It is unlawful for approved mental health professionals (AMHPs) to use video assessments for applications to detain people the Mental Health Act 1983 (MHA), the High Court has ruled.
The judgment, published last week, stated that AMHP assessments and examinations by doctors to support an application to detain under the MHA required practitioners’ physical presence. This overturns NHS England legal guidance permitting video MHA assessments by AMHPs and doctors during the pandemic and may require professionals to reassess people detained under the act on the basis of video assessments.
Devon Partnership NHS Trust brought the case to challenge the guidance – drafted by NHS England and the Department of Health and Social Care – on the grounds that it was insufficiently clear and did not provide certainty to practitioners.
What the law says
Under the MHA, detention under sections 2 and 3 is normally based on two medical recommendations and an application by an approved mental health professional (AMHP). Section 11(5) provides that an application by an AMHP cannot be made “unless that person has personally seen the patient within the period of 14 days ending with the date of the application”. In addition, section 13(2) imposes on the AMHP an obligation to “to interview the patient in a suitable manner”. Section 12 provides that the medical recommendations required “shall be given by practitioners who have personally examined the patient”. The MHA code of practice provides that a medical examination for these purposes must involve “direct personal examination of the patient and their mental state”. Those exercising functions under the MHA are obliged to follow the code unless there is a cogent reason to depart from it (R (Munjaz) v Mersey Care NHS Trust  UKHL 58). The references to “personally seen” in section 11(5) and to “personally examined” in section 12 date back to the 1959 Mental Health Act and were then replicated in the 1983 act. Community Care Inform Adults users can find out more by reading our section-by-section guide to the MHA.
The nub of the case was that the Mental Health Act requires that AMHPs applying for a person to be detained must have “personally seen” the person in the two weeks prior to the application, and that doctors providing the required medical recommendations for the application must have “personally examined” the person.
The NHS England legal guidance on how mental health services should respond to the pandemic was revised in May to include a section on the use of digital technology for the purposes of MHA assessments during the pandemic, which 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 a 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 guidance set out that a video assessment could be considered where:
- There was “significant risk of harm via transmission to the person and/or staff”, and
- “Significant risk of harm due to the delay of assessment and/or subsequent intervention”, and
- “The minimum quality standards and safeguards are met to ensure that a meaningful and high-quality assessment can occur in a safe environment”.
It further said that it would be difficult for minimum quality standards to be achieved in a community setting, including the home, so this should only be done in exceptional circumstances.
’Lack of clarity’ for practitioners
The trust’s counsel, Fenella Morris QC, said Devon had, like other trusts, with one exception, adopted a cautious approach to the guidance and only used a video assessment once. Explaining the trust’s case, she said the guidance, while giving a view as to the lawfulness of video assessments, “expressly steps back from providing certainty on the issue to professionals and the public”.
She added: “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 [of] 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….”
It brought the case to ask the court whether the provisions in the MHA requiring a person to be personally examined by section 12 doctors or personally seen by an AMHP could be fulfilled remotely.
Get a full analysis of the case
Community Care Inform Adults users can read a full analysis of the case, drawing out its implications for practice, written by legal editor Tim Spencer-Lane.
Counsel for the secretary of state for health and social care, James Cornwell, said the phrases “personally examined” and “personally seen” should be given their ordinary meaning and did not require the doctor or AMHP to be in the physical presence of the person being assessed or examined. Drawing on case law, and the history of mental health legislation, he said “personally” referred to the fact that the assessment needed to be carried out by the professional concerned, not delegated to anyone else.
MHA assessments ‘require physical attendance’
However, in its judgment, the court said the act’s construction required that AMHPs and doctors conduct their assessments in the physical presence of the person, on the grounds that:
- Where a law authorises the deprivation of a person’s liberty without recourse to the courts (“administrative detention”), the powers are to be construed “particularly strictly”.
- Parliament in 1959 and 1983 would have understood the medical examination of a patient as necessarily involving the physical presence of the examining doctor, confirmed by the fact that a psychiatric assessment may often depend on much more than simply listening to what the patient says but on picking up cues through body language or carrying out a physical examination.
- The statutory history of the words used in the MHA (dating back to the nineteenth century) shows that they were intended to be “restrictive and circumscribed”, to address the problem of doctors certifying people as liable to detention without having seen them.
- The fact that the code of practice requires physical attendance and NHS England’s Covid guidance makes clear that in person examinations are always preferable shows that medical examinations should ideally be carried out face-to-face. The decision whether to allow video conferencing involves balancing the need to ensure objective evidence to justify deprivation of liberty and maintaining the system of MHA detention during a pandemic, which is a matter for Parliament, not the courts.
- The use of video conferencing could remain in force for some time after the end of the current pandemic. Again Parliament, and not the courts, can best address these matters, including by considering whether the changes should be time limited.
Giving judgment, Dame Victoria Sharp, P. and Mr Justice Chamberlain said: “For these reasons, we conclude 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. We accordingly refuse the declarations sought. 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.”
In the light of the judgment, NHS England has removed the section on video assessments from the guidance.
‘Powerful legal and ethical reluctance’
Widespread anxiety about using video assessments was apparent following a survey of 100 AMHP leads across England during September 2020, with the findings revealing “powerful legal and ethical reluctance to use digital methods”.
While 61 respondents (58%) reported having used digital technology, 20 specified that they were only used in relation to community treatment orders (CTOs), rather than in relation to admission to hospital. Only a small number of respondents felt that these assessments worked well.
Steve Chamberlain, chair of the AMHP leads network, said the judgment has pleased many people because “it’s supported their own professional views”.
“We are looking at taking away peoples liberty and you need to be very careful about reducing the robustness of assessments [and] I think it’s a “very sensible” decision in saying: ‘the words are the words [in the MHA] and it’s up to Parliament to make these decisions’.”
The judgment does not specify whether any assessment done since May where one of the required assessors was not present was illegal or not, or whether they should be redone
“Nobody has come out and said one or the other, the advice that’s coming out from everyone is get your own legal advice and approach your own legal advisors until there is authoritative central guidance,” said Chamberlain. “Their own local authority or trust needs to come to their own view.”