The Devon case recently ruled that s11 and s12 exams for AMHP’s application and med recs respectively must be face to face, not by video.
However I have already heard of one Trust extending this ruling to s20 renewals, and I think this is wrong. Jones already gives guidance on situations where it may not be possible to personally examine the patient prior to renewal, but it would nonetheless be legally valid. I believe circumstances during covid might also justify renewal without a personal exam, and the DHSC on visiting by professionals and electronic alternatives would be taken into account. Has anyone processed renewals where the exam was by video ?
Thanks
Ronnie
I think this is indeed covered at page 188 of the current edition of Jones (section 20) under “Examine the patient”.
Whilst it does appear to provide exceptions it also then states “see further the note on “personally examined” in section 12(1)”.
It is 12(1) that the Devon Case related to.
Yes Steve that was what I was referring to, thanks for providing the page no.
The difference is that sec12 and the Code refer to “personal” examination whereas sec20 does not.
Ronnie
Apparently NHS England have issued guidance stating:
It applies to both new assessments for detention and section renewals (including CTO renewals).
I don’t have a copy of the original document but it is quoted in Andrew Parsons, ‘Court says video assessments unlawful’ (RadcliffesLeBrasseur, 28/1/21).
Edit: here’s the email: NHS England, ‘Legal advice on remote MHA assessments’ (26/1/21).
Many thanks Jonathan, very helpful. I presume the maxim here is “assume it applies to renewals until there is further clarification”.
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Maybe not clarification, but I think this is the latest advice, from NHS England, ‘Further legal advice on remote MHA assessments’ (3/2/21):
- The Court did not rule on assessments or examinations made under any other section of the Act beyond s. 11 and s. 12. Therefore, we do not know whether a Court would find remote assessments under any other section lawful. However, in view of the judgement, providers/councils may wish to take a precautionary approach and stop all remote MHA assessments and renewals where the clinician or AMHP is required to ‘examine’ or ‘see’ the individual. This includes assessments and/or renewals under s. 20, s. 20(A) and s. 136, and therefore impacts s .3 renewals, s. 37 renewals, s. 7 (Guardianship) renewals, and CTO extensions. It remains the case that the ruling does not directly apply to Part III of the Act, but for the reasons stated, there are potential implications for s. 37 renewals. Where providers/councils have further concerns, they should seek their own legal advice and decide next steps.
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