Text:ICLR [2023] WLR(D) 524
The WLR Daily case summaries
King’s Bench Division
Derbyshire Health Care NHS Trust v Secretary of State for Health and Social Care
2023 Oct 31, Nov 1; Dec 14
Lane J
Mental health— Patient— Examination— Statutory requirement for examination by responsible clinician before making of orders for community treatment, detention in hospital or guardianship in community— Whether statute requiring physical attendance of medical practitioner on patient— Whether relevant statutory provision subject to “updating construction” permitting remote examination by video-conferencing— Mental Health Act 1983 (c 20), ss 20(3)(6), 20A(4)
The claimant NHS trust sought declarations, inter alia, that: (i) the word “examine” in section 20A(4) of the Mental Health Act 1983 should not be interpreted as meaning a face-to-face examination (in the sense of physical attendance of the person in question on the patient), so that a remote examination of the community patient by the responsible clinician before the latter extended a community treatment order (made under section 17A) could be sufficient; and/or (ii) the same word in section 20(3) and (6) (as to the duration of authority for the detention in hospital or guardianship of a patient) 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 renewed the authority for detention for hospital treatment of a patient under section 3 or guardianship in the community under section 7 of the 1983 Act could be sufficient. In that regard, the claimant sought to distinguish case law dealing with section 11 of the 1983 Act (applications for compulsory admission to hospital for assessment, treatment and guardianship applications) and section 12 of that Act (general provisions as to medical recommendations) which established that the requirements of those section could not be met by seeing the patient remotely, the claimant’s case being that sections 17A–17G and 20A were different because they had been inserted by the Mental Health Act 2007 at a time when video-conferencing had become possible, which ought to be taken into account by adopting an “updating” approach to statutory construction.
On the claim—
Held, claim dismissed. The legislative language in sections 20 and 20A of the Mental Health Act 1983 arose from Parliament's concern that decisions extending a patient’s detention or imposing other forms of restriction on a patient’s liberty ought to be undertaken as effectively as possible. Such statutory provisions, which conferred on persons other than judges the power to restrict people’s liberty or to deprive people of their liberty, were to be construed particularly strictly. Given the importance of the examination in question, Parliament had not intended the nature of that examination to be any less generally effective than in the case of section 12. There was no consensus in 2023 (let alone 2007) that an examination conducted by remote means, such as a video call, would necessarily be of the same quality as an examination which involved the physical attendance of the responsible clinician and patient and, therefore, the claimant could not rely on the “updating” principle of statutory construction as a reason for construing sections 20 and 20A as permitting examination by such means. Accordingly, on a true construction of the statutory provisions, the word “examine” in sections 20(3)(6) and 20A(4) of the 1983 Act required the physical attendance of the medical practitioner on the patient, because a medical examination was to be understood as necessarily involving the physical presence of the examining doctor, notwithstanding that the relevant information could sometimes be obtained by different means or that there might, on occasion, be no relevant information to derive from such an examination (paras 85, 87, 89, 93–96, 109, 112, 117).
Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97B, 111E, PC, dicta of Lord Dyson MR in B (Algeria) v Secretary of State for the Home Department (No 2) [2016] QB 789B, para 32, CA and Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021] 1 WLR 2945B, DC applied.
Birmingham City Council v Oakley [2001] 1 AC 617B, HL(E), R (N) v Walsall Metropolitan Borough Council [2014] PTSR 1356 and Cumbria, Northumberland Tyne and Wear NHS Foundation Trust v EG [2022] COPLR 83 considered.
Fenella Morris KC (instructed by Browne Jacobson, LLP, Manchester) for the claimant.
Tom Cross (instructed by Treasury Solicitor) for the Secretary of State.
Victoria Butler-Cole KC (instructed by Hill Dickinson LLP) for the first interested party, NHS England.
Stephen Simblet KC and Ollie Persey (instructed by Cartwright King, Derby for the second interested party, PQR.
Roger Pezzani and Alex Schymyck (instructed by MIND) for the third interested party, MIND.
Catherine May, Solicitor
Referenced Legislation
Mental Health Act 1983 (c 20), ss 20(3)(6), 20A(4)