R (VC) v Secretary of State for the Home Department

Summary

The case concerned a Nigerian national (VC) in the UK who suffered from bipolar affective disorder with psychotic features. He was admitted to hospital on multiple occasions for treatment under the Mental Health Act 1983 (MHA). VC was also detained under the Immigration Act 1971 by the Secretary of State in an immigration removal centre between 11 June 2014 and 5 May 2016 before being transferred to a psychiatric facility and compulsorily detained under the MHA.

VC challenged the legality of his detention under the Immigration Act and the delay in securing his transfer to hospital for treatment. The first instance court held that the Secretary of State had misinterpreted her policy on the detention of those with mental illness but, save for the period between 3 and 27 April 2015, VC's detention was not unlawful.

On VC's appeal, the Court of Appeal disagreed with the first instance judge and held that the Secretary of State's breaches rendered the detention unlawful between 30 June 2014 and 27 April 2015. In particular, the Secretary of State had not discharged the burden of demonstrating, on the balance of probabilities, that she could and would have detained VC in any event. It followed that VC was entitled to compensatory damages in respect of the period 30 June 2014 to 27 April 2015 and that damages were to be assessed on the basis that VC would have been in the community rather than in detention.

The Court of Appeal also considered an argument that the Secretary of State had discriminated against VC by not making reasonable adjustments under the Equality Act 2010 for mentally ill detainees to make representations on decisions regarding their continued detention and segregation. This argument was supported by the Equality and Human Rights Commission intervening. The Court held that the Secretary of State had failed to discharge the burden of proof to demonstrate that she had complied with her duty to make reasonable adjustments. It was suggested, for example, that a system akin to IMCAs could be devised in which an advocate would assist mentally ill detainees in making representations in respect of decisions to detain or remove a detainee from association. The Court did not accept the Secretary of State's argument that representation at the public expense could not be provided on an anticipatory or continuing basis. Although the Court accepted that cost was a factor in assessing the reasonableness of the proposals, there was no evidence that the Secretary of State had made an assessment of cost and concluded that the proposals were unaffordable.

Comment

This immigration detention case may be of interest to practitioners for the observations made in relation to access to courts for those with cognitive impairments. The Court of Appeal found that mentally ill detainees were at a substantial disadvantage compared to other detainees because there were circumstances in which issues may arise about their detention about which they would, if they had the ability to do so, want to make representations, but are unable to do so because of their mental illness. The Court noted that while in other detention contexts there are automatic independent reviews of the detention, in immigration detention a bail application has to be initiated by the detainee to obtain an independent review.

The Court's recognition of the difficulties faced by mentally ill detainees in accessing an independent review is welcome and is supported by Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD). Although this was not cited by the Court, Article 13 provides that States "shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings…" The recent annual report of the UN High Commissioner for Human Rights on the right to access justice under article 13 of the CRPD (available here) made the following recommendations which resonate in the domestic context:

• States should modify civil, criminal and procedural laws which prevent persons with disabilities from directly or indirectly participating in judicial or administrative processes on an equal basis with others either by granting third-party recognition in law or in fact without free and informed consent or by denying legal standing.
• States should also implement laws and policies that ensure that information needed to defend rights is accessible, and that free and affordable legal aid is provided to persons with disabilities in all areas of law.
• States should implement anti-discrimination measures including providing procedural accommodations where necessary, in all their forms and in all legal proceedings.

On one view, this case also calls into question the correctness of the approach taken by the Court in Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79 (which was not mentioned in the judgment). In that case, the Court of Appeal readily accepted that if Mr Bostridge had not been unlawfully recalled under a Community Treatment Order (CTO), he would have been lawfully detained in any event under s.3 MHA rather than in the community. He therefore suffered no loss and was entitled to receive nominal damages only. In Bostridge, there was no real analysis of whether the defendant in that case (Oxleas NHS Foundation Trust) had discharged the burden of proof to the requisite standard, but rather an assumption that because Mr Bostridge was detainable under the MHA, he would have been detained under section 3 of the MHA in any event. At the very least, the decision in Bostridge should be read in light of this most recent Court of Appeal judgment.