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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.

Case law

  • "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.

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.

Post-Devon guidance

NHS

ADASS/LGA

INFORMATION


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