R ASK v The Secretary of State for the Home Department NHS England (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 09 February 2017 |
| Neutral Citation | [2017] EWHC 196 (Admin) |
| Docket Number | Case No: CO/9816/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 February 2017 |
[2017] EWHC 196 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: CO/9816/2013
and
Stephanie Harrison QC and Leonie Hirst (instructed by Bhatt Murphy Solicitors) for the Claimant
Julie Anderson (instructed by Government Legal Department) for the Defendant
Christopher Knight (instructed by Browne Jacobson) for the Interested Party
Hearing dates: 21 st– 23 rd June 2016
Approved Judgment
| Paragraph No. | |
| A. Introduction, Issues and Conclusions | 1 – 10 |
| (i) The issues | 1 – 8 |
| (ii) Conclusion on the evidence | 9 |
| (iii) The issue of the proper Defendant | 10 |
| B. The Relevant Law | 11 – 69 |
| (1) Mental Health Act 1983: Sections 2, 3 and 48 | 12 – 14 |
| (2) Relevant Home Office Guidance – Chapter 55.10 of the Enforcement Instructions and Guidance ("EIG") | 15 – 28 |
| (i) The published guidance: Chapter 55.10 EIG | 15 – 16 |
| (ii) Very exceptional circumstances: "satisfactory management" | 17 |
| (iii) The standard of care to be provided | 18 – 19 |
| (iv) Guidance given in O v SSHD | 20 – 22 |
| (v) The need for a "practical inquiry" | 23 – 26 |
| (vi) The duty of constant supervision | 27 |
| (vii) Balancing mental health with other considerations including the risk of harm to the public | 28 |
| (3) The Common Law Duty to Make Inquiries | 29 – 30 |
| (4) Article 3 ECHR: The Prohibition on Torture or Inhuman or Degrading Treatment or Punishment | 31 – 37 |
| (i) The issue | 31 |
| (ii) The test in R v Drew | 32 – 36 |
| (iii) The Shaw Report (January 2016) | 37 |
| (5) Article 5(1)(f) ECHR: Unlawful Deprivation of Liberty | 38 – 46 |
| (i) The legal issue | 38 – 45 |
| (ii) The complaint | 46 |
| (6) Article 8 ECHR: Private Life | 47 |
| (7) The Duration of Detention: The Common Law Duty to Act Consistently with the Statutory Purpose – Hardial Singh Principles | 48 – 51 |
| (8) The Tort of False Imprisonment: Materiality of Breach / Nominal Damages | 52 – 53 |
| (9) Equality Act 2010 (" EA 2010") | 54 – 57 |
| (i) The legal issue | 54 |
| (ii) The complaint | 55 – 57 |
| (10) Mental Capacity Act 2005 ("MCA 2005") | 58 – 69 |
| (i) The issue | 58 |
| (ii) The regulatory framework | 59 – 64 |
| (iii) The complaint | 65 – 69 |
| C. The Approach to be Adopted to the Evidence | 70 – 79 |
| (i) Evidence must be viewed as a whole and in the round – avoiding shot conclusions | 71 |
| (ii) Competence and caseworker hearsay | 72 |
| (iii) Medical hearsay | 73 |
| (iv) Avoid reading documents as if they were legal texts | 74 |
| (v) Piecing together the chronology | 75 |
| (vi) Documents not written according to formula / non-reference to policy | 76 |
| (vii) Failure to record the questions that are asked | 77 |
| (viii) Ex post facto witness statements | 78 |
| (ix) Avoid being wise in hindsight | 79 |
| D. Relevant Facts | 80 – 166 |
| (1) The Claimant | 81 |
| (2) Detention at Lakeside: October – December 2012 | 82 – 83 |
| (3) The Discharge of the Claimant from Lakeside: 13 th December 2012 | 84 |
| (4) Claimant's Conduct and Behaviour Following Discharge from Lakeside | 85 – 88 |
| (5) The Detention of the Claimant by the Police: 17 th January 2012 | 89 |
| (6) First 24 Hours Following Detention | 90 |
| (7) Steps Taken to Obtain the Claimant's Medical Records | 91 |
| (8) Transfer to Morton Hall IRC | 92 – 95 |
| (9) Return to Colnbrook IRC | 96 – 101 |
| (10) The Cancellation of the Removal Directions | 102 – 103 |
| (11) Ongoing Assessments with a View to Removal | 104 – 112 |
| (12) The 14 th April 2013 Review: Transfer to Hospital | 113 |
| (13) Rejection of Release into Community – The Risk of Absconsion / Self-Harm / Harm to Others: 24 th April 2013 | 114 |
| (14) Assessment Against Standard in Chapter 55.10 EIG: 25 th April 2013 | 115 – 116 |
| (15) Dr Musah's Assessment of the Urgent Need for Transfer: 8 th May 2013 | 117 |
| (16) The Section 47 and 48 MHA 1983 Medical Opinions | 118 |
| (17) The Contra-Opinion of Dr Morrison at Lakeside | 119 |
| (18) The Instruction of Medical Justice to Find a Hospital Bed: May 2013 | 120 |
| (19) The Assessment of 20 th May 2013: ASK Manageable in the IRC unless he Becomes Manic / Possibility of Transfer to A&E | 121 |
| (20) The Opinion of Dr Goldwyn: 28 th May 2013 | 122 – 127 |
| (21) The Contra-Opinion of Dr Morrison: 29 th May 2013 | 128 – 129 |
| (22) The Review on 30 th May 2013: Chapter 55.10 EIG Assessment | 130 – 132 |
| (23) The Assessments by Dr Khan on 1 st and 16 th June 2013: No Hospital Transfer Required | 133 – 135 |
| (24) Steps Taken to Remove the Claimant: 19 th June 2013 | 136 |
| (25) Letter before Claim: 19 th June 2013 | 137 |
| (26) Disclosure of Claimant's Healthcare Records | 138 |
| (27) Claimant's Request to Return Home | 139 |
| (28) The Intervention of NHS England | 140 |
| (29) Opinion of Dr Dossett on Legal Capacity: 6 th July 2013 | 141 |
| (30) Position of Defendant as of 12 th July 2013 | 142 |
| (31) Defendant Agrees to Suspend Removal Process: 18 th July 2013 | 143 |
| (32) The Process of Placement of the Claimant in Hospital | 144 – 145 |
| (33) The Acceptance for Placement by the West London Health Trust: 26 th July 2013 | 146 – 149 |
| (34) Admission on 23 rd September 2013 | 150 |
| (35) Detention under Section 3 MHA 1983: 14 th November 2013 | 151 |
| (36) Post Admission Assessment: Dr Stokes Report – 5 th December 2013 | 152 – 154 |
| (37) Post Admission Assessment: Dr Dent's Report – 15 th January 2014 | 155 – 156 |
| (38) Post Admission: The Discharge of the Claimant into the Community – 30 th January 2014 | 157 – 158 |
| (39) Re-Admission of the Claimant to Hospital | 159 – 160 |
| (40) Claimant Adamant that he Wishes to Return to Pakistan | 161 – 164 |
| (41) Transfer to Mott House with a View to Removal | 165 |
| (43) Present Position of the Claimant | 166 |
| E. Analysis: The Duty to Make Enquiries / Detention Unlawful at the Outset (from 17th January 2013)? | 167 – 178 |
| F. Analysis: Detention Unlawful from Date Claimant Assessed as Unfit to Fly (9th February 2013) | 179 – 181 |
| G. Analysis: Failure to Transfer to Hospital after April 2013 | 182 – 195 |
| H. Analysis: Mental Capacity Act 2005 | 196 – 200 |
| I. Analysis: Equality Act 2010 | 201 |
| J. Conclusion | 202 |
| ANNEX I: THE ATTRIBUTION OF RESPONSIBILITY FOR DETENTION | |
| A. Introduction | 1 – 2 |
| B. The Initial Decision to Detain | 3 – 5 |
| C. The Provision of Healthcare in an IRC | 6 – 13 |
| D. Decisions as to "Fitness to Detain" and "Fitness to Travel" | 14 – 17 |
| E. The Decision to Obtain Certificates: Section 47 MHA 1983 | 18 – 20 |
| F. The Decision to Accept a Person to a Particular Psychiatric Hospital | 21 – 22 |
| G. Provision of Assistance to a Detainee Lacking Mental Capacity Pursuant to the Mental Health Capacity Act 2005 | 23 – 25 |
| ANNEX II: ORDER OF 29 th JUNE 2016 |
A. Introduction, Issues and Conclusion
(i) The issues
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...
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