High Court finds that Mental Health Act assessments cannot be undertaken remotely

In this case, the High Court considered the interpretation of physically examining a patient and whether it could and should be done in person or remotely, in the particular context of the requirements contained in sections 11(5) and 12 of the Mental Health Act 1983 (MHA).

Section 11(5) of the MHA requires a person making an application in respect of “admission for assessment, admission for treatment or guardianship” to have “personally seen” the patient. The requirements of section 12 include that a medical practitioner has “personally examined” the patient before making a medical recommendation in support of the patient’s detention in hospital.

Background

It is generally accepted that up until the start of the Coronavirus pandemic, the provisions required a person making an application pursuant to section 11 (5) of the MHA, to visit the patient in person and for the medical practitioner acting under section 12 to examine the patient in person.

However, in 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’. This guidance included advice on when temporary departures from the rules may be justified in the interests of minimising risks to patients, staff and the public.

In May 2020 the guidance was revised to include a section headed ‘Application of digital technology to Mental Health Act assessments’, in which it said that NHS England and the Department for Health and Social Care are of the opinion 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".

In this case the Trust said that the medical practitioners and their employers were concerned about the lack of clarity in the law that governed their roles under the MHA.

The Trust sought declarations that the requirements contained in sections 11(5) and 12 of MHA, could be fulfilled by a patient being seen or examined remotely rather than in person.

Decision

The High Court refused to make the declarations sought by the Trust.

The Court determined that the phrases “personally seen” in section 11 (5) MHA and “personally examined” in section 12 MHA require the physical attendance of the person in question on the patient.

In doing so, the Court placed reliance upon six considerations. By way of a summary:

1. Paragraph 56 of the judgment states that “powers to deprive people of their liberty are generally exercised by judges.” In exceptional circumstances, this power can be exercised by others, but such powers are “to be construed “particularly strictly””.
2. “Personally seen” and “personally examined” are compound phrases and are not to be separated for the purposes of interpretation.
3. The MHA is a consolidating Act and section 11 and section 12 were taken from the Mental Health Act 1959. The observation made at paragraph 58 of the judgment is that there “is 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.”
4. The history of the legislation showed that the words used by Parliament were intended to be restrictive and circumscribed, and required physical attendance upon patients.
5. At paragraph 60 of the judgment, the Court observed that: “the fact that the Code of Practice requires physical attendance and that the Secretary of States 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.”
6. Should the Court make the declarations sought by the Trust, they “will be applicable immediately and may remain in force for some time after the end of the current pandemic”. The Court further observing that “the benefit of allowing any modifications to be made by Parliament, is that, a judgment might be made not to bring them into force; and Parliament could also consider whether they should be time-limited.” (see paragraph 61 of the judgment)

Whilst empathetic of the Trust’s position, the Court, in closing, determined that the difficulties that the statutory provisions caused the Trust and others exercising functions under the MHA, was a matter for Parliament to address.

Comment

The judgment means that despite the difficulties arising as a result of the pandemic, for practitioners seeking to make an application under section 11 MHA, or for doctors required to make medical recommendations under section 12 MHA, attendance in person will be required.

For those already detained, on the basis of a remote assessment or recommendation, the Court provided no guidance, observing that any change in the law would be a matter for the government to determine.

As matters currently stand there is uncertainty regarding remote assessments under other sections of the MHA. Given that uncertainty, on 4 February 2021 NHS England and NHS Improvement issued information, which in view of the judgment in this case, set out that providers of mental health services “may wish to take a precautionary approach and stop all remote MHA assessments and renewals where the clinician or the AMHP [Approved Mental Health Professional] is required to ‘examine’ or ‘see’ the individual. This includes assessments and/or renewals under s. 20, s.20(A) and s.136, and therefore impacts s.3 renewals, s.37 renewals, s.7 (Guardianship) renewals, and CTO [community treatment order] extensions.”

Read other items in Healthcare Brief - April 2021