Commentary
Paradoxically a number of good practice points in the preparation of psychiatric reports for asylum and immigration cases are illustrated here in a case in which it was unsuccessfully submitted on behalf of the appellants that the judge was in error in his assessment of the psychiatric evidence.
An odd feature of this case is the reference to Dr Galappathie’s evidence being undermined because he found that the second appellant had “PTSD without seeing the patient” but there is also a reference to how she “recounted to Dr Galappathie details about her past including the history of trauma”. The explanation for this seeming inconsistency is that it was a remote assessment. So, the court attached less weight to the detailed history he took than to a hospital letter which made no mention of PTSD.
Learning points
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Take into account, and refer to, relevant case law, particularly HA (Sri Lanka) [2022] UKUT 111.
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Consider all the medical evidence.
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Considered whether the subject is feigning or exaggerating their symptoms.
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Refer to the Istanbul Protocol. Dr Galappathie quoted in his report para. 290: “It is important to recognize that some people falsely allege torture for a range of reasons and that others may exaggerate a relatively minor experience for personal or political reasons. The investigator must always be aware of these possibilities and try to identify potential reasons for exaggeration or fabrication. The clinician should keep in mind; however, that such fabrication requires detailed knowledge about trauma-related symptoms that individuals rarely possess.”
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Exercise an appropriate degree of scepticism where a subject has an incentive to self-present in a way that portrays them to be unwell as they wish to have reasons to remain in the UK and avoid being returned to another country.
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A sufficiently detailed list of the documents provided will assist if there is an issue as to whether there has been a failure to take into account particular information, such as the finding of a previous tribunal to the effect that the subject’s history of trauma is not credible.
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Given the importance of previous findings of fact as to the credibility of the subject (illustrated by other judgments this year), it is advisable, when accepting instructions, specifically to ask if there are any findings of previous tribunals which need to be taken into consideration.
The case
The first appellant is a citizen of India and the second is a citizen of Pakistan. The appellants appealed against the respondent's decisions to refuse their applications for leave to remain in the UK on the basis of their family life with each other and their private life.
Grounds of appeal
Included the assessment of the expert psychiatric report produced by Dr Galappathie, consultant forensic psychiatrist.
Submissions
Counsel for the appellants submitted the Judge's finding that Dr Galappathie's report was based on the unchallenged acceptance of the second appellant's account was not factually correct as Dr Galappathie reached his conclusions having taken into account the relevant caselaw including HA (Sri Lanka) [2022] UKUT 111 and all the medical evidence including the previous psychiatric evidence and CBT report.
Counsel for the appellants pointed out that Dr Galappathie referred to the report of Dr Kashmiri and Dr Galappathie considered whether the appellant was feigning or exaggerating her symptoms, he referred to the Istanbul Protocol and considered her health records and the cognitive behavioural therapy report by Zabair Hussain.
Counsel for the appellants submitted that the Judge failed to take into account the submission that the ratio in Y (Sri Lanka) v SHHD [2009] EWCA Civ 362 applied in this case given the increase in the risk of suicidal ideation were the second appellant to be returned. It was further submitted that the Judge had failed to properly assess and take into account Dr Galappathie's report in concluding there would not be any very significant obstacles to integration on return for the second appellant and so the error was material to the outcome.
Counsel for the respondent in response suggested that the appellants’ challenge was in essence about the weight given by the Judge to Dr Galappathie's report. She submitted that a tribunal is better placed to make an assessment of the weight to be given to particular evidence and to reach findings taking a holistic view of all the evidence including the appellants credibility. She referred to the findings where the Judge, having assessed both Dr Galappathie's report and the report of the cognitive behavioural therapist, attached greater weight to the hospital letter dated 15 August 2023 which made no mention of PTSD and the evidence from the GP who noted that the second appellant had improved since the last review to the extent that her medication was reduced.
Counsel for the respondent submitted that taking a holistic view of the evidence it was open to the Judge make the findings that he did on Dr Galappathie's report and there was no error of law.
Counsel for the appellants clarified that the issue was not whether the Judge was entitled to give more weight to the hospital letter and the GP evidence but that the Judge rejected Dr Galappathie's report on the basis that Dr Galappathie had relied on unchallenged evidence from the second appellant.
Decision
The court looked with great care at the decision of the Judge. An error of law based on findings of fact is one which the Upper Tribunal should be slow to make. It was clear the Judge considered all the medical evidence including Dr Galappathie's report. The thrust of the challenge was that the Judge erred in the assessment of Dr Galappathie's report. The grounds asserted that the Judge erred in finding that Dr Galappathie's findings were undermined as he had based his report on the unchallenged acceptance of the second appellant’s account. The grounds quoted the following extract from the Judge's decision:
"The unchallenged acceptance of the second appellant's account, undermines the findings of the psychiatric report, which finds that she has PTSD without seeing the patient. I attach greater weight to the hospital letter, dated 15th August 2023, which gives diagnoses of anxiety and depression with no mention of PTSD. The hospital had been reviewing the patient for some time, together with the GP, and found that the appellant had improved since the last review, to the extent that her medication was reduced from 100 mg of sertraline to 50 mg. Most of the indicators on review were normal, apart from low mood, poor memory and concentration."
However, the extract from the decision quoted in the grounds and set out above should be read in the context of the preceding sentences in which the Judge states:
"There is a supporting report from a CBT therapist, but both reports rely on the unchallenged evidence of the appellant concerning her past background and claimed trauma. The second appellant's claims of domestic trauma have been found not to be credible by the previous tribunal and this tribunal, and (sic) well as not been accepted by the respondent.”
It was clear when read in context "...the unchallenged evidence..." referred to by the Judge related to the second appellant's account of her past background including the trauma; an account which had been found to lack credibility by a previous tribunal. The second appellant recounted to Dr Galappathie details about her past including the history of trauma. Dr Galappathie recorded this information in his report. It would appear that Dr Galappathie was unaware the second appellant's account had been found by a tribunal to lack credibility. The decision of the previous tribunal was not listed in the documents read by Dr Galappathie and the decision of the previous tribunal was not mentioned in the report. It was therefore not surprising that Dr Galappathie, albeit a little sceptical about the account given by the second appellant of her past, accepted it. The Judge found it was this acceptance of the second appellant's account that undermined Dr Galappathie's report.
The report made clear that Dr Galappathie did consider whether the second appellant was feigning or exaggerating her symptoms and the Judge made no criticism of the report in this respect. Although Dr Galappathie did state he had approached the second appellant's case with an appropriate degree of scepticism as he was aware that she had an incentive to self-present in a way that portrays her to be unwell as she wished to have reasons to remain in the UK and avoid being returned to Pakistan, Dr Galappathie was unaware that a tribunal had found the second appellant's account lacked credibility.