However, I am deeply concerned about his statements regarding the rule 35 process. Rule 35 has been developed by Parliament to help the Home Office comply with its own policy — that torture survivors and other vulnerable people should be released from detention in all but exceptional circumstances.
A rule 35 report is submitted by a doctor working in immigration-detention healthcare if they have a concern that the person may be a victim of torture.
Note the words ‘concern’ and ‘may’ — these are important as they set out the standard of proof required, which is very low, not as high as for the actual asylum claim itself and nothing like as high as the criminal standard of proof.
This important part of the rule 35 process recognises that clinical presentations of victims of torture and other abuses in detention may be variable, as a person may be too traumatised to describe everything in full or to disclose their worst experiences.
The rule 35 process is an acknowledgement also of the fact that torture claims are likely to be complex and it takes time to gather the evidence required, which is not possible in the detained setting.
I agree that the process is not functioning, and I am concerned at the report’s finding that doctors in immigration healthcare are overwhelmed: ‘… on-site teams were not sufficiently trained to complete them, that their reports were frequently questioned, and that the volume of such reports added to already high workloads’.
But I question whether the alternative proposal to take the examination out of the hands of the immigration removal centre doctors is really a better option.
If the reports are to be done only by more specialist-trained doctors and, as the BMA has called for, written guidelines modelled on the UN Istanbul Protocol, there are some critical risks and concerns attached.
The first of these is that bringing in a specialist rather than a generalist sends a signal that a higher standard of evidence is required before a torture survivor can be released from detention.
There have been long-running efforts by NGOs such as Freedom from Torture and Medical Justice to resist efforts by the Home Office to push the standard up towards an Istanbul Protocol-compliant process on the basis that this goes far beyond what rule 35 requires.
The second big concern is that if the Home Office case owners do not currently regard the opinion of the doctors they themselves employ as credible, and regularly override it, will they do the same for the proposed alternatives — ‘forensic medical examiners, university pathology doctors and specialist clinicians from NGOs’?
Also, while the Shaw report rightly highlights PTSD (post-traumatic stress disorder), other mental health problems are given much less prominence.
Not everyone who has been tortured has a diagnosable mental illness (Istanbul Protocol paragraph 236), or they may suffer from conditions other than PTSD, but their health problems may still be greatly exacerbated by the stress of detention.
The report’s recommendation on rule 35 risks making the process more complex when all that is required is for the Home Office to respond to the concerns highlighted by the doctors they already employ by releasing detainees where a concern is expressed and then allow time for specialist medical evidence to be provided for those cases that require it, as part of the substantive asylum decision-making process.
The immigration removal centre doctors have been offered some specialist training and a new template is proposed to guide them in how to complete a more detailed assessment in the rule 35 report.
But this does not address two underlying problems: first, the lack of accountability for a failure to implement their own policy and process that allows civil servants to discard the concerns of doctors and promotes an overall rise in the evidential threshold for torture. Second, the failure to risk assess for vulnerability adequately so that people do not end up in unnecessary and harmful detention in the first place.
Juliet Cohen is head of doctors at Freedom from Torture
Read Stephen Shaw's review
BMA story: Detention guidance not fit for purpose