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Remote assessments and coronavirus

During the coronavirus pandemic the Department of Health and Social Care published guidance stating that remote MHA assessments by doctors and AMHPs were possible, but the High Court disagreed and held that the assessors must physically be present: Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin). The court case concerned admissions under s2, 3, 4 and 7, but the DHSC have encouraged a precautionary approach which applies the principle to other situations in which the clinician or AMHP is required to ‘examine’ or ‘see’ the patient. ADASS/LGA have also issued advice to directors of adult social services and AMHPs.

NHS pre-Devon guidance documents

These versions of the guidance document are listed in chronological order. These are the guidance documents that led to the remote assessments happening in the first place.

  • NHS guidance on MH law during coronavirus pandemic. 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) — "This guidance provides advice and support to commissioners (clinical commissioning groups [CCG] and specialised commissioning), providers (CCG commissioned and specialised commissioned), health care professionals, social workers, Approved Mental Health Professionals, local authorities, experts by experience, clinical experts, and independent chairs for Care and Education and Treatment Reviews, as well as regional NHS England and NHS Improvement colleagues, to help with the local planning already underway. The guidance will also be helpful for other individuals and partner organisations, involved in the pathways of care, for people with mental health needs, a learning disability and/or autism, including police, prisons and Immigration Removal Centres (IRCs)." The main headings are: (1) Introduction; (2) Key messages; (3) The Mental Health Act 1983 and the emergency Coronavirus Act; (4) Operational considerations for use of the MHA; (5) Guidance on using the Code of Practice during the COVID-19 pandemic period; (6) The Mental Capacity Act; (7) The Care Act; (8) Specific considerations regarding restraint, restrictive practice and the management of people who refuse to isolate; (9) Escorting patients detained under the MHA, including those on Restriction Orders (Sections 41 and 49 MHA) to and from acute general hospitals; (10) Specific considerations for specialised commissioned services; (11) Specific considerations for learning disability and autism services; (12) Specific considerations for people with dementia; (13) Specific considerations for mental health, learning disability and autism and the Criminal Justice System; (14) Application of digital technology to Mental Health Act assessments; (15) Annexes: (Annex A) Resources that have been developed to support practice in mental health; (Annex B) Mental Health Casework Section; (Annex C) COVID-19 - Escorting patients detained under the Mental Health Act (MHA) including those on Restriction Orders (Sections 41 and 49) to and from acute general hospitals; (Annex D) Guidance on using the Code of Practice during the pandemic period: (a) Section 136 assessment; (b) Approved Mental Health Professionals (AMHPs) and responsibilities of Local Authorities; (c) The role of hospital managers’ panel; (d) Mental Health Tribunal Hearings; (e) Medical Reviews of Seclusion; (f) Section 17 leave and visitors; (g) Access to Independent Mental Health Advocates (IMHAs); (h) Second Opinion Appointed Doctors service; (i) Electronic forms and electronic delivery; (Annex E) Checklist to support decision in line with the minimum standards and safeguards on the application of technology to the MHA assessments. Superseded by: NHS, 'Legal guidance for services supporting people of all ages during the coronavirus pandemic: Mental health, learning disability and autism, specialised commissioning' (v3, 30/11/20).
  • NHS guidance on MH law during coronavirus pandemic. NHS, 'Legal guidance for services supporting people of all ages during the coronavirus pandemic: Mental health, learning disability and autism, specialised commissioning' (v3, 30/11/20) — This document's table of contents highlights changes since the previous version to the following headings (though there are also changes elsewhere): (2) Key messages; (3) The MHA 1983 and the emergency Coronavirus Act; (8) Specific considerations regarding restraint, restrictive practice and the management of people who refuse to isolate; (Annex F) Annex F: Guidance on the testing and isolation of people of all ages in in mental health, learning disability, autism, dementia and specialist inpatient facilities during the coronavirus pandemic. Superseded by: NHS, 'Legal guidance for services supporting people of all ages during the coronavirus pandemic: Mental health, learning disability and autism, specialised commissioning' (v4, 25/1/21).

The Devon case

  • "Personally seen" and "personally examined" require physical presence. Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin) — 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.

Post-Devon guidance

NHS

ADASS/LGA

Mental Health Tribunal

INFORMATION


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