Following the decision in the Devon case (Devon Partnership NHS Trust v Secretary of State for Health and Social Care) in January 2021, that remote Mental Health Act (MHA) assessments were not lawful, since the MHA requires 'the physical attendance of the person in question on the patient', the issue as to the legality of remote assessments for the purpose of renewals (s.3 and guardianship) and extensions (Community Treatment Orders) has been much debated.
The decision in the case of Derbyshire Health Care NHS Trust v Secretary of State for Health and Social Care [2023] EWHC 3182 (Admin) now confirms that the examination of the patient by the Responsible Clinician (RC) for renewal and extension purposes must also be done by 'the physical attendance of the person in question on the patient'.
The court declined to make a declaration that a 'face to face examination' by the RC for the purposes of discharge onto a CTO is not required.
Impact
Clearly the impact of this decision will largely depend on the position taken by organisations following the Devon decision, in relation to the legality of remote examinations for renewal/extension purposes.
Where remote renewals/extensions had been carried out and/or have continued post Devon, then organisations will now need to take appropriate steps to:
- ensure no further renewals/extensions are carried out remotely;
- take the necessary steps to ensure that any ongoing detentions, guardianships and CTOs are lawful.
How we can help
Our national team of mental health and mental capacity specialists have extensive experience in advising health and social care providers - both in the NHS and the independent sector - in relation to all aspects of the law in this area, including advice on all aspects of the Mental Health Act, including the impact of legislative changes and case law. We also provide training on all aspects of the Mental Health Act and Mental Capacity Act, including induction and refresher courses for s.12 Approved Clinicians.
