Remote Assessment & the Mental Health Act 1983 – remote technology cannot be used for CTOs, renewals of detention and guardianship orders

The Devon case: Part 2

In Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021] EWHC 101 (Admin) (22 Jan 2021), the Divisional Court held that “the phrases “personally seen” in s. 11(5) of the Mental Health Act 1983 and “personally examined” in s. 12(1) require the physical attendance of the person in question on the patient. This will be the AMHP for s.11(5) and the doctor for s.12(1).

In Derbyshire Health Care NHS Trust v Secretary of State for Health and Social Care [2023] EWHC 3182 (Admin) (14 Dec 2023), Mr Justice Lane was required to consider the implications of the Devon case for the provisions of the Act that deal with CTOs, renewals, and guardianship. The judge was asked to make the following declarations:

“1. The responsible clinician is not required to undertake a face-to-face examination of the patient before making a community treatment order (‘CTO’) under section 17A(1);

2. The word ‘examine’ in section 20A(4) should not be interpreted as meaning a face-to-face examination, so that a remote examination of the community patient by the responsible clinician before the latter extends the CTO may be sufficient; and/or

3. The word ‘examine’ in section 20(3) and (6) should not be interpreted as meaning a face-to-face examination, so that a remote examination of the patient by the responsible clinician before the latter renews the authority for detention for hospital treatment of a patient under section 3 or guardianship in the community under section 7, may be sufficient.”

The judge refused to make the first declaration. He said at para.55:

The judge accepted this argument but said that he “should not be taken as in any way questioning the fact that, in the light of Devon, there is uncertainty in respect of section 17A. This Court must, however, resist the temptation to venture outside the limits of its ability to give sound and effective declaratory relief” (para.82).

In relation to the second and third declarations, which relate to renewals, judge adopted the reasoning used in the Devon case and refused to make the declarations sought. In response to an argument that the word “examine” could be given a contemporary construction, the judge said at para. 112:

“In short, on the state of the evidence, the claimant cannot show that there is the necessary societal consensus that an examination conducted by telephone or video conferencing will always be of the same high quality as one involving the physical co-location of clinician and patient. As I have sought to explain, Parliament’s intention was to demand, as a general matter, an examination of such quality. Accordingly, the claimant cannot rely upon the ‘updating’ or ‘always speaking’ principle of statutory construction as a reason for this court to grant the remaining two declarations.”

On being informed by counsel that the medical member of the First-tier Tribunal can undertake a medical examination by a video call, the judge said:

“I do not consider that the claimant can derive any assistance from the procedures employed by the First-tier Tribunal in exercising its mental health jurisdiction. The fact that remote examinations may be undertaken by the medical member of that Tribunal says nothing about what Parliament intended when enacting sections 20 and 20A” (para.116).

The gist of the rulings made in this case is that remote technology cannot be used for renewals and that a further case is required before we know whether a face-to-face examination is required by the patient’s responsible clinician before a judgment can be made on whether the criteria in s.17A are satisfied.

If you need legal advice regarding the use of remote technology cannot be used for CTOs, renewals of detention and guardianship orders, or anything on the Mental Health Act 1983, please contact our specialist lawyers, Professor Richard M Jones or Eve Piffaretti.