R (VC) v SSHD  EWHC 273 (Admin),  MHLO 7
Immigration detention Repatriation case with mental health background. "There are two strands to the contentions made by the Claimant in this claim, as argued before me: (1) a challenge to the lawfulness of his detention on the basis that it was in breach of (a) the Defendant's policy on detaining the mentally ill which, had it been applied lawfully, would have precluded the Claimant's detention; (b) Hardial Singh principle 3 because from 31 October 2014 there was no realistic prospect of the Claimant's removal within a reasonable timescale; and (c) Hardial Singh principle 2 because the Claimant was detained for an unreasonable length of time. (2) a challenge to the treatment of the Claimant in detention on the basis that it was: (a) in violation of Article 3 ECHR; (b) contrary to the Mental Capacity Act 2005; (c) discriminatory, contrary to the Equality Act 2010; and (d) procedurally unfair."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Queen’s Bench Division
Regina (VC) v Secretary of State for the Home Department
2015 Nov 24; 2016 Feb 16
Judge Seys Llewellyn QC sitting as a High Court Judge
Immigration — Deportation order — Detention pending deportation — Claimant foreign national suffering from serious mental illness — Claimant challenging lawfulness of detention and treatment in detention — Whether decisions to detain claimant rational — Scope of public duty of inquiry — Whether Secretary of State entitled to rely on detention clinicians — Whether Secretary of State obliged to make decisions in detainee’s best interests where detainee lacking capacity — Circumstances in which independent representation required where mentally ill detainee not represented — Mental Capacity Act 2005 (c 9), s 4 — Equality Act 2010 (c 15), ss 20(2), 29(7)
In June 2014 the claimant, a Nigerian national and persistent offender who had served several prison sentences, was detained under Schedule 3 to the Immigration Act 1971 pending deportation. After 19 days in detention a report by the medical professionals under rule 35 of the Detention Centre Rules 2001 identified that he had been diagnosed with bipolar affective disorder with psychotic features and that he had had multiple compulsory admissions to hospital under the Mental Health Act 1983. A further rule 35 report in March 2015 referred to a real but gradual deterioration in his mental state and two days later a detention officer noted that he was currently waiting to be admitted to hospital under the 1983 Act. During his detention he was segregated on a number of occasions, the last and longest segregation being for seven days. The claimant was transferred to psychiatric hospital on 5 May 2015, where he remained under compulsory powers, and on 9 September 2015 the Secretary of State ceased to exercise her power of detention over him. The claimant sought judicial review of the Secretary of State’s decision to detain him and of his treatment while in detention, claiming, inter alia: (i) that his detention was in breach of the Secretary of State’s policy on detaining the mentally ill which would have precluded his detention had it been applied lawfully, and that his treatment in detention was (ii) contrary to the Mental Capacity Act 2005 and (iii) discriminatory, contrary to the Equality Act 2010, and procedurally unfair. As to the Secretary of State’s policy, the claimant contended that in order to give effect to her policy, the Secretary of State was under a duty of inquiry, namely to take reasonable steps to inform herself about a detainee’s mental health so as to be able to make lawful decisions about his ongoing detention. As to the 2005 Act issue, the claimant claimed that where a detainee was assessed as lacking capacity in relation to areas of decision-making that were the sole responsibility of the Secretary of State, she was obliged to make those decisions compliantly with section 4 of the 2005 Act, namely in the detainee's best interests. As to the claim of discrimination and procedural unfairness, the claimant asserted that where a detainee was mentally ill, and in particular lacked capacity, the Secretary of State had to consider and facilitate what steps should be taken to safeguard his interests and ensure that representations which might be made on his behalf were entertained.
On the claim—
Held, claim dismissed. (1) The Secretary of State’s public law duty of inquiry was within the context of a closely prescribed system of medical care and oversight of any detainee pursuant to the Detention Centre Rules and the operational standards formally adopted and used for audit within the detention centre system. In deciding whether the decision-maker was in breach of the duty to inquire, it was only where the view taken was irrational that the court could impose a different approach; it was not a question of what the claimant considered would be ideal or even sensible. The Secretary of State was generally entitled to rely on the responsible clinicians where reasonable inquiries had been made and the requirements of chapter 55.10 of her policy were considered where applicable. That was not to say that the Secretary of State was entitled to be simply passive, or to review and decide against continuing detention only if advised by the medical staff that it should do so, but she was entitled to act in the expectation that there was (in default of evidence to the contrary in an individual case) a closely prescribed system of medical care and oversight of any detainee, and that the centre would be informed by medical staff if in their opinion the detainee’s health was likely to be significantly harmed by being detained further or had become more likely than before to be so harmed. While the Secretary of State had in certain respects misunderstood her policy, her decisions to detain the claimant had been rationally open to her and from June 2014 the claimant’s detention had not been unlawful (paras 45, 46, 47, 104, 105, 107, 183).
R (K) v Secretary of State for the Home Department! followed.
(2) Section 4(4) of the Mental Capacity Act 2005 had to be read in the context of the Act as a whole and in light of its express provisions. A decision made on behalf of the person lacking capacity to do so himself might be one “affecting him” but that did not require all and any decisions affecting him in life as those which had to be taken in his best interests. A decision to detain was not one made for, or on behalf of, the detainee. The submission that in areas of decision-making which were her sole responsibility the Secretary of State was obliged to make those decisions compliantly with section 4 of the 2005 Act, namely in the detainee's best interests, was misconceived. The decision to detain was one to be made in accordance with a policy made by the Secretary of State, balancing a presumption in favour of liberty with other interests, and to require that the decision had to be made in his best interests was inconsistent with that balancing exercise. While it was or might become relevant that the detainee might have an interest in receiving medical treatment, that was not decisive. Accordingly, there had been no breach of the 2005 Act (paras 134, 135, 136, 138, 139, 140, 147).
(3) In the exercise of functions in relation to detention, the Secretary of State had a duty under sections 29(7) and 20(2) of the Equality Act 2010 to make reasonable adjustments for a detainee such as the claimant who was disabled by mental illness. The duty in essence concerned what safeguards should be provided against procedural unfairness. Fairness might require that independent representation was available to an otherwise unrepresented detainee, if he was mentally unwell enough to represent himself, in relation to decisions whether to detain him and what was done during detention, including where he was detained. However, since detention was subject in the ordinary case to challenge by review, some substantial trigger was required before the Secretary of State would be required to effect, invite, or secure independent representation. Such a substantial trigger might arise where segregation occurred repeatedly, and for longer duration than in the present case. The claimant had shown that systemically the present arrangements for detention had a risk of procedural unfairness in the case of a detainee who for a long and sustained period was lacking in capacity or otherwise by mental illness disabled from making effective representations in his own interest upon or otherwise challenging the justification for his continued detention, whether by misinterpretation of policy or its justifiable application. However, the claimant had not established that he had been disabled from making effective representations in his own interest upon, or otherwise challenging, the justification for his continued detention for the sustained period necessary to support a claim that his detention was unlawful for procedural unfairness (paras 149, 150, 158, 160, 169, 171, 172, 174, 176).
Per curiam. If there are issues upon which representations might be made by or on behalf of a detainee, but which are not considered because the detainee is mentally not able to make them himself or is not represented by solicitors or any other person or group, the longer the period of serious mental illness and continuing detention the more likely that the Secretary of State would be required to consider by her officers whether independent representation of his interests is required by some third party or someone akin to an independent mental capacity advocate. The circumstances fairly requiring independent representation would not be restricted to cases of sustained or formally declared lack of capacity (paras 167–168).
Martha Spurrier (instructed by Bhatt Murphy) for the claimant.
Julie Anderson (instructed by Treasury Solicitor) for the Secretary of State.
[Reported by:] Fraser Peh, Barrister