NHS England issues a new “good practice” guidance…

For adults liable to be detained under the Mental Health Act 1983 (“MHA”), NHS England has updated its guidance (“the Guidance”) on the process and timeframes for transfer from and remission to immigration removal centres (“IRCs”). The guidance also addresses mental health, learning disability and/or autism (“MHLDA”) inpatient services within IRCs. This article summarises the guidance and considers how it interacts with the legal and policy requirements for immigration detention.

NHS England and NHS Improvement health and justice commissioning is responsible for commissioning all healthcare services delivered within IRCs, including MHLDA services. The Secretary of State for the Home Department is responsible for decisions whether to detain a person under their immigration powers. The Secretary of State for Justice is responsible for authorising transfers from immigration detention to mental health detention under s.48 of the MHA.

The Guidance provides for a process for transfer under s. 48 of the MHA and envisages that in total the process will take around 28 days. This appears to preface an intention to impose a statutory 28 day limit (see the White Paper consultation). However, maxima tend to become minima and given the structure of the guidance already anticipates a process of around 28 days in most cases while paperwork is prepared and decisions are made, it seems unlikely that the process will be much more expeditious. This appears problematic given it is well-established that mentally ill people should rarely be in immigration detention at all: There is a presumption in statutory guidance (the “Adults at Risk” policy) and in the common law against the detention of mentally ill people in immigration detention. That presumption applies whether or not their condition is sufficiently serious to meet the criteria for detention under a section of the Mental Health Act 1983 but will be particularly strong where a person’s condition meets those criteria. Further, where a mentally ill person is in immigration detention, they should be detained only for the purpose of removal and for the shortest period necessary, not as a waiting room for MHA detention.

The process of referral to MHLDA services begins when an IRC clinician makes a referral. The Guidance states that a referral should be initiated as soon as it is identified that a person’s mental health needs cannot be appropriately treated within an IRC, they fit the criteria for detention under the MHA and require a transfer to an MHLDA inpatient service. Rule 34 of the Detention Centre Rules 2001 requires that all detainees be assessed within 24 hours of arrival at the IRC, and where the system is operating properly, a person should be released from detention if they are seriously mentally ill. It would appear that joining up the dots, the need for referral would ordinarily be ascertained at that juncture, although years of well-documented maladministration of the immigration detention system and Home Office non-compliance with the Detention Centre Rules suggests that is unlikely in practice. Once a referral is made, Home Office officials should gather offending, security and medical information to support the process. Clinical indication and the clinical risk should determine the priority and pace for the transfer to be completed. The Guidance provides for a decision on transfer to be made by the Secretary of State for Justice within 25 days of a referral on the basis that she is satisfied, by reports from at least two registered medical practitioners, that the person is suffering from a mental disorder of a nature or degree which makes it appropriate for them to be detained in hospital for medical treatment, and that appropriate medical treatment is available. The Secretary of State for Justice must also be of the opinion, having regard to the public interest and all the circumstances, that it is expedient to direct transfer to hospital. The transfer must be effected within 28 days from the point of initial assessment. Disagreements in commissioning responsibility should not delay the timeframe, and all referrals need to be accepted without prejudice.

The Guidance states that regardless of their immigration status, immigration detainees are entitled to care and support (including accommodation if required) under s.117 of the MHA, as well as under the Care Act. Individuals may also be entitled to support from the Home Office or a relevant local authority under a variety of provisions, depending on their immigration position. Furthermore, the Guidance states that “where it is believed, or has been formally determined, that the patient lacks capacity to make decisions about their care and treatment, provision within the Mental Capacity Act 2005 should also be considered and applied”. The Guidance provides no indication as to the making of such assessments, which has proved to be a problem in the past.

Remission to the IRC (i.e. return to immigration detention) may be requested under ss.50, 51 or 53 of the MHA, if the responsible clinician, any other approved clinician or a mental health tribunal advises the Secretary of State for Justice that treatment in hospital is no longer required or no effective treatment is available in the hospital where the patient is detained. Remission to IRC should be achieved with the minimum delay and within 14 days. The Guidance makes the important point that a transfer back to immigration detention is unlikely to be appropriate.

The NHS England Guidance may be accessed here.

Alex Goodman practices in public law.

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