Derbyshire Healthcare NHS Foundation Trust v Secretary of State for Health and Social Care & Ors

The statutory word “examine” in sections 20 and 20A of the Mental Health Act 1983 requires, as a general matter, the physical attendance of the responsible clinician on the patient. The requirement applies to renewal of detention or guardianship and extension of a community treatment order.

The court cannot adopt an updating construction merely because remote technology now exists. Such a construction is unavailable where there is no general and uncontroversial consensus that remote examination provides the same assurance and quality as physical examination, particularly where liberty is restricted.

The court declined to determine abstractly when a physical examination might be required before making a community treatment order, because that issue depends on the facts.

The claimant, a mental health NHS trust, sought declarations under CPR Part 8 concerning the meaning of examination requirements in the Mental Health Act 1983. It asked whether a responsible clinician could make a community treatment order without a face-to-face examination, and whether remote examinations could suffice for renewal of detention or guardianship and extension of a community treatment order.

The claim followed the Divisional Court’s decision in Devon Partnership NHS Trust, which held that “personally seen” and “personally examined” required physical attendance for sections 11 and 12. The present court also considered whether declaratory relief was appropriate and whether it should determine the legality of an earlier remote examination involving PQR.

1. Declaratory jurisdiction. The court rejected the challenge to the Part 8 proceedings. The claim raised a real and important question, the claimant had a real interest, proper argument was available, and exceptional justification existed for resolving uncertainty affecting statutory powers over liberty.
2. Section 17A. The court refused to declare that a physical examination was never required before making a community treatment order. Section 17A contains no express examination requirement, and whether the responsible clinician must examine the patient physically may depend on the facts. An abstract declaration risked stating principles divorced from the factual context and creating practical confusion.
3. Sections 20 and 20A. The word “examine” requires an examination involving the physical attendance of the responsible clinician on the patient. The reasoning in Devon concerning the nature and effectiveness of psychiatric examination applied notwithstanding the absence of the word “personally”. The statutory safeguards concern decisions continuing or imposing restrictions on liberty, and Parliament required the highest degree of assurance that the examination would be effective.
4. The same word should ordinarily bear the same meaning in sections 20 and 20A. The fact that section 20A was inserted in 2007, when video-conferencing existed, did not establish an intention to permit remote examination. Nor did familiarity with the patient, consultation with other professionals, or the possible advantages of remote assessment justify leaving the issue to clinical discretion.
5. An updating or “always speaking” construction could apply only where the modern application was generally and uncontroversially within the statutory concept. The evidence showed no consensus that telephone or video examinations necessarily provided the same quality as physical co-location. The applications for all declarations were therefore refused.
6. The court declined to determine whether PQR’s 2020 examination was unlawful. The proceedings had not investigated the facts and were not a substitute for judicial review, subject to any timeliness issues.