Different words – same meaning?
The case of Derbyshire Health Care NHS Trust v SSHC & Others once again examined the use of remote assessments under the Mental Health Act 1983 (MHA).
The patient had previously challenged the lawfulness of his Compulsory Treatment Order (CTO) at a Mental Health Tribunal, on the basis that the renewal of his CTO was carried out by telephone during the midst of the Covid-19 pandemic in 2020, when his psychiatrist was shielding. He argued that, for a CTO to be lawfully renewed, the Responsible Commissioner's (RC) assessment had to be conducted face-to-face so his CTO had not been lawfully renewed.
The NHS Trust lodged proceedings in the High Court, seeking declarations that:
- an RC is not required to undertake an in-person examination of the patient before making a CTO under section 17A(1) MHA; and
- the word "examine" in section 20 and section 20A MHA (renewal of detention in hospital, and renewals of CTOs and guardianship respectively) meant that a remote examination of the patient could be sufficient.
Despite arguments being made to:
- contrast the position of RCs dealing with section 17 or section 20 MHA compared to those dealing with other differently worded sections of the MHA (see Devon below) e.g. that in making decisions the clinician knows the patient and is able to draw on that knowledge and the knowledge of others treating them
- highlight resourcing issues
- emphasise the benefits and efficacy of technology
in December, the High Court handed down its judgment that examinations of a patient under:
- section 20(3) MHA (renewal of section for a patient admitted to hospital for treatment),
- section 20(6) MHA (renewal of guardianship application) and
- section 20A(4) MHA (renewal of CTOs)
require in-person physical attendance on the patient by the RC or Approved Mental Health Professional (AMHP) and remote assessments are unlawful.
The Court were of the view that Parliament require the highest degree of assurance that the examination in question will be as effective as it can be and there is no mandate for assuming that Parliament intended to leave the matter to be determined by the RC. MIND were an interested party and had highlighted interviews and surveys they had conducted which highlighted issues around IT crashing, privacy and making meaningful connection.
This follows the decision in Devon Partnership NHS Trust v Secretary for State for Health and Social Care in 2021 where the court concluded that the phrases “personally seen” in section 11(5) MHA and “personally examined” in section 12(1) require physical attendance on the patient.
This decision clearly has its drawbacks.
It will now be necessary for mental health providers to review policy and procedures surrounding the detention and care of patients under the MHA to ensure they are in line with the law, given that remote assessments of patients for renewal of detention, CTO or guardianship is no longer lawful.
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