High Court rules that remote engagement with a mental health patient is not an “examination” for the purposes of the Mental Health Act 1983, and so the Responsible Clinician must see the patient personally before renewing detention or guardianship orders

The Mental Health Act 1983 (“the 1983 Act”) requires the responsible clinician to examine a patient before the clinician is entitled to make orders for community treatment (under section 17A), detention in a hospital (under section 3) or guardianship in the community (under section 7 of the 1983 Act). In Derbyshire Health Care NHS Trust v Secretary of State for Health and Social Care [2023] EWHC 3182 (Admin), the Claimant Trust sought declarations that the word “examine” in sections 20A(4) and section 20(3) and (6) of the 1983 Act could be interpreted as including a remote examination conducted by the responsible clinician over a video link.

The court had to decide whether the statute required a physical attendance on the patient by the responsible clinician in each of these cases. The claim was filed following the judgment of the Divisional Court in Devon Partnership NHS Trust v the Secretary for State for Health and Social Care [2021] EWHC 101 (Admin) (“Devon”), which concluded that the phrase “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 on the patient. That resolved the position as regards the making of an initial order under the MHA. This case considered if the same rules applied for renewal decisions.

The court decided a physical examination of the patient was needed in all cases apart from making a CTO under s17A of the 1983 which did not specifically require an “examination”. However no Declaration was made because responsible clinician may be required to conduct a face to face examination before making a CTO depending on the clinical circumstances.

In contrast, where the 1983 Act used the word “examine” , the Court held that this should be interpreted as meaning a face-to-face examination.

The court followed the Divisional Court’s approach to the statutory interpretation of sections 11 (general provisions as to applications for admission for assessment, treatment and guardianship) and 12 (the requirement that a clinician with personal knowledge of the patient sign the admission or guardianship application) of the 1983 Act in Devon where it was held that a medical examination was to be understood “as necessarily involving the physical presence of the examining doctor” [Devon, §58].

Lane J held that:

· The Parliament did not intend the nature of that examination for a renewal to be any less generally effective than in the case of an initial order made under section 12, §92.

· That renewal or extension of detention, guardianship or community treatment orders all involve deprivation or restriction of a patient’s liberty, §§94-95 and that the legislative language in sections 20 and 20A arises from Parliament's concern that decisions extending P’s detention or imposing other forms of restriction on P’s liberty should be undertaken as effectively as possible, §89, especially given that the second and any subsequent extensions authorised under section 20 can be for a period of one year, which is twice as long as the initial period of detention or guardianship, §92.

· That because section 20 concerns, in part, decisions to continue to deprive a patient of their liberty, the provision falls to be construed with particular strictness, §93 and the CTO provisions fall to be construed strictly §96 for the same reason.

· That “it is evident that Parliament requires the highest degree of assurance that the examination in question will be as effective as it can be. There is no mandate for assuming that, in enacting sections 20 and 20A, Parliament intended to leave the matter to be determined by the responsible clinician. If that had been the intention, then Parliament can be expected to have said so. This is particularly true of section 20A where, as the claimant points out, at the time of its insertion into the 1983 Act, video conferencing facilities were in existence”, §107.

· This is especially so when there is no consensus in 2023 (let alone 2007) that an examination conducted by remote means, such as a video call, will necessarily be of the same quality as an examination that involves the physical attendance of the responsible clinician, §109. In addition, the obligations to conduct the examination in private (s.129 the 1983 Act), §111 and the practical difficulties with remote examination, §110 are all good reasons to conclude that the quality of examination by physical attendance cannot match that of remote examination.

Leon Glenister is a barrister at Landmark Chambers