Devon Partnership NHS Trust v Secretary of State for Health and Social Care

The statutory requirements that an applicant has personally seen a patient and that a medical practitioner has personally examined a patient before compulsory detention under the Mental Health Act 1983 require physical attendance. They cannot be satisfied by video assessment.

Those provisions are safeguards against administrative deprivation of liberty and must be construed strictly. An updating construction is available only where the new circumstances fall within the same genus as the circumstances addressed by Parliament, or where extension is necessary to fulfil a clear statutory purpose. The court cannot fill a legislative gap or balance competing public interests where Parliament has provided no such modification.

The claimant NHS trust sought declarations concerning the meaning of sections 11(5) and 12(1) of the Mental Health Act 1983. It argued, with the support of the Secretary of State, that an approved mental health professional could personally see a patient and a medical practitioner could personally examine a patient by video technology in appropriate pandemic circumstances.

The issue arose because COVID-19 created significant risks and operational pressures associated with face-to-face mental health assessments. An Advocate to the Court presented the contrary arguments. The Divisional Court therefore had to determine whether the statutory phrases permitted remote assessments and whether declarations in the abstract should be granted.

1. Declarations in the abstract. The court had jurisdiction to issue a declaration where the issue was real, the claimant had a genuine interest and proper opposing argument had been heard. Those criteria and the requirement of particular justification were satisfied because the issue was pressing and affected lawful detention under the Mental Health Act 1983.
2. Statutory construction. The court applied the approach stated by Lord Wilberforce in Royal College of Nursing v Department of Health and Social Security [1981] AC 800 and treated it as authoritative following R (Quintavalle) v Secretary of State for Health [2003] UKHL 13. An updating construction may extend legislation to new circumstances within the same genus as those addressed by Parliament, or where extension is necessary to fulfil a clear statutory purpose. It cannot be used to fill a gap or create a conceptually different statutory scheme.
3. Physical attendance required. Sections 11(5) and 12(1) set preconditions for administrative deprivation of liberty and therefore require particularly strict construction. The compound phrases “personally seen” and “personally examined” should not be disaggregated. In their statutory and historical context, a medical examination of a patient necessarily involved the physical presence of the examining doctor. The same conclusion applied to the requirement that the patient be personally seen. The assessment may depend on visual, physical and other sensory information unavailable through video technology.
4. Parliamentary responsibility. The Coronavirus Act 2020 demonstrated that Parliament could modify safeguards in the 1983 Act and impose limits on any modifications. Whether to balance the competing interests of lawful detention and infection control, and whether any change should be temporary, was for Parliament rather than the courts.
5. The declarations sought were refused. The court recognised the practical difficulties but stated that their resolution was for Parliament.