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Divisional Court finds Mental Health Act assessments require physical attendance and cannot be undertaken remotely

The phrases "personally seen" in s. 11(5) of the Mental Health Act 1983 and "personally examined" in s. 12(1) require the physical attendance of the person in question on the patient, the Divisional Court has clarified.

In Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021] EWHC 101 (Admin) the claimant trust is the body responsible in its area for the employment and provision of medical practitioners whose recommendations are required by the MHA for the detention or reception into guardianship of patients suffering from mental disorders.

Section 11(5) of the MHA provides that no application for admission for assessment, admission for treatment or guardianship is to be made by any person in respect of a patient "unless that person has personally seen the patient within the period of 14 days ending with the date of the application".

Where an application for admission to hospital is made by an AMHP [Approved Mental Health Professional], s. 13(2) imposes on him or her the obligation to "to interview the patient in a suitable manner".

Section 12 of the MHA provides that the medical recommendations required "shall be given by practitioners who have personally examined the patient".

The Divisional Court (Dame Victoria Sharp, President of the Queen's Bench Division, and Mr Justice Chamberlain) said that until the start of the COVID-19 pandemic in early 2020, these provisions had generally been understood as requiring the person making the application in accordance with s. 11(5) to visit the patient in person and interview them face-to-face and the medical practitioner acting under s. 12(1) to visit the patient in person and examine them face-to-face.

“The Code of Practice issued by the Secretary of State under s. 118 of the MHA, provides that a medical examination for these purposes must involve ‘direct personal examination of the patient and their mental state’. Those exercising functions under the MHA are obliged as a matter of public law to follow the Code of Practice absent a cogent reason to depart from it: R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148," the judges said.

Just after the start of the first "lockdown", on 30 March 2020, NHS England issued a document entitled Legal guidance for mental health, disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic ("the Guidance").

It offered specific advice and guidance on areas which are "posing a particular challenge as a result of the pandemic and where temporary departures from the Code of Practice may be justified in the interests of minimising risk to patients, staff and the public".

The Guidance was revised in May 2020 to include a section, drafted jointly by NHS England and the Secretary of State, headed "Application of digital technology to Mental Health Act assessments". It said this:

"This guidance has been prepared for use in the pandemic only. The MHA makes it a legal requirement that doctors must "personally examine" a person before recommending that they be detained, and that an Approved Mental Health Professional (AMHP) must have "personally seen" the person before applying for a detention.

It is the opinion of NHS England and NHS Improvement and the DHSC that developments in digital technology are now such that staff may be satisfied, on the basis of video assessments, that they have personally seen or examined a person in a "suitable manner". Bearing in mind the need to prevent infection and to ensure the safety of the person and staff, in some circumstances the pandemic may necessitate the use of such digital technology for MHA assessments. Providers should follow the guidance below to inform this decision. While NHS England and NHS Improvement and DHSC are satisfied that the provisions of the MHA do allow for video assessments to occur, providers should be aware that only courts can provide a definitive interpretation of the law.

Even during the COVID-19 pandemic it is always preferable to carry out a Mental Health Act assessment in person. Under specific circumstances where this cannot happen (see below) it is possible for video assessments to occur. Decisions should be made on a case-by-case basis and processes must ensure that a high-quality assessment occurs."

The Guidance then sets out:

(a) "Situations where a video assessment can be considered" (where there is "significant risk of harm via transmission to the person and/or staff" and "significant risk of harm due to the delay of assessment and/or subsequent intervention" and "the minimum quality standards and safeguards are met to ensure that a meaningful and high-quality assessment can occur in a safe environment");

(b) "Minimum standards and safeguards" (including that, "[t]hroughout the process, staff, as well as the person and their carer (if appropriate), should be confident with the quality of the video assessment and that it meets the requirements of the MHA"); and

(c) "Specific considerations by setting" (including that it is "likely that the minimum quality standards will be difficult to achieve in a community setting. Therefore, video assessments should only be considered in community (home) settings in exceptional circumstances…").

Counsel for the Trust, Fenella Morris QC of 39 Essex Chambers, told the Divisional Court that the Trust had made use of video technology to carry out an examination for the purposes of detention on only one occasion and that, with one exception, other Trusts had taken a similarly cautious approach.

In her skeleton argument she said medical practitioners, and their employers were concerned about the lack of clarity in the law that governed their roles under the MHA. "They perceive that they face a choice of either carrying out a remote assessment and being found to have failed to comply with the MHA so that a patient is wrongly detained and the professional exposed to the risk of allegations are false imprisonment, or, on the other hand, of carrying out an in-person assessment and thereby jeopardising their health and that of their patients and the public…."

In these circumstances, the Devon Partnership NHS Trust brought a claim under CPR Pt 8 seeking the following declarations from the Court (as modified at the suggestion of the Secretary of State):

"a. The requirement under s.12 MHA that a medical practitioner has 'personally examined' a patient before completing a medical recommendation in support of the patient's detention in hospital may be fulfilled by the medical practitioner examining the patient remotely should that be deemed sufficient to fulfil the requirements of the MHA in the circumstances of that case in the professional judgement of the medical practitioner applying the Guidance.

b. The requirement of s. 11(5) MHA that a person making an application for a patient's detention in hospital has 'personally seen' the patient within the period of 14 days ending with the date of the application may be fulfilled by the person having 'seen' the patient remotely should that be deemed sufficient to fulfil the requirements of the MHA in the circumstances of that case in the judgement of the person concerned applying the Guidance."

The original claim and skeleton argument provided examples of the remote technology envisaged: Skype, Microsoft Teams, Zoom, WhatsApp and FaceTime.

The Secretary of State agreed that the declarations sought should be made. As the Claimant and Defendant (represented by James Cornwell of 11KBW) were ad idem as to the result, Jonathan Auburn of 11KBW was appointed as Advocate to the Court to ensure that all possible arguments were before the judges.

Dame Victoria Sharp and Mr Justice Chamberlain found that the case law provided no assistance in resolving the question of construction before them.

The judges said there were six considerations which they found of particular importance, all leading in the same direction:

56. First, subsections 11(5) and 12(1) set preconditions for the exercise of powers to deprive people of their liberty. In this country, powers to deprive people of their liberty are generally exercised by judges. It is exceptional for such powers to be exercisable by others. Where they are (i.e. where statute authorises administrative detention), the powers are to be construed "particularly strictly"..... The question of construction with which we are now concerned must, in our view, be seen through this lens.

57. Second, we do not think it appropriate to take the compound phrases "personally seen" and "personally examined", as used in the 1959 and 1983 Acts, and split them up, asking first what "examined" or "seen" means and then what "personally" was intended to add. We agree with Mr Auburn that this is an artificial approach which fails to capture the true import of these compound phrases as they would have been understood in 1959 and 1983.

58. Third, the meaning of the phrases "personally seen" and "personally examined" might no doubt depend on who or what was being examined or seen. In this case, it is a patient. The concept employed by s. 12(1) is that of a medical examination, not merely a consultation. We have no doubt that 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 is confirmed by the use of the word "visit" in other parts of the Act (in circumstances where the difference in language cannot have been intended to connote a difference in meaning). It is also confirmed by the fact that a psychiatric assessment may often depend on much more than simply listening to what the patient says. It may involve a multi-sensory assessment for the purposes summarised at para. 43 above. It may involve a physical examination in order to rule out differential diagnoses. It is no answer to say that it should be up to the examining doctor to decide when physical attendance is necessary, because without the cues that could only be picked up from a face-to-face assessment, the doctor might wrongly conclude that physical attendance was not required.

59. Fourth, although we accept that it may sometimes be appropriate to apply what has been referred to as an updating construction, we do not think that such a construction would be appropriate here.....In this case, the statutory history unearthed by Mr Cornwell shows that the words we are construing were indeed intended to be restrictive and circumscribed. They were inserted to address a particular problem in which doctors had certified patients as liable to detention without physically attending on them. Whilst it is true that part of the problem was doctors delegating their functions to others, the remedy fixed upon by Parliament was to require the examination to be carried out personally by the person whose recommendation was being relied upon. That would have been understood then, and should be understood now, as connoting the physical presence of the doctor.

60. Fifth, the fact that the Code of Practice requires physical attendance and that the Secretary of State's Guidance makes clear that in person examinations are always preferable seem to us to show that, even today, medical examinations should ideally be carried out face-to-face...... the 2020 amendments do show that – where Parliament considers that the pandemic necessitated amendments to the safeguards in the MHA – it is willing and able to make such amendments. The decision whether to allow the AMHP/nearest relative to see a patient and/or to allow a medical practitioner to examine a patient by video-conference (contrary to the common understanding of all concerned until the start of the current pandemic) will involve balancing two important public interests: 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. In our constitution, the weighing up of competing and incommensurable public interests of this sort is for Parliament, even in times of national emergency.

61. The sixth point is related. We bear firmly in mind that the construction which we are asked by the Trust and the Secretary of State to endorse will be applicable immediately and may remain in force for some time after the end of the current pandemic. The benefit of allowing any modifications to be made by Parliament is that, if they are considered necessary, a judgment might be made not to bring them into force; and Parliament could also consider whether they should be time-limited. Both these things were done in relation to the modifications for which the 2020 Act provided. These techniques offer a tailored way of addressing a time-limited problem. They confirm our view that it is Parliament, and not the courts, that can best address the problems to which the pandemic gives rise in this area.

For these reasons, the Divisional Court concluded that the phrases "personally seen" in s. 11(5) and "personally examined" in s. 12(1) required the physical attendance of the person in question on the patient. They accordingly refused the declarations sought.

The judges added: “We are acutely aware of the difficulties to which the statutory provisions – as we have construed them – give rise for the Trust and for others exercising functions under the MHA. Nothing we have said should be taken as minimising those difficulties. Whether and how to address them will be for Parliament to decide.”