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Detailed note on Judgment: Das, R v Secretary of State for the Home Department - Victory for mentally ill detainees

Written by Sue Willman, Deighton Pierce Glynn Solicitors, 28 January 2014

The Court of Appeal has today allowed an appeal by a woman who was unlawfully detained by the Home Office despite being seriously mentally ill. The judgment gives importance guidance on when the Home Secretary can lawfully detain people with serious mental illnesses who are liable to be removed from the UK.

Queen on the application of Pratima Das and Secretary of State for the Home Department and (1) (Mind) (2) Medical Justice (Interveners) [2014] EWCA Civ 45

Detailed note on Judgment by Sue Willman, Deighton Pierce Glynn

The Claimant was represented by Stephanie Harrison QC and Michelle Brewer of Garden Court Chambers, instructed by Tori Sicher of Sutovic and Hartigan, solicitors. The Defendant was represented by Julie Anderson, instructed by the Treasury Solicitor.

The NGOs, Mind and Medical Justice, were granted permission for a joint oral intervention in which Dinah Rose QC (Blackstone's) and Tim Buley (Landmark) and Martha Spurrier (Doughty St) were jointly instructed by Hamish Arnott of Bhatt Murphy (representing Mind) and Sue Willman of Deighton Pierce Glynn (representing Medical Justice).

On 28/01/14, the leading Judgment was given by Beatson LJ, with which Moses LJ and Underhill LJ concurred, following a 2 day oral hearing.

Facts

Ms Das was an Indian national who came to the UK as an overseas domestic worker. She later claimed that she was a victim of trafficking and sought asylum in 2008. In 2009, a consultant psychiatrist, Dr Sharma, diagnosed her as having moderate depression, PTSD and a mild learning disorder; she received treatment from the CMHT including medication. In separate Employment Tribunal proceedings, a psychiatrist employed by her ex-employer questioned the extent and severity of her symptoms. Her asylum claim and appeal against removal were dismissed in 2010. In 2011, a decision was made to detain Ms Das pending removal, without obtaining and considering a report by Dr Sharma, despite the fact that the decision-making team was aware that such a report existed. (She was not convicted at any point, so did not fall within the 'foreign national prisoner' definition.)

When Ms Das was detained, she provided evidence of her medication and psychiatric appointments, and a risk assessment identified a risk of self-harm and suicide. In detention, she received medication and was assessed as 'fit to fly'. Removal directions were set, cancelled and then re-set. (She has since been removed.)

In the Administrative Court, Sales J found Ms Das was unlawfully detained, but that she would have been detained anyway so was only entitled to nominal damages.

He gave permission to appeal in relation to the interpretation of the Home Office policy EIG 55.10 providing that detention of a person with a serious mental illness can only be justified in exceptional circumstances. Sales had decided that serious mental illness meant a person was at the level that they were so ill they needed to be detained under the Mental Health Act, and satisfactorily managed indicated "a standard of practical effectiveness of treatment", rather than treatment which avoided all risk of suffering or deterioration".

Court's Analysis

The court explained that the case concerned the circumstances in which a person who the HO intends to remove but who has a mental illness may be detained. It interprets guidance in 55.10 of the EIG 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 court identified two questions:

1. Whether the judge set a threshold for para 55.10 of policy which was too high (higher thatn previous cases), as claimed by Ms Das and by interveners. (Ms Das won.)

2. If so, the Home Office argued that the decision Ms D was only entitled to nominal damages should be upheld. The court felt that requiredd a greater consideration of facts that should be expected by appeal court. (HO lost.)

The court noted the evidence submitted by intervenors. The court's starting point was the Hardial Singh principles as formulated by Dyson LJ in R(I) v SSHD as reflecting basic public duties to act in accordance with the statutory purpose of detention and reasonably, as well as in accordance with policy. It referred to Lord Dyson's emphasis on the need for immigration powers to be transparently identified through formulated policy statements. Failure to have regard to a material policy concerning detention would render detention unlawful, though if detention was inevitable, the person detained would only be entitled to nominal damages (para 15). The court said "It is clear from the decisions on the Hardial Singh principles that the state of a person's mental health will affect the determination of what is a reasonable period for which the detain that person…".

The court agreed with the submission made by the parties, including the Home Office, that the decisions in R (Anam) v SSHD and LE (Jamaica) v SSHD were of assistance in interpreting 55.10.

The court highlighted that in the case of a mentally ill detainee who was also foreign national prisoner (FNP), the risk of harm/the risk of re-offending were relevant factors, so care needed to be taken to maintain this distinction when considering the cases, noting that Ms Das was not a FNP.

At para 45-71 of their Judgment, the court gave guidance on the correct approach to and interpretation of the Home Office's policy at chapter 55.10 EIG. They agreed with Sales J that it was a matter for the court, adding; "In interpreting a policy such as this, the court will have regard to its language and to its context and purpose". Referring to the Court of Appeal's decision in MD (Angola) v SSHD, the court said the purpose of the policy was to balance the objectives of firm and fair immigration control with the "humane treatment of individuals facing removal". This required a "purposive and pragmatic construction" (MD (Angola)), not a fine analysis of the wording of the policy; it should note be treated as if it were a statute. The purpose of the policy was "to ensure that account is taken of the health of the individuals affected and (save in very exceptional circumstances) to prevent the detention of those who, because of a serious mental illness are not fit to be detained because their illness cannot be satisfactorily managed in detention.

Applying Anam and LE Jamaica, the court emphasised that consideration needed to be given to the impact of detention on mental illness; mere diagnosis of a mental illness was not enough. It was necessary for the individual to be "suffering" and for the illness to be one which "cannot be satisfactorily managed within detention" (para 57). The court found the effect of mental illness on an individual "can vary according to its particular features, the particular characteristics and circumstances of the individual and the treatment provided" (para 58). Relevant factors cited were the length of detention and the fact that some detention centres do not have counselling services. The court also referred to evidence submitted by the interveners: the Royal College of Psychiatrists' position statement on detention of people with mental disorders in Immigration Removal Centres, stating that whether mental illness is serious is a fact-sensitive issue, see http://www.rcpsych.ac.uk/pdf/Satisfactory%20Treatment%20in%20Detention%20document%20FINAL.pdf (page 6).

In dismissing the suggestions that detention under the Mental Health Act was an appropriate guide for assessing seriousness, the court noted evidence from the interveners that many of those with serious mental illnesses are best treated in the community, and some mental illnesses would be exacerbated by hospital treatment. The Court of Appeal declined to provide detailed guidance on the interpretation of 55.10, finding that every case was fact-sensitive, but they made general points (para 66-70):

• Where detention is being considered, the Home Office decision maker must consider whether the policy in 55.10 applies by informing herself sufficiently about the individual's mental health so as to be able to make an informed judgement about whether the policy applied.

• The threshold for the policy to apply is that the mental health must be serious enough to mean it cannot be satisfactorily managed in detention.

• The Home Office should assess satisfactory management at the time of detention by considering matters such as the medication the person is taking, whether or not their demonstrated needs at the time are such that they cannot be provided in detention, the facilities available at the centre where the person is to be detained, and the expected period of detention before he or she is lawfully removed.

• Where the policy applies, there is a high hurdle to justify detention. Very exceptional circumstances does not include a refusal to leave voluntarily, or the desire to protect welfare, eg prevent suicide. It may include a case of a foreign national prisoner who poses a serious risk to the public, "for example a person who poses a high risk of killing someone else or where there are cogent reasons for believing that removal will take place in a very short time so the question of satisfactory management does not arise".

• Where a decision is made to detain a person with mental illness, the Home Office should make arrangements for the person's welfare and to monitor them for signs of deterioration.

• The Home Office cannot delegate their duties to mentally ill detainees to health authorities or clinicians but they should be able to rely on the advice of the responsible clinician, as per R (P) v Secretary of State of Justice [2009] EWCA Civ 701 at para 49-50.

During the course of the oral hearing, the court expressed concern about the four occasions on which the Home Secretary has been found to have breached Article 3 ECHR in cases involving mentally ill detainees. But it did not consider it necessary to consider whether a restrictive approach to 55.10 could lead to a breach of Article 3 ECHR. The court also declined to consider submission by the interveners that "satisfactory management" of mental illness requires treatment to improve a detainee's condition, not merely to prevent deterioration.

About the author: Sue Willman is a partner at Deighton Pierce Glynn and has a broad spectrum of public and human rights law expertise, covering discrimination and equality cases, EU law, Humans Rights Act claims, public sector service cuts, healthcare, planning and environmental, migrant support and immigration detention.

This case note was originally published on the Deighton Pierce Glynn website and is reproduced with permission and thanks to Sue Willman and Deighton Pierce Glynn
Any views expressed are those of the author and do not necessarily represent the views of EIN