Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin)

"Personally seen" and "personally examined" require physical presence In this case the Trust sought declarations that the requirement in s12 requirement that a medical practitioner have "personally examined" a patient before completing a medical recommendation and the s11 requirement that an AMHP 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.

Essex search

This case's neutral citation number appears in the following newsletters:

• 39 Essex Chambers, 'Mental Capacity Report' (issue 111, February 2021)
• 39 Essex Chambers, 'Mental Capacity Report' (issue 112, March 2021)
• 39 Essex Chambers, 'Mental Capacity Report' (issue 137A, February 2024)

CASES DATABASE

Full judgment: BAILII

Subject(s):

• Miscellaneous🔍

Date: 22/1/21🔍

Court: High Court (Administrative Court)🔍

Cited by:

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

Judge(s):

• Sharp🔍
• Chamberlain🔍

Parties:

• Devon Partnership NHS Trust🔍
• Secretary of State for Health and Social Care🔍
• NHS Commissioning Board🔍

Citation number(s):

• [2021] EWHC 101 (Admin)^B

What links here:

• 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)
• 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)
• Andrew Parsons, 'Court says video assessments unlawful' (RadcliffesLeBrasseur, 28/1/21)
• NHS England, 'Legal advice on remote MHA assessments' (26/1/21)
• NHS England, 'Further legal advice on remote MHA assessments' (3/2/21)
• Remote assessments and coronavirus
• 39 Essex Chambers, 'Mental Capacity Report' (issue 111, February 2021)
• 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)
• Section 2: admission for assessment
• Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21)
• Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21)
• Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2022)
• Derbyshire Healthcare NHS Foundation Trust v SSHSC [2023] EWHC 3182 (Admin)

Published: 23/1/21 22:35

Cached: 2025-05-18 19:07:18