The Supreme Court considered the detention of the appellant (“O”) and the shortcomings in the approach to reviewing her detention in the case of R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department  UKSC 19.
O was detained following a period of imprisonment pending the making a deportation order and then pursuant to a deportation order. O was detained from 8 August 2008 to 1 July 2011 when she was released pursuant to a grant of bail. The Supreme Court proceedings was the fourth judicial review of her detention, and related to the later period of her detention.
The Supreme Court identified O as having suffered from serious mental ill-health for many years and that the appeal therefore required consideration of both the Home Secretary’s policy relating to the detention of the mentally ill and monthly reviews of O’s detention.
O’s Mental Ill-Health
During O’s imprisonment and her immigration detention O’s mental health issues were displayed through a number of suicide attempts, self-harm, hallucinations, unpredictable mood-swings and impulsive outbursts. She was treated with high-doses of medication.
O was seen by a number of doctors throughout the period of her detention, she was initially diagnosed with recurrent depressive disorder and an emotionally unstable personality disorder. On one occasion O was admitted to a psychiatric hospital for assessment and it was found by the doctors there that her needs for constant observation and continued medication could be managed at the detention centre and she was duly returned there.
In February 2011 a clinical psychologist diagnosed O with a severe, complex and chronic form of post-traumatic stress disorder (“PTSD”) arising from physical and sexual abuse as a child. This assessment included conclusions that O could not access the necessary mental health services in the detention centre, neither medication nor general counseling services alone would secure her recovery, and that she required a referral to a specialist clinic. On 30 June 2011 a second doctor agreed with the February 2011 assessment and the recommendation for care in the community.
Supreme Court View on Unlawful Detention
The Supreme Court considered that treatment available to a detainee if released, which is likely effect a positive improvement in their condition, is relevant. Furthermore the burden is on the Home Secretary to inquire into its availability. The Supreme Court found that to consider whether O’s illness could be satisfactorily managed in detention questions should have been asked regarding the PTSD diagnosis including; whether detention centre medical staff agreed with the diagnosis, the nature of the treatment provided in detention, was it necessary to instruct an independent psychologist to comment on the February 2011 assessment, what was the length of time before O would be deported, and was the recommendation for a referral to a specialist clinic in any way practical? The Supreme Court found that the February 2011 report should have led the Home Secretary to make inquiries but it was unrealistic to consider that the conditions necessary for O’s release would have been in place prior to 6 July 2011. Nonetheless the refusal to release O was procedurally flawed.
The policy on unlawful detention stated those suffering from serious mental illness which cannot be satisfactorily managed in detention should only be considered suitable for detention in very exceptional circumstances. Mr Stephen Shaw CBE made a report to the Home Office in January 2016 criticising the phrase ‘satisfactorily managed’ as being inexact and obscure. He also stated that irrespective of whether mental illness was satisfactorily managed, detainees were not being treated in accordance with good psychiatric practice.
In reviewing six High Court cases in support of Stephen Shaw’s report, Jeremy Johnson QC found that those conducting the Home Secretary’s detention reviews do not appear to always be aware of the relevant evidence and that decisions to detain are made without properly engaging with the test that has to be satisfied. The Supreme Court stated this was perfectly illustrated in O’s case. Of six reviews of O’s detention between 4 March 2011 to 4 July 2011 only the briefest reference was made to the February 2011 medical report.
The Supreme Court found that the February 2011 report bore relevance to the Home Secretary’s policy on the detention of the mentally ill and that the policy should have been properly addressed in the reviews of O’s detention. For example, there was a failure to consider the assessment of O’s need for a referral to a specialist clinic and therefore a failure to consider whether her needs could be satisfactorily managed in detention. At the time of the hearing the Home Secretary accepted the conclusion that she had unlawfully failed to apply the policy in deciding to continue to detain O.
The Home Secretary’s duty to review the continuation of detention was held to apply under both paragraph 2(1) and 2(2) of Schedule 3 to the Immigration Act 1971.
Interveners in the case were Bail for Immigration Detainees (BID) and Medical Justice as interveners. Medical Justice stated their intervention was a result of frequently seeing people with serious mental health problems in detention and that ‘even when their condition deteriorates, it often takes a long time before this is recognised, causing lasting damage to their health’. In light of the judgment BID said they ‘are hopeful that the Home Secretary will review procedures that are in place to ensure the most appropriate programme of care is always made available.’