SPOTLIGHT

A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

Remote assessments and MHA renewals

The High Court has ruled out remote assessments for Mental Health Act renewals. Alex Ruck Keene KC (Hon) explains why.

In Devon Partnership NHS Trust v SSHC [2021] EWHC 101 (Admin), handed down on 22 January 2021, the Divisional Court held that “the phrases “personally seen” in s. 11(5) MHA 1983 and “personally examined” in s. 12(1) require the physical attendance of the person in question (i.e. the doctors and the Approved Mental Health Professional) on the patient.

In Derbyshire Health Care NHS Trust v SSHC & Others [2023] EWHC 3182 (Admin), Lane J has held that, despite somewhat different language being used, the same approach applies to renewing detention, CTOs and guardianship.

The Trust sought declarations that:

  1. The responsible clinician is not required to undertake a face-to-face examination of the patient before making a community treatment order (“CTO”) under section 17A(1);
  2. The word “examine” in section 20A(4) should not be interpreted as meaning a face-to-face examination, so that a remote examination of the community patient by the responsible clinician before the latter extends the CTO may be sufficient; and/or
  3. The word “examine” in section 20(3) and (6) 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 renews the authority for detention for hospital treatment of a patient under section 3 or guardianship in the community under section 7, may be sufficient.

Lane J declined to make the first declaration sought because it had not arisen on the facts of the actual case before him, which (in a slightly complicated fashion) involved an interested party who had been placed on a CTO following personal examination, and then remotely renewed during COVID. Lane J observed that he “should not be taken as in any way questioning the fact that, in the light of Devon, there is uncertainty in respect of section 17A. This Court must, however, resist the temptation to venture outside the limits of its ability to give sound and effective declaratory relief” (paragraph 82). 

In relation to the second and third declarations, Lane J effectively transposed the reasoning from Devon to the renewal situation. In response to a submission that the word “examine” could be subject to an updating construction, he identified at paragraph 112:

on the state of the evidence, the claimant cannot show that there is the necessary societal consensus that an examination conducted by telephone or video conferencing will always be of the same high quality as one involving the physical co-location of clinician and patient. As I have sought to explain, Parliament’s intention was to demand, as a general matter, an examination of such quality. Accordingly, the claimant cannot rely upon the “updating” or “always speaking” principle of statutory construction as a reason for this court to grant the remaining two declarations.

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.