In light of the Covid-19 pandemic, NHS England issued a guidance document which offered specific advice and guidance on areas which were posing a particular challenge as a result of the pandemic and indicating where temporary departures from the usual Code of Practice might be justified in the interests of minimising risk to patients, staff and the public. As revised in May 2020 the guidance included a new section on the use of digital technology in Mental Health Act assessments, which contemplated that, during the pandemic only, patients might be assessed remotely by means of video assessments. The claimant, as the body responsible in its area for the employment and provision of medical practitioners whose recommendations were required by the Mental Health Act 1983 for the detention or reception into guardianship of patients suffering from mental disorders, sought declarations that: (i) the requirement under section 12 of the 1983 Act that a medical practitioner should have “personally examined” a patient before completing a medical recommendation in support of the patient’s detention in hospital could be fulfilled by the medical practitioner examining the patient remotely, should that be deemed sufficient to fulfil the requirements of the 1983 Act in the circumstances of that case in the professional judgement of the medical practitioner applying the guidance; and (ii) the requirement of section 11(5) that a person making an application for a patient’s detention in hospital had “personally seen” the patient within the period of 14 days ending with the date of the application could be fulfilled by the person having “seen” the patient remotely, should that be deemed sufficient to fulfil the requirements of the 1983 Act in the circumstances of that case in the judgement of the person concerned applying the guidance.
On the claim—
Held, claim dismissed. Sections 11(5) and 12(1) of the Mental Health Act 1983 were to be construed particularly strictly since they set preconditions for the exceptional exercise of powers to deprive people of their liberty. The concept employed by section 12(1) of the 1983 Act, and the materially identical corresponding provisions of the Mental Health Act 1959 which had preceded it, was that of a medical examination, not merely a consultation. Parliament in 1959 and 1983 would have understood the medical examination of a patient as necessarily involving the physical presence of the examining doctor. That was confirmed by the fact that a psychiatric assessment might often depend on more than listening to the patient and might also involve a multi-sensory assessment and a physical examination to rule out differential diagnoses. This was not a case where an “updating” construction would be appropriate as the statutory wording was designed to be restrictive and circumscribed, rather than liberal or permissive. It had been inserted to address the particular problem in which doctors had certified patients as liable to detention without physically attending on them, the remedy fixed upon by Parliament being to require the examination to be carried out personally by the person whose recommendation was being relied upon. Further, the fact that the Code of Practice required physical attendance, and the Secretary of State’s guidance made it clear that in-person examinations were always preferable, showed that even today medical examinations ought ideally to be carried out face-to-face. As had been shown by amendments to the 1983 Act made pursuant to the Coronavirus Act 2020, where Parliament considered that the pandemic necessitated time-limited adjustments to the safeguards in the 1983 Act it was both willing and able to make such amendments. It was Parliament, and not the courts, that could best address the problems to which the pandemic gave rise in that area. For all those reasons, the phrases “personally seen” in section 11(5) of the 1983 Act and “personally examined” in section 12(1) required the physical attendance of the person in question (paras 36, 55–62).
Fenella Morris QC (instructed by Browne Jacobson LLP) for the claimant.
James Cornwell (instructed by Treasury Solicitor) for the Secretary of State.
Jonathan Auburn (instructed by Treasury Solicitor) as advocate to the court.