“This guidance has been prepared for use in the pandemic only. The MHA makes it a legal requirement that doctors must “personally examine” a person before recommending that they be detained, and that an Approved Mental Health Professional (AMHP) must have “personally seen” the person before applying for a detention. 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”
“7. Whilst this Guidance approved the use of remote assessments in some circumstances and expresses a view as to their lawfulness, it expressly steps back from providing certainty on the issue to professionals and the public. Its ambivalence is highlighted by its insistence that it only applies during the COVID-19 pandemic, and upon the very limited circumstances in which it envisages that a remote assessment might be lawful. 8. Medical practitioners, and their employers are concerned about the lack of clarity in the law that governs their roles under the MHA. They perceive that they face a choice of either carrying out a remote assessment and being found to have failed to comply with the MHA so that a patient is wrongly detained and the professional exposed to the risk of allegations are false imprisonment, or, on the other hand, of carrying out an in-person assessment and thereby jeopardising their health and that of their patients and the public….”
“a. The requirement under s.12 MHA that a medical practitioner has ‘personally examined’ a patient before completing a medical recommendation in support of the patient’s detention in hospital may be fulfilled by the medical practitioner examining the patient remotely should that be deemed sufficient to fulfil the requirements of the MHA in the circumstances of that case in the professional judgement of the medical practitioner applying the Guidance. b. The requirement of s. 11(5) MHA that a person making an application for a patient’s detention in hospital has ‘personally seen’ the patient within the period of 14 days ending with the date of the application may be fulfilled by the person having ‘seen’ the patient remotely should that be deemed sufficient to fulfil the requirements of the MHA in the circumstances of that case in the judgement of the person concerned applying the Guidance.”
“It is certainly desirable that every doctor who takes part in these procedures should be personally satisfied that the patient’s medical condition is such as to justify the use of the compulsory powers, and that this opinion should relate to the patient’s condition at the time when the compulsory powers are used and not to his condition some time previously.”
“In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question ‘What would Parliament have done in this current case—not being one in contemplation—if the facts had been before it?’ attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.”
“There is no set time that must be taken for an examination or interview to qualify under the statute. What is required, as with other aspects of the examination and interview, is a matter for the professional judgment of those concerned; and there is nothing in the evidence in my view to show that there was insufficient time here for a proper examination or interview to have taken place, whether one looks at the period of one-and-a-half hours stated on the form for the whole process of assessment, or the half hour for the interview itself indicated in Mr Kohli's witness statement (if its permissible to look at the statement for this limited purpose), or the shorter period suggested by the description given in the various documents.”
“The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive”