ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION,
MR. JUSTICE OUSELEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD JONES
SIR STANLEY BURNTON
| IM (NIGERIA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Eleanor Grey QC (instructed by Treasury Solicitor) for the Respondent
Hearing date : Monday 25th November 2013
Crown Copyright ©
LORD JUSTICE LLOYD JONES :
The appellant's medical history
(1) The appellant began refusal of food on 27 August 2013 and has continued to do so since, save for a brief interruption in mid October and a few other isolated occasions. He has, in addition, been refusing fluids intermittently.
(2) On the 23 October 2013 he signed an advance decision which stated inter alia that:
(a) He did not intend to eat.
(b) He did not want to drink or otherwise receive fluids.
(c) He did not want to receive any medical treatment.
(d) He did not consent to the administration of nutrition or hydration or any form of medical treatment.
(e) He did not consent to medical or nursing care designed to keep him free from pain in the event of a serious deterioration in his condition.
(3) The appellant has capacity to understand the significance and consequences of his decision. Neither before Ouseley J. nor before us was it contended that he lacked capacity to decide whether to take food or fluid, that he was not aware of the consequences of such a refusal or that he lacked capacity to decide to refuse medical treatment. (I note that this was the position notwithstanding the statement by Dr. Hartree in her report of 20 November 2013 that the appellant's judgement may now be clouded by the effect of starvation.)
(4) The appellant is considered by doctors at the Harmondsworth Immigration Removal Centre ("the IRC") to be unfit to be detained there because his medical needs cannot be met there.
(5) The appellant has repeatedly been offered a transfer to hospital and hospital treatment for his condition but he has refused, insisting on a condition that he be freed from detention.
(6) On 15 November 2013 nursing staff at the IRC prepared a Nursing Care Plan for the appellant which is described in the accompanying Part C form as an "end of life" plan.
(1) On 30 October 2013 Mr. Ind received a release referral which included a Part C Form which stated that in view of his general health condition the appellant was unfit for detention at Harmondsworth IRC which could not fulfil his medical needs. Mr. Ind's response included the following passage:
"Mr. M should continue to be detained at this time. I note that the Dr. has said his condition cannot be fully assessed as he is refusing observations. As long as we continue to offer Mr. M the chance for an escorted visit to hospital and for as long as it is assessed he has mental capacity in his refusal to take this up, then the case for release is not made."
(2) On 14 November Mr. Ind received a further release referral. He responded as follows:
"The earlier reasons for maintaining detention still appear to pertain. He is able to access medical treatment at hospital whenever he wishes. There continues to be no expressed doubt about his mental capacity to refuse treatment. He refuses medical assessment and he is not co-operating with attempts to re-document which are proceeding regardless. Albeit to a slower timescale due to his non compliance. He has overstayed for some years. Successive judgements have supported our decisions to maintain detention in such circumstances. We should maintain detention but ensure he knows, please, that we think he needs hospital treatment and want to take him there."
(3) On 15 November Mr. Ind received a request to review and clarify the decision to maintain detention. He responded as follows:
"I considered the IS91RA Part C and Dr. Hartree's report and other relevant information last night. These informed my decision to maintain detention at this time. My reasons remain as reported then.
I do not think this further request from the reps adds anything material. In relation to the offer to ensure he reports to NHC [Nigerian High Commission] when fit, I note the NHC went to visit him this week in detention and he refused to engage. Hence he was served with the indemnity letter. We can have little confidence given his history, his repeated non-compliance to date and his refusal to speak to NHC even when they came to him this week that he would act voluntarily as his reps suggest."
Grounds of appeal.
(1) The judge erred in law in holding that the respondent has power to detain persons, pending their removal from the United Kingdom, in a hospital, save when a direction is made under section 48, Mental Health Act 1983.
(2) The judge erred in law in his interpretation of the respondent's policy on detention and in failing to hold that the continued detention of the appellant is in breach of that policy and therefore unlawful.
(3) The judge erred in law in holding that the continued detention of the appellant is not in breach of Hardial Singh principles
(4) The judge erred in law in holding that the continued detention of the appellant is not in breach of Articles 2 and/or 3 ECHR.
Ground 1: Statutory power to detain persons, pending their removal from the United Kingdom, in a hospital.
The statutory provisions.
"Persons may be detained under paragraph 16 above in such places as the Secretary of State may direct "
"Subject to paragraph 4 below, the places where a person may be detained under paragraph 16(1) of Schedule 2 to the Act (detention of persons in order to examine or remove) shall be as follows
(c) any short-term holding facility, including:
(i) Any police station:
(d) any hospital.
(e) any young offender institution, prison or remand centre or, in the
case of a person under the age of 18, any place of safety;
In sub-paragraphs (f) (p) paragraph 3(1) lists eleven IRCs by name, including Harmondsworth IRC.
(a) any health service hospital within the meaning of the National Health Service Act 2006 or the National Health Service (Wales) Act 2006; and
(b) any accommodation provided by a local authority and used as a hospital by or on behalf of the Secretary of State under that Act; and
(c) any hospital as defined by section 206 of the National Health Service (Wales) Act 2006 which is vested in a Local Health Board; "
Submissions on behalf of the appellant.
Ground 2: The continued detention of appellant is in breach of the respondent's published policy on detention.
EIG, Chapter 55 provides in relevant part:
"The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used Detention is most usually appropriate:
- To effect removal;
- Initially to establish a person's identity or basis of claim; or
- Where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release."
55.1.3 Use of detention
Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted. A person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who is removable.
55.1.4 Implied Limitations on the Statutory Powers to Detain
In order to be lawful, immigration detention must be for one of the statutory purposes for which the power is given and must accord with the limitations implied by domestic and ECHR case law. Detention must also be in accordance with stated policy on the use of detention.
55.3 Decision to detain (excluding pre-decision fast track and criminal casework cases)
"1. There is a presumption in favour of temporary admission or
temporary release there must be strong grounds for
believing that a person will not comply with conditions of
temporary admission or temporary release for detention to
2. All reasonable alternatives to detention must be considered before
detention is authorised.
3. Each case must be considered on its individual merits,
including consideration of the duty to have regard to the
need to safeguard and promote the welfare of any children
involved." (original emphasis)
"55.10 Person considered unsuitable for detention.
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
- Unaccompanied children and young persons under the age of 18 ...
- The elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention.
- 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 which cannot be satisfactorily managed within detention.
- Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act.
- Those where there is independent evidence that they have been tortured.
- People with serious disabilities which cannot be satisfactorily managed within detention.
- Persons identified by the competent authorities as victims of trafficking
If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file.
"55.13 Places of detention
Persons detained under Immigration Act powers may be detained in any place of detention named in the Immigration (Places of Detention) Direction 2011. This includes police cells, immigration removal centres, prisons or hospitals. Unaccompanied children or young persons under the age of 18 may only be held in a place of safety "
"This Order describes the procedures that must be adopted for handling food and fluid refusal by detainees in Immigration Removal Centres. The procedures apply to all Immigration Removal Centres."
Part D, Case Management includes the following passages:
"46. Some detainees choose to refuse food and/or fluids as a protest against their detention. The law presumes that an adult has the capacity to take their own healthcare decisions unless the opposite is proved. A decision to refuse food and/or fluids will not automatically entitle that individual to be released from detention. Genuine refusal of food and/or fluids can, however, in some cases lead to medical conditions that are so serious that they can no longer be satisfactorily managed in detention. In such a case the detainee may become unsuitable for detention (although other factors may also be relevant to this decision). It is therefore important that sufficient information is available to enable a decision to be made as to continued detention.
55. Where the IRC doctor has given an opinion that a detainee is no longer fit to be removed and/or no longer fit to be detained as a consequence of their food and/or fluid refusal, the doctor should be asked by the HO Immigration Enforcement Manager for details, if they have not been provided or are unclear, of the basis on which this assessment has been made. In particular, the doctor should be asked whether the assessment is based on:
- physical examinations or tests and, if so, their results and the conclusions drawn from them; or
- limited or visual observations only and, if so, the information obtained and conclusions drawn; or
- the detainee's own account or information alone.
56. This will ensure that the doctor's opinion can be given due weight in deciding how to proceed, particularly when balanced against other evidence or information that may exist (eg that the detainee is in fact eating and/or drinking, even if only covertly or infrequently, or that their generally observed demeanour or behaviour does not support the doctor's assessment). Use by healthcare professionals of the sample food and/or fluid refusal assessment record attached to this guidance will assist this process.
57. This is not about challenging the doctor's professional opinion on medical grounds. It is simply to ensure that the basis for that opinion is clear and is understood by HO Immigration Enforcement so that it can be given due weight in deciding how best to manage the detainee. Whilst it is important for doctors to express their professional view as to whether a detainee is unfit to be removed or detained as a consequence of prolonged food and/or fluid refusal, and such views must be considered very carefully, the Secretary of State has an independent decision to make in such cases, specifically, is the individual concerned suffering from a serious medical condition (ie the consequences of prolonged food and/or fluid refusal) which cannot be managed satisfactorily in detention and, if so, are there nevertheless very exceptional reasons for maintaining detention (eg high risk of public harm if released)?
60. Consideration may be given to transferring detainees to a prison medical facility at the point where they are clinically assessed to require in-patient care. Such a transfer may be appropriate or necessary for clinical reasons in order to access the more extensive medical facilities available in the prison estate and to ensure the better care and management of the individual in question. ..." (original emphasis)
Ground 3: The continued detention is in breach of Hardial Singh principles.
"It is common ground that my statement in R (I) v Secretary of State for the Home Department  EWCA Civ 888;  INLR 196, para. 46 correctly encapsulates the principles as follows:
(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."
"Judging whether that stage has been reached involves a judgement either (i) that the individual has reached the stage where death is unavoidable by treatment and would occur within such a short space of time that there was no reasonable prospect of the removal of the claimant at all, even were he now to consent to treatment, or (ii) that the permanent condition of survival in which the individual would live extinguishes reasonable prospects of his removal including on Article 2, 3 or 8 grounds, within a reasonable time, or (iii) that the length of time in treatment required before he could be removed, would be so long that there were no reasonable prospects of removal within a reasonable time." (at )
"Mr. [M] has been declining to take diet and regular fluids for a prolonged period. He states he would rather die than be deported.
As a result of Mr. [M]'s refusal to take sufficient nutrition, he has been assessed by the medical staff as being unfit for detention.
Mr. [M] remains in detention and is at risk of further deterioration to his physical and mental well-being. Mr. [M]'s continued refusal of diet and fluid may result in irreversible organ damage or death.
Mr. [M] presents with a risk of re-feeding syndrome. Mr. [M] declines a transfer to hospital, this is against medical advice.
Mr. [M] has been assessed by our in house medical team as having mental capacity in accordance with the mental capacity act, he has made a verbal advance decision that he does not wish to receive treatment should his health decline to the point that emergency/lifesaving treatment is required. This is recorded in his medical notes. Mr. [M] states he understands the risk associated with his advance decision and accepts that this will eventually lead to his death. It has also been explained that the validity of any advance decision can be questioned by the health team if the circumstance in which the advance directive was made change."
(1) A further medical report by Dr. Hartree, instructed on behalf of the appellant, and dated 20 November 2013 reports that on her visit to the appellant on 19 November she found him weak and dangerously malnourished. She considered that he was probably mildly dehydrated, but less so than during her previous visit. She considered that this probably reflected the fact that he had been motivated to drink more water. His weight loss had continued and he had now lost 35% of his body weight. He was at high risk of complications or collapse from malnutrition although it was not possible to predict a timescale of survival. His cognition appeared adequate and he was able to understand and retain information. However, she was concerned that his judgement may be clouded by the effects of starvation. She considered that he was physically unfit to fly, as he is physically so debilitated that he would be at risk of collapse in flight. It would be difficult for him to tolerate the prolonged upright posture and reduced oxygen pressure of the flight and these could precipitate an abrupt deterioration. There was also a risk of deep vein thrombosis which in his case would be life threatening. She went on to state:
"Mr. [M] is so malnourished that even if he accepted hospital treatment and re-feeding, I estimate that he would need a few weeks at least, perhaps several weeks, of re-feeding and rest before he would be well enough to travel"
(2) A medical report by Dr. Macfarlane, dated 21 November 2013 states:
"Mr. [M] is able to walk unaided and appears well hydrated. He admits to taking small amounts of water to help with keeping his mouth and throat hydrated. His appearance is consistent in my opinion of someone who is currently keeping hydrated, even if refusing food. I would estimate that even if he were to start refusing fluid (for example after learning of his impending removal) that this assessment would still hold for a further 7 days from that time, unless healthcare HW identify any new issues."
Dr. Macfarlane considered that the appellant is currently fit for flight and travel.
"Mr. [M] is currently fit for flight and travel. His condition should not be affected adversely by altitude. There are no contraindications to the use of control and restraint techniques from a medical viewpoint. Mr [M] would be suitable for a scheduled flight accompanied by a paramedic trained medical escort with iv access competency."
(3) In a separate development the Nigerian High Commission has stated that
it will produce on Tuesday 26 November travel documentation for the appellant.
(4) On Sunday 24 November the appellant was served with removal directions for Wednesday 27 November 2013.
"The claimant cannot simply say that there is no reasonable prospect of his consenting either to taking food and fluid or to the hospital treatment and therefore he must be released, any more than a refusal to co-operate in the documentation process of itself requires release. The defendant is entitled to test the refusal to the stage I have described. Otherwise a detainee can simply assert a refusal of treatment as a basis for requiring release, even though the circumstances of imminent death or serious harm, when eventually faced may create a reasonable prospect of a change of mind." (at )
Ground 4: The continued detention is in breach of Articles 2 and/or 3 ECHR.
"92. The Court has considered treatment to be "inhuman" because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment 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. On the other hand, 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.
93. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that the execution of detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article 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.
94. Nevertheless, under this provision the State must ensure 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 measures 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."
"9. The European Court of Human Rights noted (paragraph 47) that Article 2 can import a duty to take positive steps. These can include, [for] those who are particularly vulnerable, such as prisoners, a duty to protect them against actions by which they put their own lives at risk (paragraph 48). This duty must not be interpreted as subjecting the authorities to an intolerable or excessive burden. It is not every threat to life which imposes a duty on the authorities to take specific measures to prevent its materialising. In the case of threats presented by the person himself, the Court has to consider whether, at the relevant time, the authorities knew, or ought to have known that there was a real and immediate risk to the life of the person concerned, and whether, if so, they did everything which could reasonably have been expected of them to avert that risk (paragraph 49).
10. In the case of prisoners (the French word "detenus" is used) who, voluntarily, or involuntarily, put their lives at risk, the Court recalls that the authorities must discharge their functions in a way which is compatible with the rights and freedoms of the individual. That being so, article 2 does not oblige a State to release a prisoner (again, "detenu" is used) on health grounds. The Court may not substitute its own assessment for that of the domestic authorities, provided that they have broadly met their duty to protect the physical integrity of the prisoner, in particular by providing appropriate medical treatment (paragraph 50).
11. With regard to prisoners who risk their own lives by going on hunger strike, the Court recalls that the consequences of putting pressure on the authorities will not entail a breach of the Convention, in so far as they have properly examined and handled matters. This applies just as much when a prisoner clearly refuses all interventions, even if his state of health would threaten his life. Finally, the Court recalls that when it considers whether there is a causal like between the death of a prisoner on hunger strike, and the refusal of the authorities to release him, it takes into account whether, in the prison setting, the prisoner has been deprived of such medical attention as he could have obtained when at large (paragraph 51).
12. The Court recalled, in relation to the facts, that the applicant's hunger strike was motivated not by a desire to end his life, but by a desire to put pressure on the authorities, in order to achieve a change to the drugs laws and to obtain a shorter sentence. This was not a case in which the Court had to consider whether the State had violated the applicant's right to decide on the time and manner of his death, as it might do within the framework of Article 8, but to ensure that the State had properly observed the positive duty imposed on it by article 2, to preserve the applicant's life (paragraph 52).
13. When a prisoner embarks on hunger strike, the consequences for his health will not entail a breach of the Convention so long as the domestic authorities have properly investigated and managed the situation. This is particularly so when the prisoner persists in refusing food, despite the deterioration in his health. The Court referred to Horoz v Turkey application no 22913/2004, 10 November 2005, in which it did not find a breach of Article 2. The applicant's son had died in the penal unit of a hospital, where he had been hospitalised, from the consequences of a hunger strike which he had refused to abandon. In the light of the facts that the authorities had properly investigated and managed the situation, that the individual had refused all treatment, and nothing indicated that he had not benefited, in the prison setting, from any medical care which would have been available outside, the Court concluded that the refusal to release him did not entail a violation of Article 2 (paragraph 53)."
"16. As to Article 3, the Court noted that treatment must attain a minimum level of severity for Article 3 purposes and recalled that the fact that those on hunger strike have inflicted harm on themselves does not in any way absolve the State from its duties under Article 3 (paragraphs 60-62). Moreover, though the Convention does not in principle entail an obligation to release a prisoner on health grounds, a decision to order the return to custody of a person on hunger strike may disclose a breach of Article 3 if the person is suffering from permanent health consequences, such as, for example, Wernicke-Korsakoff syndrome, among others (see Uyan v Turkey application no 7454/2004, 10 November 2005, paragraphs 44-54 and Balyemez v Turkey application no 32495/2003, 22 December 2005, paragraphs 90-96) (paragraph 63).
17. The Court also recalled that the consequences of putting pressure on the authorities will not entail a breach of the Convention, in so far as the authorities have properly investigated and managed the situation. Such is the case with a clear rejection of all intervention expressed by a hunger striker, even if his state of health is a threat to his own life (paragraph 64).
19. The Court, applying those principles to the facts, recalled that the physical and mental suffering of the applicant were a direct consequence of his choice not to eat, a choice he could have reversed at any time. But the Court was, nevertheless, not relieved of the obligation to ensure that the domestic authorities had complied with their obligation to provide the applicant with conditions of detention which were compatible with his state of health (paragraph 66). The applicant was returned to custody twice, but did not claim to be suffering from any permanent ill effects such as Wernicke-Korsakoff syndrome. The Court concluded that returning the applicant to custody did not, of itself, constitute a breach of Article 3 (paragraph 67)."
(1) The appellant's reasons for going on hunger strike have been investigated.
(2) He has been encouraged throughout to end his refusal of food and fluids.
(3) Steps have been taken on at least two occasions to determine whether the appellant has full capacity and it has been determined that he does.
(4) The appellant has been given facilities to make an advance decision.
(5) The appellant has had legal advice throughout the period of his refusal to eat or drink.
(6) The appellant has been examined by doctors and psychiatrists on a number of occasions and would have been examined more frequently had he permitted it.
(7) The appellant has been kept under medical assessment and has had access to a doctor from Medical Justice and to a psychologist.
(8) He has been offered food and fluid and medical assessment on many occasions. He has repeatedly been offered hospital treatment which he has repeatedly refused.
(9) An end of life plan has been prepared for the appellant.
Further submissions relating to the decisions taken by Mr. Ind.
SIR STANLEY BURNTON:
LORD JUSTICE LEWISON: