United Kingdom Supreme Court

committed the offence of cruelty to her son, contrary to section 1 of the Children and Young Persons Act 1933.

(b) In 2004, upon being charged with that offence, O was granted bail but she absconded and did not attend court on the date in February 2005 for which the trial had been fixed.

(c) Meanwhile, earlier in 2004, O's claim for asylum or for discretionary leave to remain in the UK under the European Convention on Human Rights ("the ECHR") was refused and her appeal against the refusal dismissed.

(d) In July 2005, while she remained unlawfully at large, O gave birth to a daughter, whom, to O's great distress, a court later authorised to be placed for adoption.

(e) In September 2007 O was arrested and charged with making a false instrument, namely a false identity document which she had used in an attempt to open a bank account, for which she was later convicted and sentenced to imprisonment for nine months.

(a)               that O gave a plausible history of having suffered frequent physical and sexual abuse at the hands of an uncle when she was aged between 11 and 14 and in his care in Nigeria;

(b)               that staff at Yarl's Wood had told her that since the summer 2010 O's behaviour had been more stable and that she had undertaken a short course of cognitive behavioural therapy;

(c)               that her study of O's records, her lengthy interview with O and the results of application to her of mainstream psychological tests led her to diagnose in O not only a major depressive disorder but, in particular, a severe, complex and chronic form of post-traumatic stress disorder ("PTSD") arising out of her uncle's protracted abuse of her;

(d)               that, unlike Dr Ratnayake, she considered that O could not access the necessary mental health services at Yarl's Wood;

(e)               that release from detention would greatly benefit her mental health;

(f)                that she needed a long-term structured package of mental health services;

(g)               that she was not fit to live independently without professional support;

(h)               that recovery of her mental health could occur only over the long term;

(i)                 that neither medication nor general counselling services would alone be enough to secure her recovery;

(j)                 that she needed to be referred to a specialist trauma-focussed psychiatric clinic, such as those in London provided by St Bartholomew's Hospital, by the Maudsley Hospital and by three others, for treatment which would take place in phases over years;

(k)               that such a referral was in accordance with guidance issued by the National Institute for Health and Care Excellence ("NICE") to the effect that neither general counselling services nor treatment with medication could alone provide sufficient interventions in a severe, complex case of this sort; and

(l)                 that her deportation to Nigeria would have grave effects upon her mental health and be likely to precipitate unsuccessful attempts at suicide followed perhaps by a successful one.

AUTHORITY TO DETAIN

"(1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall ... be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.

(1A) ...

(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 ... of a decision to make a deportation order against him ... he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."

I have set four words above in italics in order that the reader may more easily understand my discussion in paras 42 to 49 below of the Francis case cited at para 4 above.

"Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the [1971 Act] unless in the circumstances the Secretary of State thinks it inappropriate."

I have set the word "power" in italics for the same reason.

POLICY

(a)               at para 55.1.1 that the power to detain had to be retained in the interests of maintaining effective immigration control but that there was a presumption in favour of release;

(b)               at para 55.1.2 that the presumption applied even to foreign national offenders (such as O) but that, in relation to detention pending their intended deportation, the risks of their re-offending and absconding might well outweigh it; and

(c)               at para 55.8 that, following the start of any detention, reviews of it were necessary in order to ensure that it remained lawful and in line with policy; that in a criminal case (such as that of O) they should take place at least every 28 days; and that the law required detainees to be provided every 28 days with written reasons for their continued detention, based on the outcome of the reviews.

"Certain persons are normally considered suitable for detention in only very exceptional circumstances ...

In criminal ... cases, 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. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.

The following are normally considered suitable for detention in only very exceptional circumstances ...:

...

•          Those suffering from serious mental illness which cannot be satisfactorily managed within detention ..."

The words at the bullet point quoted above were introduced into the paragraph on 25 August 2010. Prior to that date the category was described as "those suffering from serious medical conditions or the mentally ill". It is clear that, in considering whether there are very exceptional circumstances which make a person suitable for detention even though her (or his) serious mental illness cannot satisfactorily be managed there, the caseworker has to weigh the severity of any risks of offending or further offending and of absconding.

REVIEWS OF O's DETENTION

(a)          failed to refer to Dr Agnew-Davies' diagnosis of O as suffering PTSD;

(b)         indeed wrongly stated that the most recent diagnosis of O's mental condition was that of Dr Ratnayake;

(c)          failed to refer to Dr Agnew-Davies' assessment of O's need for treatment at a specialist trauma-focussed psychiatric clinic; and

(d)         failed therefore to consider whether O could be "satisfactorily managed" at Yarl's Wood and, even if not, whether there were very exceptional circumstances which nevertheless justified her continued detention.

"There are two themes that run through the cases. The first is that the person reviewing detention does not always appear to have been aware of all of the relevant evidence (particularly medical evidence) that is relevant to the assessment of whether it is appropriate to detain (so sequential reviews are written in almost identical terms without any reference being made to important developments in the medical picture). The second is that decisions to detain are made without properly engaging with the test that has to be satisfied before a decision is made."

The reviews of O's detention between March and July 2011 are perfect illustrations of both of Mr Johnson's themes.

"• Detainees should receive health care equivalent to that available to the general population in the community with access to services based on clinical need and in line with the Detention Centre Rules; and

•                      Health and wellbeing services in IRCs should seek to improve health and wellbeing (including parity of esteem between services which address mental and physical health) ..."

In relation to the detention of those suffering from mental health problems, the Home Secretary's Policy Equality Statement dated 26 November 2014 recorded her agreement with NHS England that the provision of healthcare at a standard equal to that provided in the community was a "core principle". She noted, however, that respondents to her consultation had suggested that in IRCs there was an insufficiency of specialist mental health interventions, with the result that adherence to the principle was not achieved. Although both the Partnership Agreement and the Equality Statement post-date 2011, the Home Secretary does not suggest that they are irrelevant to the interpretation of the policy then applicable to O.

"You have the right to drugs and treatments that have been recommended by NICE for use in the NHS, if your doctor says they are clinically appropriate for you."

But O's argument is underdeveloped and carries her appeal no further. Precisely what treatment has been recommended for use in the NHS - and for use in what circumstances? As I explore more fully below, would the doctor responsible for O have agreed that treatment at the trauma clinic was clinically appropriate for her and, if so, would it have been among the treatments which the doctor's local clinical commissioning group had decided to commission? And to what extent is the right referred to in the NHS Constitution circumscribed by the limited availability of recommended treatments?

(a)          Was Dr Agnew-Davies likely to be correct in diagnosing PTSD in O? No one had previously diagnosed it. In particular it had been diagnosed neither by Dr Ratnayake nor (until 30 June 2011) by Professor Katona.

(b)          In particular did the clinicians treating O at Yarl's Wood agree with the diagnosis and, if not, what diagnosis did they favour? Their intimate and protracted exposure to O might, subject to the quality of their response, invest their views with considerable authority.

(c)          What was the nature of the treatment currently provided to O at Yarl's Wood?

(d)          How satisfactory did the clinicians regard the current treatment and would they confirm the improved stability of O's behaviour reported by Dr Agnew-Davies?

(e)          Was it necessary to instruct an independent psychologist to comment on the diagnosis of Dr Agnew-Davies?

(f)           What was the likely length of time before the Home Secretary could achieve O's deportation? In February 2011 she had come close to achieving it but O's second claim for judicial review in relation to revocation of the deportation order was pending.

(g)          Insofar as Dr Agnew-Davies was recommending that O needed at once to embark on lengthy treatment at a specialist trauma-focussed clinic, would the doctor responsible for O approve it and was the recommendation in any way practical? Was there evidence that any such clinic could and would accept O, as a foreign citizen awaiting deportation, even for immediate assessment let alone for early treatment?

(h)          If O were released into the community, what accommodation should be provided for her and would its location be compatible with her need to undergo the treatments appropriate for her?

(i)            What medical services (in particular, what mental health services) and what local authority community care services would be available to O in her locality immediately following any release?

THE LUMBA PRINCIPLE

"71. I can see that at first sight it might seem counter-intuitive to hold that the tort of false imprisonment is committed by the unlawful exercise of the power to detain in circumstances where it is certain that the claimant could and would have been detained if the power had been exercised lawfully. But the ingredients of the tort are clear. There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised. Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed."

Although an unrelated aspect of one claim was remitted for further consideration, the claims relating to the Home Secretary 's policy thus resulted in awards to each of the two men of damages in the sum of £1.

THE FRANCIS CASE

(a)          The first period was from 4 December 2007 to 9 September 2008. In respect of this period the court adopted the conclusion of the trial judge that the Home Secretary had, as in the Lumba case, unlawfully applied to Mr Francis an unpublished policy in favour of detention which was inconsistent with her published policy.

(b)          The second period was from 9 September 2008 to 1 June 2010. In respect of this period the court adopted the conclusion of the trial judge that the Home Secretary had unlawfully failed to apply her policy by failing to cause the reviews of the continued detention of Mr Francis to be conducted by persons with authority to direct his release.

(c)          The third period was from 1 June 2010 to 29 September 2011. The court adopted the finding of the trial judge that during this period there was no longer any prospect that the deportation of Mr Francis would take place within a reasonable time.

"21. In the present case there was no discretionary decision to detain the claimant which was capable of being vitiated by the application of an unlawful policy ...

22. The fact remains that the decision to detain has been made by Parliament and the statute provides the authority for detention, unless and until the [ Home Secretary ] exercises the power to release him. It is that which distinguishes detention under sub-paragraph (1) from detention under sub-paragraph (2)."

And see the judgment of Christopher Clarke LJ at paras 53 and 54.

DISPOSAL