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Mills & Reeve: Health and Care Update

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Mental health and mental capacity

Covid-19: The Mental Health Act, personal examinations and remote assessments

On 22 January, the High Court handed down judgment in what is being called the Devon Partnership case.

Unusually, Devon Partnership NHS Trust had sought a declaration from the Court that remote assessments were lawful, following the publication of NHS England and DHSC guidance at the start of the pandemic which suggested that personal examination could be carried out virtually – without assessors being in the same room as the individual being assessed.

The Court agreed to consider the application for the declaration as to lawfulness, but ultimately declined to endorse the guidance that in person assessments were not required for the purposes of applications made under sections 2,3,4 and 7, finding that this was not the intention of Parliament when the Mental Health Act  had been laid before it (going back to 1959).

This means that applications for detention under sections 2,3 4 and 7 require the relevant professionals to be physically in the same place as the individual being assessed, notwithstanding the increased risks associated with this during the pandemic, for them to be lawful.

Whilst it appears that many NHS Trusts have not carried out remote assessments on which applications have been based, there will be some of them out there which will need urgent review. The guidance previously issued in March will also need to be updated to take account of this decision.

If you need help or advice in relation to remote assessments or applications, please do contact one of our friendly, expert team.

Jill Weston