Immigration detention, mental illness and reasonable adjustments.

In R (VC) v SSHD [2018] EWCA Civ 57The Court of Appeal has partially upheld the appeal of VC against the judgment of HHJ Seys Llewellyn QC that VC was not unlawfully detained in immigration detention between 30 June 2014 and 3 April 2015.  The first instance judge had held that VC had been unlawfully detained between 3 and 27 April 2015, when a direction was made for his transfer to a psychiatric hospital where he was subsequently detained under section 3 MHA.  VC has since been granted indefinite leave to remain.

It was common ground that the Secretary of State had misinterpreted her previous policy on  immigration detention which provided that "those suffering from serious mental illness which cannot be satisfactorily managed within detention" are considered "suitable for detention in only very exceptional circumstances",

On appeal the Secretary of State argued that although there had been a failure to enquire into VC ‘s known mental illness and to follow this up, this did not bear on the decision to detain him; however this submission was rejected.

Importantly Beatson LJ held that VC was entitled to compensatory damages for the whole period of unlawful detention.  The questions that had to be determined were:

“(a) Could the Secretary of State have lawfully detained the appellant, i.e.

(i) Was it rationally open to the Secretary of State to conclude that the appellant's mental illness could be satisfactorily managed in detention? (considered at [69] – [85] below.)

(ii) If not, was it rationally open to the Secretary of State to conclude that "very exceptional circumstances" applied so as to justify the appellant's detention in any event? (considered at [86] – [97] below.)

(b) Can the Secretary of State demonstrate, on the balance of probabilities, that she would have detained the appellant in any event? (considered at [98] – [100] below.)”

“Satisfactory management” includes preventing a deterioration, and in the current case there was ample evidence from an early stage of the risk of VC’s condition deteriorating.  Furthermore the Secretary of State should have taken  into account the availability of treatment options in the community such as a Compulsory Treatment Order had he been released in Scotland.  In relation to (b) the burden lay on the Secretary of State to show that she would, in fact, have detained VC.  The Secretary of State decided not to submit any evidence, and on the evidence available the court was not satisfied that VC would have been detained.  Damages were therefore to be assessed on the basis that between 30 June 2014 and 2 April 2015 VC would have been in the community and for the remainder he would have been in a psychiatric unit rather than detention.

VC’s claimed that his detention violated Article 3 was rejected at first instance.  Here the court commented:

111. “(c) What does article 3 require? The judgment of the ECtHR in Kudla v Poland[2000] ECHR 512, (2002) 35 EHRR 198 is a helpful starting point. In that case, after referring to the absolute terms of the prohibition of inhuman or degrading treatment, the Court stated (at [91]) that "ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3" and "the assessment of that minimum is, in the nature of things, relative". It depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim.

112. The Court also stated (see [92]) that while treatment can be deemed to be degrading because it was "such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them", "the Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment". It recognised (at [93]) that measures depriving a person of his liberty may often involve such an element but that detention on remand does not in itself raise an issue under article 3. It also stated that article 3 cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment. What article 3 requires a State to ensure is:

" … that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure 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."

113. These principles have been affirmed and expanded upon in many cases. For example, in Mouisel v France (2004) 38 EHRR 34 the ECtHR stated at [37] that the purpose of the treatment is a factor to be taken into account, but the absence of any intention to humiliate or debase the victim does not inevitably lead to a finding that there has been no violation of article 3. At [40] it stated while article 3 cannot be construed as laying down a general obligation to release detainees on health grounds, it imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. In Keenan v United Kingdom (2001) 33 EHRR 38 the ECtHR stated at [111] that the lack of appropriate medical care may amount to treatment contrary to article 3 and, in the case of mentally ill persons, the assessment has to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment. See also, Pretty v United Kingdom (2002) 35 EHRR 1 at [52] and, on the positive duty, Premininy v Russia (2016) 62 EHRR 18 at [73].

114. The Strasbourg jurisprudence therefore clearly establishes that in addition to the negative duty under article 3 not to take active steps which subject a person to torture or inhuman or degrading treatment, article 3 imposes a positive duty on states to protect the well-being of persons detained by the state and to provide them with the requisite medical assistance. This is reflected in our national decisions, such as that of this court in R (IM) (Nigeria) v Secretary of State for the Home Department to which the judge referred: see [109] above.”

The court rejected the submission that an intention to cause harm was necessary to bring the case within Article 3.  The court further accepted that VC’s treatment in detention caused suffering beyond that inherent in his illness.  However Beatson LJ found on the facts, the question as to whether the treatment crossed the threshold was finely balanced; that the judge at first instance had carried out a balancing exercise; and that there were no errors of law in his approach.  The appeal has dismissed on this ground.

The Court then considered the finding at first instance that there had been no breach of the Equality Act or procedural unfairness.  He had held that VC was disabled for the purpose of the Equality Act and that functions in relation to detention required the Secretary of State

“where a provision, criterion or practice of [the Secretary of State in respect of detention] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage".

He had been informed that patients detained under the Mental Health Act 1983 would have access to an independent mental capacity advocate (IMCA) (in fact statutory advocates for those detained under the MHA are independent mental health advocates- IMHAs).  The first instance judge had accepted that

“under the current arrangements there was a risk of procedural unfairness in respect of decisions to detain "in the case of a detainee who for a long and sustained period is lacking in capacity or otherwise by mental illness disabled from making effective representations in his own interest" (emphasis added). However, he concluded that, in the light of his findings about the appellant's capacity, in this case there was no breach of the requirements of procedural fairness because it had not been shown that the appellant was disabled from making effective representations for such a period.[81] In relation to segregation, its increasing use was in a period of some five weeks, and on the last occasion the review on 31 March 2015 was followed by his release on that date and was thus "effective in his interests".[82] For that reason he rejected the submission that the fact that the appellant was incapable of understanding the reason for his segregation or making representations about it, meant the review was meaningless and the appellant was subject to detriment.[83] The judge also stated (in the context of considering the appellant's public law claims) that it was "unreal" to suppose that the appellant suffered any real detriment after the date when he was admitted compulsorily to hospital.[84]”

Beatson LJ held that difficulties faced by the applicant in participating in his immigration appeal were not within the control of the Secretary of State (in fact VC had also successfully challenged the failure of the First Tier Tribunal to appoint a litigation friend for him- R (C) v First-tier Tribunal [2016] EWHC 707 (Admin), referred to in AM (Afghanistan) v Secretary of State for the Home Department, Lord Chancellor Intervening [2017] EWCA Civ 1123, [2017] INLR 839).

However Beatson LJ noted that the judge had clearly considered there were lacunae in the systems which put mentally ill detainees at a substantial disadvantage; and he specifically identified the fact that the detainee had to initiate bail applications.  VC suggested that an advocacy scheme or an automatic referral could be a reasonable adjustment.  Beatson LJ was not persuaded by the Secretary of State’s arguments that adjustments were unreasonable or unnecessary and held at [171]:

“In the light of the evidence before us and the submissions made in this case, I have concluded that the Secretary of State has not discharged the burden of proof under section 136 of the Equality Act. She has not demonstrated that she complied with her duty to make reasonable adjustments for mentally ill detainees in respect of their ability to make representations on decisions regarding their continued detention and segregation. I therefore find that she has breached this duty”

When considering whether VC had suffered detriment as a result, Beatson J found at 190 that:

“while recognising that the exigencies of the situation and what was practical affected what fairness required in the case of any particular decision about the appellant, I have great concerns about the overall fairness of the procedures for decision-making during his detention at the IRCs. It is however, not possible to focus on each decision so as to be able to determine which individual decisions were affected by such unfairness. I therefore do not consider it possible to go further than to state that a "long and sustained" period of inability to make effective representations is not a prerequisite for a requirement that additional steps be taken for mentally ill detainees to help safeguard their interests, including assistance in having informal representations made by or for them.”

Comment:  This case will be of interest to practitioners involved in unlawful detention cases in settings other than immigration detention, including hospitals and care homes.  The clear exposition of the distinction between cases which will attract compensatory damages and those which will attract nominal damages where there is a power to detain lawfully is helpful.

The finding that the Secretary of State has breached the Equality Act by failing to make reasonable adjustments for mentally ill detainees to make representations on decisions regarding their continued detention and segregation is potentially far- reaching: will this result in the provision of advocacy services for this purpose?  Will an automatic referral for a bail application have to be put in place? The judgment does not refer to the finding of the European Court in MH v UK [2013] ECHR 1008 (22 October 2013).  This case was framed as a claim under Article 5(4), and the Court found that the lack of an automatic referral to the Mental Health Tribunal for patients detained under Section 2 MHA, who do not have capacity to apply to the Tribunal themselves, violated Article 5(4). The Court commented that:

“When a mental patient is not fully capable of acting for herself on account of her mental disabilities, by definition the compensatory safeguards to which the State might have recourse in order to remove the legal or practical obstacles barring such a person from being able to benefit from the procedural guarantee afforded by Article 5 § 4 may well include empowering or even requiring some other person or authority to act on the patient’s behalf in that regard.”

There may well be an analogy with those in VC's position.