The Centre for the Study of Emotion and Law (CSEL) has recently collaborated in a new article Non-clinicians’ judgments about asylum seekers’ mental health: how do legal representatives of asylum seekers decide when to request medico-legal reports? by Lucy Wilson-Shaw, Nancy Pistrang and Jane Herlihy, which considers decisions made by immigration lawyers in deciding whether to refer clients for psychiatric assessment.

Legal aid restrictions mean that speculative medico-legal reports are out of the question but gauging one’s clients’ mental health is important for a number of reasons. Credibility invariably plays a part in applying the legal aid merits test, for example. Does poor mental health assist in the documentation of trauma which, in turn, corroborates allegations of past persecution? Is the client fit to be interviewed or give evidence? How will s/he bear the court process generally? Do mental health issues go to articles 3 and/or 8 when considering return?

Paragraph 208 of the UNHCR Handbook states that, in cases concerning applicants with mental or emotional disturbances

“[t]he examiner should … whenever possible, obtain expert medical advice. The medical report should provide information on the nature and degree of mental illness and should assess the applicant’s ability to fulfil the requirements normally expected of an applicant in presenting his case…”

UKBA, however, expects the applicant (through his or her legal representative) to commission such reports. Interviews conclude with a warning that if such evidence is not provided within five days a decision may be made without it. Failure to obtain such medical evidence is then often taken by UKBA as evidence that the claimed medical issues do not exist.

Much therefore hinges upon a legal representative’s ability to accurately assess such ‘mental or emotional disturbance’. But lawyers are not doctors. How well equipped are they to decide whether or not to instruct a medical expert?

The legal representatives interviewed for the study were highly experienced and motivated lawyers, most of whom had received training about mental health issues and all of whom appear to have demonstrated a marked degree of empathy. However, one of the most striking findings of the study was that legal representatives in this study were making decisions about the presence of mental health problems in their clients based on their lay knowledge of mental illness and their own responses to the presentation of the client, including ‘gut instinct’. There is an important side issue here: where do those ‘gut instincts’ come from? To what extent is the decision process driven by the psychological well being of the interviewer on the day? Hearing such testimony over time may well have an effect on anyone. Feeling overwhelmed by a suicidal client, for example, may drive a referral but also highlights important self-care needs. One need not become ‘case-hardened’ or ‘a soft touch’ if proper support is available.

Most asylum lawyers keep some sort of ‘PTSD check list’ in mind following the plethora of case law on the subject (AE & FE, HE DRC, HK, HH Ethiopia, Y Sri Lanka) but this report reveals that apparently ‘obvious signs’ are invariably no substitute for professional diagnostic skill. Indeed, the absence of such signs was perceived by some as indicating no mental disturbance or even that their client was being untruthful. This is critical since ‘lack of credibility’ often plays a part in the decision to decline funding on the grounds that the case lacks merit. Furthermore, while some signs of PTSD were clearly identified by lawyers in the study, other mental health issues such as depression were missed, or ignored on the basis that the presentation of such evidence to the courts would have little or no impact upon the outcome. Legal representatives did recognise that PTSD was likely to be ‘weighed in the balance’ by judges, but perceived that ‘mere’ depression was not. As the authors point out, however, depression frequently has a significant impact upon the nature of and capacity to recall; often a crucial factor in many cases.

Hopefully this article will be widely disseminated and read and legal practitioners will review their capacity to identify ‘mental or emotional disturbances’. This study is also recommended to clinicians who prepare medico-legal reports as providing an insight into what lies behind their instructions. There are, of course, important lessons for decision makers also. Indeed, the study may demonstrate a critical role for clinicians, with appropriate training and experience, in the asylum procedure.

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