Mental capacity of those in immigration detention in the UK

Abstract

Asylum seekers and migrants can be detained in immigration removal centres (IRCs) or, post sentence, in prison while the Home Office makes decisions on their immigration status and/or arrangements for their removal or deportation. Currently, there is no process for identifying detainees who lack the mental capacity to participate in decision making relating to their immigration situation. Mental illness and distress are common among detainees. There are often cultural and language barriers; there is no consistent system of advocates, and many detainees are without legal representation. Mental capacity is decision specific. Clinicians in IRCs have a duty to consider detainees’ capacity for health-care decisions, but are not expected to carry out any assessment in the broader context of immigration decision making, and there is no set procedure for notifying immigration decision makers with any concerns about a detainee’s capacity. The Home Office focusses on safeguarding vulnerable people in detention, but not on whether such detention should happen or whether individuals identified as especially vulnerable have the necessary capacity for immigration-related decisions. In the community, asylum seekers and migrants can be supported in their engagement with immigration officials by family and friends and other advocates of their choice. This is not the case for immigration detainees. The current arrangements carry a significant risk of unfair decisions being made on the most vulnerable detainees without their capacitous participation. Recommendations for changes are made, including the need for a high threshold to be applied to justify any detention of people who lack immigration-related decision-making capacity.

Keywords

Mental capacity immigration detention

Introduction

The majority of asylum seekers and other migrants who do not yet have the legal right to remain in the UK long term nonetheless have the right to determination of their applications and cannot be removed from the UK during that process. Hence, they are permitted to live freely in the community subject to certain standard conditions. However, at any one time, around 4000 people are detained under immigration powers in the UK, mostly in immigration removal centres (IRCs) but some post sentence in prison. This is administrative detention with judicial oversight only on application. Detention is expected to be used sparingly and only when it can be justified. The legality of such administrative immigration detention depends upon the Home Office being able to remove the person within a reasonable period of time (the Hardial Singh principles) and the public law duty of acting consistently with official guidelines and rules, which include some safeguards to ensure the most vulnerable migrants are not detained at all or only in very exceptional circumstances.¹ In our experience, these safeguards are insufficient and are in any case not adhered to in practice. This paper concerns those immigration detainees who lack the mental capacity to engage in the immigration-related decision-making process, the infrequency with which their lack of capacity is identified and the lack of support and safeguards for their protection.

The Mental Capacity Act 2005 (MCA) applies to immigration detainees as it does to others, with a standing assumption of mental capacity for the decisions required.² This paper considers what happens when that is not the case, with the detainee having difficulty with one or more of the four key components of decision making capacity in s3 MCA: (a) understanding the decision-relevant information given to them; (b) retaining that information; (c) using or weighing the information given as part of the process of making a decision; and (d) communicating decisions. A small minority will have organic brain disease or learning difficulty, but the majority of those for whom we are concerned will have capacity problems related to non-organic mental illness. Such mental illness is common in detainees.^3–5 The presence of a mental disorder does not automatically lead to lack of capacity. However, lack of capacity to make decisions pertaining to care is present in a significant percentage of psychiatric patients.⁶ Mental health frequently deteriorates with length of time in detention, with mental capacity potentially following suit and therefore being a particularly important consideration in people whose immigration detention has become prolonged.^7,8

Capacity may be further impeded by other risk factors such as limited understanding of concepts from a culture which may be alien and in a language which is foreign, with a reliance placed on written material, despite some detainees being illiterate. As the Prisons and Probation Ombudsman has said in a report on a self-inflicted death in detention, ‘In reviewing the Immigration Service files, I was struck once again by how impenetrable much of its correspondence must be for detainees whose command of English is limited … There is enough uncertainty around detention and removal without burdening detainees with letters they cannot understand’.⁹ Many of these vulnerable detainees do not have their need for support identified. Some will not have legal representatives, even assuming they had the capacity to instruct them. Language interpreters may be absent or substandard. Few at present have appropriate advocates. Detainees are at the mercy of a system that has been roundly criticised as being ‘expensive, ineffective and unjust’.¹⁰

Detainees need adequate mental capacity to consider the options relating to claims for asylum and immigration status, for formal interviews with immigration caseworkers, questioning during any Court appearances and whether it is appropriate for their health records to be shared with immigration caseworkers. These decisions might be more far-reaching and significant for the detainee than those affecting their social needs or health care. Because of the life-determining nature of some of the decisions that are required to be made about and by those within administrative detention, the situation has only some parallels to those in the criminal justice system.¹¹ There is a paucity of research into immigrants’ understanding in practice of the many steps in the asylum and other status-determining processes, even for those with full capacity.

Why this issue is of increasing importance

The issue of mental capacity in immigration detainees is more prominent now because: (a) there are increasing numbers of people held under immigration powers; (b) since changes in policy and practice, mental illness is no longer such a barrier to immigration detention, and thresholds set for severity of mental illness before release will be considered have increased¹²; (c) reductions in legal-aid funding mean that more detainees have no representative; (d) it is now clear the in-house Immigration Removal Centre clinicians have no expectations on them of assessing mental capacity for immigration decisions¹³; (e) there have been repeated cases of detainees on food and fluid refusal, which per se may lead to impaired capacity; and (f) there is increasing evidence including in cases before the courts – including six cases where the Home Secretary has been found in breach of article 3 Case-law of the European Convention on Human Rights by subjecting mentally ill detainees to treatment which is equivalent to degrading and inhuman treatment – that there is persistent failure to identify those with serious mental illness, and significant deterioration in the condition often as a result of continued detention (see Table 1). This at least in part reflects systemic failure in the key safeguard of Rule 35 of the Detention Centre Rules 2001.¹⁴

Table 1.

Case-law examples of detainees where lack of mental capacity has arisen, also summarised in Appendix 4 of Shaw Report.

Who?	Issue	Reference (refers to references at end of article)
BA	Severe mental illness, no action taken on medical advice he was unfit to detain	15
S	Severe mental illness which deteriorated until he lost capacity and had to be represented through the Official Solicitor.	16
D	‘treatment afforded, or not afforded, to D was such to render him legally incapable, in the sense of being unable to instruct his legal team or effectively to participate in tribunal processes’	17
HA	Individual with schizophrenia subject to inhuman and degrading treatment, delay in transferring for compulsory treatment under the Mental Health Act.	18
S	Found by an immigration judge at a bail hearing to lack capacity and unfit to represent himself at the hearing	19
BD	Dr Hamid (the then 77-year-old locum GP at Harmondsworth IRC) ‘did not know about the Mental Capacity Act at the time of assessing Mr Dalrymple’, or the Detention Centre Rules that stipulate: ‘The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it …’	20
MD	Young woman with no mental illness before detention, but deteriorated until she lacked capacity and had to be represented through the Official Solicitor	21

Mental capacity was not included explicitly in the remit of the Tavistock Institute report, commissioned to look at mental health in IRCs, including the underlying causes of recent article 3 breaches.²² In spite of having been raised by the Mental Health in Immigration Detention Working Group (MHIDWG), this issue was disregarded in the Policy Equality Statement from the Home Office on the detention of those with poor mental health.^23,24 Following this, however, the Home Office initiated an independent review (led by Sir Stephen Shaw) of vulnerable people in detention. The Shaw report was published in January 2016, one of its recommendations was that IRC staff receive training on the MCA, in part so they can ‘recognise when a detainee’s capacity needs to be assessed’.²⁵

Identification of vulnerable detainees who might lack mental capacity

The standard expectations are that the most vulnerable should only be detained in exceptional circumstances.¹² In practice, this is not the case, and the detention of vulnerable people is widespread.^3,26–28 There had been a step in the accelerated ‘Detained Fast Track’ (DFT) process which indicated the following among those likely to be unsuitable for the DFT: ‘Those who clearly lack the mental capacity or coherence to sufficiently understand the asylum process and/or cogently present their claim. This consideration will usually be based on medical information, but where medical information is unavailable, officers must apply their judgement as to an individual’s capacity’.²⁹ The DFT process has, however, been found to be unlawful – ‘systematically unfair and unjust’ – in respect of vulnerable detainees, and has now been suspended, in part because of the inability of detainees to engage adequately with the accelerated process.^30,31 There is now no explicit equivalent instruction related to mental capacity when asylum seekers and other immigrants are being considered for detention outwith the DFT, not even the inappropriately high threshold of ‘clearly lacking mental capacity’. Whilst there is expected to be a risk assessment prior to detention or as soon as possible thereafter, consideration of mental capacity is not an explicit part of this risk assessment, nor does a capacity assessment feature on the IS91R form used.³²

Mental-capacity assessment is difficult in the most expert hands.^2,33 The constituent parts of assessing mental capacity in relation to medical decision making was first enshrined in the UK following Re.C in 1994.³⁴ Since then, the question of decision-making capacity became an increasingly important issue within both medical and psychiatric settings.³⁵ As well as an attempt to address legal issues the introduction of the MCA in 2005 was a response to significant nationwide concerns regarding the welfare of those with potentially limited capacity.

Within the academic sphere, the gold standard for research into capacity in medical decision making remains the MacArthur Competence Assessment Tool – Treatment (MacCAT-T)³⁶ which arose from Grisso and Appelbaum’s four-abilities model based on an analysis of US case law.³⁷ These four abilities – understanding, appreciation, reasoning and expressing a choice – overlap closely with the English legal definition as found in the MCA (understanding, retaining, using and weighing, and expressing a choice).

Decisions relating to capacity are complex, and practising clinicians often struggle to recognise a lack of capacity in medical patients with pre-existing cognitive impairments.³⁸ Within seemingly similar groups of patients, there has been found to be considerable heterogeneity in the levels of decision-making capacity.³⁹ Although specialist dementia clinicians given training in legal standards for assessing capacity showed good inter-rater reliability in their capacity assessments, it was lower in those who did not have this training, suggesting that those without training may well make erroneous judgements.⁴⁰ To the best of our knowledge, doctors working in IRCs have not been offered training in capacity assessment.

Impairments in capacity arising from mental-health disorders are potentially even more difficult to recognise and assess than those in medical patients (i.e. those with dementia or brain injuries) because those with a mental-health disorder have been found to be more likely to have impairment in their ability to ‘use or weigh’ or in their ‘appreciation’ of information (which are relatively hard to assess) rather than medical patients who are more likely to have impairment in their ‘understanding’, assessment of which is more straightforward.⁴¹ It is quite possible, given the combination of psychiatric disorder and language/cultural barriers, that a significant proportion of the people held in IRCs may have been inappropriately assumed to have capacity across multiple domains.

In asylum and other immigration cases, the decision on whether to assess someone’s capacity at all and then to assess it in practice can be made by individuals with little or no medical or legal training. Even in those with legal training, there is evidence that ‘representatives and decision makers may rely on lay understandings of distress that do not necessarily fit with all possible presentations of psychological disorder’, for instance not recognising dissociative symptoms or viewing discrepancies in recall of those suffering from post-traumatic stress disorder as indicating that the material facts are untrue.^42,43 Without an understanding of the individual detainee’s mental health and psychological condition and its consequent impact on the individual’s engagement with the decision-making process, the person deciding on whether to and/or in assessing capacity cannot make an appropriately robust assessment of the person’s capacity.

Home Office decision makers who do the assessments in IRCs are not known to have had any specific guidance or training about mental capacity, and it is unreasonable to expect them to have the necessary expertise to form appropriate judgements about this in the limited time available to them. Immigration-related decisions are made at arm’s length by case owners, without face-to-face engagement with the applicant, and they struggle with the lack of information about the applicant’s clinical state.²² Already ‘judge and jury’, Home Office caseworkers may experience a conflict of interest when making judgements about capacity given that such judgements could run counter to their own targets and deadlines.⁴⁴

Where doubts have been raised about mental capacity, it is unclear who is expected to assess this in specific and crucial contexts such as participating in asylum and other immigration interviews and court appearances or agreeing and instructing representatives. The catch 22 is always present: those who lack mental capacity may not have the capacity to recognise this lack in themselves and then to do something about it. So where a detainee’s solicitor indicates the need for an expert professional capacity assessment, a disturbed detainee may refuse consent for an external expert to do this. There is also nothing in the service specifications for health-care staff within the IRC suggesting that (even where such questions have been raised) they are expected to carry out a capacity assessment.¹³

Though concern about potentially vulnerable detainees is included in guidance for custody staff, the focus is on those who might need safeguarding from abuse.⁴⁵ This is mirrored in the Inspectorate’s expectations, albeit including ‘access to advocates and/or appropriate adults is in place to aid detainees’ capacity to understand and consent’.⁴⁶ There is no regular monitoring or reporting on those identified as needing safeguarding, and hence no statistics to quote. There are no special expectations on Independent Monitoring Boards (IMBs) in relation to those with limited capacity, the presence of which may be regarded as confidential anyway. There is no system for custody or health-care staff who recognise the need for safeguarding to alert those concerned with immigration decision making to raise questions about mental capacity of the individual in question. It has been confirmed that the remit of Adult Safeguarding Boards extends to IRCs, although this is not widely known, has yet to be acted upon and leaves out those immigration detainees held in prison.⁴⁷ There is in any case no system for them to provide support in relation to immigration decisions.

The net effect of these defects is that the system detains many who may lack capacity or be at high risk of lacking capacity following detention, yet fails to provide any method for identifying such individuals so they can be better supported in those decisions. Even when impaired mental capacity has been identified, detention may still continue, although such a lack of capacity is highly likely to run counter to EIG 55.10. The Shaw review considered policies affecting the vulnerable in detention, however the actual decisions on detaining vulnerable individuals was specifically excluded from the brief.

Current practice: Failed engagement in the immigration process

The system of determining immigration status is complicated, under-funded, exposed to high levels of adverse media interest and political interference, and has been described as beset by a ‘culture of disbelief’.¹⁰ In this context, it makes little allowance for those too disturbed to participate fully. Many detainees have no family in this country and any relatives often find there are significant barriers to assisting their loved one while s/he is detained. There are befrienders within IRCs, but their numbers are limited, and they are no substitute for formal advocates. Many of the most disturbed detainees miss out on legal support or are unable to instruct any lawyers they might have. Litigation friends have only recently been permitted in first-tier tribunals, though there is no provision in procedure rules for such a practice.⁴⁸ Were an Independent Mental Capacity Advocate (IMCA) appointed (and as far as we know, this has not yet taken place for an immigration detainee), the remit is restricted to matters concerning medical treatment and hospital/care-home accommodation, and does not include immigration matters. Where the Official Solicitor has also been appointed, the remit is also limited. The net effect is that many of these extremely vulnerable individuals lack any advocacy support in the matters of most importance to them.

Mental capacity of detainees for medical decisions

The situation is (or should be) somewhat brighter for medical decisions affecting detainees. Clinicians should be familiar with the MCA and are expected to treat their detainee patients no differently to those outside detention.¹³ Health care is now commissioned by the National Health Service (NHS) to be equivalent to NHS services in the community. The service specifications for that health care include the standard NHS requirements in relation to capacity assessments in relation to clinical decision making with the appointment of IMCAs as needed and named leads for mental capacity.¹³

In practice, however, there is a big gap between the above requirement and routine current practice. Experienced clinicians in a variety of non-IRC settings have been found to underestimate the prevalence of mental incapacity, and so the prevalence of non-capacitous decision making within IRCs (in relation to medical and legal matters) is likely to be higher than currently estimated.⁴⁹ There is very little if any pre-detention enquiry, assessment and investigation, including with medical practitioners in the community, on the suitability and impact of detention on those with pre-existing mental illness. The medical induction of detainees is frequently inadequate to identify those who might lack mental capacity for some or all the decisions they have to make, and there are no formal repeat assessments. We are aware of cases where some key health professionals remain ignorant about mental capacity, and some IRC GPs have claimed this is only the domain of the psychiatrist. The formal guidelines for food and fluid refusal – which demand repeat assessments of mental capacity – are in our experience even in that context often not followed. There is as yet no established system of IMCAs, or leads for mental capacity appointed in all IRCs. When assessments have been made of mental capacity, this is often late in a patient’s journey, with the impact of deteriorating mental illness frequently not recognised. There are particular problems for detainees thought to require treatment under the MHA, some but not all of whom may also have impaired mental capacity.⁵⁰

There can be disagreements about ‘mental capacity’ between health-care professionals at various times in the same patient, in part because of failure to understand the phenomena that are causing the impairment and also a failure to link the assessment appropriately to the decision in question. Clinical decisions ought to be made jointly between a fully informed capacitous detainee and health-care staff, with the shared aim of the best interests of the patient. When IRC doctors are asked their opinions on non-specified ‘mental capacity’, the temptation is to focus on the familiar territory of capacity for these joint health-care decisions, which is all that is covered in the formal remit of IRC doctors. For the immigration detainee, however, the key decisions relate to regularising their immigration status where the agendas between individual and Home Office decision maker are more likely to be non-congruent. Capacity that is adequate for joint clinical decisions may well not be sufficient here. Visiting doctors from non-governmental organisations (NGOs) such as Medical Justice are more likely to be conscious of and address the issue of capacity for the more challenging matters around asylum and immigration, and so legitimately might appear to reach a different view from IRC doctors.

The way forward?

The way forward requires discussion between all those bodies involved: the official providers/partners (Home Office Immigration Enforcement and NHS England), custody and health-care contractors, NGOs that assist detainees, the inspectorates, the Immigration Lawyers Practitioners Association, the Office of the Public Guardian, and health-care professionals (including the Secure Environments Group of the Royal College of General Practitioners, The Royal College of Psychiatrists asylum mental health working group, BMA ethics, Royal College of Nursing).

Due to the risk of adverse impact of prolonged detention on individuals’ mental health and consequently potentially their capacity, a time limit on detention ought to be considered, as has been recommended by others.¹⁰ The limitations on detention of those with significant mental illness, many of whom will also have issues with mental capacity, should be reinstated so that those with a mental illness are not detained and are released before significant deterioration occurs. This would reduce the overall problem, since mental health deteriorates within detention and is expected to improve outside detention,⁵¹ and with that, mental capacity has a higher chance of being regained. Also, once in the community, there may be friends and family to assist, with access to other advocates also being less problematic, as well as better access to legal representation.

In parallel with this, there needs to be new guidance from Home Office Immigration Enforcement which protects the human rights of detainees with limited mental capacity. This could include:

more robust restrictions on those potentially lacking mental capacity regarding key decisions from being detained with a very high exceptionality threshold, and consideration to be given to whether, in light of the lack of capacity, removal (and therefore detention) could lawfully take place at all;

guidance for immigration custody providers on the identification, notification to the Home Office and, if detention continues, subsequent management of those who need safeguarding because of impaired mental capacity, perhaps in parallel with the use of a more general vulnerability test²⁸;

specific guidance for immigration caseworkers on their decision making when a detainee’s engagement with the process has been or could be affected by impaired mental capacity;

a requirement that those without sufficient mental capacity are always supported by an advocate and have legal representation. This may require a system of independent advocates for immigration detainees. To avoid duplicate advocates, either the remit of IMCAs could be expanded (perhaps by a formal interpretation of decisions about accommodation being able to include immigration-related matters) or by all IMCAs for immigration detainees also being given separate but parallel appointments to cover decisions in addition to the current and very limited formal IMCA remit;

specific guidance on mental capacity for health-care professionals working with immigration detainees, including a role in assessing capacity for immigration-related decisions at induction, screening and subsequently on request. For this, there will be some similarities with assessments of fitness to plead for those within the criminal justice system and also some cross-over with fitness to detain assessments, but also unique features arising from the potential lack of representation in an unfamiliar language and culture;

alongside this, a formal identification and reporting system for those where limited mental capacity gives concern about the ability to engage fully in their immigration decisions, with release from detention taking place except in very exceptional circumstances^10,27; and

an independent monitoring system to help track those immigration detainees who have had their mental capacity questioned at any time, with regular reports on numbers still detained made available for public scrutiny.

Conclusions

The United States is now rolling out a formal process of standards ensuring competence in immigration removal proceedings and civil proceedings held before immigration judges.^52,53 The need is no less for those held under administrative detention in the UK. The DFT, with its expected safeguards for those with doubtful mental capacity, has now been found to be operating unfairly in respect of the vulnerable and has been suspended.³⁰ This strongly suggests that there must also be serious questions about the fairness of the standard detention system, which also lacks those supposed safeguards. Detainees with diminished mental capacity are clearly at similar unacceptable risk of unfair decisions being made if there is no adequate mechanism for identification and notification of their vulnerability and suitability for detention. The current deficit in policy and safeguards leaves the Home Office open to legal challenge and the very real risk that it will be operating in breach of its obligations under domestic, community and international human-rights law in ensuring a system of effective protection from removal for those who risk persecution and other serious human-rights violation on expulsion from the UK.

Footnotes

Funding

This study received no specific grant from any funding agency in the public, commercial or not-for-profit sector.

Declaration of conflicting interests

The authors would like to declare the following conflicting interests. HGP is a trustee of Medical Justice and member of the Royal College of Psychiatrists working group on Mental Health of Asylum Seekers and Refugees. CK is Director of Helen Bamber Foundation and the Royal College of Psychiatrists lead on the Mental Health of Asylum Seekers and Refugees. Both HGP and CK write medico-legal reports in asylum cases (through their respective organisations and in CK's case independently), some of which are pro bono but some of which are paid.

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45.

Home Office Asylum Policy Instruction version 6.0 31 Mar 2015 covers the signposting to appropriate services of potentially vulnerable claimant (1.3), and the presence of a friend or companion in interviews (3.9), and in 5.11 under mental illness that suspension of an interview is possible where ‘the claimant is clearly unable to cope with an interview and where the validity of the replies could be called into question’, but nothing more specific about mental capacity, www.gov.uk/government/uploads/system/uploads/attachment_data/file/410098/Asylum_Interviews_AI.pdf (accessed 25 June 2016).

46.

Her Majesty’s Inspectorate of Prisons. Expectations. Criteria for assessing the conditions for and treatment of immigration detainees. Expectation 12 – safeguarding (protection of adults at risk). Version 3, www.justiceinspectorates.gov.uk/prisons/wp-content/uploads/sites/4/2014/02/immigration-expectations.pdf (2012, accessed 25 June 2016).

47.

The Care Act 2014.

48.

https://www.freemovement.org.uk/immigration-tribunal-can-appoint-litigation-friend-despite-no-provision-in-the-rules/ (accessed 25 June 2016).

49.

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50.

Submission by MHIDWG to review on Code of Practice of Mental Health Act, http://www.medicaljustice.org.uk/ (accessed 26 June 2016).

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52.

U.S. Department of Justice, Executive Office for Immigration Review (EOIR). Phase 1 of Plan to Provide Enhanced Procedural Protections to Unrepresented Detained Respondents with Mental Disorders, https://www.justice.gov/eoir/pr/department-justice-and-department-homeland-security-announce-safeguards-unrepresented (2013, accessed 25 June 2016).

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