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Legal case

The court interprets the meaning of “personally seen” and “personally examined” for the purposes of the Mental Health Act 1983

Devon Partnership NHS Trust v Secretary of State for Health & Social Care & NHS Commissioning Board (2021)

Facts

In May 2020, NHS England revised its Guidance for ‘Mental health, learning disabilities and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic; 25 January 2021, (v.2 19/5/20)’, to include at section 14, guidance on the ‘Application of digital technology to Mental Health Act assessments’. It said,

“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 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.”

The Trust sought declarations that the requirements in section 11(5) MHA 1983 requiring the applicant to have “personally seen” the patient and section 12 MHA 1983 requiring the doctors to have “personally examined” the patient, which relate specifically to hospital admissions under sections 2,3,4 and guardianship under section 7, could be fulfilled by a patient being seen or examined remotely.  

The High Court declined to make the declarations sought.

Analysis

The court found the case law to be of little assistance here and felt that there were six considerations to be borne in mind:

  • It is for judges to deprive people of their liberty. Exceptionally, this power can be exercised by others, but where it is, their powers are to be construed strictly;
  • “Personally seen” and “personally examined” are compound phrases and should not be split for purposes of interpretation;
  • The MHA 1983 is a consolidating Act and sections 11 and 12 were taken from the earlier 1959 Act, so Parliament cannot have had the possibility of ‘virtual examinations’ in mind when drafting the legislation. It can only have been their intention to require physical attendance, as a doctor can glean much more information from a multi-sensory assessment facilitated by physical presence;
  • The history of the legislation, helpfully set out by counsel for the Secretary of State, Mr. Cornwell, showed that the language used by Parliament was restrictive and circumscribed because it was intended to avoid the specific mischief of doctors delegating and/or not attending on patients; and
  • Whilst Parliament had considered that the pandemic necessitated amendments to certain safeguards in the MHA 1983 and had addressed this via the Coronavirus Act 2020, Parliament had not chosen to address the safeguards with which the court was now concerned. Whilst this could be read either way, the court confirmed the view that it was Parliament, and not the courts, that could best address the problems arising from the pandemic in this area; and finally,
  • If the interpretation sought by the Trust was endorsed by the court, it would apply immediately and could remain in force for some time after the end of the current pandemic. The benefit of allowing any modifications to be made by Parliament was that, even if they were considered necessary, a judgement might be made not to bring them into force and Parliament could also consider whether they should be time-limited. Those techniques offered a more tailored way of addressing a time limited problem.

(see paras 56-61).

Conclusion

The phrases “personally seen” and “personally examined” require the physical attendance of the person(s) identified.

This means that for practitioners seeking to make an application under section 11 MHA 1983, or for doctors required to make medical recommendations under section 12 MHA 1983 attendance in person will be required, if any subsequent detention is to be lawful.

For those who may have already been detained, based on a remote/virtual assessment or recommendation, no guidance is given, it is not addressed by the judgement at all. It must however follow that their applications cannot have been properly made and this will need to be addressed by another application if continued detention is required.

The court was very sympathetic to the difficulties this would present but concluded that this would be for Parliament to resolve.

Parliament is currently consulting on ‘Reforming the Mental Health Act’, It is important that those with a working knowledge of the Mental Health Act, feed into the consultation, helping to shape the reforms. If you feel that technology could be appropriately used to assist with the assessment and detention process, please share your views.

The white paper can be found online and consultation responses can be submitted. The consultation will continue until spring 2021 and a draft Mental Health Bill will be shared next year.

 

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