GB v Home Office

B e f o r e :

THE HONOURABLE MR. JUSTICE COULSON ____________________

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Mr Angus McCullough QC and Ms Michelle Knorr (instructed by Wilson Solicitors LLP) for the Claimant Ms Julie Anderson (instructed by The Treasury Solicitor) for the Defendant Hearing date: 17 March 2015 ____________________

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The Hon. Mr Justice Coulson:

In these proceedings, the claimant, GB, pursues a claim in negligence against the defendant arising out of medical treatment which she received whilst detained by the defendant at Yarl's Wood Immigration Removal Centre between 16 June and 27 July 2012. It is said that the prescription of an anti-malarial drug caused her to suffer a severe psychotic reaction. In the autumn of the last year, Master Leslie ordered the trial of a preliminary issue as to whether or not the defendant owed to GB a non-delegable duty of care. If it did not, the claim in negligence must fail, although there is a separate claim against the defendant for unlawful detention which is unaffected by this issue. If there was such a duty, then there are a variety of other disputes arising out of the allegations of negligence and causation which are also unaffected by this preliminary issue.

At the outset of the trial, Mr McCullough QC applied for an anonymity order. This was put on the basis that such an order was necessary to protect GB from those who may seek to target and exploit her as a result of knowing that she has brought these proceedings, which could result in substantial compensation. It was said that, because she lived in the community, the prospects of such targeting was not fanciful.

My initial view was that an anonymity order was not appropriate in this case. However, Mr McCullough QC drew my attention to the recent Court of Appeal decision in JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 . In that case the Court of Appeal made an anonymity order in respect of an approval hearing concerning a child's claim for damages following severe birth injuries. The Court of Appeal not only concluded that an anonymity order was appropriate in that case, but they also set out wide-ranging guidelines in respect of all cases where children or other vulnerable persons would face an invasion of privacy if their identity became public. At paragraph 33 of his judgment, Moore-Bick LJ said:

He went on to identify one of the principles to be applied: that, unless the judge was satisfied after hearing argument that it was not necessary to do so, an anonymity order should be made.

I respectfully agree with Moore-Bick LJ's observations about the need for consistency. I also note what is an effective reversal of the ordinary burden of proof in cases involving children and (as in this case) vulnerable people: that an anonymity order should be made unless it can be shown to be unnecessary. It has not been shown to be unnecessary in the present case. In those circumstances, despite my initial doubts, I concluded at the hearing that, in accordance with the guidance from the Court of Appeal, an anonymity order should be made.

By an order dated 22 October 2014, the relevant parts of which were by consent, Master Leslie ordered that there should be a preliminary issue as follows:

Although the scope of the duty alleged is not identified in the order, it was submitted by Mr McCullough QC at the hearing that it was "the duty to take reasonable care in the medical advice and treatment provided to those in the control of the Home Office through being in immigration detention". He said emphatically that, contrary to what Ms Anderson had suggested, he was not alleging some sort of higher duty to provide "infallible medical care" or "perfect care in every situation". The preliminary issue was, therefore, whether there was a non-delegable duty owed by the defendant to GB to take reasonable care in the medical advice and treatment provided to her whilst she was a detainee.

Throughout the hearing before me, both parties made copious references to the judgment of Lord Sumption in Woodland v Swimming Teachers Association and Others [2013] UKSC 66 ; [2014] AC 537 . That was also a case where a preliminary issue was identified about the existence or otherwise of a non-delegable duty of care. What the parties failed to do was refer me to paragraph 2 of that judgment, in which Lord Sumption expressed doubts about the wisdom of hearing a preliminary issue in that case. He said:

In my judgment, much of what was said by Lord Sumption in Woodland is equally applicable here. Even if I found no duty, the defendant would remain in these proceedings because of the separate claim for wrongful detention. The preliminary issue therefore goes only to whether or not there should be further parties to the proceedings, namely Serco, the company running Yarl's Wood on behalf of the defendant, and/or the doctor who prescribed the anti-malarial drug. In my view, this did not justify the use of a costly preliminary issue procedure in this case. In commercial litigation (funded by individuals or companies) preliminary issues are relatively rare because they are not generally regarded as efficient. It seems only to be in publicly-funded cases, often where there is an echo of the procedures of the Administrative Court, where this way of proceeding remains popular. In my judgment, it is time for a rethink.

However, the difficulty with which I was faced on the morning of the hearing was the difficulty always faced by first instance judges in this situation. They may be sceptical as to the utility of a preliminary issue, but if they refuse to hear it, they are merely adding to the costs of an action which (as here) is being publicly-funded on both sides. They therefore have little option but to listen to the arguments and resolve the issue, no matter how doubtful they may be as to the value of the exercise.

The problems in this case were compounded by the failure on the part of the defendant to agree a Statement of Facts prior to trial. Master Leslie very sensibly ordered that a Schedule of Facts should be agreed at least 42 days before the trial. There was no such agreement. Indeed, at the start of the hearing, the Schedule of Facts remained in dispute. I indicated that I was not prepared to hear the case on that basis. Ultimately a Schedule of Facts was agreed, based on the proposals from the claimant, with deletions by the defendant. It is attached at Section 11 , as Appendix 1 .

In summary, the factual position is this. GB is a Nigerian national born on 15 September 1978. After 22 June 2010 she was an illegal over-stayer in the United Kingdom. She became pregnant. In June 2012 she was arrested following a public argument with the man whom she said was the father of her child. She accepted a caution for criminal damage and was detained under the defendant's immigration powers. On 19 June 2012 she was taken to Yarl's Wood IRC, which is run on behalf of the defendant by Serco.

When GB arrived she had a medical screening. Two days later, on 21 June 2012 she was seen by Dr Inskip, a general practitioner employed by a local GP surgery. He conducted an assessment and prescribed GB with Mefloquine, an anti-malarial drug. This was because the defendant was proposing to send GB back to Nigeria (that is why she was in Yarl's Wood in the first place) and there are clear rules relating to the prescription of anti-malarial drugs to those who might be sent back to countries where malaria is commonplace.

On 10 July 2012, GB was refused asylum and the decision was taken to remove her from the United Kingdom. It is GB's case that from about that time onwards, she began to exhibit signs of psychosis. On 16 July 2012, following an assessment by a consultant psychiatrist, Dr Jane Mounty, it was suggested that GB had a drug-induced psychosis, triggered by the Mefloquine, and that she was sectionable under the Mental Health Act. On 27 July 2012, she was released from detention. She was subsequently granted refugee status until 7 July 2019. Apart from the claim for wrongful detention, the only other claim in these proceedings relate to the allegedly negligent prescription of Mefloquine.

The relevant parts of the Immigration and Asylum Act 1999 are in Part VIII, Detention Centres and Detained Persons. Section 149 provides as follows:

Section 151 provides as follows:

Section 153 provides as follows:

The Detention Centre Rules provide a detailed series of rules relating to the running of IRCs. The detail is exhaustive: for example, by reference to Rule 18, there is a minimum of one hour that each detainee is entitled to be in the open air every day.

Rule 33 deals with health care in the following terms:

The Immigration Directorate's Instructions are also very detailed. Section 5 is headed 'Inoculations and Other Preventative Treatment (Prophylaxis) For Persons Being Removed from the United Kingdom'. Sections 5.6 and 5.7 read as follows:

Finally I was referred to the contract between the defendant and Serco which referred to the above documents (with the exception of the Immigration Directorate's Instructions), but which did not appear to add anything further. The contract between Serco and the doctors has not been found by either party. The fact that the defendant was unable to supply a copy of this contract, pursuant to which those whom the defendant has detained in Yarl's Wood were medically treated, was surprising.

Although Lord Sumption had reservations about the utility of the preliminary issue in Woodland , there can be no doubt that his judgment provided a much-needed clarification of the law in this area. At paragraphs 3-6 he succinctly explained the background to non-delegable duties, noting that:

(b) The issue that arose in Woodland , namely whether the local education authority owed a pupil a duty of care during swimming lessons which were conducted by a company to whom the authority had contracted out the provision of swimming lessons, did not concern vicarious liability. Instead, assuming that the local authority was not vicariously liable for negligence of those providing the swimming lessons, the question was the scope of their duty to pupils in its care (paragraph 4);

(c) The law of negligence was generally fault-based so that a defendant was personally liable only for doing negligently "that which he does at all or for omissions which are in reality a negligent way of doing that which he does at all". The law did not in the ordinary course impose personal liability for what others do or fail to do (paragraph 5);

(d) English law had long recognised that non-delegable duties did exist but it did not have a single theory to explain when or why. Lord Sumption identified two categories of exception. The first (which did not arise there and does not arise here) was where the defendant employs an independent contractor to perform some function which was either inherently hazardous or liable to become so in the course of his work (paragraph 6).

The second category of non-delegable duty was relevant in Woodland and is relevant in the present case. At paragraph 7 Lord Sumption said:

Then, following an exhaustive review of the origins of this exception; the employment cases; the hospital cases; and the Australian case law; Lord Sumption addressed the circumstances in which a non-delegable duty might arise. He said this:

At paragraph 25 Lord Sumption also considered the test as to whether it would be fair, just and reasonable to impose a non-delegable duty of care in that case. He made a number of points which refer back in one way or another to his five ingredients in paragraph 23. They were inevitably connected to the educational background in that case. At paragraph 26, applying those principles to the present case, he concluded that there was a non-delegable duty owed by the local educational authority to the claimant. He said "the alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. It must follow that if the latter were negligent in performing those functions and the child was injured as a result, the educational authority is in breach of duty."

On behalf of GB, Mr McCullough QC argued that Woodland was clearly applicable to the present case and that each of the five features or elements of a non-delegable duty identified by Lord Sumption in paragraph 23 of his judgment applied to the present case. He also submitted that the finding of such a duty in the present case was fair, just and reasonable. Ms Anderson for the defendant said that these elements were not applicable to the present case and that the finding of a duty would not be fair, just and reasonable. I propose to set out my views on this issue in some detail since it is, in my judgment, the critical debate arising out of these preliminary issues.

(a) Vulnerability

A non-delegable duty only arises in circumstances where the claimant is especially vulnerable or dependant on the protection of the defendant against the risk of injury. Lord Sumption expressly noted that other examples of such a situation were likely to include prisoners. Mr McCullough QC therefore argued that GB, as a detainee at Yarl's Wood, was expressly within this first category.

Ms Anderson's riposte to this was twofold. First she suggested that a detainee in an IRC was a long way removed from a prisoner in an ordinary prison and that the regime in IRCs was much more benign. Her second point was that GB was not dependant on the protection of the defendant.

I reject both of Ms Anderson's submissions on this point. There is no meaningful distinction to be drawn between a prisoner and a detainee in an IRC. Inmates of both establishments have one vital feature of their lives in common: they are held against their will and cannot leave the place where they are detained. Moreover I consider that those detained in an IRC on the orders of the defendant are thus dependant on the protection of the defendant. The one follows the other. It explains why Lord Sumption expressly identified prisoners within this category of relationship. For those reasons therefore, this first element of a non-delegable duty is made out in the present case.

(b) An Antecedent Relationship

Mr McCullough QC argued, by reference to Lord Sumption's second ingredient, that there needed to be an antecedent relationship which placed the claimant in the actual custody of the defendant, and from which it was possible to impute the assumption of a positive duty on the part of the defendant to protect the claimant from harm. A characteristic of such a relationship is an element of control over the claimant. He said that all of those features were present in this case.

Ms Anderson accepted that there was a duty to protect but she said that it was not a special duty because of what she described as the "detention centre context". It was not entirely clear what this meant.

In my view, there can be no doubt that the second element of the non-delegable duty is made out in the present case. Since GB was being detained on the orders of the defendant, she was in the actual custody of the defendant. There was a significant element of control, as identified in Section 4 above (including the statutory power to monitor; to intervene; and to make rules and provide instructions governing how Yarl's Wood is run). There was a positive duty to protect GB from harm. In my view, it was in recognition of that positive duty that the detailed Detention Centre Rules and Immigration Directorate's Instructions were made and promulgated.

(c) No Control

As to Lord Sumption's third ingredient, Mr McCullough QC said that GB had no control over how she was dealt with. As a detainee, she was obliged to accept the medical treatment offered to her. Although she could have asked to see another medical practitioner, the rules make clear that that would have been at her own expense. It was completely different to the choices open to someone who was at liberty, and who could choose which NHS practice they went to and which doctor within that practice that they saw. There was, he said, no free choice.

Ms Anderson said that, although there was control of GB within the detention centre, "there was no medical control". She said that GB's position was no different to that of someone who was at liberty. Ultimately, in whichever situation the defendant was in, the medical services were being provided by the State.

In my view, Mr McCullough QC was right to say that Ms Anderson's submissions in this context were "unreal". GB was detained by the defendant in an IRC and so, as the Detention Centre Rules make plain, she was obliged to accept the medical treatment she was given. There was no free choice. Her position was different to that of someone who was at liberty. The third element is also therefore made out.

(d) Delegation of an Integral Part of the Positive Duty

As to the fourth ingredient, Mr McCullough QC said that the provision of medical treatment to those who were detained at an IRC was an integral part of the positive duty which the defendant had assumed towards the claimant. That had been delegated to a third party, and the third party was exercising, for the purposes of the function delegated to it, the defendant's custody or care of the claimant and the element of control that went with it.

I am in no doubt that Serco were exercising a function delegated to it by the defendant. The issue is whether it can be said that the provision of medical treatment of detainees was an integral part of the positive duty owed. Ms Anderson said that it was not, and at least inferred that the provision of medical care was simply an incidental element of their detention.

Of the five elements identified by Lord Sumption, I have found this the most difficult to apply in the present case. On the one hand, I accept that the provision to her of medical services was not the reason that GB was in Yarl's Wood. But I have concluded that the provision of medical care was an integral part of the positive duty owed by the defendant to GB. There are two reasons for that: one general and one specific.

The general reason can be found in the Detention Centre Rules and the other requirements referred to in Section 4 above: they all stress the importance of the provision of proper medical care to detainees. On a fair reading of those documents, I consider that this was an integral part of the duty owed to GB. I note that there is some recent authority in support of this conclusion: see paragraph 51 below.

But even if I was wrong about that, and the provision of medical care was not generally integral to the defendant's duty to GB, I still conclude that, on the agreed facts in this case, the prescription of anti-malarial drugs was integral to the duty owed to GB. That is because the defendant was preparing GB for at least the possibility of her removal back to Nigeria. That is why she was detained in Yarl's Wood in the first place. Because removal to Nigeria was a possibility, she was given anti-malarial drugs to prepare for her return. This was one of the defendant's key responsibilities: not to remove an over-stayer to a country where malaria is prevalent, without taking steps to protect that person from that disease when he or she was returned. Thus a prescription of the anti-malarial drug (which is at the heart of the claimant's case in negligence), arose directly out of the defendant's detention and control of GB prior to removal, and was therefore an integral part of the positive duty assumed towards GB, the performance of which had been delegated to Serco.

(e) Negligence in the Performance of the Core Function

My answer to this point is really wrapped up in the previous point. If that analysis is right, then there was negligence in the performance of the core function. Whether or not there was negligence of course remains to be tested at some future trial, but for the purposes of this preliminary issue, this final ingredient too is made out.

(f) Fair, Just and Reasonable

If, as I have found, the five ingredients are in place, the next question is whether it is fair, just and reasonable to find a non-delegable duty. Mr McCullough QC's arguments were really reflections of the points that he had made as to why a duty of care existed in the first place. He said that detainees in immigration detention were inherently vulnerable and were highly dependant on the observance of proper standards of care. They had to submit to lawful detention with no influence over how the defendant may delegate its duties towards detainees. The duty was open-ended but only concerned with functions that the defendant was required to perform.

There were two more pragmatic considerations which he urged upon the court. The first was that it would be unfair if GB had no recourse against the defendant merely because the defendant had chosen to contract out the running of Yarl's Wood to an independent contractor, Serco. It would, he said, be undesirable to create an anomaly, whereby an IRC run by the defendant would give rise to a duty, whereas one that had been the subject of outsourcing, would not. In that regard, his submissions reflected paragraph 25(4) of the judgment of Lord Sumption in Woodland where he said:

The same point was made at paragraphs 29-32 of the judgment of Baroness Hale in Woodland .

The final point raised by Mr McCullough QC is that it was fair, just and reasonable because, even if the day-to-day work was carried out by Serco, GB ought to still have the right to pursue the defendant and should not have to identify who was responsible for a particular function and/or a particular failure before commencing litigation. Of course, if the contract between the defendant and Serco has been properly drafted, the defendant would be able to recover any damages for which it may be liable from Serco or their insurers, pursuant to a contractual indemnity.

Ms Anderson's submissions in relation to this aspect of the case amounted really to no more than this: that there was no proper reason why GB was not pursuing either Serco or the doctor in these proceedings. Since they were more directly responsible for what had happened, it was not just, fair and reasonable to impose potential liability on the defendant. I note that this submission, taken to its legal conclusion, would have defeated the existence of the non-delegable duty in Woodland .

In my view, the submissions put forward by Mr McCullough QC are to be preferred, and demonstrate why it is fair, just and reasonable for a duty to exist in this case. The out-sourcing should be irrelevant in law. Rather, it should not be for GB to have to try and work out which private contractor or individual doctor might be liable for which failure, and then litigate on the basis of that assessment. She was detained by the defendant; she was in the defendant's control; she was entitled to look to the defendant for proper protection. If she did not receive it, the defendant was in breach of its duty. Accordingly, for all these reasons, I conclude that the imposition of a non-delegable duty in this case is fair, just and reasonable.

It is also worth undertaking something of a reality check at this point. The defendant decided to detain GB, and consequently had clear responsibilities for her treatment as a detainee as a result. It would not be just, fair or reasonable to conclude that those responsibilities disappeared simply because of an outsourcing decision.

In Morgan , Supperstone J found that the defendant, who was responsible for the running of a Young Offender Institution at Stoke Heath, did not owe a non-delegable duty in respect of the negligence of the doctors who were not their employees, and who allegedly failed to recognise the extent and effect of the deceased's mental health problems. In consequence of these problems, he hanged himself at the YOI, and the claim was brought by his dependants. Supperstone J found that the defendant did not owe a non-delegable duty to the deceased in respect of the performance of the doctors, because the doctors were not their employees.

The facts in Morgan are too close to the facts in the present case to be sensibly distinguished. For the reasons set out in Section 7 of this Judgment I have reached the view that the defendant owed a non-delegable duty to GB. That conclusion is at odds with the decision of Supperstone J in Morgan . Can those different results be rationally explained? In my view, they can, for the reasons set out below.

First, Supperstone J's judgment came some years before the decision in Woodland . There can be no doubt that Lord Sumption's judgment in that case has clarified what was an extremely confused area of the law. That is, I think, an important difference.

Secondly, this difference is exemplified by reference to Supperstone J's own reasoning in Morgan . I have referred above to paragraph 24 of Lord Sumption's judgment, in which he pointed out that Lord Phillips in A(A Child) was wrong to say that 'control of the environment' was an essential element in cases of non-delegable duty. On the contrary, as Lord Sumption pointed out, the defendant was not usually in control of the environment in which injury was caused by an independent contractor, which is why - as a general rule - he was not liable for the contractor's negligence. A non-delegable duty arose in circumstances where the defendant was liable, not because he had control, but in spite of the fact that he may have had no control.

This passage is important for two reasons. First, it demonstrates that the clarification provided by Lord Sumption in Woodland was so far-reaching that it even extended to correcting a misassumption by Lord Phillips. Second, in Morgan , at paragraph 35 of his judgment, Supperstone J expressly relied on Lord Phillips' analysis of control in A(A Child) as an integral part of his reasoning as to why there was no non-delegable duty of care in that case. In other words, Supperstone J's reason for reaching the conclusion that he did in Morgan relied on the very feature which Lord Sumption has subsequently disavowed.

Thirdly, in his review of the authorities, Supperstone J said that "the hospital cases are to be distinguished" without explaining how or why he had formed that view. The hospital cases formed an integral part of Lord Sumption's review and his conclusion that, in certain circumstances, a non-delegable duty did arise.

Fourthly, although Supperstone J dealt with the question of whether the duty was fair, just and reasonable, he did so in very short order. The points that were argued before me did not apparently arise before him, whilst the possible financial difficulties of the private provider, which was the same point argued in Morgan , was not a matter that was expressly raised before me at all.

Finally, I should say that it appears now to be accepted that this area of the law has moved on from the decision in Morgan . I was referred to the case of Amadou Nyang v G4S Care and Justice Services Ltd and Others [2013] EWHC 3946 (QB) , where Lewis J noted that:

Of course I accept that this was a concession of a non-delegable duty made by G4S, rather than a ruling to that effect. But Lewis J clearly endorsed the concession and expressly referred to both the Detention Rules and the decision in Woodland . If Morgan was still good law, then G4S would not have been liable for the negligence of the doctors: that indeed was the very issue which Morgan had decided.

For all these reasons, therefore, I conclude that, following the decision in Woodland , and on the basis of the arguments which were advanced before me, I am obliged to reach a different view to that of Supperstone J in Morgan . I find on the agreed facts of the present case, and as a matter of principle, that the defendant did owe GB a non-delegable duty of care.

This subsidiary issue arose in an unsatisfactory way. In Morgan , Supperstone J found that he claim which the claimant sought to make in that case was outside The Crown Proceedings Act 1947 ("CPA"). Although he dealt with that issue before going on to consider whether or not there was a non-delegable duty, it seems to me that the issues more properly arise the other way round. The questions should be, first, whether there was a non-delegable duty and then, secondly, if there was, whether the CPA operated to prevent any liability on the part of the Crown in respect of that duty. Mr McCullough QC argued that, consciously or unconsciously, Supperstone J may have been influenced by his answer to the CPA issue when going on to find that there was no non-delegable duty.

On that basis, on the assumption that there was a duty (which is what I have found), it was for the defendant to show that the CPA operated to bar the defendant's liability. Unhappily, the defendant was not really ready to do that and no authorities were cited to me other than Morgan . In the end, Ms Anderson appeared to rest her case on the assertion on this point, that Morgan was rightly decided.

Section 2 of the CPA provides as follows:

Section 38, the interpretation section, defines "agent" as including "an independent contractor employed by the Crown".

Mr McCullough QC's submission was extremely simple. He said that, because s.2(1)(a) of the CPA extended the Crown's liabilities to its servants or agents, including independent contractors as defined by s.38, that was sufficient to catch not only the defendant, but those engaged by the defendant, which would include for this purpose, Serco and/or the doctor. He noted that this argument did not arise in Morgan , where there was no reference to s.38 or the category of independent contractors. Instead the argument in Morgan focused on vicarious liability, which was of no application to that case (or this).

Ms Anderson said that clause 2(1)(a) would not apply to an independent contractor if the duty of care was a non-delegable duty of care of the sort that I have found. She was unable to explain how and why that limitation or exclusion could arise: it is certainly not within the words of the section.

It seems to me clear that, on the face of the words used, the defendant's liability for an independent contractor is plainly caught by s.2(1)(a). That is what s.38 provides. That means that the CPA does not bar this claim. To the extent that Morgan suggests to the contrary, I find that that was because the independent contractor point was simply not taken before Supperstone J. If it had been, I conclude that the result would have been different.

Ms Anderson had an alternative argument that somehow sought to distinguish between the Crown, on the one hand, and the defendant, on the other. She said that an independent contractor was the agent of the defendant, but not the agent of the Crown. Given that the defendant is an emanation of the Crown, I am bound to say that I did not wholly follow this argument. No authority was cited in support of this purported distinction. To the extent that it sought to distinguish between the Crown and a governmental department of the Crown, it seemed to me to be wrong.

Although there was also an argument that s.(2)(3) and s.(2)(6) were also engaged by this claim, it did not seem to me that that argument added anything to the argument under s.2(1)(a). In the light of that, I decline to say anything further about that alternative submission.

Finally I should say this about the CPA. There was a suggestion in the judgment in Morgan , and a bold submission to that effect by Ms Anderson before me, that the purpose of the CPA was to limit the Crown's liability in tort. I am not quite sure if that is right. The 1947 Act was designed to codify what had previously been a rather muddled area of the law, as to the circumstances in which a claimant could or could not issue proceedings against the Crown or its emanations. There is nothing in the preamble of the CPA to say that it was somehow concerned with limitation or exclusion. Furthermore, s.2 is designed to put the Crown in the same position as an ordinary private person of full age and capacity. Such a person would owe a non-delegable duty in the circumstances identified by Lord Sumption. So, too, in my judgment, does the Crown and therefore, in this case, the defendant.

For the reasons set out above, I would answer the first preliminary issue in the affirmative. In those circumstances the second preliminary issue adds nothing and does not require to be answered.

The parties have seen this judgment in draft in order to correct typographical errors. I will deal with all consequential matters, including costs, at a subsequent hearing, if they cannot be agreed.

Introduction

This is an agreed statement of facts for the purposes of the preliminary issue trial. The preliminary issue to be tried is as follows:

(i) Whether or not the Defendant owed a non-delegable duty of care to the Claimant so as to render it liable to the Claimant in respect of any negligent acts or omissions on the part of those providing medical care at Yarl's Wood Immigration Removal Centre (IRC), in particular Dr Inskip (were such negligence to be established) ;

(ii) Further or alternatively, whether or not the Defendant was vicariously liable for the acts or omissions of the medical practitioner and other Yarl's Wood staff.

The facts set out below are confined to those considered relevant for the preliminary issue. Further undisputed facts may be ascertained from the pleadings: the factual background set out in the Particulars of Claim is largely admitted in the Defence. The names of the Claimant [GB] and the alleged father of her child [GA] have been anonymised pursuant to the Order of 17 March 2015.

Statement of Facts

The Claimant is a national of Nigeria, born on 15 September 1978.

The Claimant first arrived in the UK on 24 January 2010 on a six-month visa valid between 22 December 2009 and 22 June 2010. She claims that she returned to Nigeria prior to the expiry of her visa upon hearing the news that her husband and son had been killed. She says that while in Nigeria her deceased husband's family told her she must marry her husband's brother, who already had four wives. She states that she did not want to marry him and therefore returned to the UK in May 2010, while her visa remained valid and overstayed her visa.

While in the UK the Claimant became pregnant. She says the father is GA.

On 15 June 2012 the Claimant and GA were arrested by the police when arguing in the street. The Claimant was held overnight on 15 June 2012 under police powers. A risk assessment noted that the Claimant said she was pregnant, but did not have any mental health problems and was feeling ok. On 16 June 2012 the Claimant accepted a caution for criminal damage for grabbing GA and being reckless as to causing damage to a chain around his neck, which broke. GA was held and questioned by police regarding the domestic violence allegation and immigration offences.

The Claimant's detention under immigration powers was authorised by the Defendant on 16 June 2012 at 19:30 while the Claimant was in police custody, with pregnancy noted as a risk factor in the Detention Authority. She was detained because she had overstayed her visa and the Defendant intended to remove her from the UK once a travel document was available.

The Claimant was held in the police station under immigration powers until 19 June 2012 when she was transported to Yarl's Wood IRC.

Yarl's Wood IRC is the Defendant's immigration detention centre. The Defendant has contracted with Serco, a private company, to run Yarl's Wood detention centre.

On 19 June 2012 at 23:30 after arrival at Yarl's Wood the Claimant had a medical screening with a nurse.

On 21 June 2012 at 09.40 the Claimant was seen by Dr TG Inskip, a General Practitioner who is employed by a local GP surgery. Serco have a service level agreement with the GP surgery to provide cover at Yarl's Wood IRC for two days per week. Dr Inskip conducted a Rule 34 Detention Centre Rules 2001 GP Assessment at the conclusion of which he prescribed the Claimant Mefloquine 250mg and she was given 4 tablets to be taken weekly.

On 27 June 2012 the Claimant claimed asylum and she had an Asylum Screening Interview the following day.

On 3 July 2012 the Claimant signed a medical disclaimer allowing health care staff at Yarl's Wood to divulge details of her medical history to the Defendant, the Claimant's legal representative and the Tribunal (Immigration and Asylum Chamber).

On 9 July 2012 the Claimant had her full asylum interview. The following day she was refused asylum and a decision to remove the Claimant from the UK was made, which she appealed.

From 11 July 2012 onwards the Claimant's Home Office records and medical records from Yarl's Wood document that the Claimant was hearing voices and exhibiting other signs of psychosis.

On 13 July 2012 she attended the nurse triage " complaining of hearing voices in her head. " A referral was made for a mental health assessment and for a GP to see her the following day.

On 14 July 2012 the Claimant's medical notes record that she was seen by Dr Osho, a General Practitioner. The plan recorded was to have bloods taken and for the Claimant to be reviewed by the mental health team.

On 16 July 2012 Medical Justice arranged for her to be seen by Dr Jane Mounty, a consultant psychiatrist, who formed the view that the Claimant had a drug induced psychosis, triggered by Mefloquine, and that she was sectionable under the Mental Health Act and lacked capacity.

On 20 July 2012 a Registered Mental Health Nurse, Noel Fill, undertook a mental health assessment. He found that the Claimant was in an acute stage of psychosis and that she required assessment by a psychiatrist as soon as possible and that she may require assessment in a hospital. Following the assessment her medical notes record that she was prescribed Risperidone, an anti-psychotic drug.

On 26 July 2012 the Claimant was assessed by Dr Leahy, an NHS psychiatrist who provided specialist care at the IRC. Dr Leahy recommended that the dosage of Risperidone be increased and noted that the Claimant may need in-patient assessment.

On 27 July 2012 the Claimant was released from detention with residence and reporting requirements.