Article 3 psychiatric cases: history and latest developments (Part 1) — Ruby Peacock
7 January 2021
In this two-part article, Ruby Peacock, an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town, examines the history of medical claims brought under Article 3 of the European Convention on Human Rights.
The first part analyses the history of how such cases have been decided, with particular focus on claims based on psychiatric illness. The second part will examine the recent developments in the law and what these may mean for the future.
The author is very grateful to Greg Ó Ceallaigh and Sapan Maini-Thompson for their insights and comments when preparing this article.
Paposhvili v Belgium  Imm AR 867 and AM (Zimbabwe) v Secretary of State for the Home Department  UKSC 17 have transformed the area of Article 3 medical claims — claims whereby an applicant seeks to avail themselves of the protection offered by Article 3 of the European Convention on Human Rights (‘the Convention’) and resist removal to a third country on the basis of a medical condition.
The previous threshold required the applicant to be at risk of imminent death at the point of the proposed removal to a third country in order to successfully resist removal. However, Paposhvili, brought into domestic law by AM (Zimbabwe), found that imminence of death is no longer required; this landmark development was covered on the UK Human Rights Blog in an extended look by Jonathan Metzer.
In the case of Article 3 medical claims based on physical illness, the lofty threshold set by D v United Kingdom (1997) 24 EHRR 423 and N v United Kingdom  ECHR 453 was, until Paposhvili, stringently applied – despite a number of judges, both at the domestic and Strasbourg levels, voicing discomfort.
However, in the context of Article 3 medical claims based on mental illness, risk of self-harm and/or risk of suicide (‘mental illness and self-harm/suicide risk cases’), the threshold which an applicant must meet in order to avail themselves of the protection of Article 3 was not always clear cut.
In the wake of Paposhvili and AM (Zimbabwe), two questions arise: (i) which test should be applied in the context of mental illness and self-harm/suicide risk cases? And (ii) How does this impact future mental illness and self-harm/suicide risk cases? Indeed, such questions are now more significant given that the only ECtHR case to apply Paposhvili to mental illness, Savran v Denmark  ECHR 651, has been referred to the Grand Chamber and now awaits judgment.
This pair of articles provides commentary which seeks to offer some answers to how the law may now be applied. This first part will explain the previous legal framework and the way that claims based on psychiatric illness and risk fo self-harm/suicide were decided.
The death bed requirement
D set the previous threshold test for Article 3 medical claims at a precipitous height: there must be exceptional circumstances; it must be shown that the applicant would be exposed to a real risk of dying under most distressing circumstances; a critical stage must be reached in their illness. Laws LJ deftly summarised this test: ‘the D exception is confined to deathbed cases’. In N v UK, the European Court of Human Rights (‘ECtHR’) found that there must be a real risk of imminent death in the receiving country (at para 23). Confining D to its facts, the Court found that although that N would die ‘within a year or two’, she did not meet the ‘exceptional circumstances’ test (at para 23). This threshold test was rigidly applied to cases of physical illness for 20 years, despite inhumane outcomes for many applicants.
Mental illness and self-harm/suicide risk cases: a different framework?
From the ECtHR’s language in Pretty v UK (2002) 35 EHRR 1, it is evident that Article 3 ‘treatment’ can include mental suffering (at para 54). Indeed, in Bensaid v UK (2001) 33 EHRR 10, it was accepted that a case where there was a real risk the applicant would ‘relapse into hallucinations and psychotic delusions involving self-harm’ could in principle fall within the scope of Article 3 (at para 37).
For many years, applicants sought to establish that mental illness and self-harm/suicide risk should be treated differently from physical illness and, in so doing, avoid the unattainable D/N threshold. One fundamental difference is that the removal process itself can be a prominent causative factor in the illness or risk. Indeed, medical literature reflects that the asylum process, immigration detention and deportation can have a devastating impact on mental health. In R (on the application of Razgar) v Secretary of State for the Home Department  EWHC Admin 2554 an applicant presented evidence of the impact which the removal and the experience of living in the receiving country would have upon her suicide risk (at para 84). Similarly, in J v Secretary of State for the Home Department  EWCA Civ 629, the applicant identified the rejection of his asylum application as contributing to a previous hospital admission (at para 6).
Domestically, applicants did make some progress in persuading tribunals to recognise the fundamentally different context of mental illness and self-harm/suicide. In AA v Secretary of State for the Home Department  UKIAT 00084, the Court described various stages at which degrees of risk would need to be evaluated in a suicide risk case (at paras 36-41). By establishing a specific methodology for the self-harm/suicide risk context, the Court appeared to acknowledge the different challenges faced by applicants and tribunals in this area.
In J, the Court described suicide risk claims as not ‘precisely analogous’ to physical health claims (at para 42). The Court distinguished between cases in which the alleged treatment leading to increased risk of suicide takes place within the jurisdiction of the contracting state (‘domestic cases’) and where the treatment takes place within the receiving state (‘foreign cases’).
The Court reasoned that a lower threshold could apply in domestic cases, given that the need to alleviate the extra-territorial effect of the Convention is avoided. A six-stage test was provided for analysing an Article 3 suicide risk case: 1) the severity of the treatment; 2) a causal link between the expulsion and the treatment; 3) in a foreign case the art 3 threshold is particularly high because it is a foreign case, and even higher where the treatment results from a naturally occurring illness, whether physical or mental; 4) an art 3 case can in principle succeed; 5) whether the applicant’s fear of ill treatment in the receiving country is well-founded; and 6) whether there are effective mechanisms to reduce the risk of suicide (at paras 26-31).
By continuing to develop a specialised methodology in the self-harm/suicide risk context, the Court contributed to a small body of case law which assisted applicants and tribunals attempting to apply Article 3 medical case law to mental illness or self-harm/suicide risk.
Development of a specialised framework continued in Y (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 362, in which the Court analysed the fifth stage of the test established in J and recognised that, in the case of suicide, ‘what frequently matters is whether there is a real and overwhelming fear, not whether it is well-founded’ (at para 5(1)). The Court, therefore, proposed an addition to the fifth principle: ‘that what may nevertheless be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide’ (at para 18). This adaptation to the J test was helpful, as it provided a pragmatic basis upon which tribunals could assess risk in suicide cases.
However, in the cases following J, the Court of Appeal appeared to row back on these principles. In Tozlukaya v Secretary of State for the Home Department  EWCA Civ 379, the Court held:
[…] it was stated in J v Secretary of State (at para 42) that the circumstances are not precisely analogous. One material difference is that the risk in the [suicide] context arises not just from the person’s removal to a place where the condition is likely to worsen, but from the direct impact on that person’s mental health of the decision to remove. Nonetheless the similarities are in my view more important than the differences (at para 62).
In emphasising the similarities between risk in the physical and mental illness contexts, the Court appeared to distance itself from the progress represented by J.
Subsequently, in RA (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 1210, the Court of Appeal declared that there is no ‘important difference of approach in the domestic cases on suicide risk’ (at para 49). Although the Court at first appeared willing to acknowledge the critical differences between physical and mental health conditions, it was not prepared to allow an adjustment to the Article 3 test. Later jurisprudence solidified this approach. For example, Wasif v Secretary of State for the Home Department  EWCA Civ 82 reiterated the requirement for exceptional circumstances on the same basis as D/N (at para 101).
In part two, the developments in the law from the major decision in Paposhvili and cases following will be explained, with discussion of how these developments may apply to Article 3 claims brought on the basis of a psychiatric condition.
 Lord Nicholls in N v Secretary of State for the Home Department  UKHL 31 at ; Grand Chamber of the ECtHR in N v United Kingdom  ECHR 453 at ; and Yok-Ekale Mwanje v Belgium  ECHR 2421, dissenting judgment.
 AJ (Liberia) v Secretary of State for the Home Department noted that a violation of Article 3 had never been found where the health risk was borne of a mental illness or suicide risk ( EWCA Civ1736 at para 19).
 Dermot Ryan, Fiona Kelly, and Brendan Kelly, ‘Mental Health Among Persons Awaiting an Asylum Outcome in Western Countries: A Literature Review.’ (2009) 38 no. 3 Int. J. Ment. Health, atp. 88.