08 February 2021
A Court judgement with immediate implications for the way that assessments under the MHA are conducted has ruled on the potential use of "virtual" mechanisms to carry out assessments during the current pandemic.
The court has ruled that, with immediate effect, to meet the legal threshold for the section of the Act which refers to "personally examined", it requires in all cases the physical presence of the doctor(s) when carrying out the assessment. As well as MHA assessments for medical and AMHP purposes, the ruling also applies to assessments for detention in relation to guardianship.
This contradicts the Legal guidance for mental health, disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic issued by NHS England/Improvement in 2020.
The relevant section of the NHS E/I guidance document, which pertained to the use of remote or video assessments in certain limited contexts, is being redacted for the time being whilst NHSE/I seek legal advice and they will be further updated in due course.
Although it is possible that the ruling may be appealed, you should make sure that you comply with this ruling from now on, rather than the guidance issued in 2020.
We’re seeking further clarification and advice on new guidance to reflect this judgement and will of course keep you updated on any further relevant developments.