Can Mental Health Clinicians ‘Examine’ Patients Remotely?

28/12/2023


One question that regularly comes before the courts is to what extent laws can be interpreted to take account of circumstances – such as societal changes or technological developments – that Parliament could not have foreseen when enacting them. The High Court recently considered whether this doctrine, known as the ‘always speaking principle’, applied to remote examinations of patients detained under the Mental Health Act 1983.

A mental health trust sought three declarations to the effect that a clinician responsible for a patient is not required to conduct a face-to-face examination of the patient before an authority for detention or guardianship, or a community treatment order, can be renewed. At issue was the word ‘examine’ as used in Sections 20(3), 20(6) and 20A(4) of the Act: the trust argued that this should not be interpreted as meaning a face-to-face examination, so that a remote examination would be sufficient.

The Court noted that it is not open to the courts to interpret legislation in a manner that is conceptually different from how Parliament intended. In this case, the Court concluded that Parliament had intended such examinations to be of a high quality, and that there was no societal consensus that a telephone or video examination would be of the same quality as a face-to-face examination. As such, the trust could not rely on the ‘always speaking’ principle.

Noting that Section 129 of the Act makes it an offence for a person to insist on being present during an examination when required to withdraw, the Court also observed that the responsible clinician could not be certain that an examination was taking place in private if the patient were in a different location. All three of the declarations sought by the trust were refused.

In reaching its conclusions, the Court took account of a survey conducted by mental health charity Mind, which highlighted that online interactions were subject to crashes and were described by some patients as being a lot harder than face-to-face interactions. Participants in the survey had also raised concerns about being overheard during remote interactions.


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