Irrational, inhuman and degrading: detention of a mentally ill asylum-seeker was unlawful

23 April 2012 by Karwan Eskerie

R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) – Read judgment

The detention of a mentally ill person in an Immigration Removal Centre (IRC) amounted to inhuman and degrading treatment and false imprisonment, and was irrational, the High Court has ruled.

Mr Justice Singh heard a judicial review application by a Nigerian National against decisions to continue to detain him under the UK Borders Act 2007 and the conditions of that detention. From August 2009, HA, an overstaying visitor and asylum seeker, was detained at various IRCs following his release from prison for a drug-related offence which triggered the automatic deportation provisions of the 2007 Act. His behaviour during detention became increasingly disturbed and strange. In January 2010, he was seen by a psychiatrist who recommended HA’s transfer to a mental hospital for assessment and treatment.

However, the transfer did not occur until July 2010. At the hospital, HA was diagnosed with Paranoid Schizophrenia and given compulsory treatment.  In November that year, he was returned to an IRC despite medical advice that it was likely to cause significant deterioration in his condition and that he could instead be safely discharged into the community. HA remained at an IRC until he was granted bail by the Court in December 2010 following medical evidence that HA’s condition had deteriorated following his return to the IRC.

Inhuman or degrading treatment

HA argued that his detention amounted to inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights, in that:

(a)   he was suffering from a serious mental illness whilst in detention;

(b)  his behaviour included acts which violated his own dignity (he spent prolonged periods of time in isolation; was sleeping on the floor, often naked, in a toilet area; drank and washed from the toilet; was self-neglecting by often refusing to eat; did not wash or change his clothes for over a year and was described as “grossly unkept” on arrival at the hospital; and suffered from insomnia);

(c)   his behaviour alienated  him from others;

(d)  he was not given appropriate medical treatment; and

(e)   the use of force against him was authorised on several occasions.

Singh J, in summarising the Strasbourg jurisprudence on Article 3 by reference to Kudla v Poland (2002) 35 EHRR 11, noted that:

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… 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 173)

The Judge added that whilst the primary obligation in Article 3 was a negative one, the Court had recognised a positive obligation to protect individuals from ill-treatment and that an obligation may arise even when there is no ill-treatment from the state or from other people. As held in Pretty v United Kingdom (2002) 35 EHRR 1:

…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.

Reference was also made to Keenan v United Kingdom (2001) 33 EHRR 38, where inadequate medical records, lack of recourse to specialist psychiatric input, segregation and punishment were found to amount to degrading treatment in respect of a mentally ill person.

Mr Justice Singh concluded that in respect of the period up to HA’s transfer to the hospital in July 2010, the combination of acts and omissions for whom the Home Secretary was in law responsible, amounted to degrading treatment

The Judge went on to hold that HA’s return to detention following his transfer to hospital breached Article 3: by this time, in addition to his history of odd behaviour and treatment, it was known that the IRC did not have the medical facilities that HA would need if he suffered a relapse and that the nature of HA’s illness concerned in part a paranoia about IRC staff. Therefore, to force HA to return to the IRC in November 2010 was “at least degrading treatment and, if it were necessary to say so, inhuman treatment contrary to Article 3: I make this last point because by this stage, unlike the first period of detention between January and July 2010, the Claimant’s serious medical condition was clearly known to the Defendant.” (para 207)

False imprisonment

The Judge also held that the decision to continue HA’s detention between January 2010 (when the psychiatric recommended transfer) and July 2010 (the time of the transfer) amounted to false imprisonment as it contained errors of Public law.  In so holding, the Judge relied on the Supreme Court’s recent decision in R (Lumba) v Secretary of State for the Home Office [2011] UKSC 12, from which he distilled the following principles:

(1)  The tort of false imprisonment requires proof that the Claimant was detained directly and intentionally.

(2)     The Defendant must then be able to show that there was lawful authority for that detention.

(3)     If the Defendant had the power to detain but exercised that power in a way which is vitiated by an error of public law, the apparent authority will fall away and the Defendant will not in truth have the lawful authority she needs in order to justify the detention.

(4)     Not all public law errors will vitiate the authority to detain, only those which bear upon and are relevant to the decision to detain.

(5)     Since the tort is actionable per se and does not require proof of damage, the Defendant will have committed that tort even if, had she not made the relevant error of law, she could and would have detained the Claimant. There is no requirement for ‘causation’ in that sense.

(6)     However, the question of whether the Claimant would have been detained in any event will be relevant to quantum of compensatory damages. (para 143)

Singh J concluded that the monthly reviews of HA’s detention, during which it was decided to maintain his detention, were inadequate and flawed and as such, not of “the quality or character required to justify the continuance of detention” – that phrase having been sourced from a passage in Lord Kerr JSC’s judgment in R (Kambadzi) v Secretary of State for the Home Office [2011] 1 WLR 1299, where his lordship said that it would be unlawful to hold someone without examining whether good grounds for so doing continued to exist and that therefore periodic reviews of adequate quality and character were necessary to justify continued detention.

The monthly reviews in this case contained no proper assessment of his mental illness and the likely effect of detention on it. No reference was made to HA’s likely psychotic illness, prolonged segregation and the need for urgent psychiatric assessment. Nor was any regard apparently had to the published policy of the Home Office concerning persons whose health is likely to be injuriously affected by detention.

By virtue of its unlawfulness under domestic law, the detention also amounted to an arbitrary interference with HA’s right to liberty and was therefore incompatible with Article 5(1)(f) (persons held for the purposes of deportation) of the Human Rights Convention. Although, Article 5(1)(e) (persons of “unsound mind”) was not breached as HA was not detained for that reason.

Irrational delay in hospital transfer

Singh J went on to hold that given the psychiatrist’s urgent recommendation for transfer to hospital, the delay of five months in effecting the transfer was manifestly unreasonable. In reliance upon a statement of Stanley Burnton J (as he was then) in R(D) v Secretary of State for the Home Department [2005] 1 MHLR 17, the Judge held that no detention authority would be acting rationally where once there were reasonable grounds for believing that a detainee required treatment in a mental hospital, the authority did not expeditiously take reasonable steps to obtain appropriate medical advice and if the need for transfer to a hospital was confirmed, take reasonable steps within a reasonable time to transfer the detainee.

Public Sector Equality Duties

HA also challenged a rewording of the Home Office policy on the detention of mentally ill persons. Until August 2010, the “Enforcement Instructions and Guidance” document said that “the mentally ill” were “normally considered suitable for detention in only very exceptional circumstances”. This had been interpreted by the Court to create a strong presumption in favour of release for those with a mental illness. In August 2010, the wording was revised to treat mentally ill persons as being suitable for detention unless they were suffering from an illness which could not be satisfactorily managed within detention.

The change was introduced without any prior notice, consultation with relevant government departments or an equality impact assessment. The Home Secretary argued that these were unnecessary as the rewording did not represent a change in policy and was merely a clarification.

The Judge disagreed, holding that the manner in which the policy was changed breached the equality duties, now set out in the Equality Act 2010. In any event, HA’s detention also breached the reworded policy.

Troubling failures

Singh J’s ruling contains a lucid analysis of the domestic and Strasbourg case law on the unlawful detention of mentally ill persons. As such, it should be of interest to anyone considering the law on the subject.

However, the case is remarkable not so much for the legal position articulated in it (which, in my view, should be largely uncontroversial at least in cases such as this), but for the disturbing extent of the Home Office’s failings.  Despite HA’s extremely odd behaviour, including severe and sustained self-neglect, and the medical advice eventually obtained, the decisions concerning HA’s detention were made without an appropriate consideration of his condition and needs. To be clear, no intentional neglect of HA’s welfare has been suggested or evident. But the persistent flaws in the decision-making and the general handling of this man’s illness indicate an absence of fundamental safeguards for the proper management of mentally ill detainees. In that respect, the ruling is a damning appraisal and a solemn wake-up call.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

• All by myself: segregation, prisons and Article 6
• Vulnerable adults still protected by High Court’s “great safety net”
• Severely disabled man’s care plan not a deprivation of liberty – Court of Appeal
• A young autistic man, Magna Carta, human rights and unlawful detention