Abstract
Summary
The clinical care of asylum-seekers may bring clinicians in contact with the immigration authorities. A request for a medicolegal report usually requires the responsible clinician to state their opinion on the risks involved in returning an applicant to their country of origin, taking into account their current condition, the treatments available in that country, and the risks involved in travel. This review draws on clinical experience and a review of the literature to describe the work involved in preparing a medical report requested by immigration authorities. Although the starting point chosen is the psychiatric report, the principles described apply to the preparation of immigration reports in any medical discipline.
Introduction
Patients involved in the process of an asylum application are encountered in all branches of medicine. Refugees and asylum-seekers have an increased risk of diseases such as diabetes, heart disease and obesity, and an increased risk of exposure to infectious disease and physical or psychological trauma. 1, 2, 3 Where asylum applications are refused, applicants may lodge an appeal on physical or mental health grounds. The assertion is often that a return to the country of origin would worsen the condition, either due to inadequate treatment or to a specific threat to mental or physical health. The immigration authorities issue the treating clinician with a request for a formal report, to include full details of the medical history and clear responses to specific questions regarding risk. These requests are a particular challenge for clinicians, both in terms of the formulation of difficult decisions and in the additional administration. Carrying the moral burden of making what appears to be a ‘life or death’ decision is made more difficult where a clinician may not feel entirely clear about the magnitude of the risks involved. This review suggests ways in which clinicians asked to prepare medicolegal reports can both fulfil their duties to patients and meet the expectations of government agencies.
Methods
A literature search was performed by using a database search incorporating nine health-related search engines (PubMed, AMED, BNI, EMBASE, HMIC, MEDLINE, PsycINFO, CINAHL and Health Business Elite), using the search terms ‘asylum-seeker’ and with no date restrictions. The clinical framework is that of a general adult psychiatry outpatient clinic characterized by a high proportion of asylum-seeker referrals seen for first assessment and follow-up. The experiences of writing medicolegal immigration reports in this setting are used to suggest a framework for producing reports across the range of medical disciplines.
The legal basis for an asylum application
The United Kingdom Border Agency (UKBA) within the Home Office is responsible for securing borders and controlling migration to reduce the number of illegal immigrants, but also has a humanitarian role in providing a place of safety for those seeking protection. This duty is enshrined under the terms of the 1951 United Nations Convention Relating to the Status of Refugees 4 in which asylum is provided for those who are unable to go back to their country because of a well-founded fear of persecution. This may be on grounds of race, religion, nationality, political opinion, or membership of a social group, with sexuality now increasingly cited as a basis for persecution.
An asylum-seeker is therefore defined as any individual who has applied for asylum on the basis of persecution within their country of origin, while refugees are those whose asylum application has been successful. 3 Those who do not qualify for asylum may alternatively apply for temporary permission to remain on humanitarian grounds. Those whose asylum applications are turned down, or whose temporary leave is not renewed, are expected to return home voluntarily or face deportation: a process termed ‘removal’ by the Home Office. The UKBA is also bound by the European Convention on Human Rights 5 which prevents a person from being deported to a country where there is a real risk they will be exposed to torture, or inhuman or degrading treatment. These legal principles distinguish refugees and asylum-seekers from economic or traditional migrants, acknowledging the human rights violations responsible for these displacements. 1
Asylum applications to the United Kingdom
Over the last decade, immigration to the UK has consistently exceeded emigration, particularly after the 2004 accession of 10 new European Union (EU) member states. In 2007 net migration in the UK reached 237,000, with Polish migrants representing the greatest proportion (16.6%) of new arrivals. 6 Newer waves of immigration to the UK have included forced migration from Central Asia, East Africa and displaced Kurdish communities. Many have fled conflict areas or persecution hoping to gain asylum status in a safe haven. In 2007, 23,430 people applied for asylum in the UK, of whom 6540 (28%) were granted asylum status, humanitarian protection or discretionary leave. 7 In the same year, 16,800 applicants became failed asylum-seekers and 13,705 departed voluntarily or were removed. 7
The success of an asylum application relies on being able to demonstrate a clear basis for the perceived threat. Applicants may lack the documentary evidence required to prove this risk, relying on persuasive legal representation and the country knowledge gained by the UKBA's own sources. Although legal aid may be available, access to adequate subsistence support is not guaranteed. This is frequently a period of economic hardship and social exclusion. Studies of the public perception of migration have found that migration can arouse fear and apprehension in certain socioeconomic groups, and that throughout Europe public perception of migration is becoming increasingly negative. 8 Prejudices about immigrants can hamper integration and add to the discomfort experienced by those adjusting to life in a new culture.
The medicolegal report
Purpose
Where asylum-seekers appeal against failed applications on grounds of physical or mental health, medical or psychiatric reports are usually requested by the UKBA or the Asylum and Immigration Tribunal (AIT), an independent judicial body. Such grounds might include the requirement for specialist treatment (in the case of rare medical conditions), for specific medications (in the case of conditions such as HIV) or the direct impact of deportation on suicide risk (in the case of established psychiatric disorder). These reports are paid for by the applicant, who may be assisted by legal aid, and are submitted to the UKBA/AIT or the Court of Appeal. The reports are expected to contain a clinical summary and address specific questions, including an opinion over whether a return to the country of origin would affect that individual's mental or physical health detrimentally. This gives the doctor a pivotal role in influencing a decision of great personal significance to their patient. Many clinicians are extremely uncomfortable wielding such power, and feel that it conflicts with their primary duty to ‘make the care of your patient your first concern’. 9 Other conflicts may be perceived in terms of obligations towards society, professional duty to a government department, and the threat of legal challenge.
Arranging appointments
The report is usually based on prior contacts with the patient, but an additional interview may be required if clarification is required as to specific circumstances. As with all appointments for those with a second language, the appointment letter should be translated into their first language and an interpreter arranged. Patients may sometimes object to the use of certain interpreters, querying their professionalism and respect for confidentiality. Access to a sufficiently large pool of qualified interpreters, including those accessible via telephone, reduces the likelihood of an asylum-seeker knowing their interpreter personally. This protects confidentiality, reduces reliance on relatives, and enhances therapeutic alliance together with disclosure. Attendance at appointments may be compromised by factors beyond the patient's control: court appearances, solicitors' appointments, dispersal orders or language problems. The clinician should be aware of any emerging therapeutic nihilism in these administrative frustrations, and have a low threshold for re-booking.
Assessment
A lack of training in transcultural medicine can affect communication style, the ability to take an adequate or appropriate trauma history, 2 and to establish pre-morbid levels of physical or psychiatric functioning. This training gap, coupled with language barriers, undermines standards of clinical care for this population. There may be problems in establishing an appropriate diagnosis, selecting effective interventions, predicting the natural history of a condition, and interpreting the clinical significance of outcomes. These issues also affect the quality of medicolegal reports for immigration decisions, compromising their validity and utility. For such a report, the clinician needs to distil from their assessments a diagnosis, a risk assessment and a prediction over the impact of a return to the country of origin. This relies on taking a comprehensive history, and constructing a sensitive and culturally-appropriate formulation. Rapport may be difficult where patients have grown wary of institutional racism, and may need to be built over successive contacts in clinic. This also allows a trauma history to emerge at the patient's own pace. 1 Where a trauma history has previously been elicited it may be appropriate to refer to previous reports, including those prepared by voluntary agencies, but the clinician needs to be specific about the type of violence experienced both for accuracy and to make an appropriate interpretation of its likely impact.
Establishing diagnosis and prognosis
In some cases diagnosis is simply unclear, 10 and in mental health settings this is particularly difficult where substance misuse is involved. In all cases it can be helpful to use a variety of approaches to gain perspective on a patient's presenting compliant and how this frames the diagnosis and prognosis. Psychiatrists' use of a developmental perspective acknowledges past abandonments and failures of care and how these relate to an individual's experience of pre- and postmigration adversity. This more comprehensive approach provides another dimension to the medicolegal opinion provided, and offers some containment where patients might doubt a Western clinician's ability to grasp the context of their situation. Asylum-seekers are likely to regard clinicians as the only official figures they encounter who treat them as more than just a reference number, appearing to place their individual needs ahead of political or economic priorities. Health professionals, therefore, serve an important role in containing the psychic distress of these patients.
Suicide risk assessment
This is relevant in all specialties as it may be present even in those without diagnosable mental illness, 11 for example as an impulsive expression of frustration or a desire to shame the authorities. The risk assessment should indicate that suicide risk can vary substantially and rapidly and is extremely difficult for clinicians to predict. The threat of deportation, real or feared, carries with it a concrete association with being detained, tortured or abused, and suicide may be perceived as a means of escape. Risk may fluctuate rapidly in response to threats of dispersal and deportation, with the long wait for resolution maintaining a baseline risk. An assessment of risk to others is required, particularly where there are atypical psychotic symptoms, substance misuse, or dissocial personality traits, and in such circumstances a referral to local mental health services may be appropriate.
Expressing an opinion
Clinicians are expected to provide a clear, impartial and honest opinion on the questions posed by immigration officials, yet there are a number of influences on any opinion expressed, conscious or otherwise. Migration is an emotive political issue and each clinician views asylum-seekers through their personal prism, both as a social group and as individual patients. 12 In 2008, 36% of respondents to a BMJ readers' poll believed that failed asylum-seekers should be denied primary care, 13 highlighting the potential marginalization of these patients' needs and suggesting the influence of personal prejudices. New guidance from the British Medical Association advises doctors to judge each case on its own merits when deciding whether refused asylum-seekers should be entitled to free NHS care, 14 and the same ethical principles should apply to the expression of medicolegal opinion.
Where a clinician is aware of their personal prejudices about asylum-seekers as a group the only ethical course of action is to pass responsibility for report-writing to a colleague. Individual prejudices may also arise, and for chronically helpless or suicidal patients malignant alienation may emerge. 15 It is important to be aware of counter-transference and how this may influence the opinion expressed. Malingering may be suspected in some cases, yet the diagnosis requires a high degree of certainty given the possible consequences in effecting deportation. Nevertheless it would be naïve to ignore the existence of malingering in any branch of medicine, and it is important for clinicians to gather sufficient information and to remain as objective as possible.
Seeking advice
Even where diagnosis is clear, there may be some uncertainty over whether a given condition would be worsened by a return to the country of origin. Clinicians often lack reliable information on levels of risk in countries of origin and levels of service provision, but should be clear about this in their report, or seek guidance. Collateral information on the cultural context assists in making such judgements, and also sheds light on the presenting problems. Where further advice is needed the Medical Foundation for the Care of Victims of Torture produce clinical guidelines for assessing torture survivors and accept referrals at five UK treatment centres. The Refugee Council has good links with refugee community organizations and may be able to provide reliable information on levels of risk and service provision in countries of origin.
Communicating a decision
The report is usually sent to the patient's solicitor who forwards this to the UKBA. It is good practice to outline the opinion to the patient, providing them with a copy of the report, and this may be communicated in the context of any ongoing treatment plan. Following completion of a report it is expected that the clinician will invoice the solicitor as the work is considered as non-core NHS work. If the patient has no recourse to legal aid they will be billed for this in turn.
Conclusion
Requests by immigration authorities for medical reports bring a weight of responsibility that is frequently unwelcome. By taking a comprehensive history and constructing a sensitive and culturally-appropriate formulation, any management plan is more likely to be effective in buffering the negative impacts of a drawn-out legal process, and any decision is more likely to be a just one. The clinical care of asylum-seeking patients may be compromised where there is a lack of training in trans-cultural medicine, where prejudices and counter-transferences go unacknowledged, or where there are inadequate interpreting services. While the asylum application process is a human right and an essential part of achieving citizenship, it is important that our systems work towards enhancing the social capital of each individual, regardless of their legal status.
Footnotes
DECLARATIONS
Footnotes
Acknowledgements
Royal Society of Medicine Psychiatry Section. Sources of information were the Medical Foundation for the Care of Victims of Torture (www.torturecare. org.uk) and the Refugee Council (www.refugeecouncil. org.uk)