R Pratima Das v Secretary of State for the Home Department Mind and Another (Interveners)
|England & Wales
|Lord Justice Beatson,Lord Justice Underhill,Lord Justice Moses
|28 January 2014
| EWCA Civ 45
|Case No: C4/2013/1131
|Court of Appeal (Civil Division)
|28 January 2014
 EWCA Civ 45
Lord Justice Moses
Lord Justice Beatson
Lord Justice Underhill
Case No: C4/2013/1131
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
The Hon. Mr Justice Sales
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephanie Harrison QC and Michelle Brewer (instructed by Sutovic and Hartigan Solicitors) for the Appellant
Julie Anderson (instructed by The Treasury Solicitor) for the Respondent
Dinah Rose QC, Tim BuleyandMartha Spurrier (instructed by Bhatt Murphy and Deighton Pierce Glynn) for the Interveners
I. Overview of the questions for decision and conclusions:
This appeal concerns the circumstances in which a person who the Secretary of State for the Home Department has power to remove from the United Kingdom and intends to do so but who has a mental illness may be detained. Such detention, commonly called "immigration detention", is authorised by the Immigration Act 1971 ("the 1971 Act"). Detainees may be held either at Immigration Removal Centres or in prisons. The broad powers given to the Secretary of State are limited by common law principles reflecting the importance of the liberty of the individual and the right to be free from arbitrary detention. They are also limited by the Secretary of State's own policies about immigration detention. Those policies are now principally contained in a document, Enforcement Instructions and Guidance ("the policy"). This appeal concerns one of those policies, the guidance in §55.10 of the policy that those "suffering from a serious mental illness which cannot be satisfactorily managed within detention" are suitable for detention "in only very exceptional circumstances".
The Appellant, Ms Pratima Das, an Indian national, claims compensatory damages for false imprisonment in respect of her detention between 7 November 2011 and 12 January 2012, when she was granted immigration bail. She maintains that it was unlawful to detain her because of her mental illness. The Secretary of State has wished to remove her from the United Kingdom since October 2008, when her application for asylum was refused, her claim was certified as clearly unfounded, and she was detained for eleven days. She was lawfully removed from the United Kingdom on 18 June 2012 and since then has pursued these proceedings from India.
In an order made on 26 March 2013 and sealed on 5 April, Sales J declared (Order, paragraph 1 and judgment, –) that the detention of Ms Das between 7 November 2011 and 12 January 2012 was unlawful and a false imprisonment. He held the detention was unlawful because, having adopted a policy regarding the detention of those suffering from serious mental illness, the Secretary of State failed to give practical effect to that policy by taking reasonable steps to inform herself sufficiently about Ms Das's mental health so as to be able to decide whether the policy applied in Ms Das's case. He, however, ordered that Ms Das was only entitled to nominal damages (Order, paragraph 2) because (see judgment, ) on the facts of her case she could lawfully have been detained and "it was in substance inevitable that she would have been detained had the Secretary of State properly complied with her legal obligations". The judge gave Ms Das permission to appeal on the issue of nominal damages and the correct interpretation of §55.10 of the Secretary of State's policy. Since the judge's order Mind and Medical Justice have been given permission to intervene in these proceedings.
There are two issues in this appeal. The first and principal question for decision is whether the judge set a higher threshold for the applicability of §55.10 of the Secretary of State's policy on those suffering from mental illness than that established by previous authority. It was submitted by Miss Harrison QC on behalf of Ms Das, and Miss Rose QC on behalf of the Interveners, that he erred in setting too high a threshold for an illness to qualify as a "serious mental illness", and too low a standard for concluding that mental ill health can be satisfactorily managed in detention.
As to "serious mental illness", the judge stated (at ) that the term "connotes a serious inability to cope with ordinary life, to the level (or thereabouts) of requiring in-patient medical attention or being liable to be sectioned under the Mental Health Act 1983". The Appellant and the Interveners submitted that confining the term broadly to illness requiring a particular form of medical intervention, hospitalisation, was wrong, particularly since the majority of those with serious mental illnesses are treated in the community.
As to "satisfactory management", the judge stated (at ) that the Secretary of State was entitled to have regard to what may be expected to be practically effective "in preventing a detainee from slipping into a state of serious inability to cope with ordinary life". Meeting this standard of "practical effectiveness of treatment", as opposed to "treatment which avoids all risk of suffering mental ill health or any deterioration in an individual's mental well-being" would, he stated, be satisfactory management. It was submitted that to interpret "satisfactory management" as management which permits deterioration up to the point where there is a real risk of a break-down requiring hospitalisation is to deprive the term of any effective meaning.
The second issue only arises if the judge did err in relation to the threshold for the applicability of §55.10. On behalf of the Secretary of State, Miss Anderson, submitted that, on the particular facts of this case, if, contrary to her primary case, the judge did err, his error did not affect the outcome of Ms Das's claim. Accordingly, she submitted that paragraph 2 of the order which states that Ms Das is entitled to nominal damages only can be upheld. This part of Miss Anderson's case involved a greater engagement with the facts than was to be expected in an appellate court in what had been identified as a test case about the meaning of "serious mental illness which cannot be satisfactorily managed in detention".
For the reasons I give in section VI of this judgment, at –, I have concluded that the judge did fall into error by setting too high a threshold for an illness to qualify as a "serious mental illness" so as to engage the policy in §55.10. Notwithstanding the force of Miss Anderson's arguments, and in the absence of any evidence explaining the Secretary of State's decision-making in this case before the court below or before this court, for the reasons I give in section VII of this judgment, at –, on the material before the court, I am unable to conclude that the error did not affect the outcome of Ms Das's claim.
II. Evidence and procedural matters:
The Interveners have submitted evidence. This consists of the witness statements both dated 21 October 2013 of Vicki Nash, Head of Policy and Campaigns at the mental health charity, Mind, and Emma Mlotshwa, the Co-ordinator of Medical Justice. The supporting documents referred to in the statements include articles, papers and reports on the mental health implications of immigration detention, reports about a number of Immigration Removal Centres, a statement in support of Mind's intervention by Dr Kamaldeep Bhui, Professor of Cultural Psychiatry and Epidemiology and an Honorary Consultant Psychiatrist based at Barts and the London School of Medicine and Dentistry and East London Foundation Trust, and a "position statement" from the Royal College of Psychiatrists on the detention of persons with mental disorders at Immigration Removal Centres.
Those representing Ms Das applied to adduce additional evidence in the form of a witness statement of Ms Tori Sicher, a solicitor at Sutovic and Hartigan dated 30 October 2013, and reports of Dr Arvind Sharma and Dr Eileen Walsh respectively dated 21 and 24 October 2013. Both have been involved with Ms Das's case. Dr Sharma is a consultant psychiatrist at the Cheshunt Community Mental Health Trust who treated her between March 2010 and the time she was detained. After she was released on bail in January 2012, he did not resume his care of her because she moved to Southampton. Earlier reports by him were (see ,  and  below) considered by the judge. Dr Walsh is a chartered clinical psychologist who treated her. Miss Sicher states that she sought these reports to elicit the comments of Dr Sharma and Dr Walsh on the decision and findings of the judge in the light of their involvement with Ms Das's treatment. Miss Harrison submitted that it was necessary to have this evidence to interpret the policy and its terms "in the correct medical context both generally and in respect of this individual case", and that in respect of the latter it is only "an analysis of the core material already before the Court". The evidence that is the subject of this application all post-dates the decision to detain Ms Das. Some of it concerns her health since the judge's decision. I have not found it necessary to consider it. I have therefore not had to decide whether the evidence should be admitted or whether Miss Anderson was correct to submit that introducing it would turn an appeal on a point of interpretation into a one-sided rehearing of the proceedings below. I observe only that her submission...
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