Devon Partnership NHS Trust v SSHSC  EWHC 101 (Admin)
"Personally seen" and "personally examined" require physical presence In this case the Trust sought declarations that the s12 requirement that a medical practitioner must have "personally examined" a patient before completing a medical recommendation and the s11 requirement that an AMHP must have "personally seen" the patient before making an application (both requirements being in relation to s2, 3, 4 and 7) could be met by remote means, as suggested in NHS, 'Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic' (v2, 19/5/20). (1) The High Court agreed to give an advisory opinion on statutory construction in this exceptional case, as there was a real (not hypothetical or academic) question, the Trust had a real interest in it, and the court had heard proper argument. (2) The High Court decided that both phrases require the physical attendance of the person in question on the patient, because of the following six considerations: (a) in this country, powers to deprive people of their liberty are generally exercised by judges and where, exceptionally, statute authorises administrative detention the powers are to be construed particularly strictly; (b) splitting up the compound phrases into individual words fails to capture their true import as understood when enacted; (c) Parliament understood the medical examination as necessarily involving physical presence (confirmed by the word "visiting" used elsewhere, and the fact that psychiatric assessment may involve a multi-sensory assessment); (d) it is not appropriate to apply an "updating construction", as the words were intended to be restrictive and circumscribed, and when enacted were understood as connoting physical presence; (e) medical examinations should ideally be carried out face-to-face (the Code of Practice and guidance both state this is preferable), and it is for Parliament to weigh up the competing interests (namely the need to ensure that administrative deprivations of liberty are properly founded on objective evidence and the need to maintain the system of MHA detention given the exigencies of the pandemic); (f) interpretation by the court would be applicable immediately and may remain in force for some time after the end of the current pandemic, but modification by Parliament could involve ongoing judgement on whether to bring them into force and whether to make them time limited.
- Remote MHA assessments. NHS England, 'Legal advice on remote MHA assessments' (26/1/21) — This email sets out advice on Devon Partnership NHS Trust v SSHSC  EWHC 101 (Admin) and "immediate action required" based on that advice: (1) "The ruling applies to Part II of the MHA only, and not Part III of the MHA. It applies to both new assessments for detention and section renewals (including CTO renewals). Individuals who are currently detained following a remote assessment will need to be reassessed in person, if ongoing detention is deemed necessary." (2) "Stop using remote methods for any new or ongoing assessments for detention or section renewals under Part II of the Act. All mental health providers should identify and reassess individuals who are currently detained under Part II of the MHA following a remote assessment as soon as possible, if ongoing detention is deemed necessary. We also recommend notifying people who were detained via remote assessment, but have since been discharged from their section, that this Court ruling has now passed." Updated guidance: NHS England, 'Further legal advice on remote MHA assessments' (3/2/21).
- NHSE advice following remote assessment decision. Andrew Parsons, 'Court says video assessments unlawful' (RadcliffesLeBrasseur, 28/1/21) — (1) This article discusses the advice in NHS England, 'Legal advice on remote MHA assessments' (26/1/21) which was given in light of the High Court decision in Devon Partnership NHS Trust v SSHSC  EWHC 101 (Admin).
- Remote MHA assessments. NHS England, 'Further legal advice on remote MHA assessments' (3/2/21) — This guidance advises that (a) there be no further remote assessments for s2, s3 or s4 detention, or s7 guardianship, and that anyone subject to those sections as a result of a remote assessment be reassessed as soon as possible, and (b) providers and councils may wish to take a precautionary approach and stop all remote assessments and renewals where the clinician or AMHP is required to "examine" or "see" the patient (including s136, and renewals of s3, s7, s37 and CTOs) and should seek their own legal advice if they have further concerns.
- Remote assessment guidance. ADASS and LGA, 'Briefing on the implications of the Devon case for Local Authorities and the AMHPs they approve and/or authorise' (16/3/21) — This document contains guidance under the following headings: (1) Implications for detentions under s2, s3 or s4 in which video technology was used; (2) Implications for those made subject to guardianship using a video assessment; (3) Decisions around discharging someone from s3 onto a CTO; (4) Decisions to extend guardianship or CTO under s20 of the MHA; (5) s136 and the use of video interviews.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
The WLR Daily case summaries
Queen’s Bench Division
Regina (Devon Partnership NHS Trust) v Secretary of State for Health and Social Care
2021 Jan 13; 22
Dame Victoria Sharp P, Chamberlain J
Mental disorder— Patient— Detention— Medical examination required for purposes of detention or reception into guardianship of patient suffering from mental disorder— Guidance issued on temporary departures from statutory Code of Practice during Covid-19 pandemic— Guidance contemplating remote assessment of patients using video-calling apps— Whether legislation requiring physical attendance for purposes of assessment— Mental Health Act 1983 (c 20), ss 11(5), 12(1)
In light of the Covid-19 pandemic, NHS England issued a guidance document which offered specific advice and guidance on areas which were posing a particular challenge as a result of the pandemic and indicating where temporary departures from the usual Code of Practice might be justified in the interests of minimising risk to patients, staff and the public. As revised in May 2020 the guidance included a new section on the use of digital technology in Mental Health Act assessments, which contemplated that, during the pandemic only, patients might be assessed remotely by means of video assessments. The claimant, as the body responsible in its area for the employment and provision of medical practitioners whose recommendations were required by the Mental Health Act 1983 for the detention or reception into guardianship of patients suffering from mental disorders, sought declarations that: (i) the requirement under section 12 of the 1983 Act that a medical practitioner should have “personally examined” a patient before completing a medical recommendation in support of the patient’s detention in hospital could be fulfilled by the medical practitioner examining the patient remotely, should that be deemed sufficient to fulfil the requirements of the 1983 Act in the circumstances of that case in the professional judgement of the medical practitioner applying the guidance; and (ii) the requirement of section 11(5) that a person making an application for a patient’s detention in hospital had “personally seen” the patient within the period of 14 days ending with the date of the application could be fulfilled by the person having “seen” the patient remotely, should that be deemed sufficient to fulfil the requirements of the 1983 Act in the circumstances of that case in the judgement of the person concerned applying the guidance.
On the claim—
Held, claim dismissed. Sections 11(5) and 12(1) of the Mental Health Act 1983 were to be construed particularly strictly since they set preconditions for the exceptional exercise of powers to deprive people of their liberty. The concept employed by section 12(1) of the 1983 Act, and the materially identical corresponding provisions of the Mental Health Act 1959 which had preceded it, was that of a medical examination, not merely a consultation. Parliament in 1959 and 1983 would have understood the medical examination of a patient as necessarily involving the physical presence of the examining doctor. That was confirmed by the fact that a psychiatric assessment might often depend on more than listening to the patient and might also involve a multi-sensory assessment and a physical examination to rule out differential diagnoses. This was not a case where an “updating” construction would be appropriate as the statutory wording was designed to be restrictive and circumscribed, rather than liberal or permissive. It had been inserted to address the particular problem in which doctors had certified patients as liable to detention without physically attending on them, the remedy fixed upon by Parliament being to require the examination to be carried out personally by the person whose recommendation was being relied upon. Further, the fact that the Code of Practice required physical attendance, and the Secretary of State’s guidance made it clear that in-person examinations were always preferable, showed that even today medical examinations ought ideally to be carried out face-to-face. As had been shown by amendments to the 1983 Act made pursuant to the Coronavirus Act 2020, where Parliament considered that the pandemic necessitated time-limited adjustments to the safeguards in the 1983 Act it was both willing and able to make such amendments. It was Parliament, and not the courts, that could best address the problems to which the pandemic gave rise in that area. For all those reasons, the phrases “personally seen” in section 11(5) of the 1983 Act and “personally examined” in section 12(1) required the physical attendance of the person in question (paras 36, 55–62).
Fenella Morris QC (instructed by Browne Jacobson LLP) for the claimant.
James Cornwell (instructed by Treasury Solicitor) for the Secretary of State.
Jonathan Auburn (instructed by Treasury Solicitor) as advocate to the court.
Sapna Devi, Barrister