The Devon decision and remote examination: where to go from here?

When the decision in Devon Partnership NHS Trust v SSHC [2021] EWHC 101 (Admin) came out on 22 January 2021 we said “Don’t Panic”. Further analysis and feedback from clients suggests there is cause for, if not panic, then some concern about the implications. In particular, there is a cohort of patients on renewed CTOs whose outcomes may be adversely affected.

The following comments are generic and should not be taken as specific advice for individual cases. It is worth noting that the case itself is an “exceptional” declaration on statutory interpretation rather than being based on the circumstances of the detention of a particular patient.

The Mental Health Team at Hempsons would be happy to advise on any individual cases or the general approach being taken by any provider.

“The Act” is the Mental Health Act 1983 and all references to sections (“s” or “ss”) are to sections of that Act unless otherwise stated.

Overview of the Judgement

Four points are worth noting:

• The Court noted the MHA is about interference with personal liberty and should be interpreted narrowly i.e. interference should not be allowed unless it is very clear that it is permitted;
• When “personally examined” was originally used and subsequently retained in the 1983 Act Parliament would have understood an examination to be a direct personal examination. It is not appropriate for the Courts to “update” legislation, especially legislation restricting personal freedoms. If that is to be done it should be done by Parliament;
• Even today the Code of Practice makes it clear that direct personal examination is always the preferable method of examination;
• The key phrases are “personally seen” in s11(5) and “personally examined” in s12(1), they are compared to the use of the word “visit” in other sections of the Act, which must mean a direct personal interaction. The Court said the difference in language does not connote a difference in meaning.

Taking all those matters together we think anyone should be very cautious about seeking to contrast other wording in other parts of the Act to suggest video is acceptable for an examination or review.

Recommendation from this point forward

Our strong recommendation is that all examinations, assessments or reviews under the Act should be done by direct physical attendance of the person making the examination etc. on the patient. Such direct examination under pandemic conditions will have to be safe both in general terms and specifically in relation to infection control.

If there are examples of situations where any type of assessment was not routinely conducted face to face prior to the pandemic we recommend you discuss that with your lawyers unless the Code of Practice makes it clear that face to face interaction is not required.

The Case

The case is unusual because it considers the interpretation of the words of the Act in the abstract i.e. not based on any specific set of factual circumstances.

The case deals directly with detention under s2, s3, s4 and Guardianship. It analyses the phrases “personally seen” in s11(5) (persons making the application) and “personally examined” in s12(1) (practitioners making medical recommendations). This limited analysis turns out to be a problem because it leaves us without direct judicial comment on other parts of the Act with similar, but not exactly the same, wording.

Declarations were being sought from the Court that the requirements of the phrases used in those sections could be met through the use of remote technology, examples given were Skype, Microsoft Teams, Zoom, WhatsApp and FaceTime.

The Court said, at paragraph 62:

“For these reasons, we conclude that the phrases “personally seen” in s. 11(5) and “personally examined” in s. 12(1) require the physical attendance of the person in question on the patient. We accordingly refuse the declarations sought.”

In reaching this conclusion the Court did not agree with the updated Guidance from NHS England in May 2020, which suggested remote video examination would be sufficient to meet the requirements of the Act: “Legal guidance for mental health, disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic” – section on “Application of digital technology to Mental Health Act assessments”. The Guidance had been qualified, saying:

“While NHS England and NHS Improvement and DHSC are satisfied that the provisions of the MHA do allow for video assessments to occur, providers should be aware that only courts can provide a definitive interpretation of the law.

…

Even during the COVID-19 pandemic it is always preferable to carry out a Mental Health Act assessment in person. Under specific circumstances where this cannot happen (see below) it is possible for video assessments to occur. Decisions should be made on a case-by-case basis and processes must ensure that a high-quality assessment occurs.”

The Court has now spoken and the conclusion is that the NHS England, NHS Improvement and the DHSC were wrong in their previous interpretation.

In reaching its conclusion the Court adopted a very narrow interpretation, which it justified by reference to the following key points (summarised):

• Powers to deprive people of their liberty are to be construed particularly strictly (paragraph 56);
• Splitting the phrases up to ask what “examined” or “seen” means and then what “personally” adds would be an artificial exercise failing to capture the true import of the phrases as they would have been understood in 1959 and 1983, when they were used in legislation (paragraph 57);
• The concept of examination would have been understood by Parliament as necessarily involving the physical presence of the examining doctor. Importantly: “It is no answer to say that it should be up to the examining doctor to decide when physical attendance is necessary, because without the cues that could only be picked up from a face-to-face assessment, the doctor might wrongly conclude that physical attendance was not required” (paragraph 58);
• It is not appropriate to apply an “updating construction” on the wording (paragraph 59;
• In person examinations are always preferable (supported by the Code of Practice and the Guidance above). Parliament could have amended the provisions through the Coronavirus Act 2020 but did not;
• Any broader construction of the statutory provisions by the Court would apply immediately and continue beyond the pandemic. Parliament could make amendments that can be brought into and taken out of force and that are time limited overall. Parliament and not the Courts is best placed to address the problems arising from the pandemic.

Impact on detentions and related issues during the pandemic

Initial Detention

Although not discussed in the judgement the effect must be that any detention under s2, s3, s4, or any application for Guardianship, is fundamentally flawed and invalid where either of the medical recommendations, or the discussion with the patient by the applicant (almost always the AMHP), have been conducted by video and not face-to-face. A video discussion does not satisfy the requirement for the patient to be personally seen and examined so the requirements of the Act have not been met.

Any such invalid detentions should lead to a re-assessment and if required the section should be re-done. A new s3 will automatically replace any previous section – see s6(4). It is common to formally discharge the original section, even if it is fundamentally flawed, this has the advantage of making it clear on the face of the documentation that the first section has definitely ended and a fresh section is in place. See also paragraph 35.13 of the Code of Practice.

Where the “invalid” section was under s2 we recommend the patient is either discharged or re-sectioned under s3 if at all possible. It is not ordinarily permissible to have a s2 follow directly on from a s2. It is arguable that if the invalid s2 is void for the fundamental flaw then it never legally existed. However, the patient will, in fact, have already been detained for a period. Therefore, where it is thought to be necessary that the patient remains in hospital for assessment, and will not stay voluntarily and there is not sufficient basis for a s3, a new s2 application should be made (obviously that is up to the AMHP) but we strongly recommend that the patient’s assessment is completed within what would have been the original 28 day period and the patient is then either discharged or put on a s3 i.e. the total time (over both section 2s) the patient is in detention should not exceed 28 days. Such cases may be subject to challenge but we suggest it is better to argue the new s2 is valid, if in fact a challenge is brought, and potentially be found to be wrong, than to discharge a patient who does need to be assessed in hospital.

Conversion from s2 to s3

Where a patient was originally detained under a now fundamentally flawed s2 BUT that was (or is) converted to a s3 and all the assessments/examinations for the s3 were/are done in person and not remotely then the s3 will be valid. The invalidity of the original s2 does not taint the valid s3.

SOADs

There is no statutory requirement for a SOAD to examine the patient. Section 119 says the SOAD “may” visit and examine the patient i.e. if they want to, they must be allowed to but it is not required. SOAD certificates are therefore probably not affected by this judgment. Arrangements can continue in the way set out in the CQC’s letter of 20 March 2020: COVID-19: Interim Methodology for Second Opinions. The CQC may, of course, choose to change or end the practice set out in that letter.

Creation of CTOs

There are two issues with the creation of a CTO.

First, there is no statutory requirement for the patient to be “personally examined” by the RC making the CTO nor “personally seen” by the AMHP agreeing to the CTO. Some discussion with the patient seems inevitable, and that reflects the process described in the Code of Practice, but absent a statutory requirement to personally examine the patient it should be acceptable to discuss/consult remotely but we recommend applying the sort of thought process set out in the original NHS England Guidance from May 2020. There should be a good reason to do it remotely and not merely doing it for convenience. Our recommendation is to have any discussion in person unless there is good reason not to e.g. the patient’s RC, who knows the patient best, is self-isolating but still working and is best placed to be able to discuss, consider and decide whether a CTO is appropriate and decide on the conditions.

Secondly, there is the issue of the validity of a CTO created from a s3 that is now identified to be invalid. In our opinion the CTO is also invalid. A CTO is dependent on the s3 it is built on, and the operation of which it suspends. If the s3 has gone due to a fundamental flaw the CTO cannot stand on its own. The difficulty in this scenario is that it is not possible to put a new CTO in pace without a new, valid, s3 and the patient may well not, indeed should not, qualify for immediate detention under s3.

Renewals of detention or CTOs

Renewals are a particularly difficult area. The judgement does not address them directly. In s20(3)(a), for renewal of detention, and s20A(4)(a), for renewal of CTOs, there is a requirement to “examine” the patient within the specified time frame. It could be argued that “examine” is different from “personally examine” and does not include the face-to-face requirement. This argument is attractive but having read the judgement carefully we cannot recommend it is relied on. Given the 6 key points the Court made in reaching its judgment set out above, if the issue of “examine” as compared to “personally examine” was taken to Court we think it is likely the Court would decide they mean the same thing and the different wording merely reflects a different stage in the detention process and not that Parliament intended a different interpretation of what an examination entails i.e. the direct person to person contact.

A further argument might be made that as the provisions for CTOs in s20A were only introduced in 2007 and as the renewal provisions relate to people already in the community then “examine” in that context should include remote examination. However, the wording is just the same as the older s20 provision and the Court is unlikely to apply one meaning in s20 and another in s20A.  The Court did emphasise the importance of personal contact in an “examination”. Further, one of the statutory compulsory conditions is for the patient to make themselves available for examination under s20A and that could be argued to underline the importance of personal contact for examination.

It may be possible to save a few cases where the remote examination has only been done very recently and the original period of detention/CTO has not yet expired. A further face-to-face examination could be undertaken, and new renewal documentation submitted. Provided that is done before the expiry of the current period it will operate to renew the detention/CTO.

We have also seen an email from NHSE dated 28-01-2021 that says their legal advice is that the ruling applies to both assessments for detention and section renewals (including CTO renewals).

Seclusion

Seclusion is not a procedure which is set out in the MHA itself. In strict legal terms the initial detention is sufficient to cover any more restrictive detention, at least for the same purpose, which occurs during the overall period of detention. The observation and review process is covered in the Code of Practice. The Code is, of course, a form of guidance and not legally binding. It should be followed unless there are good reasons not to. Paragraph 26.133 of the Code says that medical reviews should be “carried out in person”. Our view at present is that the CQC will interpret that, in the light of this case, as meaning a direct review with the reviewing clinician present, especially given the intensity of the detention during seclusion. However, the previous NHS England advice that reviews (of various kinds) could be done remotely would, in our opinion, be likely to provide a “good reason” not to have followed the Code until this case was decided. The CQC’s own letter about SOADs might also assist the argument for remote review having been acceptable in appropriate cases, although the circumstances are different when an external doctor needs to come into the hospital as a SOAD. We recommend direct clinical review from now on. We note that the suitability of remote review would always have been dependent on the clinician being satisfied with the quality of the assessment and should have been done for good reason and not just the convenience of the clinician.

For MDT reviews we don’t see any problem with the MDT meeting through suitable remote means for the discussion, provided anyone who would have personally seen the patient prior to the pandemic again sees the patient in person and not remotely.

What to do – In General

As noted above the case was not based on the situation of any particular patient or professionals. We think the courts will have a good deal of sympathy for professionals who followed NHS England’s Guidance in good faith and for good reason.

Nevertheless, the law is what it is.

NB For the future the point to repeat is that assessments/examinations of patient need to be done in person face-to-face (other guidance on health & safety and the use of PPE still needs to be followed).

An assessment must be made of all the sections (detentions and renewals) and CTO renewals that are potentially affected:

• Current detentions need to be “re-done”;
• CTOs created from a fundamentally flawed s3 fall away;
• Renewed CTOs, that cannot be saved by a re-examination in person within the current period, likely fall away.

Our recommendation is that all patients whose detention/CTO is affected should be informed, whether or not they are still detained/on a CTO. It should be explained that the original actions taken were done in good faith based on the NHS England Guidance at the time, but the recent case has stated that Guidance incorrectly interpreted the Act. The email from NHS England mentioned above says the same.

What to do – CTOs

The biggest issues are likely to arise around CTOs that cannot be replaced. Our information is that CTO renewals are likely to be the main area where video examinations were used. Where a CTO is no longer valid it is really important that the care and support that was in place under the CTO is maintained, if not intensified, to give the patient the best possible chance of avoiding deterioration and re-admission. Entitlement to s117 Aftercare is unaffected by the presence or absence of the CTO.

There are likely to be two groups of patients, those who continue to do OK, which may indicate the CTO was unnecessary anyway, and those who, sadly, do badly, deteriorate and have to be re-detained.

If it emerges that there are sufficient, and sufficiently serious cases, where CTOs will no longer be in place to support vulnerable patients, who are likely to suffer a deterioration in their health without that structure, then it may be that NHS Trusts working together with NHS England can lobby the DHSC for a retrospective change in the law. Unfortunately, that will be neither assured nor quick and could introduce even more confusion and resentment for some patients.

Given the potential legal arguments it may be justified to take a short period to wait and see how things develop without greatly increasing the risk of exposure to claims. If, for example there is an indication that there will be legislation to retrospectively validate CTO renewals. However, given the indication of NHS England’s view in the email noted above, any such period would have to be very short, probably no more than a week and work should be done in the interim to identify relevant cases.

Potential Claims and Risk

Having said everything above we think the exposure to potential claims remains small. The Court of Appeal decision in Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ79 suggests that damages are only nominal (£1) if it can be shown that, at all times, the patient would have met the substantive criteria for detention because it is very likely that they will not be able to show that they suffered any loss. Factors supporting that the substantive criteria would have been met would include: robust decision making around the suitability of remote examination and good records of the examination; some of the required assessments being done in person and/or good prior knowledge of the patient; Tribunal (and potentially managers’) decisions upholding detention/continuation of the CTO. Although there is still technically a claim the fact damages are nominal means proceedings are unlikely to be brought.

Care will need to be taken to identify any patients who may respond negatively to the news and to seek to support them to accept the position. The reality is that it should not make any difference to the actual care and treatment they received or are yet to receive.

If any claim, or suggestion of a claim, is received NHS bodies should report them to NHS Resolution. Any other providers should contact relevant insurers.

Individual cases of concern

If you do identify any individual cases that cause concern, we will be happy to advise further on specific facts.

We can say now that any line on the law taken by a provider must be consistent. You cannot mix and match your interpretation depending on the potential consequences for the patient, for example, either all CTO renewals based on a remote assessment should be argued to be valid or none of them.