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Charlotte Davies (2007) examines the implications of Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021] EWHC 101 (Admin)

22nd February 2021

Charlotte Davies (2007) is a civil barrister and Fee Paid Judge of the First Tier Tribunal, sitting in the Health, Education & Social Care Chamber, hearing appeals in the Mental Health jurisdiction. In this article she examines the impact of the recent High Court decision which deemed remote examinations, undertaken for the purpose of detention under the Mental Health Act 1983, to be unlawful.

There has not been a single sector of society left unaffected by the impact of Covid-19, and mental health services are no different. Indeed, the impact of the pandemic on mental health has been globally recognised. But what of how our most vulnerable members of society - those patients that need detaining in hospital as a result of mental disorders which have put their own health or safety at risk, and/or the safety of others - have been dealt with since the terms “social distancing”, “shielding” and “remote working” became common parlance? Just as Zoom and Microsoft Teams have become part of our every working day, they have equally become one of the tools that those who work in mental health services have necessarily utilised to keep the system going.

However, the legality of using remote platforms in the context on mental health assessments remained unchallenged until Devon Partnership NHS Trust acted to seek declarations that remote examinations were sufficient to fulfil the requirements under the Mental Health Act. The fact that there was effectively no opposition to the position, with the Secretary of State agreeing with the Trust in seeking the declarations, meant the subsequent decision of the Court was all the more surprising.

On 22 January 2021 the High Court ruled that a doctor making a recommendation to detain a patient under sections 2, 3, 4 and 7 of the Mental Health Act needed to have “physically attended” upon the patient. This means that conducting an “examination” over video link was found to be insufficient, and a doctor needs to have “physically attended” the patient.

s.12(1) of the Act requires that a doctor must have “personally examined” the patient, and the view of the High Court was that examination via any form of technology could not be included within this definition, and the doctor and patient must have been in the same physical space.

Since March 2020, due to the outbreak of the Covid-19 pandemic, there has been a high number of examinations for this purpose carried out remotely. Many s.3 and Community Treatment Order renewals (which necessitate an “examination” by the Responsible Clinician under s.20(3) and s.20A(4) respectively) will also have been undertaken remotely.

NHS England issued urgent guidance on 27 January 2021 stating that the ruling applies to Part II of the MHA only, and not Part III; it applies to both new assessments for detention and section renewals (including CTO renewals); and individuals who are currently detained following a remote assessment will need to be reassessed in person, if ongoing detention is deemed necessary.

The guidance further stated that immediate action was required to stop using remote methods for any new or ongoing assessments for detention or section renewals under Part II of the Act; all mental health providers should identify and reassess individuals who are currently detained under Part II of the MHA following a remote assessment as soon as possible, if ongoing detention is deemed necessary; and it recommended notifying people who were detained via remote assessment, but have since been discharged from their section, that this Court ruling has now passed.

Further clarification was issued on 3 February 2021 in which NHS England stated that a court would find any such detention under 2, 3, 4 and 7 to be unlawful; that any patient subject to such a detention should be reassessed, in person, as soon as possible; and, stepping back from its previous guidance, that a “precautionary approach” should be taken to renewals and CTO extensions (these were not expressly covered by the decision of the High Court, but Responsible Authorities should seek their own legal advice as to the position).

As per NHS England guidance above, any detention, guardianship or CTO of a patient made by virtue of a remote examination will need to be reassessed, and any extension of a detention, guardianship or CTO is likely to require reassessment. Responsible Authorities are likely to be using s.5(2) in the short term in circumstances whereby it considers that detention is still required, and whilst waiting for a new MHA assessment. The pressure that Local Authorities will now be under to provide AMHPs to consider fresh applications is likely to be significant.

 

Whilst we wait for the Government to make remote assessments lawful, all MHA assessments will need to be done in person. With the vaccine roll-out well underway, and cases and deaths rapidly falling as a result of the current lockdown, it is hoped the difficulties this presents will be short-lived. However, there are likely to be circumstances whereby it remains difficult to arrange a fresh MHA assessment, and delays are likely to lead to unwell patients remaining in the community. Furthermore, patients whose CTO period has been extended unlawfully by way of remote assessment may well now have their CTO brought to an unsatisfactory and risky abrupt end.  It cannot be reinstated as a stand-alone assessment, and so a new detention under the MHA will need to be considered.

The potential issues that this decision has created, involving the most vulnerable amongst us, are clear.

In the meantime, the Mental Health Tribunal attempts to manage the fall-out of the decision. Urgent reassessments, and patients detained under ss.5(2) or 5(4) pending a new assessment, mean that the Tribunal will no longer have jurisdiction to consider the application it was convened to hear. Numerous cancellations, withdrawals, and late requests to postpone are anticipated.

We must hope that either we are indeed on the way out of the difficulties created by Covid-19, or the Government acts promptly to remedy the situation.

 

If you wish to discuss this, or any other case with Charlotte, please contact her clerk Jamie Kyte on 01752 221551 or jamie@kbgchambers.co.uk

 

Charlotte Davies

cdavies@kbgchambers.co.uk

February 2021

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Charlotte Davies (2007) examines the implications of Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021] EWHC 101 (Admin)