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Court says video assessments unlawful

We have updated this briefing with guidance from NHS England since we first published it on 25 January 2021.

On 22 January 2021 the court handed down judgement in the case of Devon Partnership NHS Trust v S of S for HSC [2021] EWHC 101. A case with potentially wide ramifications where patients have been detained under the Mental Health Act based on video assessments.

The court had been asked to provide advice on whether the guidance permitting applications for MHA detention and medical recommendations to be provided by video assessment was lawful. This guidance from NHS England had confirmed that although face-to-face assessments were preferable, if this could not be done during the pandemic (and the basis for this not being possible was set out in the guidance) then it could be done by the video assessment.

The court held that the Mental Health Act had to be construed strictly and that the references to “personal examination” required a personal face-to-face assessment. Therefore, the suggestion in the guidance to permit a video assessment was not sustainable.

This clearly raises questions regarding the lawfulness of the detention of anyone where an application for detention and/or medical recommendation has been other than by personal examination. It would seem that unless section 15 (2) can be relied upon to rectify within the 14 day statutory period, the patient should be sectioned afresh as soon as possible (assuming the clinical need remains).

Does the same apply to renewals? The wording of the Act there is different. The MHA refers only to “examination”, not “personal examination”. If the Act is to be construed strictly as the court said, then this different wording may suggest that the position is different.

That said NHS England has issued guidance stating:

  • 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.

Immediate action required:

  • 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.

NHSE has obviously taken the view that all assessments for detention and renewals, including CTO renewals must be in person, regardless of whether there is a distinction to be made. Thus the safest course would be to adopt that approach.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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