The meanings of "personally seen" and "personally examined": recent Case Law

 

Devon Partnership NHS Trust v SSHC [2021] EWHC 101 (Admin), published on 22nd January 2021 is a piece of case law that provides an important clarification affecting some of the basics of assessments under the Mental Health Act 1983. This involves the meanings of two phrases: "personally seen" and "personally examined". Section 11(5) MHA stats that an AMHP cannot make an application for detention under the MHA “unless that person has personally seen the patient". Section 12(1) relates to medical practitioners and states that those practitioners must have "have personally examined the patient”.

You might think that the meaning of these phrases is pretty straightforward, and indeed for many years AMHPs and doctors have interpreted these phrases as meaning that they must actually visit the patient and see them with their own eyes

However, the Coronavirus Pandemic threw a spanner into the works. Anticipating the logistical problems of keeping practitioners safe and obeying social distancing guidelines led NHS England to issue a document in March 2020 called  Legal guidance for mental health, disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic, which was intended to provide guidance on practice under the MHA.

The guidance said this

"It is the opinion of NHS England and NHS Improvement and the DHSC that developments in digital technology are now such that staff may be satisfied, on the basis of video assessments, that they have personally seen or examined a person in a “suitable manner”. Bearing in mind the need to prevent infection and to ensure the safety of the person and staff, in some circumstances the pandemic may necessitate the use of such digital technology for MHA assessments."

Devon therefore applied to the courts for clarification. Could assessments take place virtually, via Zoom or other digital platforms, or did they have to be face to face?

Until now, it had never been in question that these assessments had to involve professionals being in the same room as the person being assessed. The Code of Practice was very clear that a medical examination must involve “direct personal examination of the patient and their mental state”. Similarly, the Code made it clear that the AMHP's duty to "interview in a suitable manner". for example is suggests that "it is not desirable for patients to be interviewed through a closed door or window", which would imply strongly that interviewing via smartphone or laptop, possibly from many miles away, would certainly not cut the mustard.

There were some interesting arguments (interesting to me, at any rate), which examined statute going as far back as the beginning of the 19th century, noting that the phrase “personally examined” dates from the Pauper Lunatics (England) Act 1819, and that the phrase “personally seen” was first mentioned in the Lunacy Acts Amendment Act 1889.

It was pointed out that back then there could have been no other meaning for these phrases than the necessity to be in the same room as the patient.

The point is made that since the deprivation of liberty which is a consequence of detention under the Act is a very serious act, normally only the province of Judges, it is necessary for mental health professionals to adhere to the wording in statute "particularly strictly".

The Judges in the case also concluded that "we do not think it appropriate to take the compound phrases “personally seen” and “personally examined”, as used in the 1959 and 1983 Acts, and split them up, asking first what “examined” or “seen” means and then what “personally” was intended to add."

They also pointed out that "the fact that the Code of Practice requires physical attendance and that the Secretary of State’s Guidance makes clear that in person examinations are always preferable seem to us to show that, even today, medical examinations should ideally be carried out face-to-face. "

Their conclusions were unequivocal:  the phrases “personally seen” in s. 11(5) and “personally examined” in s. 12(1) require the physical attendance of the person in question on the patient.

While it is reassuring that what AMHPs and doctors have always done as a basic aspect of best practice has been confirmed, Coronavirus or not, it may be of concern to some Trusts and AMHP services as to the legality of any assessments that did involve video examinations that resulted in detention.