The end of remote assessment for Mental Health Act 1983 purposes

This is a brief post on the implications of the judgment in Devon Partnership NHS Trust v SSHC [2021] EWHC 101 (Admin). I say brief, because I don’t have much to say beyond what has already been said.

If you are not familiar with the judgement, then I will assume you have an enviable ability to separate work from the rest of your and I salute you.

Anyway, the outcome is, in a nutshell, this: despite guidance indicating that remote assessments would be acceptable for Mental Health Act 1983 purposes if needed during the pandemic, that such assessment were not, in fact, lawful. I have no doubt that this case will make its way on to a law school syllabus or two in the near future, because it is a pretty detailed analysis of statutory interpretation approaches. Statutory interpretation is one of the main reasons lawyers exist. If law was simply reading what a statute book says, there would be no need for people like me.

The judgement discusses the phrases ‘personally seen’ and ‘personally examined’ and concludes that, for a variety of reasons, this wording requires face to face assessment and video technology is insufficient. The primary parts of the legislation where these phrases appear are sections 11(5) and 12(1) Mental Health Act 1983.

So as far as applications for s3 detention for treatment or for guardianship go, it is very simple: if an assessment was conducted remotely, the end result is invalid and reassessment or discharge will be required.

It doesn’t end there though, because Community Treatment Orders are the fruit of a s3 detention. So if that detention was invalid, the CTO will fall away. But there are also assessment and review processes for CTOs, neither of which use the phrases ‘personally seen’ or ‘personally examined’. The phrase ‘examined’ does appear in relation to review of a CTO and it is possible that a court would find that this means something different to ‘personally examined’, but that seems somewhat unlikely. Different phrasing altogether is used in relation to the process of placing someone on a CTO and so it is even less clear whether remote assessment will suffice for those purposes.

I could talk about the fact that it should be assumed that the choice of wording is deliberate and so the meaning of these phrases should be different to the phrases discussed in the Devon case. But the truth is that whilst that is a viable argument, as set out in the judgement, the fact remains that at the time the legislation was written, video technology was not anticipated as an option in these circumstances so it is very likely that remote assessment would not be permitted for any assessments under the Mental Health Act 1983.

So just assess face to face wherever possible. If face to face isn’t possible, then you should get advice on a case by case basis.

If you want a more detailed analysis of the above, I recommend the following by Hempsons solicitors which mirrors my own understanding and research: https://www.hempsons.co.uk/news-articles/the-devon-decision-and-remote-examination-where-do-go-from-here/

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority