2014 10 Mental Health

Saturday 1 November 2014

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R (on the application of MD) v Secretary of State for the Home Department [2014] EWHC 2249 (Admin) (Rhodri Price Lewis QC): On allowing the claim the court held that the detention by the Home Secretary of State of a foreign national suffering from a mental illness, was unlawful both at common law and under Article 5 of the European Convention on Human Rights 1950 and the treatment amounted to inhuman and degrading treatment in breach of Article 3. Further that the Secretary of State had failed properly to apply her own policy in relation to those suffering from mental illness by not taking steps to inform herself of the nature of the condition and whether it could be satisfactorily managed in detention. The claimant applied for judicial review of the defendant secretary of state's decision to detain her following her arrival in the United Kingdom in April 2011. The Claimant was a national of Guinea in West Africa, entered the UK in possession of a family reunion visa granting her leave to remain until March 2014. Her husband, whom she had married in 2004, had been granted refugee status in the UK in 2009. The claimant was refused leave to enter on the basis of alleged false representations, which cast doubt on her relationship with her husband and was detained under the Immigration Act 1971. In August 2011, when she had been in custody for four months the Claimant began to self-harm. Removal directions were set and cancelled on seven occasions because of administrative or similar problems.. Judicial review proceedings were filed in October 2011, but in April 2012 permission was refused. Two psychiatrists who saw the claimant in October 2011 and February 2012 expressed the opinion that she was severely depressed and suffering from an anxiety disorder, and concluded that her symptoms were unlikely to abate whilst she was in detention as her mental health problems were closely linked to her confinement. At no time during her detention was the claimant assessed by a psychiatrist in order to diagnose and treat her mental illness. The Claimant was released in September 2012 and sought a declaration that her detention had been unlawful from its outset, and in any event from October 2011 and thereafter until her release, as a result of a breach of the secretary of state's policy and a breach of the Hardial Singh principles together with remedy in damages and human rights claims. (click here for the judgment).

The Claimant was represented by Stephanie Harrison QC.

Arshad v Malta [2014] EWHC 2515 (Admin) (Treacy LJ, Supperstone J): On allowing the appeal the court held it would be oppressive to extradite a person who was suffering from mental illness where it was clear that he would be found unfit to plead in the requesting state, with no grounds for predicting serious improvement over the next two years. The appellant’s extradition had been sought under a European arrest warrant in relation to an allegation of importing cannabis into Malta. Extradition proceedings had been adjourned because of the severe condition of his mental illness, the high risk of suicide, and his unfitness to plead which led to the conclusion that his extradition would be oppressive.. The joint expert psychiatric report before the court explained that the appellant had been formally discharged from hospital but could be recalled at any time under the Mental Health Act 1983, that he still showed severe mental illness and was at risk of suicide, that he was not fit to plead but was fit to attend court, that his prognosis was poorer, and that it was likely that he would be suffering from psychotic illness for the next three years. The assistant Attorney General of Malta guaranteed that his fitness to plead would be determined in Malta, and that if he was found to be unfit there with no improvement after 18 months, he would be allowed to return to the United Kingdom and that it was not oppressive for him to stand trial in Malta. The court held that where a person was unfit to stand trial at the time of his extradition hearing and there was a real possibility that he might never be fit, one of the relevant circumstances in determining whether it would be unjust and oppressive to return him was whether an undertaking had been offered to permit his return in the event that it was found, after a reasonable time for further treatment in the requesting state, that he was likely to remain unfit. However, it would probably be oppressive and unjust to return an appellant where it was clear that he would be found by the court in the requesting state to be unfit to plead. The experts had agreed that he was not fit to plead his prognosis was not just poor but had deteriorated, and he was showing signs of serious psychotic illness. Critically, doctors saw no grounds for predicting significant improvement within the next two years and this would apply in Malta and accordingly his extradition would be oppressive and should be quashed. (no free transcript available yet).

K (by his litigation friend L) v Hospital Managers of the Kingswood Centre & Central & North West London NHS Foundation Trust (Interested Party) [2014] EWHC 2271 (Admin) (Burton J): On refusing the application the court held that the faxing to a hospital's fax machine of a discharge notice under section 25 of the Mental Health Act 1983 was not a delivery to an officer of the managers authorised by the managers to receive it within regulation 3 of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008. Therefore, a barring notice preventing a patient's release, which had been served within the requisite 72-hour time-frame following a hospital administrator's return to work, but not within 72 hours of the receipt of the notice at the fax machine was valid. In obiter the court stated that in the future, there should be in all hospitals a proper system in place for receipt of such documents, which could come at any time of the day or night and had to be capable of being dealt with within 72 hours. (no free transcript available yet).

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