Derbyshire Healthcare NHS Foundation Trust v SSHSC [2023] EWHC 3182 (Admin)

Renewal and remote assessments Remote assessment insufficient for renewal of s3, guardianship or CTO (no decision in relation to initial discharge onto CTO).

Note

The judgment has the claimant as "Derbyshire Health Care NHS Trust".

ChatGPT

Just for fun, I asked ChatGPT 3.5 to summarise the "Discussion" part of the judgment (paras 79ff). Here is what it said. I've not checked it for accuracy, but at first glance it looks pretty good.

The text you provided appears to be a portion of a legal judgment or opinion, likely related to mental health law and the interpretation of certain provisions in the Mental Health Act. It discusses the claimant's request for a declaration regarding the examination requirements under sections 17A, 20, and 20A of the Mental Health Act.

The judge seems to reject the claimant's request for a declaration related to section 17A, expressing concerns about the ambiguity of the term "face-to-face" and the broader analytical exercise required. The judge suggests that attempting to make a declaration on this matter could lead to unintended consequences and is beyond the court's ability to provide sound declaratory relief.

The text then addresses the declaration sought in respect of sections 20 and 20A, focusing on the interpretation of the word "examine." The judge appears to rely on the precedent set in the case of Devon, emphasizing the Divisional Court's view that a medical examination necessarily involves the physical presence of the examining doctor. The judge rejects the claimant's argument that the Divisional Court's conclusions in Devon do not apply to the present case.

The judge discusses the historical context, legislative history, and intent behind sections 20 and 20A, emphasizing Parliament's concern for effective decisions when extending detention or imposing restrictions on a person's liberty. The text suggests a strict interpretation of these sections, underlining the importance of a high-quality examination by a responsible clinician.

The judge considers the argument that advancements in technology, such as video conferencing, should be considered in the interpretation of the word "examine." However, the judge rejects this argument, stating that there is no societal consensus that remote examinations are of the same quality as physical examinations.

The text concludes with the judge refusing the application for declarations and addressing a specific request related to the legality of an examination undertaken in May 2020, suggesting that such issues should be pursued through judicial review, taking into account issues of timeliness.

This is a brief summary and does not capture all the nuances of the legal analysis provided in the text. If you have specific questions or if there's a particular aspect you'd like more information on, feel free to ask.


Essex

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This case has been summarised on page 32 of 39 Essex Chambers, 'Mental Capacity Report' (issue 132, June 2023).

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ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.  

The WLR Daily case summaries

[2023] WLR(D) 524B

King’s Bench Division

Derbyshire Health Care NHS Trust v Secretary of State for Health and Social Care

[2023] EWHC 3182 (Admin)B

2023 Oct 31, Nov 1; Dec 14

Lane J

Mental health— Patient— Examination— Statutory requirement for examination by responsible clinician before making of orders for community treatment, detention in hospital or guardianship in community— Whether statute requiring physical attendance of medical practitioner on patient— Whether relevant statutory provision subject to “updating construction” permitting remote examination by video-conferencing— Mental Health Act 1983 (c 20), ss 20(3)(6), 20A(4)

The claimant NHS trust sought declarations, inter alia, that: (i) the word “examine” in section 20A(4) of the Mental Health Act 1983 should not be interpreted as meaning a face-to-face examination (in the sense of physical attendance of the person in question on the patient), so that a remote examination of the community patient by the responsible clinician before the latter extended a community treatment order (made under section 17A) could be sufficient; and/or (ii) the same word in section 20(3) and (6) (as to the duration of authority for the detention in hospital or guardianship of a patient) should not be interpreted as meaning a face-to-face examination, so that a remote examination of the patient by the responsible clinician before the latter renewed the authority for detention for hospital treatment of a patient under section 3 or guardianship in the community under section 7 of the 1983 Act could be sufficient. In that regard, the claimant sought to distinguish case law dealing with section 11 of the 1983 Act (applications for compulsory admission to hospital for assessment, treatment and guardianship applications) and section 12 of that Act (general provisions as to medical recommendations) which established that the requirements of those section could not be met by seeing the patient remotely, the claimant’s case being that sections 17A–17G and 20A were different because they had been inserted by the Mental Health Act 2007 at a time when video-conferencing had become possible, which ought to be taken into account by adopting an “updating” approach to statutory construction.

On the claim—

Held, claim dismissed. The legislative language in sections 20 and 20A of the Mental Health Act 1983 arose from Parliament's concern that decisions extending a patient’s detention or imposing other forms of restriction on a patient’s liberty ought to be undertaken as effectively as possible. Such statutory provisions, which conferred on persons other than judges the power to restrict people’s liberty or to deprive people of their liberty, were to be construed particularly strictly. Given the importance of the examination in question, Parliament had not intended the nature of that examination to be any less generally effective than in the case of section 12. There was no consensus in 2023 (let alone 2007) that an examination conducted by remote means, such as a video call, would necessarily be of the same quality as an examination which involved the physical attendance of the responsible clinician and patient and, therefore, the claimant could not rely on the “updating” principle of statutory construction as a reason for construing sections 20 and 20A as permitting examination by such means. Accordingly, on a true construction of the statutory provisions, the word “examine” in sections 20(3)(6) and 20A(4) of the 1983 Act required the physical attendance of the medical practitioner on the patient, because a medical examination was to be understood as necessarily involving the physical presence of the examining doctor, notwithstanding that the relevant information could sometimes be obtained by different means or that there might, on occasion, be no relevant information to derive from such an examination (paras 85, 87, 89, 93–96, 109, 112, 117).

Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97B, 111E, PC, dicta of Lord Dyson MR in B (Algeria) v Secretary of State for the Home Department (No 2) [2016] QB 789B, para 32, CA and Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021] 1 WLR 2945B, DC applied.

Birmingham City Council v Oakley [2001] 1 AC 617B, HL(E), R (N) v Walsall Metropolitan Borough Council [2014] PTSR 1356 and Cumbria, Northumberland Tyne and Wear NHS Foundation Trust v EG [2022] COPLR 83 considered.

Fenella Morris KC (instructed by Browne Jacobson, LLP, Manchester) for the claimant.

Tom Cross (instructed by Treasury Solicitor) for the Secretary of State.

Victoria Butler-Cole KC (instructed by Hill Dickinson LLP) for the first interested party, NHS England.

Stephen Simblet KC and Ollie Persey (instructed by Cartwright King, Derby for the second interested party, PQR.

Roger Pezzani and Alex Schymyck (instructed by MIND) for the third interested party, MIND.

Catherine May, Solicitor

Referenced Legislation

Mental Health Act 1983 (c 20), ss 20(3)(6), 20A(4)

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Coronavirus cases🔍

Date: December 2023🔍

Court: High Court (Administrative Court)🔍

Cites:

Judge(s):

Parties:

  • Derbyshire Healthcare NHS Foundation Trust🔍
  • Secretary of State for Health and Social Care🔍
  • NHS England🔍
  • PQR🔍
  • Mind🔍

Citation number(s):

What links here:

Published: 14/12/23 16:36

Cached: 2024-04-17 19:58:20