Failure to consider mental health in detention decision

EH, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) (27 September 2012)

The UK High Court has recently considered the lawfulness of the detention of a mentally ill person.

Facts

The claimant was born in Rwanda and was of Tutsi ethnicity. He reported that in 1994, during the Rwandan genocide, he and his parents, three sisters and three brothers were violently attacked in their home by the Hutu militia. He was the only member of his family who survived and he was traumatised by the experience. He suffered ongoing flashbacks and depression from then on and received intensive psychological treatment and medication in Rwanda.

The claimant became a documentary film maker and came to the UK, on a valid business visit visa, to promote his film "Tears of Rwanda" on 10 August 2009. By this time, he was managing his condition successfully and no longer required treatment. Whilst visiting, he found out his attackers had been released and were looking for him and on 17 December 2009 claimed asylum. This claim was refused on the grounds that he had not established his attackers were looking for him and that, even if they were, the Rwandan state authorities would be willing and able to protect him. His subsequent appeals (including an application to the European Court of Human Rights) were denied and he was asked to leave the country.

The claimant failed to leave and on 2 August 2010 a notice was issued stating he was an illegal overstayer and his whereabouts were unknown. The claimant was later located on 19 October 2010 and taken into custody. He was reportedly calm during the day, but overnight he had to receive emergency treatment for a panic attack and remain under constant supervision. The claimant's psychological symptoms continued and he received ongoing treatment for these whilst in detention.

In December 2010, the claimant suffered an acute delusional episode and it was concluded he was unfit for deportation until further notice. In January 2011, a psychotherapist reported detention was not a safe place for the claimant and recommended release and treatment in the community. On 1 March 2011, following further medical opinion, the claimant was released to a bail hostel.

In the High Court, the claimant conceded his initial detention was lawful. However, he contended from 26 October 2010 his detention became unlawful because of his mental health.

The Minister conceded she should have released the claimant from detention on 29 December 2010 in light of the medical evidence about the claimant's mental illness. However, she argued the remainder of the claimant's detention was lawful.

Decision

The High Court held the Minister had acted unlawfully in failing to consider whether the claimant should still be detained from 16 November 2010 to 24 December 2010 in light of his serious mental illness. However, it concluded the detention was still justified and lawful.

It also held the claimant's detention from 16 November 2010 to 1 March 2011 breached the right to liberty and security of person and the claimant's detention from 29 December 2010 to 1 March 2011 breached both the right to liberty and security of person as well as the right to privacy and family life, but did not breach his right to freedom from torture, inhuman and degrading treatment. The reasons for its decision are as follows.

Lawfulness of detention

Pursuant to the Immigration Act, the Minister could detain the claimant as an overstayer for the purpose of removing him. Whilst this power was not subject to any express limitations of time, it could only authorise detention pending the making of a deportation order or removal and is only for a period that is reasonably necessary for that purpose.

By late October/early November 2010, there was sufficient evidence to indicate the claimant was suffering from a "serious" mental illness given the severity of his symptoms and the intensity of his treatment. Notwithstanding this, there was no evidence the Minister had taken into account his mental illness when conducting reviews of his detention until 24 December 2010. Accordingly, the Minister had acted unlawfully in failing to consider whether he should still be detained.

Nonetheless, the claimant's detention prior to 29 December 2010 was justified and reasonable given his immigration status, his risk of absconding and the fact that his mental illness was capable of being managed with medication and counselling. Had the Minister taken into account the claimant's mental illness, she probably still would have come to the same result as there was no evidence the claimant was not fit for detention prior to 24 December 2010. Therefore, his continued detention prior to 29 December 2010 was not unlawful.

Potential human rights breaches

Detention of a mentally ill person does not itself necessarily breach the right to freedom of torture and inhuman or degrading treatment. The mentally ill can be appropriately detained in prisons, mental hospitals and immigration detention centres. Whilst it has been recognised that a degree of suffering is an inevitable consequence of detention, the question is whether any additional level of suffering by a mentally ill detainee amounts to inhuman or degrading treatment. There is no obligation to release mentally ill people, but their health and well-being must be secured by providing them with the requisite medical assistance.

Given the high standard of care provided to the claimant in detention, the threshold for a breach of the right to freedom from torture and inhuman or degrading treatment was not reached in this case. Therefore, the claimant's right to freedom from ill-treatment was not breached.

However, since the procedure prescribed by domestic law was not followed and the Minister had conceded the claimant's detention from 29 December 2010 was unlawful, the claimant's detention from 16 November 2011 breached his right to liberty and security of person.

Further, because the Minister had conceded the claimant's detention from 29 December 2010 was unlawful, the claimant's detention from 29 December 2010 breached the claimant's right to privacy and family life on the basis that it was not in accordance with domestic law.

Commentary

This case reminds us that whilst there is no obligation to release mentally ill people, their health and well-being must be secured by providing them with the requisite medical assistance. The State can not just “set and forget” detainees as their medical needs may change over time and a failure to provide adequate treatment and assistance to detained persons with mental illnesses may amount to a breach of the right to freedom from torture and inhuman or degrading treatment and as such the State's international obligations.

The decision is available online at: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2569.html

Susanna Kirpichnikov is a lawyer at Lander & Rodgers.