I’m starting to write the next mental health law legal update for Legal Action magazine, and wonder what to say about the Devon judgment. For instance, is anyone aware of any subsequent court decisions/settlements about renewals, CTOs or other circumstances? Thanks.
Here’s the current draft, which I hope makes sense!
The judgment did not discuss other scenarios with different statutory wording, such as detention and Community Treatment Order renewal, which requires the Responsible Clinician to “examine the patient” (s20(3)(a) and s20A(4)(a) respectively); or discharge onto CTO, where the requirement for the AMHP to “meet with the patient” is only in the Code of Practice (para 29.22); or detention under s136, where the purpose is enabling the patient “to be examined by a registered medical practitioner and to be interviewed by an [AMHP]” (s136(2)). However, subsequent guidance (including from NHS England, and from the Association of Directors of Adult Social Services and Local Government Association) addressed these scenarios and, although contradictory in some respects, generally advised a cautious approach of avoiding remote assessments.
No judgments have been published either in relation to further statutory interpretation or damages awards. This is probably because, instead of seeking further court guidance, the cautious approach was taken. It may also be that the prospect of nominal damages meant any challenges by patients were settled or abandoned.
The guidance from the LGA/ ADASS about remote assessments is interesting and makes exactly the points you are highlighting Jonathan - that the ruling only definitely applies to situations where a decision is being made about compulsory admission. So other decisions (for discharge of s136/ making and reviewing CTOs) are not necessarily affected.
How common were remote assessments in different parts of the country? The judgment says:
For the Trust, Ms Fenella Morris QC told us that the Trust had made use of video technology to carry out an examination for the purposes of detention on only one occasion and that, with one exception, other Trusts had taken a similarly cautious approach.
At the time of the judgement last year, an adhoc survey of AMHP leads found that remote assessments were most likely to be used for CTO renewals, the use of remote assessments for initial admissions under s2 or extension under s3 were very rare.
Whether any CTO assessments have continued remotely is unclear to me. The most likely area could be s136 assessments where admissions were not indicated as a likely outcome, and use of remote assessments meant that someone’s discharge from section could be expedited. But that is just a guess! Others may be able to say more.