A Senior Solicitor-Advocate who represents mental health clients across the region has welcomed today’s announcement that virtual assessments have been outlawed in determining whether a patient should be detained under the Mental Health Act, but says clearer guidance is needed about how to carry out face-to-face assessments safely.
John Lancaster, a member of the Mental Health team with Legal 500 law firm GHP Legal, says that whilst he is not aware of any such virtual assessments taking place with his own clients in North Wales, Shropshire and north-west England, he would urge anyone who has been detained in this manner, or any friend or relative of such a person, to seek legal advice as a matter of urgency.
In November 2020, the Department of Health and Social Care issued guidance indicating that during the COVID-19 pandemic Hospital trusts could use remote assessments as part of an evaluation. The reasoning was that it was a safer way of working whilst the spread of coronavirus was so virulent.
Whilst there was still a requirement for an assessor to be physically present for other parts of the process, it is thought that a ‘small, but significant‘ number of people have in part been assessed remotely for detention and subsequently sectioned on that basis.
“There are some fundamental safeguards involved when someone is detained against their wishes in a psychiatric hospital”, explains John Lancaster. “The first of these is that the patient must initially be seen by appropriately qualified doctors and an ‘AMHP’, usually a social worker, who must all agree that the person needs to be detained in the interests of their own health and safety and/or the protection of others.
“These assessments can often take place in people’s homes or in cramped conditions in hospitals or police cells. If the authority to detain is renewed, similar assessments need to take place on renewal. Therefore, health trusts and local authorities do need guidance on how to maintain this safeguard whilst at the same time keeping everyone safe from coronavirus.
“Two distinguished High Court Judges, Dame Victoria Sharp and Mr Justice Chamberlain, grappled with this issue last month in a case brought by a Devon Health Trust. They were asked what was deemed necessary for professionals to ‘personally see’ or ‘personally examine’ a patient. For example, would an examination via Skype or Zoom, or even by telephone suffice?
“The Judges concluded that ‘remote’ examinations would not do, and that detention under the Mental Health Act required a face-to-face physical meeting. The Judges acknowledged that they were acutely aware of the difficulties this might cause under the current pandemic situation, but whether or how to address those difficulties was a matter for Parliament.
“NHS England has responded to the judgement by issuing advice that there should be no further ‘virtual assessments and that anyone who has been detained by a virtual assessment should undergo a ‘personal’ re-assessment and be informed of the Court ruling. Now that advice needs to be followed up with guidance on how best to carry out assessments safely.”