ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT, (CRANSTON J)
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LADY JUSTICE ARDEN
LORD JUSTICE PATTEN
| THE QUEEN (ON THE APPLICATION OF) MD (ANGOLA) & ORS
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT & ANR
Mr Jonathan Swift QC and Miss Julie Anderson (instructed by Treasury Solicitor) for the Respondent
Mr Paul Bowen and Miss Alison Pickup (instructed by the Migrant's Law Project) for the Intervener
Hearing dates : 5, 6 July 2011
Crown Copyright ©
Lord Justice Maurice Kay :
The statutory basis of immigration detention
The Secretary of State's policy
"Certain persons are considered suitable for detention only in very exceptional circumstances, whether in dedicated immigration accommodation or elsewhere. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control. In CCD cases [Criminal Casework Directorate], the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention centres or elsewhere:
- unaccompanied children and young persons under the age of 18 …;
- the elderly, especially where supervision is required;
- pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this …;
- those suffering from serious medical conditions or the mentally ill – in CCD cases, please contact the specialist Mentally Disordered Offender Team;
- those where there is independent evidence that they have been tortured;
- people with serious disabilities;
- persons identified by the Competent Authorities as victims of trafficking … "
I have emphasised the parts directly relevant to these appeals.
The construction point: "suffering from serious medical conditions"
"… the policy requires that a person be 'suffering' from a serious medical condition. That contrasts with the other category in the relevant bullet point in paragraph 55.10, the mentally ill, where the presence of that condition alone triggers its application. As a matter of ordinary interpretation, all the words in the policy must be given application. In my view, a person suffers from an illness if they are significantly affected by that illness … human aid in the form of modern medicine means that persons need not suffer from many serious medical conditions. Treatment by anti-retroviral drugs … has transformed the lives of many HIV sufferers, as well as reducing the stigma attached to admitting HIV infection. In the case of each of these claimants, anti-retroviral drugs have, on the whole, meant that they are no longer suffering from their HIV infection … Those with a serious medical condition which is satisfactorily managed, albeit that its impact may vary, are not suffering from it … "
I have emphasised "significantly affected" and "satisfactorily managed".
"If a person's ill-health is controlled by medication to an extent that permits detention; and if that person otherwise meets the criteria for detention pending removal from the United Kingdom; the effective application of immigration control strongly favours the conclusion that the person should be detained."
The "continuity" point: arrangements and standards
"17. Following the initial assessment, the healthcare team must, where necessary, make care plans to manage the needs of detainees …
19. The Centre must have in place arrangements for access to 24 hour health cover …
20. Arrangements must be in place to ensure that when emergency treatment is required patients have appropriate and prompt access to care, such as ambulance, accident and emergency departments and through appropriately trained healthcare staff locally …
22. Every effort should be made to avoid cancelling appointments made with local hospitals and other healthcare services …
25. The Centre must arrange access to specialist services for the care of detainees in respect of dental, maternity … , optical, psychiatric, genito-urinary care, X-ray and pharmaceutical services and any other secondary care services in order to meet the needs of the detainees. The Centre must arrange for these to be provided either within the Centre … or from outside services … "
"provide clinical services for the diagnosis, assessment, treatment and care of a detainee with HIV/AIDS, Hepatitis B or Hepatitis C."
together with general requirements relating to pharmaceutical services, medication and medical records.
"The obligations on Contracting States take on a particular dimension where detainees are concerned since detainees are entirely under the control of the authorities. In view of their vulnerability, the authorities are under a duty to protect them …
… the Convention requires the state to protect the health and physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance."
"The 'adequacy' of medical assistance remains the most difficult element to determine …
On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis."
"These passages show that a state is under an obligation to adopt appropriate (general) measures for protecting the lives of patients in hospitals. This will involve, for example, ensuring that competent staff are recruited, that high professional standards are maintained and that suitable systems of work are put in place. If the hospital authorities have performed these obligations, casual acts of negligence by members of staff will not give rise to a breach of article 2."
"IRCs should prioritise continuity of ARV therapy for HIV treatment. Any interruption or delay in taking treatment doses may quickly cause the therapy to become less effective and drug resistance to develop, which limits future treatment options."
The "management" point
"Insofar as otherwise entitled to invoke immigration detention powers, has the [Secretary of State] secured in the appellants' cases the appropriate standard of proper management of their HIV+ condition?"
"… if it is shown that a person's detention has caused or contributed to his suffering … illness, this is a factor which in principle should be taken into account in assessing the reasonableness of the length of the detention. But the critical question in such cases is whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering."
"Although Art 3 … cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless 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. The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of the execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment."
"For example, the records show that TN was provided with three months of medication on 6 August 2009 and that he was given a further 2 weeks on 12 October 2009. There was a request by the clinic at the Immigration Removal Centre requesting further medication for TN on 30 October 2009, when TN is recorded as having 1 month left. There is no record of his informing Dr Narouz that he had missed three weeks of medication at this time. There was no adverse effect as a result of his viral testing. He was seen by a community nurse on 17 September but there was no report that he had no medication. In my view, the key to TN's missed medication is contained in the medical notes of 17 March 2010, when Dr Narouz discussed with TN the issue of missed medication through an interpreter … At that point, TN told Dr Narouz that he had not missed any medication. The medical notes read:
'No report of missing tablets. He keeps his medication at his room.' "
Dr Narouz did not work at the Centre. He was the Consultant in GU/HIV medicine employed by West Sussex Hospitals NHS Trust at Crawley Hospital to whom TN was referred.
"… there were occasions when he did not take his medication. There seems to be some degree of over-reporting by CJ since, as Professor Gazzard explains, Dr Narouz switched CJ from two doses to one dose a day. The system for recording taking doses at the Immigration Removal Centre did not always note when CJ arrived late to obtain his medication. In CJ's own witness statement, he concedes that there were earlier occasions when he forgot. CJ had had adherence problems outside of detention when he was still in the community. Dr Wood attributes the problem to the lack of adequate supervision … he commends the dosette box, in which a patient has his supplies in advance in a separate container for each day. Professor Gazzard comments that, if anything, CJ was in a better position in detention as compared with the position he was in when in the community. I note that the Secretary of State's operating standards favour patients taking responsibility for their own medication since, once detainees are in the community, they will need to develop their own mechanisms for taking medication on a regular basis. I also note that, on 16 September 2009, the medical notes record that it was suggested to CJ that he should set his mobile phone on an alarm to remind him of the need to take medicines on a regular basis.
In my view, CJ forgetting to take his medication does not show treatment failure arising from detention. The experts on both sides agree that any medication failure has had no long-term detrimental effect on CJ's health … Overall, there was no breach … of the common law or ECHR standards in CJ's case."
The judge also referred to a disagreement between Dr Wood and Professor Gazzard about an alleged need for neurological and other assessments and therapy, noting that "in any event, the therapies Dr Wood suggests were available to CJ in detention, through the NHS".
"He started his therapy in October 2009 … By February 2010 the viral load had fallen to be undetectable, indicating that the therapy was working. In April, however, there was an increase in viral load. The medical records are not in such a state as to enable me to make definitive findings but, doing the best I can and applying the civil standard, it seems to me that certain conclusions are possible. First, there is no basis for Dr Wood's suggestion that in November/December 2009 MD missed 1 to 2 weeks of medication but secondly, there is good evidence that in a three day period from 21 to 23 November 2009, MD ran out of his medication. His patient print-out reveals that, on 12 November, he had only a week's supply left. Why this is the case is unclear because his next appointment was to be on 24 November 2009. In any event, in the following week, he saw the clinic at the Immigration Removal Centre twice about his medication, but that was so that he could have supplies on his return to Angola, his removal directions having been set. Then, on 23 November, there is a note that he had run out of medication three days previously, which coincides with what the note of 12 November suggests.
There is then what Dr Wood describes as 'several days' of missed drugs in February 2010; MD's solicitor says two days. On MD's account it seems that there was only one day of missed medication. He was given his drugs on 12 February and Dr Narouz records that he had not been taking his 'meds' yesterday and today, ie on 12 February 2010. I cannot speculate what their conclusions would have been if they had based them on the more likely factual premises. In my view, Professor Gazzard comes closest. He says explicitly that the loss of one day in February 2010 was not significant. He continues that the apparent several days gap in late 2009
'is much more serious and there would be an approximately 10 per cent chance that drugs resistance to one of the elements of the contradiction would have developed when therapy was restarted.'
Given this, it cannot be said, in my view, that in MD's case, the 'management failure' in November constituted such a breach of the Hardial Singh principles as to make MD's detention unlawful. Assuming that the increase in viral load in April 2010 was attributable to the three day gap in medication supply in November 2009, this in my view … still does not constitute a breach of the Hardial Singh principles. In April 2010, MD refused his consent for the Secretary of State to see medical information. He was released in May. We are in the dark about the viral load after the April measurement. Nor, in my view, was MD's health at any point at a sufficient level of severity to constitute a breach of the standards which the Strasbourg Court has established in the case of detainees."
"On 15 February 2010, MD's viral load … was undetectable. However, it was detectable on 7 April (1891 copies/ml) and in his last testing on 10 May (947 copies/ml). This indicates failure of treatment. As MD did not report vomiting or diarrhoea the most likely explanation is the repeated missing of medication. Missing tablets can lead to the development of viral resistance which can lead to failure of treatment. Resistance testing of his blood, which was done on 29 September 2009 before starting his antiretroviral therapy, did not show any viral resistance. However, his viral resistance testing, which was done on the blood sample that was taken on 7 April 2010 and also on 10 May, after failure of his treatment, showed viral resistance. We had to stop his current failing medication. He started a new regimen of HIV medication on 5 July."
Lady Justice Arden:
Lord Justice Patten: