Are remote assessments lawful under the Mental Health Act?

28th January 2021

We look at a recent case that determines if remote assessments by Approved Mental Health Professionals (AMHP) are lawful under the Mental Health Act (MHA). 

In Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin), the Trust sought declarations that the requirement in s.12(1) of the MHA that a medical practitioner must have “personally examined” a patient before completing a medical recommendation and the s.11(5) requirement that an AMHP must have “personally seen” the patient before making an application 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) (“the Guidance”).

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”. Similar guidance can be found in the Code of Practice for Wales.

The Trust told the 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. The Trust argued that:

Whilst this Guidance approved the use of remote assessments in some circumstances and expresses a view as to their lawfulness, it expressly steps back from providing certainty on the issue to professionals and the public. Its ambivalence is highlighted by its insistence that it only applies during the COVID-19 pandemic, and upon the very limited circumstances in which it envisages that a remote assessment might be lawful.

Medical practitioners, and their employers are concerned about the lack of clarity in the law that governs 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….

The Trust therefore sought the following declarations from the Court:

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 judgment

In an extensive judgment, the Court concluded the phrases “personally seen” in s. 11(5) and “personally examined” in s. 12(1) require the physical attendance of the person in question on the patient. The Court accordingly refused the declarations sought. The Court ended its judgment as follows:

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.

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