The Divisional Court has today handed down a judgment that says, contrary to the advice given by NHS England, “personally examined” for the purpose of assessment for admission under the MHA means assessments cannot be undertaken remotely.

The effect, subject to further consideration, is that any detention based on a remote assessment is likely to be fundamentally flawed and the patient would need to be re-assessed for a new section. Likewise any CTO based on a fundamentally flawed s3 application is likely to be ineffective.

What to do

It is important to stop any practice of remote assessments and base all future admissions on “face to face” assessments.

However, we say “don’t panic” because:

• It will take a little bit of time to identify and consider the validity of previous applications;
• Claims for damages for unlawful detention are unlikely to arrive in a rush as damages would be nominal, provided it can be shown that the patient did in fact meet the criteria for detention at the time;
• There may be an appeal;
• It is possible the Government will announce some step to change the law and give it retrospective application, especially if it emerges that local authorities and trusts have been following NHS England guidance in good faith in significant numbers.

Other assessments under the MHA

The case specifically concerns applications for admission under s2 or s3 and the phrases “personally examine” and “personally seen”. We will be considering the judgment in more detail and the potential impact on the use of remote assessments for other parts of the Act.