Remote assessments and coronavirus

During the coronavirus pandemic the Department of Health and Social Care published guidance stating that remote MHA assessments by doctors and AMHPs were possible, but the High Court disagreed and held that the assessors must physically be present: Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin).

The court case concerned admissions under s2, 3, 4 and 7, but the DHSC have encouraged a precautionary approach which applies the principle to other situations in which the clinician or AMHP is required to ‘examine’ or ‘see’ the patient (NHS England, 'Further legal advice on remote MHA assessments' (3/2/21)). ADASS/LGA have also issued advice to directors of adult social services and AMHPs.

The tribunal subsequently issued guidance (Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21)). If tribunal proceedings began in relation to an unlawful section (based on a remote assessment) but the patient now is on a new section and wishes the hearing to go ahead, the tribunal is likely to strike out the initial application/reference but facilitate the patient in making a new application.

Subsequently in Derbyshire Healthcare NHS Foundation Trust v SSHSC [2023] EWHC 3182 (Admin) the High Court decided that remote assessments are insufficient for renewal of s3, guardianship or CTO (though the declined to express an opinion in relation to initial discharge onto CTO).

NHS pre-Devon guidance documents

These versions of the guidance document are listed in chronological order. These are the guidance documents that led to the remote assessments happening in the first place.

NHS guidance on MH law during coronavirus pandemic. NHS, 'Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic' (v2, 19/5/20) — "This guidance provides advice and support to commissioners (clinical commissioning groups [CCG] and specialised commissioning), providers (CCG commissioned and specialised commissioned), health care professionals, social workers, Approved Mental Health Professionals, local authorities, experts by experience, clinical experts, and independent chairs for Care and Education and Treatment Reviews, as well as regional NHS England and NHS Improvement colleagues, to help with the local planning already underway. The guidance will also be helpful for other individuals and partner organisations, involved in the pathways of care, for people with mental health needs, a learning disability and/or autism, including police, prisons and Immigration Removal Centres (IRCs)." The main headings are: (1) Introduction; (2) Key messages; (3) The Mental Health Act 1983 and the emergency Coronavirus Act; (4) Operational considerations for use of the MHA; (5) Guidance on using the Code of Practice during the COVID-19 pandemic period; (6) The Mental Capacity Act; (7) The Care Act; (8) Specific considerations regarding restraint, restrictive practice and the management of people who refuse to isolate; (9) Escorting patients detained under the MHA, including those on Restriction Orders (Sections 41 and 49 MHA) to and from acute general hospitals; (10) Specific considerations for specialised commissioned services; (11) Specific considerations for learning disability and autism services; (12) Specific considerations for people with dementia; (13) Specific considerations for mental health, learning disability and autism and the Criminal Justice System; (14) Application of digital technology to Mental Health Act assessments; (15) Annexes: (Annex A) Resources that have been developed to support practice in mental health; (Annex B) Mental Health Casework Section; (Annex C) COVID-19 - Escorting patients detained under the Mental Health Act (MHA) including those on Restriction Orders (Sections 41 and 49) to and from acute general hospitals; (Annex D) Guidance on using the Code of Practice during the pandemic period: (a) Section 136 assessment; (b) Approved Mental Health Professionals (AMHPs) and responsibilities of Local Authorities; (c) The role of hospital managers’ panel; (d) Mental Health Tribunal Hearings; (e) Medical Reviews of Seclusion; (f) Section 17 leave and visitors; (g) Access to Independent Mental Health Advocates (IMHAs); (h) Second Opinion Appointed Doctors service; (i) Electronic forms and electronic delivery; (Annex E) Checklist to support decision in line with the minimum standards and safeguards on the application of technology to the MHA assessments. Superseded by: NHS, 'Legal guidance for services supporting people of all ages during the coronavirus pandemic: Mental health, learning disability and autism, specialised commissioning' (v3, 30/11/20).
NHS guidance on MH law during coronavirus pandemic. NHS, 'Legal guidance for services supporting people of all ages during the coronavirus pandemic: Mental health, learning disability and autism, specialised commissioning' (v3, 30/11/20) — This document's table of contents highlights changes since the previous version to the following headings (though there are also changes elsewhere): (2) Key messages; (3) The MHA 1983 and the emergency Coronavirus Act; (8) Specific considerations regarding restraint, restrictive practice and the management of people who refuse to isolate; (Annex F) Annex F: Guidance on the testing and isolation of people of all ages in in mental health, learning disability, autism, dementia and specialist inpatient facilities during the coronavirus pandemic. Superseded by: NHS, 'Legal guidance for services supporting people of all ages during the coronavirus pandemic: Mental health, learning disability and autism, specialised commissioning' (v4, 25/1/21).

The Devon case

"Personally seen" and "personally examined" require physical presence. Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin) — In this case the Trust sought declarations that the s12 requirement that a medical practitioner must have "personally examined" a patient before completing a medical recommendation and the s11 requirement that an AMHP must have "personally seen" the patient before making an application (both requirements being in relation to s2, 3, 4 and 7) could be met by remote means, as suggested in NHS, 'Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic' (v2, 19/5/20). (1) The High Court agreed to give an advisory opinion on statutory construction in this exceptional case, as there was a real (not hypothetical or academic) question, the Trust had a real interest in it, and the court had heard proper argument. (2) The High Court decided that both phrases require the physical attendance of the person in question on the patient, because of the following six considerations: (a) in this country, powers to deprive people of their liberty are generally exercised by judges and where, exceptionally, statute authorises administrative detention the powers are to be construed particularly strictly; (b) splitting up the compound phrases into individual words fails to capture their true import as understood when enacted; (c) Parliament understood the medical examination as necessarily involving physical presence (confirmed by the word "visiting" used elsewhere, and the fact that psychiatric assessment may involve a multi-sensory assessment); (d) it is not appropriate to apply an "updating construction", as the words were intended to be restrictive and circumscribed, and when enacted were understood as connoting physical presence; (e) medical examinations should ideally be carried out face-to-face (the Code of Practice and guidance both state this is preferable), and it is for Parliament to weigh up the competing interests (namely the need to ensure that administrative deprivations of liberty are properly founded on objective evidence and the need to maintain the system of MHA detention given the exigencies of the pandemic); (f) interpretation by the court would be applicable immediately and may remain in force for some time after the end of the current pandemic, but modification by Parliament could involve ongoing judgement on whether to bring them into force and whether to make them time limited.

Post-Devon guidance

NHS

NHS guidance on MH law during coronavirus pandemic. NHS, 'Legal guidance for services supporting people of all ages during the coronavirus pandemic: Mental health, learning disability and autism, specialised commissioning' (v4, 25/1/21) — This version has removed section 14 (Application of digital technology to MHA assessments) and Annex F (Guidance on the testing and isolation of people of all ages in in mental health, learning disability, autism, dementia and specialist inpatient facilities during the coronavirus pandemic) following the decision in Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin) that to act on the guidance would be unlawful. Some references to section 14 remain but can be ignored.
Remote MHA assessments. NHS England, 'Legal advice on remote MHA assessments' (26/1/21) — This email sets out advice on Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin) and "immediate action required" based on that advice: (1) "The ruling applies to Part II of the MHA only, and not Part III of the MHA. It applies to both new assessments for detention and section renewals (including CTO renewals). Individuals who are currently detained following a remote assessment will need to be reassessed in person, if ongoing detention is deemed necessary." (2) "Stop using remote methods for any new or ongoing assessments for detention or section renewals under Part II of the Act. All mental health providers should identify and reassess individuals who are currently detained under Part II of the MHA following a remote assessment as soon as possible, if ongoing detention is deemed necessary. We also recommend notifying people who were detained via remote assessment, but have since been discharged from their section, that this Court ruling has now passed." Updated guidance: NHS England, 'Further legal advice on remote MHA assessments' (3/2/21).
- NHSE advice following remote assessment decision. Andrew Parsons, 'Court says video assessments unlawful' (RadcliffesLeBrasseur, 28/1/21) — (1) This article discusses the advice in NHS England, 'Legal advice on remote MHA assessments' (26/1/21) which was given in light of the High Court decision in Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin).
Remote MHA assessments. NHS England, 'Further legal advice on remote MHA assessments' (3/2/21) — This guidance advises that (a) there be no further remote assessments for s2, s3 or s4 detention, or s7 guardianship, and that anyone subject to those sections as a result of a remote assessment be reassessed as soon as possible, and (b) providers and councils may wish to take a precautionary approach and stop all remote assessments and renewals where the clinician or AMHP is required to "examine" or "see" the patient (including s136, and renewals of s3, s7, s37 and CTOs) and should seek their own legal advice if they have further concerns.

ADASS/LGA

Remote assessment guidance. ADASS and LGA, 'Briefing on the implications of the Devon case for Local Authorities and the AMHPs they approve and/or authorise' (16/3/21) — This document contains guidance under the following headings: (1) Implications for detentions under s2, s3 or s4 in which video technology was used; (2) Implications for those made subject to guardianship using a video assessment; (3) Decisions around discharging someone from s3 onto a Community Treatment Order (CTO); (4) Decisions to extend guardianship or CTO under s20/s20A of the MHA; (5) s136 and the use of video interviews.

Mental Health Tribunal

Devon case tribunal guidance. Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21) — If tribunal proceedings began in relation to an unlawful section (based on a remote assessment) but the patient now is on a new section and wishes the hearing to go ahead, the tribunal is likely to strike out the initial application/reference but facilitate the patient in making a new application. The guidance focusses on the patient making an application, rather than seeking a reference to preserve the right to make a later application (see Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21) for the ability to seek an urgent reference in another context).

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