intervening events which absorbed the attention of the Government (viz the Brexit referendum) the exchange of submissions took considerably longer than was initially anticipated and this, regrettably, significantly delayed the completion of this judgment. When I made directions for the preparation of these submissions I had not formed a clear view of the merits of the Claim. In the course of preparing this judgment however I concluded that on the evidence the Claim fails. On reflection in these circumstances I did not think it was appropriate to express a view on what are really quite complex and important issues. What I have done instead is to set out in Annex I to this judgment a relatively detailed summary of the competing submissions to act as a guide to other parties should this issue arise in the future. I have also included the order that I made as Annex II, also for future reference.

The Relevant Law

Ms Harrison QC for the Claimant relies upon an array of statutory and common law duties and policy guides. In significant measure these overlap. They amount to a 360° appraisal of all aspects of ASK’s treatment. In this section of the judgment I set out a summary of the relevant legislative and common law framework relied upon by the Claimant. I address the following:

The MHA 1983 confers upon the relevant Secretary of State the power to transfer individuals, including detainees in IRC, to hospital on account of their mental condition. Section 2 MHA 1983 (“Admission for assessment”) provides:

“(1)

A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as “an application for admission for assessment”) made in accordance with subsections (2) and (3) below.

(2)

An application for admission for assessment may be made in respect of a patient on the grounds that—

(a)

he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b)

he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(3)

An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with.

(4)

Subject to the provisions of section 29(4) below, a patient admitted to hospital in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the following provisions of this Act.”

Section 3 (“Admission for treatment”) provides:

“(1)

A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.

(2)

An application for admission for treatment may be made in respect of a patient on the grounds that—

(a)

he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b)

…

(c)

it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section and

(d)

appropriate medical treatment is available for him.

(3)

An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—

(a)

such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d) of that subsection; and

(b)

a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.

(4)

In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.”

Section 48(1) and (2)(d) (removals to hospital of other prisoners) empowers the Secretary of State to remove to hospital persons detained for immigration purposes upon the receipt of reports such as are specified in section 47 (from two registered medical practitioners who opine that the person is suffering from mental disorder which is of a nature and degree which makes it appropriate for him to be detained in a hospital for medical treatment and that appropriate treatment is available) which satisfy the Secretary of State that: The (a) person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; (b) he is in urgent need of such treatment; and (c) appropriate medical treatment is available for him.

Administrative detention will be unlawful on public law grounds if the Secretary of State fails properly, i.e. lawfully, to apply her policy in Chapter 55.10 of the Enforcement Instructions and Guidance (“EIG”). Lord Dyson in R (Lumba) v Secretary of State for the Home Department (JUSTICE and another intervening) [2011] UKSC 12 (“Lumba”) paragraph [34] stated: “[I]mmigration detention powers need to be transparently identified through formulated policy statements”.

The Defendant’s published policy, at the time the Claimant was detained, in relation to continuation of detention in cases of mental health, at the time the Claimant was detained, is set out in Chapter 55 EIG entitled "Detention and Temporary Release". It provides (so far as relevant): (i) at paragraph 55.1.1 that the power to detain had to be retained in the interests of maintaining effective immigration control but that there was a presumption in favour of release; (ii) at paragraph 55.8 that, following the commencement of any detention, reviews of that detention were necessary in order to ensure that it remained lawful and in line with policy; and (iii), that detainees were to be provided every 28 days with written reasons for their continued detention, based on the outcome of the reviews.

Paragraph 55.10 EIG addresses the position of persons suffering from mental health conditions and is entitled "Persons considered unsuitable for detention". It provides for continued detention in very exceptional circumstances and also introduces as a test whether the person’s mental illness can be “satisfactorily managed” within detention:

“The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prison:

…

Those suffering from serious mental illness which cannot be satisfactorily managed within detention … In exceptional cases it may be necessary for detention at a removal centre or prison to continue whilst individuals are being or waiting to be assessed or are awaiting transfer under the Mental Health Act.”

In O v SSHD (ibid) the Supreme Court considered the scope of Chapter 55.10 EIG. A summary of the main conclusions is as follows. First, when considering whether there are very exceptional circumstances which make a person suitable for detention even though his or her mental illness cannot satisfactorily be managed there, the caseworker has to weigh the severity of any risks of offending or further offending and of absconding (ibid paragraph [19]). Second, Chapter 55.10 should be considered as part of detention reviews (ibid paragraph [25]). Third, the Court must interpret Chapter 55.10 for itself and not ask whether the interpretation placed upon it by the Secretary of State is reasonable (ibid paragraph [28]). Fourth, the policy must be considered as a whole (ibid paragraph [57]).

Paragraph 55.10 EIG refers, as a benchmark to be applied to those detainees with mental health issues, to a standard of “satisfactory management”. The question must be asked: Can the person’s condition be satisfactorily managed in detention? This may be encompassed within the question “can a person’s continued detention be justified,” but it is not necessarily the same as or coextensive with that question and if, in a given case, the Defendant answers this latter question “yes” it still remains to be shown that the Secretary of State has come to that conclusion upon the basis that the person’s condition can be satisfactorily managed within detention (as opposed to somewhere else such as in the community or in hospital). Important guidance as to the principles to be applied has been given in case law.

In general terms the standard of healthcare provided to detainees with mental health problems should be equivalent to that provided in the community (O v SSHD (ibid) paragraph [29]). NHS England is responsible for commissioning the provision of all health services in IRCs as well as in prisons in England. This is pursuant to regulations made under section 3B(1)(c) of the National Health Service Act 2006. The level of health care that NHS England must arrange to be provided is reflected in two principles identified in the Partnership Agreement, first published in 2013 and republished in April 2015, between Home Office Immigration Enforcement, NHS England and Public Health England, at page [12]:

“• Detainees should receive health care equivalent to that available to the general population in the community with access to services based on clinical need and in line with the Detention Centre Rules; and

• Health and wellbeing services in IRCs should seek to improve health and wellbeing (including parity of esteem between services which address mental and physical health)...”

In O v SSHD the Supreme Court accepted that under Chapter 55.10 a person’s detention could, exceptionally, be continued notwithstanding the conclusion that this was not optimal in terms of satisfactory management. The Court stated that “in formulating policy that, save very exceptionally, management of serious mental illness in an IRC, if not "satisfactory", should precipitate release, the Home Secretary has adopted a word of extreme and appropriate elasticity. It catches a host of different factors to which the circumstances of the individual case may require her to have regard” (ibid paragraph [30]).

More generally the Court approved of the analysis of the Court of Appeal in Das (ibid). In a judgment with which Moses and Underhill LJJ agreed, Beatson LJ, at paragraphs [45] - [47] and [65] - [70], offered guidance on the phrase “satisfactory management”. The Supreme Court agreed with this judgment save in one important respect. In an aside, in paragraph [71] of his judgment, Beatson LJ expressed an inclination to accept the Home Secretary's contention that, if the management of an illness in an IRC was likely to prevent its deterioration, it would be satisfactory even if treatment was available in the community which was likely to secure its improvement. Paragraph [71] stated:

“71.

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

The Supreme Court differed in that the requirement of “satisfactory management” would not exclude the relevance of treatment, available to the detainee only if released, which would be likely to bring about a positive improvement in his or her condition. If it was likely that such treatment would actually be made available to the particular detainee (as opposed to being available only in principle to all members of the community) then its availability should be taken into account and the onus would then be upon the Home Secretary to inquire into its availability. This is a question that in a proper case needs to be asked. If the standard of care (aimed at improving health as well as preventing deterioration) provided to a detainee in an IRC was not equivalent to that which would be made available to the detainee if released it was questionable, considered the Supreme Court, (subject to the strength of other relevant factors) whether the management of that person’s illness in the IRC was “satisfactory”. Satisfactory “management” did not mean optimal management but a narrow construction of the word as indicating no more than "control" of the illness lacked principled foundation especially where, in very exceptional circumstances, the detainee could continue to be detained in the IRC under the policy notwithstanding the unsatisfactory management of her illness there.

The Supreme Court (ibid, paragraph [31]), in other respects, endorsed the basic thrust of the Court of Appeal in Das where emphasis was placed upon the “practical” nature of the inquiry to be undertaken.

“31.

Above all the policy in para 55.10 of the manual mandates a practical inquiry. As Beatson LJ stressed in the Das case, the phrase "satisfactory management" should be interpreted with regard to its context and purpose (para 45); should not be subjected to the fine analysis appropriate to a statute (para 47); nor invested with a spurious degree of precision (para 65). An important part of its context is that the management of the illness takes place in detention pending likely deportation. Treatment of a patient who finds herself in the doubly stressful circumstances both of detention and of likely deportation has its own considerable, extra challenges; treatment in those circumstances might be satisfactory even if it would not otherwise be satisfactory.”

The enquiry must be practical. It is not to be subjected to “fine analysis” nor invested with a “spurious degree of precision”. It must bear in mind that the context and purpose is one of removal in the public interest and it also takes account of the fact that by its very nature detention is stressful.

Beatson LJ in Das (ibid) at paragraphs [51ff] made clear that when assessing a detainee's mental health the Defendant had to exercise independent judgment. There could be no question of her abdicating her statutory duties to the relevant health officials or clinicians; although this did not mean that she was not entitled to place proper reliance upon reports properly prepared and reported to her (ibid paragraph [70]). The Secretary of State is required to consider all relevant evidence but is entitled to rely upon the opinions of the responsible clinicians and in the event of a conflict form a view as to which advice to prefer.

There is a duty of constant supervision of detainees with medical conditions and of reporting to the Defendant. Rules 33 – 35 of the Detention Centre Rules 2001 (SI No 238 of 2001) provide for a regime of monitoring and supervision. Rule 33 provides that all detention centres shall have a health care team including a general practitioner.

Rule 34 stipulates that every detained person is to be given a physical and mental examination by a medical practitioner within 24 hours of admission. Rule 35 provides:

“(1)

The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

…

(4)

The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.

(5)

The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) for his supervision or care.”

The purpose of Rule 35 is to ensure that vulnerable detainees are brought to the attention of those with responsibility for authorising, maintaining and reviewing detention.

In Das (ibid) at paragraph [24] Beatson LJ, having reviewed the cases on mental health, offending by foreign nationals, the risk of re-offending and the risk of absconding, stated this of the relationship between mental health and other policy considerations:

“24.

Those cases… also show that these factors continue to be significant where the foreign national prisoner suffers from mental illness. Even where the policy now contained in §55.10 in principle applies, it will be necessary for the person considering detention to weigh the risk of harm to the public against the reason why that person would normally be regarded as unsuitable for detention. In the cases of those with mental illnesses who are not foreign national prisoners, the strength and weight of the policy concerning them will not be present. This means that, although the broad principles of assessment of the question whether detention is justified will be the same, some care should be taken in reading over from the result of the assessment of a case involving a person with a mental illness who is foreign national prisoner to the case of a person who is not”.

(Emphasis in original)

I can deal with this briefly. It is argued that the duty to make inquiries is engaged prior to detention. The Claimant argues that upon the making of the decision to detain ASK the Defendant had taken insufficient steps and measures of inquiry into his mental and medical health. The enquiries required to be made in the context of Chapter 55.10 policy are those set out by the Court of Appeal in Das at paragraph [67] as applied to the facts in O v SSHD at paragraph [33].

It is argued that the failure of a decision maker to ask the correct questions is irrational because the decision maker cannot then make a properly informed decision.

The Claimant relies in addition on Article 3 ECHR which enshrines a fundamental value of a democratic society. It prohibits torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour. In the event of a breach of Article 3 a person is entitled to “just satisfaction” under Article 41 ECHR and the Human Rights Act 1998. The Claimant argues that the Defendant breached Article 3 ECHR by continuing detention in an IRC following the conclusion of a clinician in April 2013 (see paragraph [113] below) that the Claimant was neither fit to fly nor fit to be detained in an IRC (including one with a psychiatric unit). It was submitted that treatment exposing an individual to the exacerbation of a naturally occurring mental illness, including relapse in a serious psychotic condition such as schizophrenia, is capable of causing suffering which engages Article 3: Pretty v United Kingdom (2002) 35 EHRR 1 at paragraphs [49] – [52]; and, Bensaid v United Kingdom [2001] 33 EHRR 205 at paragraphs [37] – [46]. In Barilo v Ukraine Application No 9607/06 (16^th May 2013) at paragraph [68] the European Court of Human Rights stated, in connection with the duties owed pursuant to Article 3 to detainees, as follows:

“The authorities must ensure that, where required by the nature of the medical condition, supervision is regular and systematic, and that there is a comprehensive therapeutic strategy aimed at curing the detainee’s diseases or preventing their aggravation, rather than treating them on a symptomatic basis...”

The Claimant relies further upon R v Drew [2003] UKHL 25 (“Drew”) at paragraph [19] where it was accepted by Lord Bingham that the failure to transfer a detainee in need of hospital treatment for a serious mental illness could engage Article 3 ECHR. The case arose in the context of a prisoner convicted of two offences of causing grievous bodily harm. The prisoner had not been insane when he committed the offence nor was he unfit to be tried when he pleaded guilty but he was known to suffer from a mental disorder. Two approved consultant psychiatrists were of the opinion that he was suffering from schizophrenia and would be a serious danger to the public if released and recommended that a hospital order be made pursuant to Section 37 MHA 1983 with a restriction upon release, unlimited in time, under Section 41. The Judge, however, took a different view and imposed a sentence of life imprisonment with a minimum term of 2 years and 8 months. The Court of Appeal dismissed the appellant’s appeal against sentence and his appeal to the House of Lords was also dismissed. It was held that his mental condition did not absolve him from criminal culpability. It was in this context that it had been submitted that in imposing a sentence without regard to the appellant’s mental condition there had been a breach of Article 3. Lord Bingham stated:

“19.

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

For a violation of Article 3 to arise there must therefore be: (a) a denial of medical treatment which is available in hospital; (b) which is of a nature which the person’s mental condition requires; (c) where evidence exists that the person concerned suffered serious consequences as a result of the denial; (d) a failure to exercise a transfer power to hospital “promptly”; and (e) the consequences suffered by the person in question reach a level of “sufficient severity” to engage the operation of Article 3.These conditions are expressed in Drew as being cumulative.

The case law was reviewed by Mr Justice Singh in HA (Nigeria) v SSHD [2012] EWHC 979 (Admin) (“HA Nigeria”). At paragraph [173] Singh J identified (by reference to the judgment of the European Court of Human Rights in Kudla v Poland (2002) 35 EHRR 11) certain features of the case law:

“The following principles relating to Article 3 are well-established in the Strasbourg jurisprudence and can be summarised by reference to the decision of the European Court of Human Rights in Kudla v Poland (2002) 35 EHRR 11, although many other cases could be cited:

(1)

Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (para 90).

(2)

However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (para 91).

(3)

The Court has considered treatment to be inhuman because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either bodily injury or intense physical or mental suffering (para 92).

(4)

It has deemed treatment to be degrading because it was such as to arouse in the victim feelings of fear, anguish and inferiority capable of humiliating and debasing them (para 92).

(5)

On the other hand, the Court has consistently stressed that the suffering and humiliation involved must go beyond that inevitable element connected with a given form of legitimate treatment or punishment (para 92). Measures depriving a person of liberty may often involve such an element (para 93).

(6)

It cannot be said that Article 3 lays down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to receive a particular kind of medical treatment (para 93). Nevertheless, the state must ensure that a person is detained in conditions which are compatible with his dignity and that the manner and method of execution of measures used do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (para 94).”

This iteration is not inconsistent with Drew. Case law also establishes that whether a particular form of treatment is “degrading” requires an assessment of whether the object of the treatment is to humiliate and debase the person concerned and whether it adversely affected that person’s personality in a manner incompatible with Article 3, though the absence of any such adverse purpose does not conclusively preclude a finding of violation of Article 3: cf Kalashnikov v Russia (2008) 36 EHRR 34 at paragraph [95] cited by Singh J in HA at paragraph [174].

An obligation may arise even in the absence of ill-treatment from the State or from third parties: See in this regard Pretty (ibid) at paragraph [52]:

“... the suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.”

Singh J, in HA (ibid), at paragraph [177] acknowledged that the suffering associated with a relapse in mental health was capable of falling within Article 3. The Claimant in the present case points out that the High Court concluded that there was found to be a breach of Article 3 in the case of HA. It is, therefore, instructive to identify the circumstances in which the breach was found to exist in that case. The factors the Judge held to be relevant included the following:

The second component of the Claimant’s argument under Article 3 was that the entire mental health system in IRC’s was systemically defective. The Claimant relies upon a report dated January 2016 by Mr Stephen Shaw entitled “Review into the Welfare in Detention of Vulnerable Persons – A Report to the Home Office by Stephen Shaw” (Cm 9186). Mr Shaw conducted a research project into conditions of vulnerable persons in detention upon the instigation of the Home Office. As part of his exercise, he conducted an audit into the route into detention, the legal framework and all Home Office policies governing immigration detention. Generally his audit: “... found no gaps or overlaps in the policy framework, and the individual policies are regularly reviewed”. There was no case for root-and-branch reform of the Detention Centre Rules. However, he considered that a process of updating was overdue and he made a number of recommendations. Of relevance to the present case is his conclusion about Rule 35 of the Detention Centre Rules which is intended as a key safeguard for those who have been subject to torture, or whose health is likely to have been seriously affected by continued detention (see paragraphs [26] and [27] above). He concluded that Rule 35 did not do what it was intended to do, namely protect vulnerable persons finding themselves in detention. The fundamental problem was “... a lack of trust placed in GPs to provide independent advice”. He recommended that the Home Office immediately consider an alternative to the current rule. As part of Mr Shaw’s review he commissioned a sub-review from Mr Jeremy Johnson QC in relation to recent cases in which the domestic courts had found a violation of Article 3 in respect of individual detainees. The Johnson Report was before the Court. The conclusion of Mr Johnson was that upon the basis of decided case law there was a particular need to focus upon healthcare assessment and treatment upon failings in detention reviews and failures of communication between different agencies. Mr Johnson also suggested that the case law could possibly indicate problems with “attitude and cynicism on the part of some staff”.

The Claimant also relies on Article 5(1)(f) ECHR which provides:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(f)

The lawful arrest or detention… of a person against whom action is being taken with a view to deportation…”

Article 5 is silent as to the place or conditions of detention which are required but, argues the Claimant, ECHR case law makes clear that there has to be a nexus or relationship between the basis or ground relied upon to justify the permitted deprivation of liberty and the actual place and the conditions of detention: see e.g. Ashingdane v UK [1985] 7 EHRR 528; Bonamar v Belgium [1987] 11 EHRR 1; Aerts v Belgium [1998] 29 EHRR 50; and Mayeka v Belgium [2006] 46 EHRR 23. The Court has found that Article 5 is capable of being violated where a detainee requiring psychiatric treatment has been denied this treatment in prison conditions: Aerts (ibid) and Ashingdane (ibid).

Article 5(1)(f) is procedural and is concerned only with whether steps are being taken by the state “with a view to removal”. It is not concerned with the correctness of the reasons for the underlying removal since these are dealt with by other provisions of Article 5. The Court has confirmed that Article 5(1)(f) does not demand that the detention of a person with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing. The provision provides a different level of protection to that provided under Article 5(1)(c) which does provide as a justification for the deprivation of liberty that the detained person poses a risk of criminality:

“(c)

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

In Chahal v United Kingdom Application 22414/93 (15^th November 2996) [1996] 23 EHRR 1860 the Court reiterated the required nexus between detention and deportation. It stated at paragraph [113]:

“The Court recalls, however, that any deprivation of liberty under Article 5 para 1(f) will be justified only for as long as the deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 para 1(f)…”

In Saadi v UK [2008] 47 EHRR 17 at paragraph [72] the Grand Chamber, in a similar vein, stated:

“72.

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

Later in paragraph [74] the Court elaborated upon the circumstances when detention will be considered arbitrary and/or disproportionate:

“74.

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

In determining whether detention is, in a given case, arbitrary the Court has acknowledged the importance of national law. In Tabassum v UK (Application No. 2134/10) at paragraph [16] the European Court of Human Rights stated that where the lawfulness of detention was an issue, including whether a procedure prescribed by law had been followed, the Convention referred essentially to national law. The Court emphasised, however, that adherence to national law was not per se sufficient and the detention still had to meet the requirement of non-arbitrariness by reference to factors such as those laid down in Saadi (ibid).

In R (Idira) v SSHD [2015] EWCA Civ 1187 the Court of Appeal (per Lord Dyson MR) endorsed the Grand Chamber judgment in Saadi as the leading authority. In paragraphs [40] – [44] the Master of the Rolls stated:

“40.

In my view, however, the most important Strasbourg authority is the Grand Chamber decision in Saadi which was plainly intended to set out authoritative guidance as to the correct approach to article 5(1). Para 74 states that the requirement that the detention ‘must be closely connected to the purpose of preventing unlawful entry’ is distinct from the requirement that ‘the place and conditions of detention should be appropriate’. The latter requirement is referred to in para 78 as ‘the third criterion’. Mr Roe seeks to interpret the third criterion as if the court had said that the place and conditions of detention should be ‘appropriate for the relevant article 5(1) purpose’. But that is not what the court said.

41.

In my view, para 78 shows that the court had in mind a broader evaluative exercise than that for which Mr Roe contends. On Mr Roe's approach, it would have been irrelevant that the Oakington Centre had the various recreational and other facilities mentioned by the court. The use of the phrase "suitable conditions" in para 80 also indicates that the court had in mind a broader exercise.

42.

The national court must, therefore, decide whether the place and conditions of detention are appropriate or suitable. I find support for this broad approach in (i) the plain and natural meaning of the language used by the court in paras 69 and 74; and (ii) the fact that in para 74 the court stated that the place and conditions of detention should be appropriate ‘bearing in mind that the measure is applicable “not to those who have committed criminal offences, but to aliens who, often fearing for their lives, have fled their own country”'.

43.

The significance of (ii) is that it shows that the court envisaged an evaluative exercise which takes into account all material facts and not only the question whether the detention furthers the relevant article 5(1) purpose. In most cases, the immigrant detainee will not have committed criminal offences. The fact that at para 74 the court mentioned this as a relevant factor in determining whether the place and conditions of detention are ‘appropriate’ indicates that it envisaged a broad evaluative exercise.”

The Claimant argues that upon the facts of the present case his detention in an IRC for five months after he was assessed as needing hospital treatment (i.e. from 13^th April 2013 until his transfer) was a clear breach of Article 5 since his continued detention was clearly not for an immigration purpose. He could not be removed given his lack of mental capacity and he was practically unfit to be removed.

As an alternative to Article 3 the Claimant also cited Article 8 ECHR on protection of private life upon the basis that even if (ex hypothesi) the treatment provided to ASK did not meet Article 3 levels of severity it nonetheless violated his Article 8 rights.

The Claimant relies further upon common law constraints upon the exercise of powers. It is submitted that once it was determined that ASK was unfit to fly and/or fit to be detained the Defendant was under a duty to release ASK or transfer him to a secure unit with great expedition and that (unlawfully) neither outcome occurred. The Hardial Singh principles govern the relationship between detention and the imminence or foreseeability of actual removal. The principles governing this question were set out in the decision of Woolf J in R v. Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704. Today the most oft-cited formulation is by Lord Justice Dyson (as he then was) in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at [46]. More recently in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, at [22] Lord Dyson JSC affirmed the Hardial Singh principles. He summarised them in the following way: (i) the Secretary of State can only use the power to detain for the purpose of deporting the detainee; (ii) the period of detention must be no longer than that which is reasonable in all the relevant circumstances; (iii) if before the end of that period it becomes apparent that it will not be possible to effect deportation within it then the power should not be exercised; and, (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.

In Lumba (ibid) Lord Dyson observed that the Hardial Singh principles reflected basic public law duties to act consistently with the statutory purpose and reasonably in a Wednesbury sense. The principles were not exhaustive and included the public law duty of adherence to published policy. A person's mental health will affect the determination of what is a reasonable period for which to detain that person: see Baroness Hale in Lumba (ibid) at paragraph [218] and Dyson LJ in M v Secretary of State for the Home Department [2008] EWCA Civ 307 at paragraph [39] – where detention has caused or contributed to a person suffering mental illness that was a factor which "in principle" account should be taken of in assessing the reasonableness of the length of the detention. In such cases a critical question remains whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering.

It is for the Court itself to determine the answer to this question: See e.g. R (A) v SSHD [2007] EWCA Civ 804 per Toulson LJ at paragraph [62] and per Keene LJ at paragraph [74]; and, Kambadzi v Home Secretary [2011] UKSC 23. The assessment is to be made by reference to the circumstances prevailing as of the date of the decision in question and not with the benefit of hindsight taking into account current events occurring subsequently: Hussein v SSHD [2009] EWHC 2506 at paragraphs [105] – [106] per Sales J (as he then was):

“105.

… In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge.

106.

Further, the legality of detention may in principle be tested in court at any time while it continues, (when the court invited to assess it will of necessity have regard to the circumstances as they present themselves at that time) as well as after it has come to an end. But Miss Dubinsky's proposed approach would mean that the answer about the legality of detention at a given point in time could vary, depending on when the individual went to court. In my view, this would be profoundly wrong as a matter of principle. The individual's detention must either be lawful or not at that given point in time; it cannot be (apparently) lawful when tested then but at the same time be inchoately or potentially unlawful, depending on events occurring perhaps months or years later. Indeed, on the logic of Miss Dubinsky's argument, it would also be relevant if later still the individual did in fact engage in further criminal behaviour (as is now alleged against the Claimant, in respect of incidents in 2009) – then the lawfulness of the individual's detention on date x could change depending on whether a court looked at the position on date x itself (when the court would necessarily have to look at the circumstances as they appeared at that time and might, say, have found the detention to be lawful), or at a later date (when, perhaps, the individual had been released and had not re-offended, so that – according to the argument – the detention on date x might be found in fact to have been unlawful), or at a later date still (when, perhaps, having abstained from offending for a period, the individual had gone back to crime, so that – on the logic of the argument – the detention on date x might be found in fact to have been lawful again). That cannot be correct. The law creates rights which are stable, rather than rights which are subject to radical uncertainty of this kind.”

The point about hindsight was reiterated by Haddon Cave J in DK v SSHD [2014] EWHC 3257.

The Claimant seeks damages for unlawful detention. In Lumba (ibid) the Court of Appeal held that the detention of a person beyond the point in time when it was justified amounted to the tort of false imprisonment. The Supreme Court (per Lord Dyson MR) by a majority held:

“71.

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

The Claimants were subsequently awarded nominal damages of £1 each. In O v SSHD (ibid) the Supreme Court concluded that were the Defendant to be found to have committed breaches then this would “lead to the same result” (ibid paragraph [40]).

The Claimant next argues that the Defendant (in effect systemically) breached the public sector equality duty (“PSED”) in section 149 EA 2010 by: (i) applying a policy in Chapter 55.10 which was found to be unlawful because no consideration had been given to the PSED; and (ii), failing to have in place any or any adequate policy. Relevant principles relating to the application of the public sector equality duty were summarised by McCombe LJ in R (Bracking) v Secretary of State for Work and Pensions [2013] CCLR 479, paragraph [26]. Ms Harrison QC, for ASK, relied upon the following summary of the principles arising out of case law:

The Claimant argues that despite an undertaking to do so in HA (ibid) no EIA was completed by the time of the Claimant’s detention. The consequences of the Defendant’s failure is that no or no adequate steps were taken at all and/or since the judgment in HA in April 2012 and prior to the Claimant’s detention in 2013 to ensure that the policy and/or the practice pursuant to it did not (inter alia) operate to subject a person such as ASK to treatment that is discriminatory.

It is also said that the Defendant has given no consideration and/or made no provision for those disabled by mental illness such that they lack mental capacity to make relevant decisions in immigration detention. The rights, needs and welfare of this category of disabled person have not been addressed properly or at all in breach of the duty under section 149 EA 2010.

Further ASK was not provided with adequate medical care necessary to treat his serious medical condition in detention. He was subject to segregation and use of force to manage his condition. He was provided with a level of care seriously below that available to others suffering from the same serious mental illness. No or no reasonable steps were taken to assist ASK to alleviate the disadvantage of detention and being subject to forced removal arising from his lack of mental capacity.

Finally, the Claimant contends that as from the date of detention his mental state was deteriorating and the Defendant was on notice that he lacked mental capacity. He should either then or shortly thereafter in his best interest have been assisted by a responsible adult and/or legal representative who would have protected his rights. Had this occurred then his transfer to hospital would have occurred much sooner and would have prevented steps from being taken to remove him from the United Kingdom. As such the Defendant acted unlawfully.

Under section 2(1) MCA 2005 a person lacks capacity: “if at the material time he is unable to make a decision for himself in relation to a matter because of an impairment of, or disturbance in the functions of, the mind or brain”. Capacity is both issue and time specific, and may fluctuate (section 2(2)). Lack of capacity must be proved on the balance of probabilities (section 2(4)) with appropriate evidence: Masterman-Lister v Brutton & Co [2003] 1 WLR 1511. Decision makers must act in the best interests of a mentally incapacitated person (section 4). This duty applies “in circumstances where a person with capacity would take, or participate in the taking of, a decision”: R (Chatting) v LB Wandsworth [2012] EWHC 3595 (Admin) at paragraph [100].

In relation to restraint section 6(4) MCA 2005 safeguards an incapacitated person from the use of force or restriction on freedom of movement absent a reasonable belief that restraint is necessary to prevent harm to the person who lacks capacity. The force or restraint used must be proportionate to the likelihood and seriousness of harm.

The statutory Mental Capacity Act Code of Practice provides guidance on the application of the Act to “anyone who is working with and/or caring for adults who may lack capacity to make particular decisions” (V3/C/127-128). Those who must have regard to the Code include those “acting in a professional capacity for, or in relation to, a person who lacks capacity”. This includes those “involved in the care of people who lack capacity to make the decision in question such as ambulance crew, housing workers or police officers”. Paragraph [1.4] of the Code states: “The Act also aims to balance an individual’s right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves”. To that end the MCA 2005 provides for a range of safeguarding measures, such as the appointment of Independent Mental Capacity Advocates whose role is to ascertain and represent the views of a person who lacks capacity to other agencies to enable decisions to be made in his best interests.

There is a statutory presumption that a person has capacity: Section 1(2) MCA 2005. However, the MCA Code of Practice provides that when a person’s capacity is in question, a capacity assessment should be performed (ibid paragraph [4.34]).

In addition, protection of vulnerable adults is provided by safeguarding policy Guidance issued by the Department of Health and the Home Office in 2000. The guidance defines a “vulnerable adult” as a person over 18 “who is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation”.

At paragraph 2.14 the Guidance states that “abuse can take place in any context” including “custodial situations” and “other places presumed safe, or in public places”. At paragraph [4.3] the Guidance sets out the guiding principles for the development of multi-agency policy and practice for the protection of vulnerable adults which include principles measuring “that the law and statutory requirements are known and used appropriately so that vulnerable adults receive the protection of the law and access to the judicial process”.

It is argued that the Defendant erred in: (a) failing to direct or carry out formal assessment of the mental capacity of ASK to make relevant decisions prior to or at any time during the detention and despite his deteriorating mental state, including the failure to determine whether he had capacity to participate in the legal process of removal; (b) failing to provide any assistance or advice or representation from an independent responsible adult either a social worker contrary to policy (see R (Howard League for Penal Reform) [2002] EWHC 2497 at paragraph [139]) or a mental health advocate or lawyer; and/or (c) failing to consider and act in ASK’s best interests to safeguard his needs as a vulnerable adult.

It is argued that the mental health of ASK deteriorated as from 26^th January 2013 (see paragraph [96ff] below) and/or from 13^th April 2013 (see paragraph [113] below) he lacked mental capacity to participate in or understand information and/or to make decisions related to his removal from the UK, including the capacity to conduct legal proceedings. The Claimant relies upon expert evidence of Dr Vermuelen and Dr Sagovsky instructed on behalf of the Claimant and by the official solicitor. The Defendant was thus aware of circumstances indicating that ASK lacked capacity, she was thus under a duty to put in place a system to protect ASK and/or to take steps to ensure that decision making was in his best interests. The following reflects the type of evidence relied upon to support the argument: (i) the Claimant’s clinician reported in October 2012 that he lacked the capacity to make decisions about his management; (ii) he was found to be “rambling” and “difficult to follow” at the outset of his detention; (iii) on 22^nd April 2013 Dr Arsiwala noted that the Claimant “does not seem to understand his detention”; (iv) on 11^th May 2013 Dr Sultan assessed the Claimant in a medical report for transfer under section 48 MHA 1983 as lacking capacity and having very limited insight (see paragraph [117] below); (v) that assessment was confirmed by Dr Jabbar in a second section 48 MHA 1983 report on 12^th May 2013 (see paragraph [18] below); (vi) on 28^th May 2013 Dr Goldwyn reported that the Claimant lacked capacity to make decisions on his immigration situation and to instruct a lawyer in relation to those issues; (vii) 2013 Dr Dossett found the Claimant to lack the capacity to conduct litigation or instruct a lawyer; (viii) on 2^nd July 2013 the Defendant’s caseworker was concerned that he lacked capacity to make a decision about returning to Pakistan and in response healthcare confirmed on 3^rd July 2013 that the Claimant did not have such capacity; (ix) the Claimant was assessed by Dr Khan who confirmed lack of capacity to consent to treatment in a medical report on 6^th July 2013.

In the premises actions taken in serving notices of liability to removal designed to have legal effect and in taking steps forcibly to remove the Claimant from the UK regardless of his lack of capacity were unlawful. ASK was entitled to make representations about the lawfulness of such action but could not whilst lacking capacity and being unable to instruct lawyers to act on his behalf. Had an appropriate adult been appointed it is likely that ASK would have secured release from detention and/or transfer to hospital sooner.

Further by failing to have any or any rational system of procedure in place for ensuring that detainees lacking mental capacity are protected and treated in accordance with relevant statutory framework this creates an unacceptable risk of unfairness in the exercise of the discretionary power to detain: R (RLC) v SSHD [2005] 1 WLR 2219 at paragraph [15], as well as an unacceptable risk of breaches of Article 3 and 8 ECHR: Shahid v Scottish Ministers [2015] 3 WLR 1003.

The Claimant seeks a declaration that any decision and/or steps to remove the Claimant from the United Kingdom was unlawful because the Claimant lacked mental capacity to participate in any form of legal process and no or no adequate steps were taken to assess his mental capacity for this purpose and/or provide any assistance or advice or representation from an independent responsible adult either a social worker or a mental health advocate or lawyer and/or to consider and act in the Claimant’s best interests and to safeguard his need as a vulnerable adult.

The Approach to be Adopted to the Evidence

Before turning to consider the evidence in this case I set out some general observations about the approach to be taken to evidence in cases such as this. In particular a number of issues have arisen as to the weight to be attached to particular pieces of evidence with the parties having adopted what were frequently diametrically opposed views of the evidence. In Das (ibid) and in O v SSHD the Court of Appeal and the Supreme Court emphasised that the enquiry that had to be undertaken was a practical one which eschewed “spurious” attempts to achieve accuracy (see paragraphs [23] – [25] above). These authorities lay down a warning to Courts to exercise a proper degree of circumspection in the way in which they address the evidence.

In this case I am required to assess a significant number of medical and detention records. Many of these are abbreviated and in note form. Frequently they simply update earlier similar reports and notes and presuppose that the reader will be familiar with the prior history. When the author prepares each document he or she therefore assumes that they are being read in sequence as, in effect, an unfolding story or account. It is therefore essential for a Court to review the documents in the round and not to take snapshots and then treat the snapshot as typical or representative. This is especially important in a case involving the variable or evolving medical condition of a detainee where the true picture can be ascertained only by considering a sequence of notes and reports prepared over time. It follows therefore that if a caseworker writes (for instance) that a detainee is “fit to be detained” or “not fit to fly” then that might be a transient or conditional conclusion which could change within hours, days or weeks. If the conclusion is based upon the patient’s failure at a given point in time to adhere to a medication regime but the clinician is confident that the patient can be brought into a state of consistent self-medication then, obviously, the conclusion that the patient is unfit to fly may be both conditional and temporally limited. It would not be valid to alight upon an isolated statement of this nature and treat it as the definitive position.

Not every documented conclusion carries weight. It is important to attribute weight only to a view, opinion or conclusion from those competent to express that view, opinion or conclusion. Many documents are authored by caseworkers who are not, for instance, psychiatrists or medical clinicians and they are not competent to express a view about such clinical matters. In practice non-specialist caseworkers often summarise or rely upon the reports of those who are competent and qualified. Where this happens it is important to consider the source of the report and not to assume that the case worker has properly transcribed or summarised the expert view.

Equally it is commonplace for clinicians to record and identify the material (such as prior treatment and diagnoses) upon which they have relied to form their opinions. The purpose is to provide the context for their own opinion. That material is not always being set out in the report upon the basis that it is necessarily represents a comprehensive or definitive account of every development in a person’s prior treatment. An illustration which arose in the present case concerned the stated observation of an expert that whilst the Claimant had been in IRC detention his condition had deteriorated. This was relied upon in argument upon the basis that it was a statement of absolute fact supporting the proposition that in the IRC the Claimant’s conditions had uniformly deteriorated. But as a conclusion it was simply not accurate. It did not reflect the totality of all of the past records which showed a far more fluctuating and variable position. The position was not static as the later expert described it. Where a report is based upon documents (such as records) which are not before the court then the Court needs to exercise care and to be aware that the report is a second-hand account and may not be complete or accurate.

Many documents relied upon in Court are prepared by busy caseworkers and clinicians who (understandably) do not agonise over the most felicitous turn of phrase. Frequently the notes are conclusionary or truncated and set out conclusions with only sparse reasoning. This might be because the author knows (or assumes) that the particular entry in the records will be read by professionals who understand the shorthand and the context. Some clinical or detention review reports are quite detailed and when this is the case it is reasonable to conclude they represent a more considered view; but conversely where a document or report is abbreviated or cursory and even conclusionary such brevity is not necessarily an indication of unreliability.

It is of the nature of litigation conducted with the benefit of hindsight that lawyers excavate into lacuna and interstices in and between the evidence before the Court. Small gaps may be portrayed with forensic skill as gaping holes. For instance Ms Harrison QC, for the Claimant, argued that the Court should draw the inference that the decision to detain was taken without the clinicians knowing what the Claimant’s drug regimen was. Ms Anderson, for the Secretary of State, fairly accepted that in principle it was a part of the duty of the Secretary of State when considering the detention of a person with mental health or other medical problems, to make due enquiries as to the drugs and medication that the putative detainee was taking as of the time of initial detention. It was submitted on behalf of the Claimant that on the present facts an inference to be drawn from a brief note of drugs prescribed was that only the drug in question had been prescribed and therefore not another drug and that the evidence hence showed that the Claimant was given an inadequate combination of drugs. It was argued that this evidenced a serious and material failure on the part of the Defendant to address herself to a very material consideration. However when the wider chronology was considered it became evident that the clinicians were uncertain, at the outset, of the Claimant’s pre-existing drug regime, but this was not due to any fault on their part and they took steps to remedy the situation with expedition. I have addressed this more fully at paragraph [166ff] below. The point is referred to here to illustrate the need for careful consideration of the entire chronology but also the need not to assume that every omission is a culpable one.

A facet of the need to adopt a “practical” analysis of the evidence involves avoiding demanding adherence to artificially high standards. In this case criticisms were made by the Claimant of the fact that in a number of detention reviews no express mention is made of Chapter 55.10 EIG. It was argued that this evidenced a failure on the part of the Defendant to address herself to relevant considerations. In response to my questions on this Ms Harrison QC, for the Claimant, fairly accepted however that the mere omission of a reference to a policy in a document was not dispositive. What matters is substance and not form. As I find as a fact the caseworkers were aware of the policy that they had to apply and in some (generally later) detention reviews cited expressly from the policy and sought to apply it in an express form and manner. In early reports however there is no reference to the policy. A Court should be slow to assume an absence of knowledge simply because a busy caseworker does not, mantra like, recite the policy in notes, reviews and reports.

The same point applies to the questions that a case worker or clinician should ask him or herself as an analytically sequenced framework leading to an answer. Ms Harrison QC criticised the caseworkers for not asking the sorts of questions which the Court of Appeal identified in Das and the Supreme Court identified in O v SSHD. I do not read those judgments as suggesting that caseworkers must set out and methodically answer each question sequentially and then explicitly record the answer in their notes. What the Court must do is view the evidence in the round to see whether in substance the Defendant has through her officials addressed the correct issues.

A witness statement has been served from Ms Kiran East on behalf of the Defendant, a Senior Executive Officer who was in charge of the detained casework team which had responsibility for the Claimant. Ms Harrison QC, for the Claimant criticised the statement and the deponent as inaccurate and misleading in certain respects. The statement sets out a chronological account of the approach adopted to the Claimant at every stage of this detention. It is largely constructed by reference to the documents in the case. I would make three points in this respect. First, this sort of chronological account prepared by an official with direct knowledge and responsibility for the case is helpful to a Court in piecing together a complex story in a logical and coherent manner. However as with all evidence the account must be read in conjunction with the actual underlying documents so that the accuracy of what might be a summary in the statement is viewed in context. Second, and consistent with normal principles of judicial review, the Court will be loath to permit a decision maker to advance reasons, ex post facto, to paper over cracks in the decision or advance new reasoning which were not in mind or considered relevant at the time. Third, there is no reason why a Court should reject an explanation or evidence said accurately to reflect the position at the time (and not therefore the progeny of convenient hindsight) simply because it supplements the documentary record. A court will simply weigh that evidence along with other material and attribute weight according to its due probative value.

Finally, all parties have advanced expert reports which review the documents and then set out conclusions. The Claimant relies upon them to support the contention that, inter alia, the Claimant: (a) could not be treated in the IRC; (b) was detained for an excessively long period of time; (c) was subject to restraint upon him that was inappropriate and (d) was transferred to hospital after an excessive delay which caused him suffering; and (e) lacked mental capacity from the outset. When considering after the event evidence by experts who were not there and who did not treat the patient at the time real care is required. There is no allegation that any clinician who saw or treated ASK at the time acted negligently or unreasonably or otherwise in breach of professional duties. This was specifically confirmed by Ms Harrison QC for the Claimant during the hearing. Yet the Claimant now says that he was treated in an inhuman and degrading manner. I have set out above the law which clearly, and for good reason, indicates that the appraisal is that which occurred at the time (see paragraphs [50] – [51] above). This is in my view especially important in cases such as the present where there is a variable condition and variable diagnoses. This is not – contrary to the Claimant’s case – a situation of a stable and easily identified medical condition for which there is a widely recognised and well established medication, for example diabetes or a heart complaint. In circumstances such as these I give far greater probative weight to the contemporary evidence than to evidence generated months or years later.

Relevant Facts

It is essential in this case carefully to record the chronological development of ASK’s detention and condition. This process ultimately provides the answer to this case. I turn therefore to consider the relevant facts.

The Claimant is a national of Pakistan. He was born on 24^th October 1987 and he came to the UK on a student visa valid from 4^th February 2010 until 31^st March 2011. The Claimant subsequently extended his leave to study a diploma in law until 30^th October 2012. During the summer of 2012 he began to exhibit signs of aggression. He secreted a knife under his belt and he was driving “like a maniac”. His mother came to visit in August 2012 but the Claimant was aggressive towards her and she left. The Claimant was not hitherto a heavy drinker but commenced drinking substantial amounts.

The Claimant’s brother sought medical help for him. On 12^th October 2012 the Claimant was seen by Dr Morrison at the West Middlesex Hospital. Medical reports were also obtained from Dr Chatterjee and Dr Jelley for the purpose of detention pursuant to Sections 2 and 3 of the Mental Health Act 1983. The Claimant was detained in the Lakeside Unit at the hospital. During that period his leave to remain expired and he became an over-stayer. Also during his period of detention in the hospital his condition improved. A detailed Risk Overview Report of 12^th October 2012 and a record by Dr Ian Nnatu, a Consultant Psychiatrist, records that ASK’s mental state was stable and that he continued to improve. His speech was mildly pressured but not grandiose and he was not elated in mood. He was, at this point, taking Olanzapine, the dose of which was reduced to 10mg daily and Depakote, the dose of which was reduced to 250mg twice daily. The Claimant responded well to the drugs. He was assessed as of low risk in relation to such matters as harm to self, harm from others, harm to others, accidents, crime, damage to property and absconding.

A record dated 26^th November 2012 records that the Claimant wished to go to Croydon to apply for asylum upon the basis that his student visa had expired on 31^st October 2012 and that he hoped to obtain his own accommodation when discharged from hospital. He told a student nurse that he did not have anywhere to go as his brother had been telling his friends that he had a mental problem and they were now reluctant to assist him.

ASK was discharged from the Lakeside Unit into the community on 10^th December 2012 and physically left on 13^th December 2012 at approximately 17.45hrs. A taxi was arranged to transport him to the Shalimar Hotel. A West London Mental Health Team (“WLMHT”) risk overview dated 10^th December 2012 recorded that the Claimant’s mood and mental state had greatly improved and he was now calm and appropriate in behaviour interacting well with staff and patients.

Shortly after discharge ASK commenced heavy drinking and cannabis consumption. Whilst at the Shalimar Hotel he was argumentative towards staff. He started taking his shirt off and stopping traffic. The hotel cancelled his room but another hotel, the Channins Hotel, offered him a room from 18^th December 2012. However, due to inappropriate behaviour towards females (following them and giving them unwanted attention) as well as poor personal hygiene the Channins Hotel terminated his occupancy with effect from 15^th January 2013.

That same day, the Claimant was assessed by Dr Carranza and by Nurse Ruth Chimbumu at the Recovery Team East (“RTE”) Community Mental Health Team (“CMHT”) base. The records suggest that no psychotic symptoms were elicited but the Claimant had a body odour. During that assessment the Claimant maintained good eye contact and appeared relaxed. His speech was spontaneous and normal in form and content. His mood appeared objectively euthymic, smiling at times. The Claimant admitted to cannabis and alcohol consumption. He was advised that he needed to approach NASS for his visa application, accommodation and sustenance. He was provided with accommodation for the night and advised to attend RTE CMHT the following day to assist him to access services, including NASS to address his visa position. He had medication in his bag and he was advised to see his GP for further prescriptions.

On 16^th January 2013 the Claimant visited the Community Mental Health team base where he was described as well groomed and with a change of clothes. However, he was argumentative making demands for money and provision of “relaxation”. He refused to accept the advice given to him that he should contact immigration services for support.

On 17^th January 2013 the Claimant, once again, visited the Community Health Care team base. Again he was given advice and support on his immigration status and welfare. The Claimant’s case was this time considered by Dr Carranza, Sarah Griffiths, a Senior Social Worker, and Rashmi Chandna, an Administrator. It is apparent that ASK was not considered to be psychotic. A decision was made to discharge the Claimant’s Section 117 status. Section 117 MHA 1983 places a joint legal duty upon the NHS and social services to provide free aftercare services to individuals who have been detained pursuant to Sections 3, 37, 45A, 47 or 48 MHA 1983. The Act does not define aftercare but services typically include crisis planning, accommodation, help with managing money and services to meet other needs such as psychological needs. The Section 117 duty persists so long as someone needs aftercare services for their mental health condition. It can terminate only when both health and social services have assessed someone as no longer in need of aftercare services. The Claimant was unhappy about this turn of events. He kept going into the reception area stating that he would not leave the building until his demands were met. Because of his intransigence the police were called and they attended within 15 minutes.

An Immigration Officer was present when the Claimant was detained. The Claimant left with the police. Police records show that the police were aware that the Claimant had some mental health problems. The Claimant was detained at the police station on 17^th January 2013.

Upon the basis that the Claimant was an unlawful overstayer, on 18^th January 2013, the Claimant was transferred into the responsibility of Home Office Immigration Enforcement. He was detained at Colnbrook IRC. A 24 hour review was scheduled. Documentary records from this period indicate that the Home Office was aware that the Claimant had, hitherto, been an in-patient at the Lakeside Unit. The documents also record that he was presently under the supervision of his GP and that he may also have alcohol problems. It recorded the medication administered to him at the police station.

It appears from the records that the consultant psychiatrist at Colnbrook IRC had requested information on the Claimant. Home Office records report that written consent was provided by the Claimant for the information to be provided. It is unclear as to the precise date upon which the request was made but it seems likely that the request was made during the first 24 hours of detention. There is nothing to suggest that the records were not transferred relatively swiftly thereafter.

On 20^th January 2013 the Claimant was transferred to Morton Hall. This is an IRC without a psychiatric medical facility. It is evident from the records that his behaviour at Morton Hall gave rise to concern and it was rapidly decided to return him to Colnbrook which did have a healthcare unit. It was noted that the Claimant had an appointment with a psychiatrist in two days’ time.

Serco Mental Health records note the conclusions of Dr Sultan, the Consultant Psychiatrist, to the effect that there was a possible diagnosis of schizoaffective disorder. However the Claimant was casually dressed, cooperative and denied any suicidal ideation. There was no evidence of florid psychosis. Dr Sultan was of the view that even if the Claimant was schizoaffective he was in remission. He put in train enquiries to obtain all relevant correspondence from Lakeside. The plan was to start the Claimant on Depakote. Dr Sultan did not record any requirement to prescribe Olanzopine. He was categorised as both fit for detention and fit to fly.

On 21^st January 2013 a Detention Review conducted at Morton Hall recorded that the Claimant suffered from schizophrenia and was currently undergoing medical care for mental illness supported by Hillingdon Mental Health Care team and that he was due for a review by the psychiatric team in two weeks time. This appears to be a reference to ASK’s history and not a fresh diagnosis. Steps were in train to effect removal. Documentation relating to the Claimant had been submitted to the Pakistani High Commission with a view to the issuance of an Emergency Travel Document. It is recorded however that there was a need to consult healthcare.

On 25^th January 2013 directions were set by the Home Office for the removal of the Claimant to Pakistan on 12^th February 2013.

The Claimant returned to Colnbrook IRC on 26^th January 2013. An internal note prepared upon the Claimant’s return to Colnbrook IRC recorded that he was disruptive whilst in the detained community and that it was recognised that he needed to be transferred to the secure psychiatric unit within the IRC for his condition to be better assessed and treated. He was, shortly thereafter, transferred into the medical health unit.

An informal manuscript note dated 31^st January 2013 shows that caseworkers were, even at this early stage, considering whether the IRC was the best place in which to treat the Claimant. The caseworker was concerned that there was no up to date fitness for detention or fitness to fly report available and that “if” the subject was suffering from mental health issues “... he need to be released to care of independent responsible adult”. Three additional points were noted. First, the document states that CID notes from 27^th January 2013 did not indicate that the Claimant was not fit to be detained or to fly. Second, the caseworker asked that the healthcare team assess the Claimant with regard to the above matters. Third, it was stated that if he was not fit to fly his case should be referred to OSCU for review.

A formal detention review dated 31^st January 2013 records that on return to Colnbrook the Claimant’s condition had stabilised and that release was still a possibility upon the basis that he could be better treated outside of the IRC. It states as follows:

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

On 5^th February 2013, at the 19 day review, the Detention Review however had now moved away from any prospect of release. It recorded that ASK was fit to be detained and that a fit to fly request had been sent to Colnbrook IRC for their urgent attention.

On 7^th February 2013 the Detention Review report recorded that the Claimant’s condition had been managed in detention and that “there is no reason to believe than it cannot be”.

On 7^th February 2013 the Claimant was interviewed by the Pakistani High Commission and the contemporaneous notes recorded that a decision confirming nationality was expected imminently.

In response to the enquiry initiated by the caseworker, on 9^th February 2013, Dr Sultan reviewed the Claimant’s case and recorded the previous diagnosis of schizophrenia and the fact that the Claimant has been under the care of Lakeside Mental Health Unit. The record states that the Claimant was presenting with an agitated mood and expansive/grandiose ideation and some suspiciousness and paranoia. It also records however that the Claimant was accepting his medication and remained cooperative and in Dr Sultan’s opinion he was fit for detention upon the basis that he was accepting the medication but he was not at that point fit to fly as further progress needed to be monitored by the healthcare team. This was not therefore a definitive conclusion.

In view of this opinion the removal directions set for 12^th February 2013 were cancelled on 9^th February 2013.

On 20^th February 2013 the Claimant was admitted to the Healthcare In-Patient Unit at Colnbrook IRC.

On 22^nd February 2013 it is recorded that the Claimant remained fit to be detained but unfit to fly. The Claimant had, according to the record, been reviewed by a psychiatrist on 21^st March 2013 and a report was awaited. Fitness to fly would be considered in the light of the outcome of the psychiatric report. The IRC was still contemplating that he could well be removed on the next charter flight. It is recorded that the Claimant was on food refusal but the implication was that this is a response to the threat of removal.

On 23^rd February 2013 Dr Sultan reviewed the Claimant and concluded that he continued to exhibit signs of schizoaffective disorder but that his position was gradually improving. He remained fit for detention but he was “still unfit to fly”.

On 25^th February 2013 the Pakistani High Commission authorised an Emergency Travel Document for the Claimant.

On 28^th March 2013 a detailed Detention Review Minute was prepared. In paragraph 4 it is stated that the Claimant’s health appeared to have deteriorated in detention because he was refusing to take his medication. He was “partially compliant with his medication”. He was, at least on occasions, refusing to take the anti-psychotic medication, Olanzapine. In consequence, the prescription for Olanzapine was decreased and an increased dosage of Depakote was prescribed. Subsequently there was a “very gradual” improvement in symptoms. It is recorded that the Claimant on occasion refused fluid or foods but that was not, at that stage, a material problem. The caseworker assessed the position of the Claimant against the test in Chapter 55.10 EIG.

Paragraph [11] of the same document records that the Claimant’s constellation of symptoms was attributable to his failure fully to adhere to his medication regime, but not due to the fact of detention:

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

The caseworker, on reviewing earlier clinical opinions, concluded that the Claimant’s condition was not such as to engage the EIG but, even if it did, the condition could be manged in the IRC. Paragraph [12] states:

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

Later, in paragraph [14], the review considered and rejected the possibility of release upon the basis that the Claimant’s adherence to a drug regime would be unpredictable if released:

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

Removal was however still being considered as an active possibility at this stage. The recommendations contained within the review included continued liaison with the healthcare team, further requests for psychiatric reports, the sending of a no barrier letter to the Pakistani High Commission, and consideration of removal on the next charter or scheduled flight with medical escorts. The position, therefore, as of this date, was that the IRC still contemplated that he would be fit to fly in the relatively near future albeit with medical escorts.

On 14^th April 2013 Dr Sultan again reviewed the Claimant. He recorded that the Claimant had an established diagnosis of schizoaffective disorder. He recorded that the Claimant recovered gradually from his psychosis but that when reviewed on 14^th April he was exhibiting relapse symptoms. Dr Sultan’s conclusion was that he was not fit for detention and should be admitted to a psychiatric hospital for further assessment and treatment. He was non-compliant with his oral medication and would benefit from Depakote injection which could not be given unless the Claimant was admitted to a psychiatric unit.

A referral was made on 24^th April 2013 by Dr Sultan. In the PICU referral form he gave as the reasons for referral behavioural difficulties which put the service user and/or others at risk and which could not be assessed or safely treated in an open acute ward and a significant risk of aggression due to serious mental disorder. He also commented upon the option of release into the community. He said: “Absconding with associated serious risk of suicide, homicide or vulnerable (e.g. due to sexual dis-inhibition or over-activity) in the context of a serious mental disorder”. In the context of the experience of the clinicians at the IRC he said: “Multidisciplinary strategies within the acute ward have been unsuccessful in managing the presenting problems and associated risks”. It is of some significance that the only medication then being prescribed was said to be Depakote. I would observe that the suggestion that the Claimant was either a suicide risk or a homicide risk is not one which is reflected in any other documentation or clinical report. Nonetheless, for present purposes it is clear that Dr Sultan, at least, was of the view that there was no realistic prospect of release into the community.

In a UKBA Minute Sheet dated 25^th April 2013, prepared by a caseworker in the West London Detained Team, the existence of a dilemma was recognised:

“3.

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

The caseworker put in train enquiries as to the likely timescale for transfer to hospital under the MHA 1983 and as to whether his symptoms could be managed in the interim. The caseworker addressed Chapter 55.10 EIG. It was concluded that in cases such as this detention could only be maintained in very exceptional circumstances but he recorded that the guidance recognised that in exceptional circumstances it could be necessary for detention at a removal centre or prison to continue while individuals were waiting to be assessed or were awaiting transfer under the MHA 1983. The caseworker considered that the present case was an exceptional case falling within the scope of Chapter 55.10 EIG.

On 8^th May 2013 the Claimant was seen by Dr Musah from the Colne Ward at the Riverside Centre for mental health and he was of the opinion that the Claimant needed an urgent medical bed. According to the Witness Statement of Kiran East no bed was however available. Arrangements were put in place to contact the West London Mental Health Team who had responsibility for arranging an appropriate hospital to admit the Claimant under sections 47/48 MHA 1983. On 11^th May 2013 Dr Sultan wrote to Dr Musah requesting that the Claimant be referred to Colne Ward at Lakeside for assessment and management in a psychiatric ward. It is recorded that the Claimant had an established diagnosis of paranoid schizophrenia but was currently exhibiting relapse symptoms with prominent affective symptoms of formal thought disorder. He is recorded as being non-compliant with prescribed medication. It is stated that it was in his best interests that he be transferred to a psychiatric facility.

As of 12^th May 2013 Dr Sultan and Dr Jabbar had provided the two medical reports necessary as a condition of transfer to hospital pursuant to Section 48 MHA 1983. Both documented a relapse in the Claimant’s paranoid schizophrenia and the Claimant’s failure adequately to respond to treatment in the IRC. Both clinicians assessed the Claimant as lacking capacity and having poor insight into his condition.

At this point strong disagreement emerged between different clinicians. A discussion occurred between the IRC clinicians and the West London Mental Health Team on about 17^th May 2013 and the latter indicated that ASK had previously been discharged and his file had been closed.

In order to seek to find an alternative opinion Serco staff at Colnbrook contacted Medical Justice for assistance in securing the Claimant’s admission to a psychiatric unit. Medical Justice is an independent charity established in 2005 in order to facilitate the provision of independent medical advice and independent legal advice and representation to those detained in IRC’s. It deals with circa 1000 referrals per annum. A Witness Statement provided by Theresa Schleicher sets out the nature and extent of the involvement of Medical Justice in the case. The statement records that the Claimant was kept in segregation in the IRC in or around May 2013. The segregation is in fact the Assessment Integration Unit in the RC which houses vulnerable detainees. Ms Schleicher acknowledges that she did not see the unit but does say that in her experience detainees may be kept in such units “without proper observation or records”. She says that there is research on the impact on a detainee’s mental health of segregation and that it is important that units used for such assessment should result in prompt assessment of mental health and related needs.

On 20^th May 2013 a detention review was conducted. This records that during the week leading up to the review the Claimant had been stable and had been taking his medication. The review states: “… his symptoms were manageable”. It also records that if he became manic then the healthcare team “might not be able to control them”. If this happened then the review records that the Claimant would be treated as having had the equivalent of an “accident and emergency” and an acute mental health bed would be sought. It was accepted that the administration of antipsychotic injections could only occur in hospital i.e. not in the IRC. The review considers the application of Chapter 55.10 EIG and recommends continued detention with monitoring of the situation.

On 28^th May 2013 Dr Goldwyn, instructed by Medical Justice, concluded that the Claimant was not fit to be detained, that it was imperative that he be transferred to a psychiatric unit as a matter of urgency and that he lacked capacity to make decisions about his immigration situation or to instruct a lawyer. Dr Goldwyn identified what were perceived to be the benefits of a transfer from IRC to a psychiatric unit. These may be summarised as follows.

First, because of the Claimant’s record of aggression, psychiatric units had better facilities and training necessary to manage aggressive behaviour.

Second, psychiatric units had the capacity to manage poor compliance with medication through experienced mental health nursing and psychiatrists spending time with the patient and explaining the benefits of taking medication.

Third, in circumstances where a patient continued to refuse medication and the treatment was considered essential for that patient’s medical health a psychiatric unit in a hospital, acting pursuant to the MHA 1983 was empowered to give compulsory medication whereas such powers could not be exercised in an IRC. Dr Goldwyn was of the view that the Claimant might need compulsory treatment since he lacked insight into his mental illness and was currently not complying with medication offered to him in the IRC.

Fourth, the Claimant did not understand why he was in an IRC and being detained and being in segregation distressed him and was “likely” to be causing a further deterioration of his mental health. Dr Goldwyn stated:

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

Fifth, in a psychiatric unit, as an alternative to sedation and segregation, there was the possibility of the provision of supportive care from trusted clinicians. Dr Goldwyn was of the view that the Claimant did not feel subjectively relaxed or trusting in the IRC. Dr Goldwyn was of the view that it was “imperative” that the Claimant be transferred to a psychiatric unit as a matter of urgency.

However that view was then disputed and contradicted. On 29^th May 2013 Dr Morrison, the Consultant Psychiatrist at the Lakeside Unit, concluded that the Claimant did not require transfer to an acute psychiatric ward. In coming to this opinion Dr Morrison took account of the previous experience at the unit of the Claimant. But a contemporary assessment was also made. Dr Morrison assessed the Claimant along with Staff Nurse Turnbull. The Claimant was casually dressed, calm and reasonably kempt. His speech was normal in flow and there was no FTD. His mood was euthymic and there were no florid psychotic symptoms. The concluding opinion was that the Claimant could be released into the community through the support of and supervision by the Community Mental Health Team in supported hostel accommodation, where his mental health needs could be met.

Records of conversations between Dr Morrison (who had been responsible for the Claimant when he was at Lakeside in October – December 2012) and Dr Dent in 2014 (see paragraph [155] below) indicate that Dr Morrison was of the opinion that the Claimant’s condition was a personality disorder exacerbated by cannabis and drug use, and not some underlying psychotic condition. At all events the Lakeside team ultimately disagreed therefore with the opinions of the IRC clinicians and since they were the gatekeeper clinicians the net effect was that whilst the IRC wished to transfer the Claimant to hospital, the preferred destination ward in effect refused the transfer on medical needs grounds.

On 30^th May 2013, and against the backdrop of the sharply conflicting opinions expressed by the different clinicians, a further review was prepared (the record is dated 20^th May but it is clear that it was prepared on 30^th May 2013 which was the proper 133 day marker). The minute of that review records the dilemma confronting the caseworkers at the time. The author records that he had sent a letter to the healthcare team on 23^rd May 2013 asking it to explain whether, in the Claimant’s present state of health, there was any possibility that he could be released into the community “if adequate and stringent safeguards are put in place”. It also asked whether if he could not be released into the community at what point in time they would be able to effect his transfer under the MHA 1983. It is apparent that the caseworker was of the view that release into the community was unlikely.

Having considered Chapter 55.10 EIG in paragraph [7] of the Minute the caseworker states as follows:

“7.

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

The prevailing view then taken was that the Claimant was stable, that his condition could be managed in the IRC whilst a bed was found and that the situation needed to be monitored and, it would seem, further clinical advice received.

Dr Khan assessed the Claimant on 1^st June 2013 and took as his starting point the opinion of Dr Morrison. He found the Claimant to be stable. Dr Khan considered that the Claimant could be released into the community albeit with the support of urgent care and the provision of hostel accommodation.

On 11^th June 2013 caseworkers noted that Dr Morrison and Dr Musah disagreed as to whether the Claimant required hospital treatment. The records suggest that as of 11^th June 2013 the Claimant was “stable and calm in mood and behaviour, he is compliant with all his prescribe [sic] medications no [sic] aggressive or violent behaviour has been observed”.

They sought a further opinion from Dr Khan but in the interim recommended continued detention. Dr Khan, in a fax dated 16^th June 2013, concluded that the Claimant was both fit for detention and fit to fly upon the basis of the assessment he conducted on 1^st June 2013.

On 19^th June 2013 the Home Office referred the Claimant for removal on a charter flight to Pakistan on 9^th July 2013.

On 19^th June 2013 solicitors acting for the Claimant, instructed through the Official Solicitor, challenged the Claimant’s continuing detention under immigration powers. It was contended that legal and other steps had been taken to remove him from the UK when he lacked capacity to participate in the process properly or at all and that in seeking to remove the Claimant the Defendant had unlawfully failed to make reasonable adjustments as required by the Equality Act 2010. They contended further that his removal would breach his rights under Article 3 ECHR. Further, the Defendant had failed expeditiously to take reasonable steps to obtain appropriate medical advice on ASK’s mental health and, thereafter, where appropriate, to effect a transfer to a mental health unit. Detention was and remained unlawful on common law principles and in breach of EIG 55.10. On 22^nd June Dr Khan considered that ASK “may” need inpatient admission upon the basis of an assessment made by him.

On 21^st June 2013 the Claimant signed a consent form permitting the disclosure to the Defendant of his healthcare records. On 17^th July 2013 a copy of the Claimant’s medical records were received by the Defendant.

On 2^nd July 2013 the Defendant received a fax from the Claimant. The Claimant stated that he wished to return home to Pakistan. The Defendant sought advice from healthcare as to whether the Claimant had the mental capacity to make that decision. On 3^rd July 2013 the IRC healthcare team confirmed that the Claimant had limited insight into his mental state and that this could impair his capacity.

On 3^rd July 2013 at the request of solicitors acting for the Claimant, NHS England contacted the Defendant indicating that it was prepared to assist in resolving the matter. The issue at that point was the availability of space within a psychiatric unit, given that Dr Morrison, on behalf of Hillingdon Hospital, had indicated that they were not prepared to accept the Claimant. On 15^th July 2013 NHS England recommended referral of the Claimant’s case to the West London Mental Health Trust for consideration of transfer to a low/medium secure unit.

In a report dated 6^th July 2013 Dr Dossett, a Consultant Psychiatrist instructed on behalf of the Claimant (by Medical Justice), concluded that the Claimant had a severe mental illness requiring management in a psychiatric hospital. Dr Dossett records the documentary information he was able to review for the purpose of his assessment. He interviewed ASK for about 2 hours on 26^th June 2013 at the IRC. He diagnosed a severe mental illness. He recommended discharge into the community for an urgent mental health assessment or treatment under Section 3 MHA 1983 or transfer pursuant to Section 48 MHA 1983. He certified that the Claimant lacked the mental capacity to instruct his legal representatives. The opinion was that as of the date of the Report or assessment ASK lacked capacity, it was not a retrospective conclusion. In the mental capacity certificate Dr Dossett differentiates between the mental capacity of the Claimant when compliant with his medication regime and when non-compliant. It is recorded (in response to Question 4) that when he takes his medication he “… regains a reasonable level of functioning”.

In the witness statement of Kiran East the positon as of this time, which in my view is consistent with the evidence I have seen, is summarised as follows:

“The steps which were being taken by the healthcare team to transfer the Claimant to hospital were effectively halted by the medical opinion of Dr Morrison to the effect that the Claimant’s condition did not warrant transfer to hospital under section 48 of the Mental Health act 1983. For a short period thereafter the option of release into the community was explored but that was not clinically recommended unless there was agreement for provision of mental health support in the community from the responsible body, which was not forthcoming. There were no barriers to removal subject to fitness to fly at the point of departure and the Claimant wished to return to his home country. However, the appropriate progression of the case had to be informed by the clinical position, which required clarification.”

The report of Dr Dossett was provided to the Defendant on 16^th July 2013. On 18^th July 2013 the Defendant confirmed to solicitors acting for the Claimant that no steps would be taken to remove the Claimant pending his transfer to hospital.

On 24^th July 2013 Dr Chabra, a Consultant Psychiatrist, felt unable to assess the Claimant because he was psychotic, exhibiting florid formal thought disorder. Dr Chabra concluded that the Claimant required transfer to a psychiatric unit for treatment.

On 25^th July 2013 the Claimant, acting via the Official Solicitor, issued the claim for judicial review together with an application for interim relief.

On 26^th July 2013 the Claimant was accepted for placement by the West London Mental Health Trust. A referral was made by the Psychiatric Intensive Care Unit (“PICU”) at Charing Cross Hospital.

On 15^th August 2013 the West London Mental Health team held a placement meeting. The Claimant was assessed by that unit on 19^th August 2013.

On 21^st August 2013 Charing Cross Hospital indicated that it had accepted that the Claimant was suitable for admission and it indicated that it would send an assessment team to assess the Claimant on 11^th September 2013.

On 10^th September 2013 Mitting J directed that unless the Claimant was transferred to a psychiatric hospital he should be released on 25^th September 2013.

The Claimant was admitted to the Low Secure Services Unit at St Bernards Hospital on 23^rd September 2013. He was diagnosed with paranoid schizophrenia.

On 14^th November 2013 the Claimant was detained pursuant to Section 3 MHA 1983.

On 5^th December 2013 a report was prepared by Dr Nicholas Stokes, Consultant Clinical Psychologist, at St Bernard’s Hospital. The report was prepared upon the basis of psychiatric reports prepared whilst the Claimant was in the IRC between May and August 2013, electronic healthcare records from the Solaris Ward where the Claimant was detained, and six individual assessments between 17^th October and 4^th December 2013. During interviews the Claimant was polite and courteous but frequently would launch into lengthy monologues hindering the process of conversation. A striking feature of his presentation was his degree of thought order which fluctuated but with an overall trend towards improvement in the course of the conversation. He was frequently circumstantial or tangential in replies to questions and it was often only possible to glean a general theme rather than specific information. Dr Stokes recorded the Claimant’s preoccupation with his detention in hospital:

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

Further:

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

Dr Stokes concluded that when ASK was most unwell his illness was characterised by thought disorder, paranoid and grandiose thinking, verbal aggression, and sexual disinhibition and affective symptoms. The principal remaining symptom was thought disorder which had improved over the course of the admission but continued to be prominent and significantly impacted upon his communication. The Claimant described himself as having been depressed and suicidal due to circumstances in his life in late 2012 but he still declined to accept that he had any ongoing mental health difficulties believing that he was well and did not need further treatment. A cognitive assessment indicated that his performance IQ on the WAIS was in the Extremely Low range (1^st percentile) which Dr Stokes considered was likely to be significantly lower than his pre-morbid level of ability and indicated a general cognitive decline which was secondary to his mental illness. The Claimant appeared to have poor insight into the nature of most of his past aggression and he displayed a tendency to deny that incidents occurred or to have an external attribution for them. However, there had been no significant incidents of aggressive behaviour during his admission to the Solaris Ward and it appeared that the previous aggressive incidents had been confined to periods when the Claimant was more acutely unwell.

A further report was prepared by Dr John Dent dated 15^th January 2014. This provided an assessment as of 14^th January 2014. Dr Dent recorded the history relating to the Claimant. Of interest is his record of discussions that he had with Dr Morrison of Lakeside and sheds light on the view of those clinicians that ASK’s condition was largely cannabis related. The report recorded these discussions in the following terms:

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

On 19^th January 2014 a Social Circumstances Report was prepared by Margaret Modeste who concluded that ASK had improved in his mental health but still suffered from a thought disorder. She concluded that the Claimant had a diagnosis of paranoid schizophrenia but was presently stable and compliant with his treatment plan.

On 23^rd January 2014 a Tribunal sitting at St Bernard’s Hospital concluded that the Claimant could be discharged from liability to be detained on 30^th January 2014. The Tribunal accepted that the patient currently suffered from a mental disorder of a nature but not of a degree warranting detention. The Tribunal concluded that it was a psychotic illness and not drug induced but that it was relapsing in nature. The Tribunal was concerned that the patient’s health would deteriorate upon discharge into the community but the Claimant confirmed that he was prepared to remain informally as an inpatient and to cooperate with the clinical team. Discharge was deferred for one week to enable arrangements to be made for transfer to an appropriate unit for informal inpatient treatment followed by appropriate aftercare arrangements being put into place pursuant to Section 117 MHA 1983.

On 27^th January 2014 a DASS assessment was made by Mr Stephen Mailes and Dr Nunziata. This was in readiness for discharge. It recorded ASK’s past history of alcohol and drug use including the fact that when he was discharged from hospital in December 2012 he was drinking between 10 – 12 cans of Special Brew or Heineken a day and was using cannabis regularly.

Shortly following discharge the Claimant was re-admitted to hospital having suffered a relapse in the community, triggered, it would appear by alcohol and drug consumption. On 18^th February 2014 Dr Dent completed a report under Section 5(2) MHA 1983 in which Dr Dent concluded that the Claimant suffered from schizoaffective disorder characterised by thought disorder, social and sexual disinhibition and poor judgement. He recorded that the Claimant’s mental state had deteriorated in the last 48 hours due to possible use of cannabis.

On 20^th February 2014 Dr Kumar prepared a report for the purpose of Section 3 MHA 1983. Upon assessment the Claimant exhibited evidence of a psychotic illness with depressive symptoms characterised by blunt affect. He was extremely guarded in responses and presented with circumstantial speech and was distracted indicating a possibility of perceptual abnormalities. He displayed no insight into his illness or the need for medication. A second report pursuant to Section 3 prepared by Dr Dent also of 20^th February 2014 described the Claimant as suffering from a schizoaffective disorder characterised when unwell by grandiose delusions, social and sexual disinhibition and profound thought disorder. Dr Dent opined that the Claimant’s symptoms were partially in remission but that he displayed poor judgement in relation to forming realistic plans for his care and accommodation and misuse of cannabis. Dr Dent stated:

“[He] has no valid immigration status in the UK, and if discharged from hospital is liable to be moved to a detention and removal centre where his mental state previously deteriorated severely.”

WLMHT progress notes for the period 18^th May 2014 – 27^th August 2014 records that during this period the Claimant was not taking his medication and was throwing it “in the bin”. It is recorded that the Claimant was “adamant” that he wished to return to Pakistan. He did not trust his solicitor, he was suspicious, insightless and adamantly denied the possibility of mental disorder. He also firmly rejected the need for medication in his care.

A note dated 5^th June 2014 stated as follows:

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

A record dated 30^th June 2014 entered by Dr Maier, the Consultant Psychiatrist, recorded that the Claimant’s brother expressed the view that his “best interests would not be served by returning to Pakistan”. It is stated that the brother explained that there was mental illness on both sides of the parental family and that the brother wished the Claimant to remain in hospital and not be returned to the detention centre. An entry dated 3^rd July 2014 by Dr Tsamakis recorded the brother having expressed the view that he wished the Claimant to remain in the UK to continue his studies.

A record of 29^th July 2014 recorded that the Claimant had refused to accept medication for several weeks, but within two days, according to an entry dated 31^st July 2014, the Claimant had become challenging and intimidating. It was difficult to reason and converse with him and his brother is recorded as having noticed a deterioration in mental state. The refusal to take medication is also recorded in a record of 13^th August 2014.

An entry dated 26^th August 2014 recorded that the Claimant had experienced a settled week. Dr Kamal concluded that the Claimant seemed better and the plan was to transfer him to Mott House with eventual removal to Pakistan.

As of the date of this hearing the Claimant remained in hospital. Though the Court has been informed that he has subsequently been discharged.

Analysis: The duty to make enquiries / detention unlawful at the outset (from 17^th January 2013)?

I turn now to the first issue, which is whether as of the date of the initial detention (17^th January 2013) the Defendant made sufficient inquiries to justify, in law, the decision to detain. It is agreed between the parties that there is a common law duty on the Defendant to conduct adequate inquiries into the medical condition of all persons to be detained (see paragraphs [29] and [30] above). The Claimant identifies five ways in which it is said that the Defendant fell below requisite legal standards. The Defendant: (i) did not conduct a full assessment prior to detention; (ii) did not know which drugs the Claimant was taking; (iii) generally was not in possession of sufficient evidence to justify detention; (iv) did not refer to Chapter 55.10 EIG in relevant records; and (v), failed properly to engage with external sources. I do not accept this analysis.

First, as at the date of detention ASK:

In my judgment the Claimant was an obvious candidate for removal but also presented as a risk of absconding given that he had no address to be contacted at and was unwilling to engage with immigration services. The immigration authorities had a prima facie right to detain him in an IRC subject only to the issue of his mental health. Should the Claimant have been assessed as presenting with such an acute mental health condition that from the outset he should not have been detained in an IRC but should have been transferred forthwith to a hospital? In my judgment the answer is “no”.

Again, he had only very recently been discharged from a two month detention in hospital and the view of the responsible clinicians then was that he was suffering from a drug induced or exacerbated condition but not a psychotic illness. It is not said by the Claimant that any medical opinion expressed was negligent. This was a reasonable conclusion to form at the time (even if (for the sake of testing the argument) in the fullness of time the view changed and/or was proven to be incorrect) and in between the dates of discharge from Lakeside to detention the Claimant was assessed by a series of different clinicians and there is no evidence that they disagreed with the prior decision to discharge. The contemporaneous clinical view was that he was not in such a state as to warrant immediate transfer to hospital. The decision taken that the Claimant could be detained in an IRC was a lawful one.

The view at the time was not that the Claimant was not suffering from a mental health problem, only that it did not warrant hospital treatment under the MHA 1983. The police were aware when the Claimant was taken to the police station that the Claimant had a mental condition and it was for this reason that the decision was taken to move the Claimant to an IRC with a psychiatric unit (see paragraphs [90] – [96] above). The assessment of the Claimant’s mental health began virtually immediately upon his arrival at Colnbrook (see paragraph [96ff] above).

The second complaint is that there was insufficient awareness of the Claimant’s drug regime when he was first detained and that this reflected the taking of inadequate steps of inquiry. I do not agree. This argument is part of the wider argument that the Claimant was not fit to be detained. When one looks at all of the evidence in the round I can detect no failing. It seems that when the Claimant was first detained the Claimant had his drugs with him. But it is possible that he had only his Depakote and not the Olanzapine (which he has throughout objected to taking). Police custody records refer to the Claimant having his drugs on him, though the record does not state what they were. Other documents refer to the Valproate Semisodium (Depakote) but not the Olanzapine. An ISD 91 Detention authority also dated 17^th January 2013 refers to the Claimant being in possession of the Depakote when detained but also that the Claimant told the caseworker that he needed both a yellow and brown tablet, i.e. not just the Depakote. It is apparent from the Detention Minute at Harmonsworth IRC (where it was contemplated that the Claimant might be sent) that the Deputy Manager requested “full details with regard to any known hospital treatment/ relevant information” and that it was requested that the Claimant’s “meds” be transferred with him. It is also recorded that the Claimant would be assessed by a psychiatrist upon arrival at the IRC. It would appear that on 17^th January the Claimant signed a consent form to enable the clinicians to obtain his full medical records and it also appears that shortly after those records were produced and, it will have been evident then if not before, that the Claimant was also on Olanzapine. When all of the evidence is considered the exact details are not entirely clear. On one view the Claimant, for a short while might not have been given all of the required medication, but immediate steps were taken to obtain the Claimant’s medical records and it is clear that shortly thereafter he was placed on the previously prescribed medication regime. But this is not certain and an alternative scenario is that the clinician in question was aware of the Claimant’s drugs and prescribed whatever was considered to be appropriate in the circumstances (whether this included Olanzapine or not).

The short point is that (as is typical in cases of this nature) whilst there is a lot of paper it does not provide a full chronological blow by blow account of a detainee’s condition and treatment. As was emphasised in O v SSHD the exercise is practical (see paragraph [23ff] above). The Court cannot expect to see a perfectly transparent and utterly exhaustive chronicle of every single event and the Court must be slow to draw adverse inferences based upon ambiguous gaps and omissions in the evidence.

In my judgment even if, for the sake of argument, the clinicians and caseworkers were, for a short while, in ignorance of the Claimant’s medicine regime this does not reflect a failing on their part. At all points in time there was a constant concern to identify what drugs the Claimant was taking and to ensure the prescription and consumption of appropriate medication. There is also no evidence that the unavailability of Olanzapine, even for a short while, exerted any or any material impact upon ASK’s condition.

The above point, about medication, is connected to the third point which was advanced by the Claimant which was that it was no excuse for the Defendant to say that difficulties encountered in accessing information about the Claimant’s medical regime were due to problems concerning patient confidentiality. It is unnecessary for me to delve deeply into this and in particular into the issue of law that at one stage was raised which was whether in circumstances such as this patient confidentiality could be trumped. This is because on the facts almost from the outset steps were taken to obtain the Claimant’s consent for the clinicians to obtain his records and this consent was given (see paragraph [91ff] above). In my judgment the caseworkers and clinicians acted properly and promptly in all the circumstance on the facts of the case. The Claimant’s arguments assume an almost impossible standard to be adhered to by the Defendant. I accept that there is a duty to make proper enquiries at the time of detention. But context is critical and the duty is not one that is to be set so high that it demands perfection and will almost always be breached. It is a practical test which is context and fact specific.

The fourth point concerns the alleged failure to refer to Chapter 55.10 EIG in the documents and records which evidence the decision to detain. There is nothing in the point. When the records are viewed in the round, including when seen in the context of later records (see e.g. paragraph [71] above), it is clear that the relevant officials were asking themselves the relevant questions and had Chapter 55.10 EIG well in mind. Indeed, these included the issue identified in O v SSHD, namely whether the Claimant could be better treated elsewhere, such as in hospital (see paragraph [22] above). I repeat the point made at paragraph [74] above – the compilation of records in a busy and pressurised detention centre does not involve formulaic recitation of policies or principles, it is “practical” and pragmatic. What has to be shown is that in substance the officials were applying the policy and asking themselves the correct question(s).

The final criticism is, in effect, that the IRC team acted in a vacuum and did not make enquiries of external sources. I disagree. Reading the documents as whole the officials at the IRC were in contact with Hillingdon from the outset and it is the fair and proper inference to draw that they were aware of relevant matters relating to the Claimant, including the reasons for his discharge from Lakeside. It is unrealistic to think that the IRC simply operated in an informational vacuum when the records and common sense suggest otherwise.

For all these reasons I reject all of the complaints made about the treatment of ASK as of the date of detention.

Analysis: Detention Unlawful from Date Claimant Assessed as Unfit to Fly (9^th February 2013)

The Claimant submits that on 9^th February 2013 Dr Sultan assessed the Claimant as fit to be detained but not to fly (see paragraph [102] above) and that the logical inference from this is that there was thereafter no sensible or arguable basis upon which the Claimant could be removed and hence (a) the basis for his detention fell away; and (b) a transfer to hospital should have been made forthwith.

I do not accept this submission which mischaracterises the evidence as it stood as of that date.

At this stage the Claimant’s condition was not stable. It is not possible to say that as from 9^th February that ASK was on a downward path only. On the contrary the clinicians were still in the process of seeking to formulate a more stable diagnosis. There was a recognition that his condition was subject to both deterioration and improvement. The clinicians had not reached the view that ASK would not improve such that he could never be removed. On the contrary, as the evidence shows, the view was that he might still be removed in the near future (see for example paragraphs [104] – [112] above). There was a recognition that his mental state was contingent upon and affected by his willingness to adhere to his medication regime and the clinicians were working with ASK on this particular matter. There is no evidence to suggest that there was a firm and concluded view that his condition could not be managed in the IRC and that he would not be fit for removal in the near future.

Analysis: Failure to transfer to hospital after April 2013

The Claimant submits that with effect from various points in time after 24^th February 2013 it was plain that the Claimant could not be treated adequately in the IRC and that a duty arose to transfer him to hospital. The failure thereafter to give effect to the transfer sounds legally in a number of ways: (i) from these points onwards ASK’s condition could not be satisfactorily managed in the IRC and continued detention was unlawful in the light of Chapter 55.10 EIG; (ii) the delays were exorbitant and the consequential retention of the Claimant in an IRC amounted to either “inhuman” or “degrading” treatment under Article 3 ECHR: (iii) as from the moment when it was first concluded that the Claimant was not fit to fly there was no reasonably foreseeable prospect of removing him from the United Kingdom and thereafter there was no lawful basis for his continued detention which necessarily continued in violation of Article 5(1)(f) ECHR; (iv) as from the first moment when detention ceased to be justified the Claimant was unlawfully detained amounting to tortious false imprisonment; (v) the unjustified detention was also a violation of private life contrary to Article 8 ECHR; and (vi) the delay in transfer was in breach of Hardial Singh principles. There is a great deal of overlap between the different ways in which the grounds of challenge are formulated. At the centre of all the submissions is the contention that the Claimant was detained unlawfully beyond any point in time which can be said to be justified.

I do not accept the above submissions. In my judgment the first point in time on which it can be said that the Defendant should have concluded that the Claimant should be transferred to hospital was the 18^th July 2013. There was until this point in time a wide-ranging and stark divergence of expert opinion. On the one hand two experts (and a number of nurses) concluded that the Claimant did not need to be transferred to hospital. This was for instance the opinion of Dr Morrison on the 29^th May 2013 (see paragraph [129] above); and the opinion expressed on the 1^st and 16^th June 2013 of Dr Khan (see paragraphs [132] – [134] above). Three clinicians had direct experience of the Claimant and all were qualified to express their opinions. The Claimant does not argue that the opinion of any of these doctors was negligent or otherwise reflected a breach of a professional medical duty towards the Claimant. On the other side of the argument on the 8^th May 2013 Dr Musah was of the opinion that the Claimant needed an urgent medical bed (see paragraph [117] above). On the 11^th May 2013 Dr Sultan expressed a similar view (see paragraph [117] above). On the 26^th May 2013 Dr Goldwyn also concluded that the Claimant was not fit to be detained and that it was important he be transferred to a psychiatric unit as a matter of urgency (see paragraphs [122] – [127] above).

It is, in my view, relevant that opinions expressed towards the end of this period (by Dr Morrison and by Dr Khan) disagreed with the proposition that the Claimant should be transferred to hospital.

This was the context in which the Defendant had to formulate a conclusion. Notwithstanding the contra-opinions Solicitors for the Claimant issued a letter before claim on the 19^th June 2013 just days after Dr Khan had confirmed his earlier opinion based on his assessment on 1^st June 2013 that ASK was fit to be detained and a transfer was not necessary. And at that time (2^nd July 2013) the Claimant, of his own volition, wrote to the Defendant expressing a wish to return home to Pakistan (see paragraph [139] above. Pivotal to the ultimate decision was the instruction of Dr Dossett to express an opinion upon the Claimant’s legal capacity (see paragraph [141] above). Dr Dossett in a report dated the 6^th July 2013, concluded that the Claimant lacked capacity and recommended discharge into the community for an urgent mental health assessment or transfer to hospital. It is apparent that, in substance, the Defendant treated this opinion as the “tie breaker” between the various conflicting opinions which had been expressed to date. Dr Dossett’s report was provided to the Defendant on the 16^th July 2013 and within 2 days (on the 18^th July 2013) the Defendant communicated a decision to the Claimant that no steps would be taken to remove the Claimant pending transfer to hospital (see paragraph [143] above). The decision thus expressed had two legal consequences. First, it recognised that detention with a view to removal was no longer a possibility. Second, it recognised that the Claimant should be transferred to hospital.

In my judgment the Defendant acted properly, by whatever standard was required. The Claimant’s submission, which is that the Defendant should have acted upon the first opinion which was in the Claimant’s favour, is unrealistic in the circumstances of this case. The Defendant was entitled to consider all of the various expert opinions in the round and to decide, upon what appears to be a relatively cautious basis, that she should accept Dr Dossett’s opinion. This was a finely balanced case. The Claimant had been assessed by a variety of different clinicians. There was no consistency of view as to the Claimant’s condition, its severity, or as to the course of action that should be taken in relation to the Claimant.

The relevant point in time at which to assess the Defendant’s conduct is the date upon which the Defendant received Dr Dossett’s report. The Defendant acted with considerable expedition thereafter (two days) in communicating to the Claimant’s legal advisors that no further steps to remove the Claimant would be taken and that he should be transferred to hospital.

The question then arises whether, thereafter, there was delay in effecting an actual transfer of the Claimant to hospital? The starting point for the analysis of this question is that it would be wrong and illogical to conclude that in a relatively marginal or unclear case, characterised by a divergence of expert opinion, the Defendant had to treat the case as one of such compelling and overriding urgency that a hospital bed needed to be secured forthwith, i.e. immediately. In my judgment, in the circumstances of this case, the Defendant acted properly. Potential hospitals, again properly, wished to perform their own assessments of the Claimant. These were planned and/or took place from the 19^th August 2013 to the 11^th September 2013 (see generally paragraphs [146] – [148] above). The Claimant relies upon the direction of Mr Justice Mitting on the 10^th September 2013 as evidence that there had been delay. I disagree. All that the Judge did was to direct that unless the Claimant was transferred to a hospital unit within two weeks he should be released on the 25^th September 2013. He did not compel any particular hospital to receive the Claimant. His bottom line was no more than that given that it was common ground that at this juncture removal from detention was in ASK’s best interests, the Claimant should not remain in detention for a period exceeding two weeks from the date of the Order.

It is also in my judgment clear that at all material times caseworkers and clinicians asked themselves the correct questions. Although O v SSHD (ibid) was not yet decided the caseworkers did ask themselves whether they were able to treat the Claimant in the IRC or whether he would be better off in hospital. The questions constantly being posed included: what was the Claimant’s present condition, had it stabilised/deteriorated/improved, could he still be adequately treated in the IRC, what sort of additional treatment did the Claimant need, could such treatment be administered within the IRC, had the Claimant reached a point in which his condition was such that he could not fly or was that state likely to persist such that there was no foreseeable prospect to removal in the future. Furthermore the caseworkers examined these questions in the context of Chapter 55.10 EIG.

Furthermore there is no evidence that during this period the condition of ASK deteriorated or reached such an acute stage that an immediate transfer was required.

Without undermining the individual position of ASK experience tells that there are many patients (seen regularly in the criminal courts) whose conditions are significantly more serious than that of ASK. Many patients seen in the criminal courts are acutely psychotic and potently dangerous to themselves and to others. Seriousness is a relative concept and for this reason in times of scarcity of resource priorities are (inevitably) set and, within reason, the courts must at least take this into account.

The caseworkers were aware that if the condition of the Claimant became acute then it was always open to them simply to take ASK to A&E and, in essence, force the issue. If ASK was taken to A&E a bed would have to have been found for him and he would then be in the hospital system and out of the IRC system. This was an option mooted by caseworkers and it existed as an ever-present fallback (see for example paragraph [121] above). Its existence as a fall-back helps puts the question of resources into context. In the event of a true “A&E” type emergency then a bed would be found in hospital even if following hospitalisation the patient was transferred between different wards and beds and/or hospitals. As such the fact that there is an allocation of scarce resources which might, at a given point in time, mean that no bed is immediately available, is unproblematic given that in the case of a real emergency a bed can be made available through the A&E access route. In the present case, on the facts, this option was considered but it was not thought necessary to invoke because, at the relevant points in time, ASK’s position was not considered sufficiently serious and it was considered that he could be monitored and treated in the IRC. This is in my judgment a relevant consideration. The delay caused in transferring ASK because of a shortage of capacity was not such as to give rise to a breach of any duty.

Although not formally relevant to the legality of the decision to transfer, the period following transfer does not provide evidence suggesting that upon transfer ASK’s mental health improved. On the contrary his condition varied depending upon whether ASK complied with his medication regime. Nothing in the post-admission period therefore supports a conclusion that ASK received inferior treatment whilst in the IRC: see generally paragraphs [152] – [165] above.

In pulling threads together I should briefly comment on Article 8 (private rights). There is no basis for concluding that Article 8 was violated. ASK is not married nor has children. It appears that at all times his family were keen for him to receive psychiatric assistance from the state in this jurisdiction. They were not prepared to accommodate or look after him in their own homes.

In terms of the grounds and causes of action relied upon: (i) the treatment of ASK was consistent with Chapter 55.10 EIG; (ii) it did not amount to a breach of Articles 3 and/or 5 and/or 8 ECHR; (iii) there was no breach of Hardial Singh principles; and (iv), the detention was at all times lawful.

Analysis: Mental Capacity Act 2005

The Claimant argues that ASK lacked mental capacity throughout and the failure to accord to him legal or the appropriate representation materially delayed his transfer to hospital. I do not agree.

The first point to observe that the scope for the operation of the MCA 2005 is limited since many of the pivotal decisions did not require ASK’s consent, not the least because it was not argued that ASK has any sensible or meaningful immigration grounds upon which to object to removal. He did not need lawyers to contest removal on normal, non-medical, grounds. However this does not mean that ASK’s capacity was irrelevant since important decisions relating to ASK still needed to be taken including in particular as to transfer to hospital upon which his views were relevant.

The second point to observe is that on the facts ASK’s mental capacity was under constant review by an array of qualified professionals who were aware of his personal circumstances and were constantly considering what the best treatment for him was and whether it could be provided in the IRC. I can see no evidential basis for saying that yet another clinician instructed solely to act on ASK’s behalf and acting with professional objectivity would have altered the situation.

Third, evidence that ASK’s capacity was in the minds of the decision-makers is found in the acceptance by the Defendant of the conclusion in the report of Dr Dossett that when ASK is non-compliant with his medication regime he lacks capacity, but when he is compliant he has capacity. As of the date of this report ASK himself wished to return to Pakistan (see paragraph [138] above). Yet, acting in ASK’s best interests, and upon evidence that he might lack capacity, the Defendant decided that contrary to ASK’s personal preference in his best interests no steps should be taken to remove ASK (see paragraphs [139] – [143] above).

In these circumstances I can detect no breach of the MCA 2005. In the alternative if there was a breach it caused no loss or damage or prejudice to ASK.

Analysis: Equality Act 2010

This argument was not at the forefront of the Claimant’s case. The challenge operated essentially at the systemic level (see paragraph [54] above). Insofar as the argument was made fact specific (see paragraph [57] above) it remained at a very generalised nature. I have a number of difficulties with the submission. First, on the facts I have rejected the suggestion that ASK was treated less than satisfactorily. I am unable to detect any aspect of his treatment that was unequal or discriminatory when compared to that available to any other comparable person (whether immigration detainees generally or those subject to mental health conditions specifically). Second, given my conclusion on the facts and the fact that the argument on this point was relatively light and the paucity of real evidence on the case this is not in my view an appropriate case in which to explore an argument based upon alleged systemic flaws.

Conclusion

In conclusion for all the above reasons this claim fails on the facts.

Introduction

As referred to in paragraph [10] of this Judgment, at the end of the oral hearing, in the light of submissions made by the Secretary of State that she could not be held liable for certain failings which might arise in the course of detention, I adjourned proceedings so as to permit submissions to be made on who, in a variety of different circumstances, the correct Defendant would be. In particular I sought submissions on which government department/Secretary of State was responsible in law for each of the following: (i) the initial decision to detain; (ii) the provision of healthcare in an IRC; (iii) the decisions (a) as to fitness to detain and (b) fitness to travel; (iv) the decision to obtain certificates under section 47 MHA 1983; (v) the decision to implement transfer decisions under MHA 1983; and (vi) the decision to accept a person to a particular psychiatric hospital. In the case of each permutation I sought submissions on the legal and statutory basis for each decision. I also asked for submissions on the position which would apply were responsibility for any function to be shared. Finally, I sought submissions on the government entity which had responsibility in law for providing assistance to a detainee lacking mental capacity pursuant to the Mental Capacity Act 2005. I also sought submissions as to whether the State was indivisible for the purposes of liability.

In the event, for the reasons set out fully in the Judgment, it has not been necessary to form a concluded view as to which state entity or entities is responsible for any breach. At the point in time at which I made the direction for submissions I had formed no view as to the merits of the case. In the light of the conclusion that I subsequently arrived at an analysis of the issue of attribution of liability is not called for. However, this issue might arise in future cases and, in the circumstances, I have concluded that it is helpful to summarise the submissions of the various parties on the central issues.

The Initial Decision to Detain

All the parties agree that the Secretary of State is responsible for the exercise of the statutory power to detain for immigration purposes. The principal sources of the statutory powers of detention are found in Schedules 2 and 3 Immigration Act 1971. Further powers to detain are set out in section 62 Nationality, Immigration and Asylum Act 2002 and in section 36 UK Borders Act 2007. The power may be exercised in a wide variety of circumstances. These include upon arrival in the UK for the purpose of examination (paragraph [16] Schedule 2 to the Immigration Act 1971); pending administrative removal pursuant to section 10 of the Immigration and Asylum Act 1999 (paragraph [16] Schedule 2 to the 1971 Act); and pending deportation from the UK (paragraph [21] Schedule 3 to the 1971 Act and/or section 36 UK Borders Act 2007). Separate powers of detention exist in relation to nationals of EEA pursuant to Regulations 19 and 24 of the Immigration (European Economic Area) Regulations 2006.

The power arising in the present case is contained in paragraph [16] Schedule 2 Immigration Act 1971. The Secretary of State explained: “There is no dispute that prima facie this case fell within the scope of the statutory power to detain, which has been recognised as a broad power. The power depends on there being ‘reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs [8] to [10A] or [12] to [14] [IA 1971]’”.

The Claimant, in his submissions, contended that the power to detain was subject to a variety of overarching legal principles contained in the common law and under the ECHR. The Secretary of State recognises that there is a basic common law requirement that a detainee be fit for detention (R (M) [2008] EWCA Civ 307 at paragraph [39]) and in other sources but she observes that in practice these add little if anything in the light of the guidance set out in Chapter 55.10 Enforcement Instructions and Guidance. The Secretary of State therefore agrees that there are overarching curbs to the exercise of the power but she differs as to the application of that principle in the present context (as the facts of the case demonstrate).

The Provision of Healthcare in an IRC

The Secretary of State submits that she has no statutory duty or power to provide health care in an IRC or to fund its provision. She relies upon the response provided to the questions by NHS England. NHS England is the body responsible for commissioning the provision of health care in IRC’s pursuant to regulations made under section 3 B(1)(c) National Health Service Act 2006 as inserted by section 15 Health Social Care Act 2012. She contends that the funding of the provision of health services was transferred to NHS England as part of a transfer of responsibilities. She accepts that she has committed to cooperate with NHS England in the discharge of its duties. However all the usual rules of medical confidentiality apply. The Secretary of State is not responsible for monitoring the quality of health care delivered by service providers commissioned by NHS England. In her written submissions the Secretary of State thus stated: “In this case, the SSHD accepts no legal responsibility for the provision of primary, secondary or tertiary medical services to the Claimant or any matters of judgment, acts or omissions by the responsible clinicians wherever located”.

In written submissions submitted by NHS England the only question to which a detailed response was considered appropriate was that in relation to the provision of health care in an IRC. NHS England took the view that it was responsible under 2012 Regulations for commissioning the provision of health care in IRC, i.e. ensuring that a body was contractually obliged to provide health care. However in its submissions it stated: “It is not itself legally responsible for decisions taken in the course of that provision by the provider; those are the responsibility of the provider in public and/or private law depending on the circumstances”.

NHS England also submitted:

“The decision to accept a person to a particular psychiatric hospital (under section 48 of the 1983 Act or otherwise) is a matter for the responsible clinicians, employed by the applicable provider. It is not a commissioning matter. In this case, the Claimant’s transfer could, at different times depending on the medical recommendations of the responsible clinicians in his case, have been to a PICU commissioned by the local CCG or to a secure mental health facility commissioned by NHS England.

Commissioned providers will have internal processes by which a case can be escalated if there is concern that delays are occurring, or if there is clinical disagreement. Providers also have internal mechanisms which allow them to manage capacity issues. In secure mental health cases, NHS England’s commissioning role enables it to assist providers in identifying spare bed capacity; but in non-secure (e.g. PICU) mental health cases providers would be expected to liaise with each other to deal with any capacity concerns because NHS England has not commissioned the non-secure services. Similarly, as indicated above, providers or other interested persons will sometimes seek the involvement of NHS England to assist in the resolution of any transfer issue. NHS England considers it is able to provide advice as a neutral body under its section 2 general incidental power, but as no legal power to direct a particular outcome.

For the same reasons as those set out above, responsibility for providing assistance to a detainee in an IRC under the Mental Capacity Act 2005 cannot be a matter for NHS England as the commissioning body. Providers are commissioned to provide a reasonable level of health care. This includes health care to those lacking mental capacity, and the assessment process to determine capacity. Individual decisions of capacity are not, and could not be, a matter for NHS England because it is a matter of expert judgment on the part of the responsible clinician or other appropriate person.”

In the concluding section of its submission NHS England acknowledged that there may be a lack of clarity in some instances as to the precise governmental body responsible for particular actions in an IRC context. However, the essential position was that where a complaint concerned a clinical decision, any inquiry into legal responsibility had to start with the actual provider of the services in which context the act occurred. If legal responsibility was to be assumed by a body, such as NHS England, whose role was at a higher level of abstraction such as commissioning, then a clear rationale and justification was required. Any allegation concerning the performance by NHS England of its commissioning responsibilities had to be clearly pleaded and explained and there was no such particularisation in the present case.

The Claimant argued that the Secretary of State as the detaining authority had a legal duty to ensure provision of medical care and treatment for detained persons. It is acknowledged that the Secretary of State could contract out both the management of detention centres and the functions to be performed within such directly managed centres pursuant to sections 149 – 150 Immigration and Asylum Act 1999. However where management was contracted out the Secretary of State had to ensure compliance with the requirement of Part VIII of the Act and with any Rules made pursuant to Part VIII thereof, which would include the Detention Centre Rules 2001 issued by the Secretary of State. The Secretary of State was required to appoint a contract monitor for each contracted out centre whose duty included reporting to the Secretary of State upon the running of the centre. It followed that the Secretary of State had legal responsibility for setting the terms of the contract for management of a detention centre including the delivery of health care services and the monitoring of performance therein. The Claimant also pointed out that health care provision within IRC is governed by Rules 33 – 37 of the Detention Centre Rules 2001 which Rules are made pursuant to the powers of the Secretary of State under Part VIII and Schedules 11 and 13 Immigration and Asylum Act 1999. These Rules governed such matters as: the requirement for IRC’s to have qualified general practitioners and a health care team responsible for care of the physical and mental health of detained persons; the carrying out of a medical examination on admission and thereafter upon request by a detainee; the provision of reports by qualified medical practitioners to managers in the case of any detained person whose health is likely to be injuriously affected by continued detention or conditions of detention; the obligation to report on detainees who may be suicide risks; and, the obligation to report on detained persons who may be the victims of torture. The detention centre managers were required to send copies of Rule 35 reports to the Secretary of State without delay. Further the Secretary of State had issued Detention Centre Operating Standards which set out the standards and procedures which detention centres had to maintain in place. Moreover the Secretary of State had issued Detention Service Orders (DSOs) which provided instructions to Home Office and detention centre staff on matters relating to the management and care of detainees. These included instructions on medical appointments, food and fluid refusal etc.

The Claimant argues that the overriding legal obligation to ensure provision of medical care and treatment in IRC’s on the part of the Secretary of State is non-delegable: GB v Home Office [2015] EWHC 819 (QB) at paragraphs [35] – [43]. Further the Claimant refers to R (C) v Secretary of State for Justice [2009] 2 WLR 1039 at paragraph [58]; and, D v SSHD [2005] 1 MHLR 17 as authority for the proposition that the Secretary of State is under a concurrent public law duty to ensure the health and the welfare including the mental wellbeing of those she detains and to manage and monitor the activities of private contractors who are contracted to run detention facilities. These public law duties are also said to be non-delegable: R (Das) v SSHD [2014] 1 WLR 3538, HA (Nigeria) [2012] EWHC 979 (Admin). Further the Claimant relies upon the provisions of the ECHR insofar as they affect the health, safety and well being of detainees, particularly those with mental illnesses, to ensure that they are held in appropriate conditions meeting their medical needs: Savage v South Essex Partnership NHS Trust [2009] 1 AC 681 at paragraphs [28] – [29].

In relation to shared responsibility between the Secretary of State and other providers of health care the Claimant refers to the fact that the practical arrangement for commissioning health care after 1^st April 2013 (when responsibility for commissioning health care services in IRC’s transferred to NHS England pursuant to Schedule 3 National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012). However, the practical arrangements for commissioning health care since the 1^st April 2013 required continued involvement by the Secretary of State pursuant to a Partnership Agreement between Home Office Immigration Enforcement, NHS England and Public Health England. The agreement explains that those three entities have a shared responsibility for the development of health and wellbeing service to detainees on the basis of a shared assessment of need, patient involvement and evidence-based practice.

In conclusion the Claimant submits that the Secretary of State has legal and practical responsibility for the provision of health care in IRCs and her powers and function must be viewed in the context of her overarching legal responsibility as the detaining authority for immigration detainees which is unaffected by contractual arrangements made for health care provision by other public or private providers.

Decisions as to “Fitness to Detain” and “Fitness to Travel”

The Secretary of State accepts that ultimate responsibility for decisions on fitness to detain and fitness to fly rests with her. She will take her decision on the basis of factual assessments and clinical opinions of responsible clinicians, who are normally best placed to make such assessments. The Secretary of State will consider other expert opinions provided or other relevant information. The Detention Centre Rules 2001 impose a legal obligation on responsible clinicians to examine a detainee within 24 hours of arrival in an IRC and at any and all times to inform the manager of medical conditions that might make detention injurious to a detainee’s health. The IRC manager must inform the Secretary of State. In the context of the present case the Secretary of State accepts responsibility for making public law compliant assessments of the clinical information in relation to fitness to fly and fitness to be detained.

The Claimant also concludes that the Secretary of State is responsible for exercising the power to detain and/or the power to remove an individual from the UK. It follows that a decision as to whether an individual is “fit to be detained” or “fit to travel” is one for the Secretary of State. It is pointed out that in practice the Secretary of State does not consider whether an individual is fit to travel but only whether he or she is fit to fly. That expression comes from the Civil Aviation Authority. It is not a statutory test for detention or removal and is not incorporated into the Secretary of State’s policy on detention.

The relevance of fitness to travel to the exercise of the power of detention is that an individual who is not fit to travel cannot be removed which therefore impacts upon the legality of the exercise of the power to detain for the purpose of removal. The question whether an individual is fit to be detained or fit to travel is one informed by and based upon clinical opinion. The Claimant submits that the Secretary of State must make inquiries of clinicians within an IRC as to whether a detainee is fit to be detained and/or fit to fly. It is submitted that the Secretary of State: “If acting rationally will accept that opinion and act upon it unless there is some very good reason to reject it”.

The Claimant also submits that the Secretary of State has no power to decide whether an individual is “fit to be released into the community”. The Secretary of State can only exercise the power of immigration detention for the purpose of specified immigration purposes (i.e. removal) not for any other purpose including the prevention of harm to the detainee or others: AA v SSHD [2010] EWHC 2265. If an individual is not fit to be detained for the purpose of removal then the Secretary of State is required to consider whether she may continually lawfully exercise a power of detention. An individual suffering from a mental illness who is released into the community is entitled to treatment and services available in the community under the relevant duties upon local authorities and/or subject to statutory provisions governing mental health in the MHA 1983. This includes voluntary admission to hospital or detention pursuant to sections 2 and/or 3 MHA 1983. It is open to the Secretary of State and/or clinicians working within the IRC to liaise with local mental health services to ensure that the individuals concerned receive appropriate care when they are released from IRC detention but it is not a precondition for release from immigration detention where it would otherwise be unlawful.

The Decision to Obtain Certificates: Sections 47 MHA 1983

The Secretary of State contends that she has no responsibility for the decision to obtain such certificates. She points out that answers provided by the Ministry of Justice to the questions posed by the Court indicate relevant provision and practice in this area: see below. The Secretary of State explains that she may be asked to provide information in relation to the security needs of a detainee relevant to the level of security needed in a psychiatric institution. However she accepts no responsibility for decisions in relation to section 47. She says that insofar as the present case contains an allegation of unlawfulness on the part of the Secretary of State in relation to section 47 then it must fail as having been brought against the wrong defendant. As to the correct defendant she declines to pinpoint responsibility, and says: “The right defendant may depend on the particular nature of the allegation (i.e. whether it is an allegation of individual error of the relevant clinician or as a result of a system failure or institutional failure)”.

The Ministry of Justice has provided a helpful explanation in relation to the role of the Secretary of State for Justice in the transfer of immigration detainees pursuant to the MHA 1983. Pursuant to section 48(1) in conjunction with section 47(1) the Secretary of State for Justice may by warrant direct the removal and detention in hospital for treatment of certain persons. Those persons are set out in section 48(2) which include, at section 48(2)(d) those detained under the IA 1971 or under section 62 Nationality Immigration and Asylum Act 2002. The powers of the Secretary of State for Justice may be exercised where the Secretary of State is satisfied by the provision of reports from at least two registered medical practitioners (one of whom must be approved under Part III of section 12 MHA 1983) that the detainee is suffering from a mental disorder of a nature or degree which makes it appropriate for the detainee to be detained in a hospital for medical treatment; the detainee is in urgent need of that treatment; and appropriate medical treatment is available for the detainee. The Secretary of State for Justice may, pursuant to section 49, make the transfer detainee subject to the special restrictions set out in section 41. It is confirmed that all of the Secretary of State’s functions under section 48 and 49 MHA 1983 are in practice exercised by the Secretary of State for Justice. The power to transfer immigration detainees to hospital pursuant to section 48 is related to the Secretary of State’s powers in relation to prisoners and other persons detained under the MHA 1983. The powers were formally exercised by the Secretary of State for the Home Department until the establishment of the Ministry of Justice in May 2007 when they were transferred to the new Secretary of State for Justice. The particular functions are undertaken on behalf of the Secretary of State by a team of officials in the Ministry of Justice – the Mental Health Casework Section. This section, formally known as the Mental Health Unit, was transferred from the Home Office to the Ministry of Justice upon the establishment of the latter in 2007.

The Claimant does not demur from the above analysis. He submits that the responsibility for transfer decisions lies with the Secretary of State for Justice. However, and in disagreement with the Defendant, it is submitted that unlike in prison cases the Secretary of State for the Home Department remains the public authority responsible for detention under the immigration legislation which remains the case where a person is transferred pursuant to sections 47/48 MHA 1983. The authorisation for detention continues. Once the person is no longer liable to detention under immigration powers any transfer decision “shall cease to have effect”: section 53 MHA 1983 which, it is said, indicates that the underlying power to transfer rests with the Secretary of State for the Home Department. It follows, so it is argued, that the Secretary of State for the Home Department retains responsibility for ensuring that all reasonable steps are taken to facilitate a speedy and effective transfer to hospital where the need for one is identified. The Claimant rejects the submission of the Secretary of State in the present case that she has no legal or practical responsibility for ensuring that those unfit to be detained in an IRC and requiring treatment in psychiatric hospitals are not speedily transferred to hospital beyond providing evidence as to level of security. The Claimant points out that the present Defendant does not identify who the correct defendant would be asserting that it all depends upon context and the nature of the allegations made. The Claimant appears to accept that the position of the NHS England that it does not have legal responsibility for a failure to ensure speedy transfer to hospital although it can and will assist if approached; and the submission of the Ministry of Justice that its responsibility is confined to the issuing of the warrant once the statutory requirements are met and it is requested to do so. The Claimant submits that the health care provider and individual clinicians are the only other possible candidates but such bodies are not on current public authority susceptible to judicial review or pursuant to the Human Rights Act 1998 responsible for failures to comply with the Detention Centre Rules 2001 and the Operating Standards: D and K v SSHD [2006] EWHC 908 at paragraphs [93] and [102] – [105]. The Claimant says that if the Secretary of State for the Home Department is correct there could be no claim for unlawful detention or breaches of fundamental rights against such entities leaving a Claimant with no remedy in respect of wrongs.

The Decision to Accept a Person to a Particular Psychiatric Hospital

The Secretary of State in the present case contends that she has no responsibility for the decision to accept a person to a particular psychiatric hospital because, as for individuals in the community, this is a clinical decision. In relation to the present case it is said that if the allegation is that the Claimant should have been accepted to a particular hospital and was denied hospital treatment as a result of a refusal to admit the Claimant then the Defendant cannot be held responsible for such an alleged failure or any failure on the part of any clinician or medical institution to provide adequate medical treatment.

The Claimant states that ordinarily the decision whether to accept a patient into a hospital is for the “gate keeping” clinician to make. Legally the decision to accept a patient to a particular hospital is that of the hospital managers responsible for any subsequent detention under the MHA 1983: section 6 MHA 1983. However, it is argued that in the case of a transfer pursuant to sections 47/48 MHA 1983 the individual remains detained under the authority of the Defendant. A transfer does not require that a bed be made available in the local psychiatric hospital or that the hospital concerned agrees to the transfer: R (D) v SSHD and National Assembly for Wales [2004] EWHC 2857. It was pointed out that the Mental Health Act Code of Practice states at paragraph [22.69] that exceptionally the Secretary of State for Justice may “direct” a restricted patient’s admission to hospital pursuant to section 48 outside of normal NHS commissioning arrangements. The legal power to direct such transfer lies with the Secretary of State for Justice and responsibility for ensuring that steps are taken to procure a warrant for transfer lies with the detaining authority, namely the Secretary of State for the Home Department.

Provision of Assistance to a Detainee Lacking Mental Capacity Pursuant to the Mental Capacity Act 2005

The Secretary of State argues that pursuant to section 1 MCA 2005 she is obliged to treat all detainees as having mental capacity to make decisions. However she contends that there are no decisions by the Secretary of State in issue in this case that are “consensual”, i.e. decisions requiring agreement by an individual. Removal and deportation decisions are not consensual. They take place even if the detainee objects strenuously. Where a foreign national subject to removal actioned indicates that they wish to make a voluntary return the Secretary of State may seek confirmation of their mental capacity to make that decision, as happened in the present case. But there is no legal requirement for consensual removal or deportation to be given.

She contends that it is the duty of responsible clinicians to ensure that detainees suffering from mental health issues receive appropriate treatment and assistance and as part of those duties the clinicians must ensure that there is mental capacity to make decisions concerning medical treatment and to ensure that the duties under the MCA 2005 are adhered to. But the Defendant has no statutory power under the Act or otherwise, and no practical ability, to assess the mental capacity of a detainee to make any type of decision or become involved in the detainee’s decision making in medical, financial or legal matters.

The Claimant agrees in part with the above analysis; but in important respects disagrees with it. The Claimant accepts that the Defendant is correct that decisions by the Secretary of State to remove or deport an individual are non-consensual and do not require the consent of the individual concerned and it is also correct that there is a statutory presumption of capacity in section 1 MCA 2005. However the Claimant disagrees that, upon this basis, there is no duty upon the Defendant to assess, or request the assessment of, the mental capacity of a detainee or to take steps to assist an incapacitated detainee to participate in the process and in decision making. It is argued that the Defendant has recognised that there are situations in which a detainee’s mental capacity will effect decisions taken about them whilst in detention. For example DSO03/2013 requires capacity to be assessed where a detainee is refusing food and/or fluid. DSO01/2016 (medical information sharing) expressly recognises the best interests duty in respect of an incapacitated detainee when decisions are taken requiring consent to information sharing. The Claimant also joins issue with the Defendant when she says that she has no power or practical ability to assess mental capacity. It is said that no specific statutory power is required since the MCA 2005 requires anyone working with an incapacitated person to assess capacity where there is a cause for concern. The Defendant’s case workers are, it is said, able to recognise situations and information causing concern that a detainee lacks capacity and to request a capacity assessment from an appropriate clinician or health care professional. It is said the Defendant has not introduced procedural guidance to caseworkers on when and how the capacity of a detainee should be assessed at all. In the present case it is said that the duty to assess mental capacity was triggered by the Claimant’s symptomatic behaviour which raised concerns from the outset that the Claimant could not understand communications from officers and by the consistent concerns raised by clinicians including the two section 48 psychiatrists as well as Dr Goldwin and Dr Dossett. The decision relating to immigration status and removal from the UK to Pakistan were decisions requiring the Claimant’s participation. At various times he agreed to voluntary removal and at other times he suggested a claim for asylum.

The Defendant, the Interested Party (NHS England) and prospective Interested Parties (Ministry of Justice and the Department of Health) use best endeavours to file and serve a written response or respective responses to the issues set out in Appendix 1 to this order as soon as possible and by no later that 4 pm on 14 July 2016.

The Claimant shall file and serve a written reply to the document(s) referred to in paragraph 1 above as soon as possible and no later than 14 days after service upon them of the said documents.

To the extent that any response is judged necessary, the Government bodies identified in paragraph 1 shall file and serve any response no later than 7 days after service of the Claimant’s reply.

There is liberty to apply to vary this order for all those identified in it.

An issue arose in the course of argument as to the responsibility in law and in fact for various acts or omissions alleged to have occurred in the treatment of the Claimant whilst detained for immigration purposes.

The Secretary of State has argued that not every act or omission can be attributed to her and that the responsibility for some acts/omissions at least is either that of NHS England (Department of Health) and/or the Ministry of Justice. She accepts that the position might be different under the ECHR because relevant articles are binding upon the “United Kingdom” qua signatory and for that propose the state is indivisible. But she appears in this regard to draw a distinction with domestic law.

The Claimant contends that clarification has already been sought from the Secretary of State as to her case on responsibility for decision taken in the detention context but that none has been provided. It is at present unclear in my mind as to the significance for these proceedings of the point now being raised; for instance is it being argued that the claim would fail (assuming otherwise it could be made out) upon the basis that the wrong defendant has been identified.

The question of the attribution of responsibility as between different Government departments and different Secretaries of State under the relevant legislative regimes and whether this is severable or indivisible etc., is or may be relevant to a number of issues arising in the case for determination.

The Court has already received helpful submissions from NHS England on its role in detention related decisions. NHS England was, hitherto, an Interested Party in the proceedings but prior to the hearing considered that there was no need or reason for it to remain actively involved in the proceedings. It is however at least arguable that there is a difference of view between NHS England and the Defendant as to who bears actual responsibility for decisions taken in the detention context.

In the present case there are a number of decisions which are challenged and in respect of which issues of attribution of responsibility might arise. I give two illustrations. First, the Claimant alleges that the lack of a speedy and prompt transfer of the Claimant from IRC to hospital was unlawful. The Secretary of State argues that there was no unreasonable delay but, in any event, the responsibility for transfer lay with NHS England because, on the evidence, it was a disagreement between clinicians which delayed the process. A second illustration concerns responsibility for decisions taken in relation to mental capacity. The Claimant argues that he lacked mental capacity to participate in relevant detention related decisions adverse to his interest and that the failure of the Defendant to enable him to be represented legally at a sufficiently early stage impacted adversely upon his position and rights. The Secretary of State rejects the legal analysis but in any event argues that she is not responsible for the provisions of legal representation to detainees. I express no present view at all on these illustrations and they serve simply to highlight how issues of attribution of responsibility from within Government might be significant.

In my view there is at present insufficient clarity as to the relationship between the different roles undertaken between different governmental bodies for me to be able to assess the Defendant’s arguments or determine with precision their relevance to the issues arising. It also seems to me that these questions might be of broader importance.

For these reasons at the end of oral argument I adjourned proceedings to enable the parties to seek to agree an order which was to be served on all potentially relevant Government Departments.

In my view it is important that issues such as these are not determined by the Court without the various Governmental bodies having had a proper opportunity to consider them and to make such submissions to the Court as they see fit. Equally, it is not fair on the Claimant to be in a position where there is a lack of clarity as to the Government’s position. I am conscious of the difficulties which might arise at the present time within Government which might make the coordination of views more difficult. The Order thus requires best endeavours to produce answers. I would make clear that I would prefer full responses rather than hasty ones. If more time is properly needed then the parties should liaise and agree revised timetables accordingly. I will expect sensible and effective cooperation between all parties in this regard.

In the circumstances I make the Order set out above.

Which Government Department/Secretary of State is responsible in law for each of the following:

The initial decision to detain.

The provision of healthcare in an IRC.

The decisions (a) as to fitness to detain and (b) fitness to travel.

The decision to obtain certificates under s 47 MHA 1983.

The decision to implement transfer decisions under MHA 1983.

The decision to accept a person to a particular psychiatric hospital.

What is the legal basis for each of the above decisions? Please identify the statutory basis in each case.

If responsibility for any function is shared please identify the legal basis for sharing and identify precisely how (a) responsibility in law and (b) in fact, is divided up between the parties.

Which government entity or entities at the each stage of the detention process has responsibility in law for providing assistance to a detainee who lacks mental capacity pursuant to the Mental Capacity Act 2005.

The Defendant is to explain how her answers to the above questions impact upon the present proceedings. For instance is it her case that if (for the sake of argument) the responsibility for a particular decision lies with another Secretary of State / Department then the Claim fails upon the basis that the wrong person has been made a Defendant in these proceedings? If the Interested parties also wish to comment upon this issue then they should do so.

The answers to the above are needed to enable the Court to know who, in the event the Court finds a breach, is responsible for remedying the defect and/or paying compensation (if any).