“Personal examination” and the MHA – FAQs following the Devon judgment

This is an updated version of the post first published on 26 January 2021.  I need to emphasise that what is set out below is not legal advice on the facts of any individual case; I cannot give such advice unless instructed to do so by a solicitor.

What did the court find?

NHSE and the DHSC had published guidance in November 2020 which had indicated that they considered that the provisions of the MHA allowed for video assessments to occur for purposes of making medical recommendations in relation to admission and for the AMHP making the application for admission.  That guidance made clear that only the courts could provide a definitive interpretation of the law. It also set out the circumstances under which they considered that such assessments could take place.

In Devon Partnership NHS Trust v SSHC [2021] EWHC 101 (Admin), handed down on 22 January 2021, the Divisional Court has held that “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.”

It does not appear that either the Trust or the DHSC intend to appeal.  Even if the DHSC does appeal, then as the court did not ‘stay’ its judgment, organisations should not proceed on the basis that there is any doubt as to the position – it would only be if an appeal court overturned the judgment and gave a different interpretation of the law that the position would change.

What should happen now?

No further remote assessments should be carried out, either by doctors making medical recommendations (s.12(1)) or the AMHP making the application for admission (s.11(5)).

The NHSE/DHSC guidance has now been amended to remove the relevant section –  it can be found here.

What about people who have been detained on the basis of remote assessments?

The judgment does not address this, but the logical implication of this is that the applications cannot properly have been made, such that fresh applications will have to be made in order lawfully to continue the detention if it is considered to required.

The judgment does not address the position in relation to whether claims for unlawful detention can be made in relation to patients who were detained on the basis of remote assessments, but it is important to note that even if a detention is unlawful because the correct procedure was not followed, this does not mean that the person will automatically be entitled to more than so-called nominal damages (i.e. £1).   If it can be shown that, at all times, they met the substantive criteria for detention, then it is very likely that they will not be able to show that they suffered any loss, required to establish a claim for substantive damages (see Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79).

Does the judgment have any implications in relation to Second Opinion Appointed Doctors?

Not directly, because the requirements in relation to SOADs in Parts 4 and 4A do not include the same statutory requirements for personal examination that the court was considering in the Devon case.  The CQC’s procedure for remote working in relation to SOADs (20 March 2020) remains in force.   The judgment, though, does serve as a reminder that the protections contained within the MHA are there for a reason, and deviations forced upon practitioners by the pandemic should always be justified.

Does the judgment have any implications for DoLS?

Not directly.  The MCA does not have any statutory requirement for face to face assessment for any part of DoLS.  That having been said, the judgment serves as a reminder of the importance of procedural protections relating to deprivation of liberty.  In this context, the DHSC’s Emergency MCA/DoLS guidance reminds practitioners that face to face to visits are an important part of the DoLS framework and “can occur if needed, for example to meet the person’s specific communication needs, in urgent cases or if there are concerns about the person’s human rights.”  However, the guidance also makes clear that “[d]ecisions around visiting are operational decisions and ultimately for the providers and managers of individual care homes and hospitals to make. DoLS professionals should work closely with hospitals and care homes to decide if visiting in person is appropriate, and how to do this safely. Visiting professionals should understand and respect their local visiting policies, including for individual hospitals and care homes.“

What about longer term implications?

The court in the Devon case made clear that it was:

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.

It is possible that Parliament might be asked to amend the MHA on a time-limited fashion (time-limited amendments were introduced in the Coronavirus Act 2020 in relation to other aspects of admission under the MHA, although they were never brought into force).   However, it is unlikely that this would or could happen in the very short term.

It should be noted that when the DoLS regime is replaced in due course with the LPS, there will be no requirement within Schedule AA1 to the MCA 2005 for face to face assessment.   We do not yet have the regulations relating to assessment, but unless they provide for face to face assessment (which, if they track DoLS, is unlikely) then the approach in relation to ‘mental capacity’ detention and ‘mental health’ detention will continue to be different.

What should happen now?

No further remote assessments should be carried out, either by doctors making medical recommendations (s.12(1)) or the AMHP making the application for admission (s.11(5)).   At the time of preparing this (26 January 2021) there is no indication that the Trust (who brought the application to get clarity as to the legal position) intends to appeal.   Even if the DHSC does appeal, then as the court did not ‘stay’ its judgment, organisations should not proceed on the basis that there is any doubt as to the position – it would only be if an appeal court overturned the judgment and gave a different interpretation of the law that the position would change.

The NHSE/DHSC guidance has now been amended to remove the relevant section –  it can be found here.

What about people who have been detained on the basis of remote assessments?

The judgment does not address this, but the logical implication of this is that the applications cannot properly have been made, such that fresh applications will have to be made in order lawfully to continue the detention if it is considered to required.

The judgment does not address the position in relation to whether claims for unlawful detention can be made in relation to patients who were detained on the basis of remote assessments, but it is important to note that even if a detention is unlawful because the correct procedure was not followed, this does not mean that the person will automatically be entitled to more than so-called nominal damages (i.e. £1).   If it can be shown that, at all times, they met the substantive criteria for detention, then it is very likely that they will not be able to show that they suffered any loss, required to establish a claim for substantive damages (see Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79),

Does the judgment have any implications in relation to Second Opinion Appointed Doctors?

Not directly, because the requirements in relation to SOADs in Parts 4 and 4A do not include the same statutory requirements for personal examination that the court was considering in the Devon case.  The CQC’s procedure for remote working in relation to SOADs (20 March 2020) remains in force.   The judgment, though, does serve as a reminder that the protections contained within the MHA are there for a reason, and deviations forced upon practitioners by the pandemic should always be justified.

Does the judgment have any implications for DoLS?

Not directly.  The MCA does not have any statutory requirement for face to face assessment for any part of DoLS.  That having been said, the judgment serves as a reminder of the importance of procedural protections relating to deprivation of liberty.  In this context, the DHSC’s Emergency MCA/DoLS guidance reminds practitioners that face to face to visits are an important part of the DoLS framework and “can occur if needed, for example to meet the person’s specific communication needs, in urgent cases or if there are concerns about the person’s human rights.”  However, the guidance also makes clear that “[d]ecisions around visiting are operational decisions and ultimately for the providers and managers of individual care homes and hospitals to make. DoLS professionals should work closely with hospitals and care homes to decide if visiting in person is appropriate, and how to do this safely. Visiting professionals should understand and respect their local visiting policies, including for individual hospitals and care homes.

What about longer term implications?

The court in the Devon case made clear that it was:

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.

It is possible that Parliament might be asked to amend the MHA on a time-limited fashion (time-limited amendments were introduced in the Coronavirus Act 2020 in relation to other aspects of admission under the MHA, although they were never brought into force).   However, it is unlikely that this would or could happen in the very short term.

It should be noted that when the DoLS regime is replaced in due course with the LPS, there will be no requirement within Schedule AA1 to the MCA 2005 for face to face assessment.   We do not yet have the regulations relating to assessment, but unless they provide for face to face assessment (which, if they track DoLS, is unlikely) then the approach in relation to ‘mental capacity’ detention and ‘mental health’ detention will continue to be different.

[1] Although see here for an argument that it may be possible to make the argument that renewals can be treated differently.

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