Mental Health Issues

Stigmas, Needs and Definitions

The term 'mental health', or anything associated with troubles of the mind, appears to be treated in our society with great apprehension and unease. The social stigma that is attached to anyone found to be suffering from a 'mental illness' appears to be so very negative that those who do suffer either struggle to cope alone, being afraid to admit the need to ask for help, or they do find the courage to ask for help only to keep their support needs a secret from everyone else. The dictionary definitions of the terms 'mental health' and 'mental illness' could be highly contributable to this adverse stigma. These are as follows:

'Mental Health' is defined as 'the psychological state of someone who is functioning at a satisfactory level of emotional and behavioural adjustment'.

'Mental Illness' is defined as 'any disease of the mind; the psychological state of someone who has emotional or behavioural problems serious enough to require psychiatric intervention'.

The very nature of seeking asylum or human rights protection in the UK means that a person has suffered in some way in their country of origin and is looking for protection and safety in the UK. Many asylum-seekers and human rights claimants have suffered or witnessed such atrocities that mental health issues are almost always intrinsically bound with their personal circumstances and nature of their claim. Sadly, however, as in our own culture, the cultures of other countries place the very same (and very often much more intense) stigmas and taboos upon anyone suffering with problems of the mind. For this reason many claimants do not think to mention their mental suffering, as they are automatically programmed not to allow it to be an issue, or they deliberately do not concentrate on this aspect of their suffering for fear of further ostracism.

It has therefore become clear, to many asylum and human rights practitioners and those involved in assisting claimants, that mental health issues require to be addressed with each applicant, that the applicant requires to be fully informed of their right to support and treatment, and the simple fact that it is okay to have these problems must be communicated to each claimant in a tactful, helpful and informative manner. Support is the key word in such cases. If an applicant can be made to feel safe and supported, they become more willing to reveal additional details crucial to their claim but also crucial to letting the person assisting them identify and provide assistance for the person’s particular needs.

In certain extreme cases, mental health and other medical issues can ground or assist a claim for permission to remain in the UK, but this shall be covered in more detail later in this paper.

Legislation

Mental healthcare in Scotland was regulated by the provisions of the Mental Health (Scotland) Act 1984. This Act was created to provide the legal framework in Scotland for compulsory admission and treatment of patients suffering from ‘mental disorder’. There is now, however, a more up-to-date Act which regulates the provision of mental healthcare in Scotland. This is the Mental Health (Care and Treatment) (Scotland) Act 2003. Implementation of this new Act is underway but not all of its provisions are as yet in force.

The primary objective of having mental health legislation in Scotland is to make sure that all people with mental disorder can receive effective care and treatment.

Anyone in Scotland seeking asylum or human rights protection has access to general healthcare, through the NHS, but they also have the additional protection and support of these mental healthcare provisions.

Practicalities

Practically speaking, therefore, should a person display signs of mental distress, disorder or ill-health, they can and should be referred for assessment and appropriate treatment. How to bring up the issue of mental healthcare is often the most difficult part, given the reluctance of clients to admit they may have such problems or wish to discuss them. Reassurance that they are not alone is essential, given that the majority of asylum and human rights claimants are in precisely the same position. To reassure a client of the confidentiality of what they tell you and any referrals that are made is also essential in building the necessary relationship of trust and support.

When an asylum or human rights claim is being made, and it is apparent that the claimant may have mental health issues as a result of their experiences, it is often the normal course of action to make a referral for them, with their full knowledge and permission, to be assessed by a private consultant psychologist or psychiatrist. This consultant will perform the necessary interview and assessment and will thereafter prepare a full Report, detailing the personal history of the claimant, the tests administered at interview, the results of the tests, the diagnosis, suggested treatment and any prognosis. This Report is therefore an extremely useful tool in assisting with the claimant’s actual case, as it can be lodged either with the Home Office or Court in a bid to demonstrate the person’s frame of mind and to corroborate the actual substantive claims being made. In addition to this, the Report is helpful in allowing the advisor to suggest that the client seek further treatment, especially if this has been narrated by the consultant. With the permission of the client, the Report can be forwarded to the GP and a request for a referral under the NHS made. Further, the client can be recommended to various support groups and advice networks who specialise in support and treatment of people in similar circumstances.

Using Mental Health Issues to Assist or Ground a Claim

As stated earlier, it is possible to either ground or assist a claim for permission to remain in the UK based on the mental health of an applicant. The rules and standards of proof applied to such cases are, however, extremely high and it is therefore only exceptional cases that tend to be successful in this way.

If an applicant is making an asylum claim in the UK, they will automatically also be assessed under the European Convention on Human Rights (ECHR), in order to determine whether returning them to their country of origin would bring the UK in contravention of that Convention in addition to the 1951 Convention on Refugees.

It should be made clear (and is highlighted in the Home Office guidelines) that lack of adequate medical resources in the applicant’s country of origin will not be a good enough reason to allow a claim on medical grounds. There have been several pieces of caselaw on this subject, each arriving at the same conclusion, i.e. that Article 3 'does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries' (This was stated in the recent House of Lords decision in the case of N (FC) v SSHD [2005] UKHL 31). The only acceptable exceptions which the courts draw are those cases where a person is so close to death that they are beyond the reach of any medical treatment available in the expelling country. (The case of‘D v UK (1997) 24 EHRR 425 made such a distinction and allowed the appeal).

Mental health issues would not ground an asylum claim on their own, as the applicant requires to have a ‘Convention reason’ for claiming asylum, of which health of is not one. The most common way in which mental health issues can be used to assist a claimant, therefore, is under the human rights provisions.

If a claimant has mental health problems, this could either ground or assist an existing application under Articles 3 and/or 8 of the ECHR. As is explained in the legal section of this website, Article 3 protects an individual’s right not to be ill-treated, tortured or treated in an inhuman or degrading manner, while Article 8 protects an individual’s right to physical and moral integrity (as well as their right to respect for private and family life).

The most common disorders from which clients suffer after making an asylum or human rights claim, tend to be Post-Traumatic Stress Disorder, Depressive Disorders, Adjustment or Avoidance Disorders, and disorders associated with high risks of the applicant committing suicide.

The Home Office approach to dealing with claims which contain such elements is guided by the Immigration Directorate’s Instructions, Chapter 1, section 8, paragraph 3. This section of the guidance makes it clear that the above stated mental health disorders would come under the collective heading of ‘serious illness’ and would be treated by the Home Office accordingly. The guidance states that each case is assessed on its own merits and may, if assessed as serious enough, warrant a grant of a period of discretionary leave to remain in the UK (which is usually granted for 3 years initially in such cases). The guidance also sets out the medical evidence required to substantiate such a case (at para. 3.3).

Paragraph 3.4 of the above noted guidance gives detailed instructions relating to claims made specifically under Articles 3 and 8 of the ECHR. It is stressed repeatedly that the threshold a claimant must cross before his or her case would be successful in these circumstances is 'extremely high' and that this threshold will only be reached in 'exceptional cases involving extreme circumstances'. Any client wishing to ground a claim on his mental health should therefore be well advised of this in advance of claiming. There may be circumstances where an applicant has suffered abuses in their country of origin which the Home Office or Courts accept as true but go on to conclude that on their own the particular circumstances do not cross the necessary thresholds for a successful application. Sometimes if an applicant has been identified as suffering from specific mental disorders, and it is made clear that to return them to their country of origin would exacerbate the symptoms, this issue could be sufficient to tip the balance in favour of the applicant and bring them over the necessary thresholds. Once again, however, these instances are not common, and an applicant should be well advised of all possible outcomes in advance.

Suicide

The term suicide is exceedingly grim, however, it is a very real prospect for many asylum or human rights claimants who have been diagnosed with serious mental disorders. The risk of suicide in such cases tends to be when the claimant is threatened with return to their country of origin. The main aspect of their claim could therefore become that the simple act of attempting to remove the person would bring the UK in breach of the ECHR as the claimant is at risk of killing themselves.

Once again, a warning must be given on the very stringent rules and standards of proof which require to be satisfied in these types of case. It can be argued, however, that these types of case would fall into the ‘exceptional’ category identified in, for example, the case of ‘N’ mentioned above. The reason for this argument would be that the claimant is not stating that there is insufficient medical provision in their home country to treat their mental health condition. They are instead stating that the fear of being returned to that country is so strong that if they were to be physically threatened with removal, they would kill themselves first. This issue was dealt with in the House of Lords case of SSHD v Razgar [2004] UKHL 27. The court found in that claim under Article 8 that mental stability can be viewed as an indispensable precondition to the effective enjoyment of the right to respect for private life. The court also made it clear and reiterated the extremely high threshold which an applicant must cross before such an application would be successful.

The Home Office deal with the issue of suicide in Chapter 1, section 10, paragraph 8 of the Immigration Directorate’s Instructions. This guidance deals with possible claims under both Articles 3 and 8 of the ECHR, and it should be remembered that a claim under Article 8 must also satisfy the proportionality test (whether the suffering caused to the applicant by removal outweighs the need for effective immigration control). The guidance sates that it is accepted that there requires to be 'substantial grounds for believing that removal would expose a person to a real risk of serious harm or loss of life through suicide or self harm' before serious consideration would be given to an application. The test to be applied to an application based on suicide is therefore whether there are 'substantial grounds for believing that there is a real risk of a significantly increased risk of serious harm or loss of life through suicide or self-harm' as a direct result of the prospect of physical removal.

The guidance goes on to stress the importance of the applicant being able to substantiate their claims by detailed medical evidence from a suitable expert. If an adverse credibility finding has been made in the substantive asylum or human rights claim itself, this will bear heavily upon how the Home Office or Court will view any further evidence produced in respect of the same applicant. If a Report is provided by a suitably qualified psychiatrist or psychologist, various factors require to be taken into account before the evidence will be accepted, e.g. the length of time the expert has known the applicant, how often the expert has seen the applicant, and whether the expert is aware of the history of the applicant’s claim and has read any previous negative decisions. The applicant’s own personal history of self-harm is also viewed as important, i.e. if they have attempted self-harm or suicide in the past, this is seen to increase the chance of their claim being accepted now.

Conclusion

Mental health is such a stigmatised and complex subject that it requires a great deal of tact and sensitivity when dealing with a client who may be suffering with some form of mental illness. Whether a person simply requires some counselling or support or is on the verge of suicide, the matter will most often require to be initiated by the advisor. Providing accurate advice and reassurance to the client is essential, with the overall aim of putting the client in touch with the necessary people or organisations to assist, treat and support their needs in a confidential atmosphere. Whether a client’s mental health is simply going to be treated medically or is also going to be used as an aspect to assist any claim they may have with the Home Office, it is an issue which cannot be ignored and which should be raised whenever and as soon as suspicions of need arise.