Mental capacity

69. A person lacks capacity if their mind is impaired or disturbed in some way that means they are unable to make a decision at that time. This may be because they are unable to understand the information relevant to the decision, remember the information or use it to make the decision.¹
70. Detained people with mental ill health may be more vulnerable to losing capacity to make decisions about their medical care and treatment. Medical Justice told the Inquiry that evidence from its clinical casework experience raised serious concerns that pre-existing mental disorders and those arising in detention may result in detained people losing decision-making capacity with regard to healthcare (and legal) matters.169 Medical Justice holds long-standing concerns that the processes in place to address this are not sufficiently robust.²
71. The assessment of mental capacity in an immigration setting is often challenging. There may be language barriers and the movement of people between IRCs can make it difficult to build a therapeutic rapport sufficient to elicit the detail necessary for an assessment. Capacity in people with mental ill health can also fluctuate, as capacity is time and decision-specific, so a person can only have capacity or lack capacity to make a specific decision at a specific time.³
72. D1275 was an Iranian national detained for immigration purposes who had experienced previous mental ill health.

72.1 Having already been detained for 843 days since December 2015, he was detained in Brook House for 422 days between May 2017 and June 2018. At times, his behaviour was bizarre and aggressive, and he was noted for giving incoherent answers to questions.⁴ Despite this, his severe mental ill health was not identified or managed, and he received no mental health treatment.

72.2 Between May 2017 and January 2018, D1275 missed 13 appointments for a mental health assessment at Brook House. Healthcare staff repeatedly discharged him from the mental health team caseload because of his non-attendance.

72.3 The underlying reasons for D1275’s non-attendance do not appear to have been explored by Healthcare staff. The Inquiry has not seen any evidence that his non-attendance was followed up at all by Healthcare staff. As Dr Hard noted, this was a serious concern. There should have been a more proactive investigation into the reasons for D1275 missing so many appointments.⁵ There is no evidence that D1275’s mental capacity to make decisions about his attendance at medical appointments or his medical treatment was considered or assessed by Healthcare staff. Ms Calver accepted that D1275’s non-attendance should have been followed up, the reasons for it explored and a mental capacity assessment undertaken, and that he should not have been discharged from the caseload.⁶

72.4 D1275’s mental health continued to deteriorate. On 20 June 2017, a Security Information Report (SIR) completed by detention staff noted “mental health issues, erratic and strange behaviour”.⁷ It is not clear what action was taken by detention custody staff as a result of this entry, although it is noted that “RMN requested to add him back on their list”.⁸ It does not appear that Healthcare staff saw him as a result. In my view, if there was no mental health assessment of D1275, one should have been carried out as a result of this referral.

72.5 On 22 June 2017, another SIR recorded a concern that D1275 may not understand some of his decisions, and that he may be being used as a “guinea pig” for spice.⁹ The record of a meeting on the same day for an Anti-Bullying Support Plan recorded that D1275’s answers did not make sense and that DCO Marina Mansi did not believe he had grasped what she was saying. It noted that D2553 (another detained person) had tried to sort out D1275’s appointments with solicitors and doctors because “it appears [D1275] doesn’t have the mental capacity to know when his appointments are and to attend them”.¹⁰ It also stated that he was “possibly not fit for detention” and added: “DCM Yates to investigate.”¹¹ Ms Calver told the Inquiry that, given its content, she would have expected this SIR to have been brought to the attention of Healthcare staff by the security team. It was of concern to her that it did not appear to have been.¹²

72.6 After his release from detention in June 2018, D1275 was diagnosed with schizo-affective disorder and assessed as having no capacity to make decisions about medical appointments. In July 2018, D1275 was hospitalised under the Mental Health Act 1983, and treated in hospital for several months until December 2018 – an indication of just how unwell he had become.¹³

73. This demonstrates serious omissions in the system of safeguards to protect detained people who may have either a disability arising from mental impairment or a mental health condition, which failed D1275.¹⁴ This exposed him to the risk of further harm in detention. His detention was not reviewed by the Home Office in respect of the above concerns, and his release was not considered. The Inquiry heard no evidence of a system in existence or guidance available to staff for the routine transfer of relevant information about mental health concerns from residential wings to Healthcare staff. Ms Calver told the Inquiry that an SIR “goes directly to security. If they feel there was a need for healthcare to be informed, then they send us that part of the security information form.”¹⁵ It is of serious concern that this does not appear to have occurred in D1275’s case, which suggests the possibility that records such as SIRs did not routinely lead to clinical investigation into a detained person’s vulnerabilities and mental capacity.
74. The Inquiry heard evidence that in circumstances where detained people did not attend appointments with the mental health team, they “generally did go to the wings to check why people hadn’t attended”.¹⁶ D687 disclosed thoughts of self-harm in the days preceding an incident on 13 May 2017. He missed three scheduled appointments with the mental health team between 5 May 2017 and 13 May 2017, and there were no apparent attempts to follow these up with D687, despite him being subject to an ACDT document at the time.¹⁷ The Inquiry heard no evidence of any training or guidance provided to staff at the time on their duties and responsibilities in this regard, or of any adequate system in place to ensure that there was proper follow-up of multiple missed appointments in every case in order to safeguard vulnerable detained people.
75. There was – during the relevant period and at the time of the Inquiry’s hearings – a lack of independent advocacy provision by the Home Office within Brook House to support those who cannot make or understand decisions by stating their views and wishes or securing their rights.¹⁸ This leaves those such as D1275 – who were not followed up by Healthcare staff but who might lack mental capacity – vulnerable and unable to make decisions in relation to their immigration cases and medical care. I agree with Dr Hard that the consequences of falling through the gap left by a lack of independent advocacy provision was harmful to D1275, as during his time in detention he continued to deteriorate. He lacked capacity to deal with both his attendance at medical appointments and his immigration case.¹⁹
76. Detention Services Order 04/2020: Mental Vulnerability and Immigration Detention: Non-Clinical Guidance aims to provide IRC staff with the guidance necessary to ensure that appropriate support is offered to those who lack decision-making capacity, those with disabilities arising from mental impairment and those who have a mental health condition.²⁰ The Inquiry heard evidence, however, that it does not adequately address concerns about the efficacy of the safeguards for those who lack mental capacity, as it does not contain any provision for independent advocacy.²¹ The Home Office should address this.
77. Proper communication between detention custody staff and healthcare staff concerning detained people’s vulnerabilities is vital. There remain gaps in the safeguards for vulnerable people concerning missed healthcare appointments and in relation to assessments of mental capacity, mental health and mental state in such circumstances. I am therefore recommending an update to the guidance to ensure effective communication of medical information between staff in IRCs.

Recommendation 21: Ensuring effective communication of medical information The Home Office must review and update Detention Services Order 04/2020: Mental Vulnerability and Immigration Detention: Non-Clinical Guidance to set out comprehensive guidance for detention and healthcare staff where there are concerns that a detained person is suffering mental ill health or lacks mental capacity. This must include an appropriate system for: ●  the routine handover or sharing of relevant information between detention custody staff and healthcare staff (for example, in Security Information Reports and Anti-Bullying Support Plans); ●  the identification and follow-up of missed medical appointments; ●  the assessment of mental capacity where indicated; and ●  mental health assessment where indicated. The Home Office must ensure that training about the updated guidance takes place on a regular (at least annual) basis for detention and healthcare staff, as well as those responsible for managing them. The training must be subject to an assessment.

1. See Mental Capacity Act 2005, section 3[↩]
2.  BHM000033_030 para 81. This was corroborated by the 2016 Shaw report (INQ000060_190) and Decision-Making Capacity of Detainees in Immigration Removal Centres (IRCs), Royal College of Psychiatrists, Position statement PS03/17, November 2017; see also the first statement of Professor Katona (BHM000030_021-022)[↩]
3. BHM000033_031 para 83[↩]
4. CJS001120; CJS001121_068[↩]
5. Dr James Hard 28 March 2022 153/9-23[↩]
6. Sandra Calver 1 March 2022 181/2-184/4[↩]
7. CJS004642_005[↩]
8. CJS004642_005 [↩]
9. CJS005347[↩]
10. CJS001127_003[↩]
11. CJS001127_004[↩]
12. Sandra Calver 1 March 2022 182/5-19[↩]
13. BHM000042_026-031[↩]
14. Sandra Calver 1 March 2022 181/2-182/22[↩]
15. Sandra Calver 1 March 2022 182/7-10[↩]
16. Sandra Calver 1 March 2022 181/2-23[↩]
17. CJS001139_010-012; CJS000993[↩]
18. Theresa Schleicher 14 March 2022 84/14-86/1[↩]
19. Dr James Hard 28 March 2022 157/19-24[↩]
20. Detention Services Order 04/2020: Mental Vulnerability and Immigration Detention: Non-Clinical Guidance, Home Office, July 2020[↩]
21. Theresa Schleicher 14 March 2022 84/14-86/1[↩]