| SPOTLIGHT |
Jonathan Auburn and Lucy McCann assess whether decision-making as to community treatment orders requires physical attendance.
The recent judgment of the Divisional Court in Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021] EWHC 101 (Admin) held that the requirements in ss.11(5) and 12(1) of the Mental Health Act 1983 (“MHA”) for a patient to be, respectively, "personally seen" by an approved mental health professional (“AMHP”) and be "personally examined" by a responsible clinician (“RC”) prior to decisions being made as to their detention, required the physical attendance of the professional in question on the patient, and cannot be conducted by remote attendance using video communications.
There are other processes in the MHA which lead to the making of administrative decisions affecting a person’s liberty. This article examines one of those areas: decision-making as to community treatment orders under sections 17A and 20A MHA.
Section 17A(1) empowers an RC to, “by order in writing”, discharge a patient from hospital, subject the patient’s liability to being recalled. Sub-section (4)(b) imposes as a criterion for such an order, that an AMHP has “state(d) in writing” that he agrees with the RC’s opinion that the relevant criteria are met, and the AMHP thinks it is appropriate to make the order.
Section 20A provides for the extension of CTOs. Sub-section (4) imposes a condition that the RC “examine the patient”.
Neither sections 17A nor 20A expressly impose any requirement on either the RC or the AMHP to “personally” see or examine the patient. Nonetheless, concern has arisen following the Devon Partnership judgment, that this may be required as a result of that case, and that seeing the patient by video may not suffice (as was the case in Devon Partnership).
However, there are good reasons for believing that physical attendance by the AMHP and RC are not requirements for compliance with the statutory provisions regarding decision-making on CTOs in the above statutory provisions.
The requirements to 'personally see' in s.11(5) MHA and 'personally examine' in s.12(1) are not found in other provisions of the MHA 1983. The requirement only applies to a narrow range of decisions: applications for admission for assessment (s.2), admission for treatment (s.3), emergency admission (s.4) and guardianship (s.7). These specific requirements are not replicated elsewhere in the MHA.
The decision-making to which sections 11 and 12 relate all have similar requirements, i.e. they require the written recommendation of two registered medical practitioners, with statements of their opinions. It is these decisions which were the subject of the Devon judgment referenced above. The considerations in that judgment, concerning the strict interpretation of the statute, apply only to this narrow range of decisions.
CTOs (order, community treatment period, and recall)
The requirements for ordering CTOs in s.17A of the MHA are significantly less restrictive. The RC may order in writing the discharge of a detained patient (s.17A(1)), and the AMHP can state in writing that they agree (s.17A(4)). There is no requirement in the legislation for the seeing or examining of the patient: see s.17A(6).
Similarly, if an RC decides to recall a patient (s.17E), the RC can do this by notice in writing to the patient (s.17E(5)).
The requirement for extending a CTO is simply that the RC 'examines' the patient: see s.20(3). There is nothing in the MHA requiring an RC to 'personally examine' a patient.
In the Devon Partnership case, there was an argument that, even on its own, the verb 'examine' could possibly require physical attendance at examinations. This was referenced in the judgment at §43. However, the submissions to the Court stressed the importance of reading 'personally see’ and ‘'personally examine' as compound terms. This was the approach the Divisional Court adopted in its judgment at §57.
The Code of Practice (pp.329-330) makes general references to informing the patient of the decision orally and in writing. However, it does not require that a patient is seen or examined in person. The Code, at §29.45 (p.336) states that if an RC decides to recall a patient from a CTO, they do not have to interview or examine the patient in person before deciding to recall them. In any event, whatever the Code says, it cannot constrain the proper interpretation of the MHA. If the MHA, properly read, leads to a particular result, then the Code does not alter that reading of the statute.
CTOs do not involve the same degree of imposition on the liberty of a patient as detention, so the analysis in the Divisional Court’s judgment at §56 does not apply in the same way.
For these reasons, it seems unlikely that the Devon Partnership judgment has the effect that RCs need to see a patient in person to either order a CTO, recall a patient from a CTO, or extend a CTO. Similarly, there is no requirement for the involvement of an AMHP in this process to be conducted in person.
Renewal of detention
The requirement for renewal is simply that the RC 'examines' the patient: see s.20(3)(a). There is nothing in the MHA requiring the RC to 'personally examine' the patient.
Section 20 then separately requires that the patient be informed of this decision: see s.20(3)(b). There is no requirement for this to be done in person.
The conditions for renewal of detention are the same as the conditions that apply to the initial decision to detain: see s.20(4). However, it may be that the nature of the assessment of these conditions in a renewal application is, in practice, not the same as the initial decisions to detain (ss.2, 3, 4, 7). Once a patient has been in hospital for the maximum period of 6 months (or over 4 months, which is the earliest that an application for renewal can be made), clinicians are likely to be more familiar with the patient's conditions giving rise to their detention, and have more information on whether detention is in the patient's best interests. This is reflected in section 20(5), which provides that the RC should consult with people 'professionally concerned with the patient's medical treatment'.
It is also likely that consultation in section 20(5) means that information is being gathered from a practitioner who has physically seen and examined the patient, and this is being factored into the decision. This does not amount to a strict requirement on the decision maker to physically see or examine the patient in order to renew detention.
This also means that the concerns raised in the Devon Partnership judgment as to differential diagnoses (see §§43 and 58 of the judgment) are less relevant in renewal decisions, as by the point of renewal, clinicians are likely to have a much greater understanding of the patient's condition.
Conclusion
The provisions in the MHA relating to decision-making on CTOs are unlikely to require the physical presence of AMHPs or RCs, in the physical place as the patient. The work of AMHPs and RCs in their consideration of the patient, in relation to decisions regarding CTOs, can be undertaken remotely, by use of video technology.
The application of the Devon judgment to renewal applications, as compared with initial decisions as to the making of a CTO, is a little less clear. However, on balance, it seems likely that the same result would probably be reached.
Jonathan Auburn is a barrister at 11KBW and Lucy McCann will be starting pupillage at 1 Crown Office Row in September 2021.
