The Home Office has released a new Interim Guidance: Requesting a second opinion for an external medical report/Medico-Legal Report as part of their offender management caseworker guidance. The new guidance aims to “introduce an additional, clinical input to assist decision-making for those who may be vulnerable in immigration detention”.

The guidance is to be used in line with the existing Adults at Risk in Immigration Detention (AAR) policy which contains a set of standards against which to evaluate external medical reports as evidence of the vulnerability of migrants. It applies where an external medical report has been received on behalf of an individual detained under immigration powers. Where medical evidence is submitted for asylum claims in non-detention cases, the Medical evidence in asylum claims: caseworker guidance should be followed.

The starting point for the new guidance is that “all external medical reports requiring consideration under the AAR policy received whilst a person is detained under immigration powers should be referred into the second opinion process”. Exceptions apply, including where a removal is due to take place within the next 10 working days, or where a person has already been released from detention. External medical reports received prior to an individuals current period of detention should not be referred to the second opinion process. There is also no need for the Home Office to request a second opinion where the author of the external medical report is not regulated.

When an external medical report is received, the casework team must notify the Detained Medical Reports Team within one working day and the responsible caseworker will send the report to the resident healthcare team at the immigration removal centre. The Detained Medical Reports Team will confirm the availability of a Home Office contracted doctor to conduct a second opinion assessment within seven working days. This will be done by video link.

An Invitation to Assessment letter is then sent to the detainee and permission is sought for their medical records to be accessed by the Home Office contracted doctor. If no permission is provided in time, the second opinion will be considered on the papers alone, including the external medical report, immigration records and any evidence submitted to the tribunal.

The doctor should provide the second opinion report within five working days of the assessment. The report is then used to help determine the overall weight to be given to the external report when assessing the individual’s vulnerability under the AAR polic.

As the guidance has been introduced on an interim basis, to be reviewed in 12 months, it is capped to allow a maximum of ten reports to be referred for second opinions per week and there is a blanket refusal to refer cases above that capacity, “regardless of case background or profile”. If the maximum number of external reports that can be referred for a second opinion has been reached, consideration of the external medical report will proceed without the additional input using the External Medical Report standards as directed in the AAR casework guidance.

Where the external medical report and the second opinion report are conflicting, the individual’s vulnerability should be determined by the elements that the reports agree on. The guidance highlights that where the Home Office contracted doctor disagrees with the findings made in the external medical report “care must be taken not to dismiss the clinical opinions expressed” in that report. The assumption must be that the report was made in good faith and based on the evidence presented.

It is concerning that doctors will only be able to assess individuals by video for the next 12 months. Particularly in situations where a detainee might be suffering from mental health issues and might have had a traumatic history, it would far more sensible to arrange for assessments to take place in person. The AAR policy requires doctors to assess detainees face-to-face unless they are prevented from doing so for exceptional reasons. The interim guidance specifically acknowledges this but says:

“notwithstanding this standard requirement, external medical reports derived from virtual assessments conducted by video-link or telephone are acceptable and given appropriate evidential weight, providing that the report clearly sets out the limitations associated with such methods of virtual assessment.”

In practice, given the very tight turnaround times required, it is unclear whether time constraints or video interaction will be considered the real barrier to providing useful evidence in these reports. The guidance acknowledges the requirement to account for different assessment types when the evidence from the external medical report and the second opinion report are being considered:

“Where the decision maker is assessing evidence gathered from an assessment in person compared to that gathered through virtual means, or on papers alone, the greater evidential weight should normally be given to the more direct source (for example, the in-person assessment over the video assessment; the video assessment over that done on the papers). However, this does not prevent evidential weight being attributed to a second opinion based on a virtual assessment, or on papers. This may be particularly relevant where concerns are raised relating to issues of methodology, or findings made in the external medical report/medico legal report, if the Home Office contracted doctor writing the second opinion report considers them not to be well-founded.”

This guidance is new and practical problems might well arise before it is reviewed in 12 months. The usefulness of second opinion reports conducted in the time and location parameters currently set by the guidance is yet to be determined. As is the usefulness of referring almost all external medical reports for a second opinion by a Home Office contracted doctor.