Today (Wednesday 27th April, 2016), the Supreme Court handed down its ruling in the case of “O” vs the Secretary of State for the Home Department. The case considered issues relating to the detention of people with mental illnesses, and the management of their conditions while in detention. BID’s Assistant Director Pierre Makhlouf reflects on the case and what the judgment means:
The Court’s judgment deals, firstly, with the issue of whether certain people should not be detained – cases where their serious mental illness cannot be “satisfactorily managed” within detention. This phrase itself has been highlighted by the recent Shaw Report on the detention of vulnerable people as one that is inexact and in need of review.
The judgment notes the failure of the Home Office to properly consider recommendations made by doctors when reviewing O’s detention. They failed to consider a diagnosis of Post-Traumatic Stress Disorder or to consider whether or not her condition could be satisfactorily managed in detention, with or without such a diagnosis. Neither did the Home Office properly consider the question as to whether there were very exceptional circumstances that would have justified her continued detention. For these reasons the Court of Appeal had found, and the Home Secretary “now accepts” that part of O’s detention had been unlawful.
The judgment also considers the issue of ‘satisfactory management’, shedding light on the meaning and proper application of the Home Office’s policy concerning the detention of the mentally ill under the Immigration Acts. The ruling clarifies that in a situation where a particular treatment would only be available to a detainee if they were released, that is a relevant consideration as to the appropriateness of detention. This is a very welcome development, and we 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.
Importantly, the judgment reaffirms executive accountability for breaches of published policy in the administrative detention of immigrants. This ruling has reversed previous jurisprudence which had effectively immunised the government from the consequences of policy breaches in certain types of administrative detention. Previous rulings had led lower courts to hold that where the words ‘shall… be detained…. unless….’ appeared in statute, detention would remain lawful even if a person was detained contrary to published Home Office policy. The Supreme Court has now clarified that the executive remains liable for unlawful detention if it commits a material public law error.
At BID, we’re pleased that the Court’s judgment recognises the contributions of the joint interveners, BID and Medical Justice. The issues considered in this case are vital for many of the people who we provide assistance to, and so we believed it was critical to put our evidence forward. This ruling on the issue of accountability for published policy, as well as on the issue of management of complex conditions is very significant. At BID we are indebted to Allen & Overy LLP, as well as our counsel Michael Fordham QC, Laura Dubinsky and Jason Pobjoy who prepared and delivered our legal submissions. We also wish to thank Medical Justice and their legal team from Pierce Glyn solicitors with whom we were able to work cooperatively to bring our joint intervention before the court.
Medical Justice have also published a response to the ruling.
