Detention Under The Mental Health Act 1983 During COVID-19

Under the Mental Health Act 1983, before a person is detained they must be personally seen and examined by an approved mental health professional. This of course poses particular risks in light of the current COVID-19 pandemic which could prevent personal examinations being carried out.

The recent case of Devon Partnership NHS Trust v Secretary of State for Health and Social Care considered whether in such circumstances, remote examination could satisfy the requirement for personal examination under the Mental Health Act for the purpose of detaining an individual.

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

Case overview

During the first lockdown the NHS issued guidance, which confirmed even during the pandemic, assessment in person was favoured. In circumstances, where this was not possible, video assessments may be sufficient. This COVID-19 guidance was not specifically in relation to the detention of an individual and the NHS therefore sought declarations from the Court as to whether remote assessment for the purpose of detention would meet the personal examination and personally seen requirement as prescribed under the Mental Health Act.

Opposing arguments were put before the Court to consider. The Court concluded that the relevant sections under the Mental Health Act made it clear that the reference to personally examining/seeing the patient required the physical attendance of that patient. The Court declined to make the declarations sought by the NHS and it was confirmed remote attendance for the purpose of detention as a result of COVID-19 is insufficient examination under the Mental Health Act. The Court commented on the fact that the guidance went so far as to say that assessment in person was favoured and placed great weight on this.

The Court was very much aware this was a matter of great public interest as their decision could affect the way in which detention under the Mental Health Act is to be dealt with for many years to come. They expected making such declarations would not only cover the on-going pandemic but would be an adopted approach moving forward.

The Court was also aware of an individual’s right to liberty and the restrictions detention would place on that right. The Court concluded that Parliament was free to amend the law in light of the pandemic, as they have with other matters, and felt if remote assessment was the standard required when dealing with detention of an individual, then that decision was best placed to be made by Parliament.