Devon Partnership NHS Trust v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp, P.,Mr Justice Chamberlain |
| Judgment Date | 22 January 2021 |
| Neutral Citation | [2021] EWHC 101 (Admin) |
| Docket Number | Case No: CO/2408/2020,CO/2408/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2021 |
[2021] EWHC 101 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Mr Justice Chamberlain
Case No: CO/2408/2020
and
Fenella Morris QC (instructed by Browne Jacobson LLP) for the Claimant
James Cornwell (instructed by the Government Legal Department) for the Defendant
Jonathan Auburn (instructed by the Government Legal Department) as Advocate to the Court
Hearing dates: 13 January 2021
Approved Judgment
Dame Victoria Sharp, P. and
This is the judgment of the Court to which both members have contributed.
The Devon Partnership NHS Trust (“the Trust”) is the body responsible in its area for the employment and provision of medical practitioners whose recommendations are required by the Mental Health Act 1983 (“MHA”) for the detention or reception into guardianship of patients suffering from mental disorders.
Section 2 of the MHA provides for a patient to be admitted to a hospital and detained there for assessment. Section 3 provides for admission and detention for treatment. Section 4 provides for admission for assessment in cases of emergency. Section 7 provides for applications for guardianship. In each case, the application can be made either by the patient's “nearest relative” or by an approved mental health professional (“AMHP”): see s. 11(1). In the case of detention under ss. 2 and 3 and guardianship, the application is to be “founded on the written recommendations in the prescribed form of two registered medical practitioners”. In the case of emergency admission under s. 4, the application can be founded on one such recommendation.
Section 11(5) of the MHA provides that no application for admission for assessment, admission for treatment or guardianship is to be made by any person in respect of a patient “unless that person has personally seen the patient within the period of 14 days ending with the date of the application”. Where an application for admission to hospital is made by an AMHP, s. 13(2) imposes on him or her the obligation to “to interview the patient in a suitable manner”. Section 12 of the MHA provides that the medical recommendations required “shall be given by practitioners who have personally examined the patient”.
Until the start of the COVID-19 pandemic in early 2020, these provisions had generally been understood as requiring the person making the application in accordance with s. 11(5) to visit the patient in person and interview them face-to-face and the medical practitioner acting under s. 12(1) to visit the patient in person and examine them face-to-face. The Code of Practice issued by the Secretary of State under s. 118 of the MHA, 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 as a matter of public law to follow the Code of Practice absent a cogent reason to depart from it: R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148.
Just after the start of the first “lockdown”, on 30 March 2020, NHS England issued a document entitled Legal guidance for mental health, disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic (“the Guidance”). It offered specific advice and guidance on areas which are “posing a particular challenge as a result of the pandemic and where temporary departures from the Code of Practice may be justified in the interests of minimising risk to patients, staff and the public”. The Guidance was revised in May 2020 to include a section, drafted jointly by NHS England and the Secretary of State, headed “Application of digital technology to Mental Health Act assessments”. It said this:
“ This guidance has been prepared for use in the pandemic only. The MHA makes it a legal requirement that doctors must “personally examine” a person before recommending that they be detained, and that an Approved Mental Health Professional (AMHP) must have “personally seen” the person before applying for a detention.
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.
…
Even during the COVID-19 pandemic it is always preferable to carry out a Mental Health Act assessment in person. Under specific circumstances where this cannot happen (see below) it is possible for video assessments to occur. Decisions should be made on a case-by-case basis and processes must ensure that a high-quality assessment occurs.”
The Guidance then sets out:
(a) “Situations where a video assessment can be considered” (where there is “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”);
(b) “Minimum standards and safeguards” (including that, “[t]hroughout the process, staff, as well as the person and their carer (if appropriate), should be confident with the quality of the video assessment and that it meets the requirements of the MHA”); and
(c) “Specific considerations by setting” (including that it is “likely that the minimum quality standards will be difficult to achieve in a community setting. Therefore, video assessments should only be considered in community (home) settings in exceptional circumstances…”).
For the Trust, Ms Fenella Morris QC told us that the Trust had made use of video technology to carry out an examination for the purposes of detention on only one occasion and that, with one exception, other Trusts had taken a similarly cautious approach. At paras 7–8 of her skeleton argument, Ms Morris said this:
“7. Whilst this Guidance approved the use of remote assessments in some circumstances and expresses a view as to their lawfulness, it expressly steps back from providing certainty on the issue to professionals and the public. Its ambivalence is highlighted by its insistence that it only applies during the COVID-19 pandemic, and upon the very limited circumstances in which it envisages that a remote assessment might be lawful.
8. 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 are 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….”
In these circumstances, the Trust has brought this claim under CPR Pt 8 seeking the following declarations from the Court (as modified at the suggestion of the Secretary of State):
“a. The requirement under s.12 MHA that a medical practitioner has ‘personally examined’ a patient before completing a medical recommendation in support of the patient's detention in hospital may be fulfilled by the medical practitioner examining the patient remotely should that be deemed sufficient to fulfil the requirements of the MHA in the circumstances of that case in the professional judgement of the medical practitioner applying the Guidance.
b. The requirement of s. 11(5) MHA that a person making an application for a patient's detention in hospital has ‘personally seen’ the patient within the period of 14 days ending with the date of the application may be fulfilled by the person having ‘seen’ the patient remotely should that be deemed sufficient to fulfil the requirements of the MHA in the circumstances of that case in the judgement of the person concerned applying the Guidance.”
The original claim and skeleton argument provided examples of the remote technology envisaged: Skype, Microsoft Teams, Zoom, WhatsApp and FaceTime.
Ms Morris set out the arguments for the declaration she sought in an appropriately balanced way, drawing proper attention to the possible contrary arguments. The Secretary of State agrees that the declarations sought should be made and, through Mr James Cornwell, made separate submissions as to the proper interpretation of s. 11(5) and 12(1) of the MHA. As the Claimant and Defendant were ad idem as to the result, Mr Jonathan Auburn was appointed as Advocate to the Court to ensure that all possible arguments were before us. We are grateful to all counsel for their impressive research, including into the history of the relevant statutory provisions, and for their excellent written and oral submissions.
The power to issue a declaration
In general, the court does not give advisory opinions on questions of statutory construction. In exceptional cases, however, there is power to issue a declaration as to the construction of an enactment in the abstract where three...
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