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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2023/3182.html
Cite as: (2024) 27 CCL Rep 5, [2023] EWHC 3182 (Admin), [2024] 2 WLR 1113, [2024] KB 703, [2023] WLR(D) 524

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		Neutral Citation Number: [2023] EWHC 3182 (Admin)
		Case No: CO/4351/2022 AC-2022-LON-003289

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT IN THE MATTER OF AN
APPLICATION UNDER CPR PART 8 FOR DECLARATORY RELIEF

Royal Courts of Justice
Strand, London, WC2A 2LL

14/12/2023

B e f o r e :

MR JUSTICE LANE
____________________

Between:

	Derbyshire Healthcare NHS Foundation Trust	Claimant
	- and -
	Secretary of State for Health and Social Care	Defendant
	-and-
	(1) NHS England (2) PQR (3) MIND	Interested Parties

____________________

Ms F Morris KC (instructed by Browne Jacobson) for the Claimant
Mr T Cross (instructed by The Government Legal Department) for the Defendant
Ms V Butler-Cole KC (instructed by Hill Dickinson) for the First Interested Party
Mr S Simblet KC and Mr O Persey (instructed by Ms D Robinson, Cartwright King) for the Second Interested Party
Mr R Pezzani and Mr A Schymyck (instructed by MIND) for the Third Interested Party

Hearing dates: 31 October and 1 November 2023
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives

(see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).

.............................

MR JUSTICE LANE

Mr Justice Lane :

The claimant is a mental health trust. It brings these proceedings under Part 8 of the CPR, seeking declarations as to the meaning of particular provisions in the Mental Health Act 1983 ("the 1983 Act"). The provisions in question contain pre-conditions for the lawful imposition of restrictions on the liberty of a person who has or may have a "mental disorder", defined in section 1 of the 1983 Act as "any disorder or disability of the mind".

THE DECLARATIONS SOUGHT

The declarations sought are as follows:-

"1. The responsible clinician is not required to undertake a face-to-face examination of the patient before making a community treatment order ("CTO") under section 17A(1);

2. The word "examine" in section 20A(4) should not be interpreted as meaning a face-to-face examination, so that a remote examination of the community patient by the responsible clinician before the latter extends the CTO may be sufficient; and/or

3. The word "examine" in section 20(3) and (6) should not be interpreted as meaning a face-to-face examination, so that a remote examination of the patient by the responsible clinician before the latter renews the authority for detention for hospital treatment of a patient under section 3 or guardianship in the community under section 7, may be sufficient."

THE MENTAL HEALTH ACT 1983

It is necessary to refer in some detail to the provisions of the 1983 Act. Section 1(1) explains that the Act has effect with respect to the reception, care and treatment of mentally disordered patients, the management of their property and other related matters. Section 1(2) defines "mental disorder" as "any disorder or disability of the mind", such that "mentally disordered" is to be construed accordingly.

Section 2 concerns admission for assessment. A person ("P") may be admitted to a hospital and detained there for a period not exceeding 28 days (except in certain circumstances). The application for admission for assessment can be made on the grounds that P is suffering from mental disorder of a nature or degree that warrants detention in hospital for assessment and that P ought to be detained in the interests of P's own health or safety or with a view to the protection of others.

Section 3 is concerned with admission for treatment. P may be admitted to hospital and detained for the period allowed by the 1983 Act, in pursuance of an application made in accordance with the requirements of section 3. Section 3(2) states that the application must be made on the grounds that P is suffering from mental disorder of a nature or degree which makes it appropriate for P to receive medical treatment in hospital and that it is necessary for P's health or safety or the protection of others that P should receive that treatment, which cannot be provided unless P is detained and provided with appropriate medical treatment.

Section 3(3) provides that admission for treatment is founded on the written recommendations in prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions of section 3(2) are complied with.

Section 5 contains provisions concerning an application for admission in respect of a patient who is already in hospital as an inpatient.

Section 6 explains what the effect is of an application or admission duly completed in accordance with the provisions of Part II of the 1983 Act. The application is sufficient authority for the applicant or any other person authorised by the applicant to take P and convey P to hospital. Where P is duly admitted to hospital, the application is authority for the hospital managers to detain P there in accordance with the provisions of the Act.

Section 7 concerns an application for guardianship. If P has attained the age of 16, P may be received into guardianship for the period allowed by the Act, in pursuance of a guardianship application made in accordance with section 7. Section 7(2) provides that the application may be made on the ground that P is suffering from mental disorder of a nature or degree that warrants P's reception into guardianship and that it is necessary in the interests of P's welfare or the protection of other persons that P should be so received. Section 7(3) provides that the guardianship application is to be founded on the written recommendations of two registered medical practitioners.

Section 8 concerns the effect of a guardianship application etc. Where a duly made guardianship application is forwarded to the local social services authority, within the period allowed by section 8(2), and is accepted by that authority, the application shall confer on the authority or person named in the application as guardian, certain exclusive powers; namely, to require P to reside in a place specified; to require P to attend at places and times specified for the purpose of medical treatment, etc; and to require access to P to be given, at any place where P is residing, to any registered medical practitioner, approved mental health professional or other person so specified.

Section 11 deals with general provisions as to applications for admission for assessment, admission for treatment and guardianship. Section 11(5) provides that none of the applications in question are to be made by any person in respect of P "unless that person has personally seen" P within a period of 14 days ending with the date of the application.

Section 12 provides that the recommendations required for the purposes of an application for admission of P under Part 2 or a guardianship application must be signed and must be given "by practitioners who have personally examined the patient either together or separately…". Section 12(2) provides that, of the medical recommendations given for the purposes of any such application, one is to be given "by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder". Additionally, unless that practitioner "has previous acquaintance with the patient", the other recommendation "shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance".

Sections 17A to 17G were inserted into the 1983 Act by the Mental Health Act 2007. The sections concern community treatment orders (described above and hereafter as CTOs). Section 17A provides that the "responsible clinician may by order in writing discharge a detained patient from hospital subject to his being liable to recall in accordance with section 17E…". The responsible clinician is not to make a CTO unless in their opinion the relevant criteria are met and an approved mental health professional states in writing that they agree with that opinion and that it is appropriate to make the order. The relevant criteria, defined in section 17(5), broadly reflect the criteria in section 3, adapted so as to provide for recall. Section 17A(6) provides:-

"(6) In determining whether the criterion in subsection (5)(d) above is met [viz. the power of recall], the responsible clinician shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder)."

Section 17B provides that a CTO shall specify conditions to which P is to be subject while the CTO remains in force. Section 17B(3) specifies conditions to be imposed in all CTOs. These are that P makes themself available for examination under section 20A; and that, in certain circumstances, P makes themself available for examination so as to enable a Part 4A certificate to be given. Section 17B(2) confers a power to specify other conditions if the responsible clinician, with the agreement of the approved mental health professional, thinks them necessary for certain specified purposes concerning P's receiving medical treatment, preventing risk of harm to P and protecting other persons. Section 17B(6) provides that if P fails to comply with a condition under section 17B(2), that fact may be taken into account for the purposes of exercising the power of recall.

Section 17C deals with the duration of a CTO. A CTO remains in force until expiry of the period mentioned in section 20A(1) (as extended under any provision of the Act), but subject to sections 21 and 22.

Section 17E makes provision for the power of recall to hospital. A responsible clinician may recall P to hospital if, in the opinion of the responsible clinician, P requires medical treatment in hospital for his mental disorder and there would be a risk to P or others if P were not so recalled. The recall notice is sufficient authority for the managers of the hospital to detain P there in accordance with the Act. Section 17F concerns the powers in respect of recalled patients.

Section 20 (duration of authority) provides that a patient admitted to hospital in pursuance of an application for admission to treatment, and a patient placed under guardianship in pursuance of a guardianship application, may be detained in a hospital or kept under guardianship for a period not exceeding six months beginning with the day on which P was so admitted, or the day on which the guardianship application was accepted. P is not to be so detained or kept for longer unless authority for P's detention or guardianship is renewed under section 20.

Section 20(2) provides for renewal from the expiration of the initial six months period in section 20(1), for a further period of six months; and from the expiration of any such extended period for a further period of one year, "and so on for periods of one year at a time".

Section 20(3) provides that within the period of two months ending on the day on which P, who is liable to be detained in pursuance of an application for admission for treatment, would cease to be so liable in default of renewal of authority for P's detention, it shall be the duty of the responsible clinician:-

"(a) to examine [P] and

(b) if it appears to [the responsible clinician] that the conditions set out in subsection (4) below are satisfied, to furnish the managers of the hospital where [P] is detained a report to that effect in the prescribed form".

Section 20(4) sets out the conditions referred to in section 20(3). They are that P is suffering from a mental disorder of a nature or degree which makes it appropriate for P to receive medical treatment in hospital; that it is necessary for P's health or safety or for the protection of others that P should receive such treatment and it cannot be provided unless P continues to be detained; and that appropriate medical treatment is available for P.

Section 20(5) provides that before furnishing a report under section 20(3), the responsible clinician "shall consult one or more other persons who have been professionally concerned with [P's] medical treatment". Section 20(5A) provides that the responsible clinician may not furnish such a report unless a person who has been professionally concerned with P's medical treatment, but who belongs to a profession other than that to which the responsible clinician belongs, states in writing that they agree that the conditions set out in section 20(4) are satisfied.

Section 20(6) provides that within the period of two months ending with the day on which P who is subject to guardianship would cease to be so liable in default of the renewal of guardianship, it shall be the duty of the appropriate practitioner to examine P. If it appears to them that the conditions set out in section 20(7) are satisfied, the appropriate practitioner must furnish to the guardian and, where the guardian is a person other than the local social services authority, to the responsible local social services authority, a report to that effect in the prescribed form.

Section 20(7) states that the conditions are that P is suffering from mental disorder of a nature or degree which warrants P's reception into guardianship and that it is necessary in the interests of P's welfare or for the protection of others that P should remain under guardianship.

Section 20(8) states that where a report is duly furnished under section 20(3) or (6), the authority for the detention or guardianship of P is thereby renewed for the period prescribed in that case by section 20(2).

Section 20A concerns the duration of the period of a CTO. Section 20A(1) provides that a CTO is to cease to be in force at the end of six months beginning with the day on which it is made. The community treatment period may, unless the CTO has previously ceased to be in force, be extended by section 20A(3) from its expiration for a period of six months and from the expiration of any such extended period for a further period of one year "and so on for periods of one year at a time".

Section 20A(4) provides that within the period two months ending on the day on which the CTO would cease to be in force in default of extension, it is the duty of the responsible clinician "to examine" P and if it appears to the responsible clinician that the conditions set out in section 20A(6) are satisfied and if a statement under section 20A(8) is made, to furnish to the managers of the responsible hospital a report to that effect in the prescribed form.

Section 20A(6) sets out the conditions referred to in section 20A(4). These are that P is suffering from mental disorder of a nature or degree which makes it appropriate for P to receive medical treatment; that it is necessary for P's health or safety or for the protection of others that P should receive such treatment; that subject to P continuing to be liable to be recalled, such treatment can be provided without P being detained in hospital; that it is necessary that the responsible clinician should continue to be able to exercise the power under section 17E(1) to recall P to hospital; and that appropriate medical treatment is available for P.

Section 20A(7) states that in determining whether it is necessary that the responsible clinician should continue to be able to exercise the power to recall P to hospital, the responsible clinician shall, in particular, consider, having regard to P's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of P's condition if P were to continue not to be detained in a hospital, such as for example by virtue of P refusing or neglecting to receive medical treatment that is required for P's mental disorder.

Section 20A(8) provides that the statement referred to in section 20A(4) is a written statement by an approved mental health professional that it appears the conditions in section 20A(6) are satisfied and that it is appropriate to extend the period of the CTO.

Section 20A(9) provides that before furnishing a report under section 20(4), the responsible clinician shall consult with one or more other persons who have been professionally concerned with P's medical treatment.

Section 24 concerns visiting and examination of patients. Section 24(1) provides that for the purpose of advising as to the exercise by the nearest relative of a patient who is liable to be detained or subject to guardianship of any power to order discharge, any registered medical practitioner or approved clinician authorised by or on behalf of the nearest relative of P may, at any reasonable time, visit and examine P in private. Any registered medical practitioner or approved clinician who is so authorised to visit and examine P may require the production of and inspection of records relating to P's detention or treatment in any hospital.

Section 34 defines expressions used in Part II of the 1983 Act. "The appropriate practitioner" means, in the case of a patient who is subject to the guardianship of a person other than a local social services authority, the nominated medical attendant of P and, in any other case, the responsible clinician. The "nominated medical attendant" is "the person appointed in pursuance of regulations made under section 9(2)… to act as the medical attendant of" P.

Section 34 defines "the responsible clinician" as meaning, where P is liable to detention by virtue of an application for admission for treatment, the approved clinician with overall responsibility for P's case. Where P is subject to guardianship, "the responsible clinician" means the approved clinician authorised by the responsible local social services authority to act as the responsible clinician.

Section 40(4) provides that where P is admitted to a hospital in pursuance of a hospital order or placed under guardianship, P is to be treated as if P had been so admitted or placed on the date of the order.

Section 114 empowers a local social services authority to approve a person to act as an approved mental health professional for the purposes of the 1983 Act. Section 114(2) however states that the authority may not approve a registered medical practitioner to act as an approved mental health professional.

Section 118 concerns codes of practice. The Secretary of State must prepare and from time to time revise a code of practice for the guidance of registered medical practitioners, approved clinicians, managers and staff in hospitals, independent hospitals, care homes and approved mental health professionals in relation to admission of patients to hospitals etc and to guardianship and community patients. A code of practice must also be issued for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.

Section 119 provides for the remuneration etc by the "regulatory authority" of registered medical practitioners appointed by that authority for the purposes of Part IV of the 1983 Act and section 118 thereof. Such a person may, for the purpose of exercising functions under the relevant provisions, visit and interview and, in the case of a registered medical practitioner, examine in private any patient detained in a hospital or registered establishment or a community patient in a hospital or regulated establishment or (if access is granted) other place.

Section 120(3) provides that the regulatory authority must make arrangements for persons authorised by it to visit and interview relevant patients in private. These are patients liable to be detained, community patients and patients subject to guardianship (section 120(2)). Section 120(7) provides that for the purposes of a review or investigation for the exercise of functions under arrangements made under section 120, a person authorised by the regulatory authority may at any reasonable time visit and interview in private any patient in hospital or regulated establishment; and if the authorised person is a registered medical practitioner or approved clinician, examine the patient in private there.

Section 129 creates criminal offences of obstruction. Section 129(2) provides that any person who insists on being present when required to withdraw by a person authorised to interview or examine P in private shall be guilty of an offence.

Section 145 contains general interpretative provisions. It defines an "approved clinician" as a person approved by the Secretary of State or other person (in certain other circumstances) to act as an approved clinician for the purposes of the Act and "approved mental health professional" has the meaning given in section 114. The expression "mental disorder" has the meaning given in section 1 and "patient" means a person suffering or appearing to be suffering from mental disorder. The "regulatory authority", in relation to England, means the Care Quality Commission; and in relation to Wales, the Welsh Ministers.

PROCEDURAL HISTORY AND ISSUES

The relevant procedural history of this case is as follows. The claim was filed in November 2022, following the judgment of the Divisional Court (Dame Victoria Sharp PQBD and Chamberlain J) in Devon Partnership NHS Trust v the Secretary for State for Health and Social Care [2021] EWHC 101 (Admin) ("Devon"), which had concluded that the phrase "personally seen" in section 11(5) of the 1983 Act and the phrase "personally examined" in section 12(1) required the physical attendance of the person in question on the patient ("P").

Following Devon, doubts arose as to whether the conclusion of the Divisional Court applies to the examinations required in sections 20 and 20A. NHS England, which is the first interested party in these proceedings, issued advice on the matter on 4 February 2021. In this, the National Director for Mental Health pointed out that the Court in Devon did not rule on assessments or examinations made under any other section of the 1983 Act than sections 11 and 12. As a result, "we do not know whether a Court would find remote assessments under any other section lawful. However, in view of the judgement, providers/councils may wish to take a precautionary approach and stop all remote MHA assessments and renewals where the clinician or AMHP is required to 'examine' or 'see' the individual. This includes assessments and/or renewals under s.20, s.20(A) and s.136 and therefore impacts s.3 renewals, s.37 renewals, s.7 (Guardianship) renewals and CTO extensions…".

Shortly thereafter, the Association of Directors of Adult Social Services issued a briefing on the implications of Devon. Having consulted counsel, the briefing stated that the Local Government Association was advised that, in Devon, the Divisional Court had held that the expressions "personally seen" and "personally examined" needed to be read as "compound phrases", so that the two words comprising the phrases had a "distinct meaning" within the context of sections 11 and 12. This reasoning, however, "does not apply in other parts of the Act where this phrase is not used. Therefore, we do not believe that the same result necessarily applies in situations where the Mental Health Act refers only to 'reviewing', 'examining', or 'interviewing' a person, such as in relation to extensions for CTOs or Guardianship under s.20 of the Act". The briefing recognised however, that the issue of whether direct contact was required with P "may be challenged in Court in the future". The briefing considered that "direct face-to-face assessment should be regarded as the norm, but using video technology to review and consider extending a CTO or Guardianship might still be appropriate, subject to the particular needs and circumstances of the person being assessed". The briefing suggested that authorities "may wish to obtain their own legal advice in specific cases…".

The second interested party is an individual, who is referred to as PQR. In 2020, during the COVID-19 pandemic, PQR's CTO was reviewed by a psychiatrist by means of a telephone conversation (the psychiatrist was "shielding" at the time). Some two years later, PQR challenged the lawfulness of the consequent continuation of the CTO in the First-tier Tribunal. That Tribunal in September 2022 was concerned that it might not have jurisdiction to determine the validity of the CTO. Later in September 2022, the present claimant informed the First-tier Tribunal and the solicitors acting for PQR of its intention to make a Part 8 application, seeking judicial clarity regarding the interpretation of the relevant provisions of the 1983 Act. PQR thereupon sought to be joined to these proceedings.

In December 2022, the First-tier Tribunal (Judge Keates and members) decided that it did not have jurisdiction to determine whether the CTO in respect of PQR was valid. PQR obtained permission to appeal against that decision. Following a hearing on 7 August 2023, Upper Tribunal Judge Jacobs, sitting in the Upper Tribunal (Administrative Appeals Chamber), dismissed PQR's appeal, concluding that the First-tier Tribunal "was right to decide that it had no jurisdiction to rule on the validity" (paragraph 29).

On 4 July 2023, Sir Ross Cranston heard an application by PQR to strike out the claimant's Part 8 proceedings. PQR contended that, were those proceedings to take place, they might well determine whether PQR's CTO was valid. PQR would, however, prefer matters to be determined by the specialist tribunal. PQR further contended that there were no reasonable grounds for bringing the claim; that it was an abuse of process; and that the claimant had failed to comply with a rule, Practice Direction or Court order. PQR highlighted the specialist character of the Upper Tribunal, which heard appeals under the 1983 Act and was therefore, in his submission, the appropriate forum to consider the matters in question. The Part 8 claim was an abstract claim; but the Courts did not deal with matters in the abstract except in exceptional cases. Reference was made to R (Rusbridger) v Attorney General [2003] UKHL 38 and R (on the application of Stamford Chamber of Trade and Commerce) v Secretary of State for Communities and Local Government [2010] EWCA Civ 992. The Devon case was said by PQR to be a special one, arising in the context of the COVID-19 pandemic. The claimant had not informed PQR's solicitors that it was about to make a Part 8 application and thereafter failed to inform them as to its progress. The Part 8 application had been lodged without informing this Court that behind it stood PQR's claim to the Tribunal. Such behaviour failed to comply with the rules of this Court.

Sir Ross was not persuaded by those submissions of PQR. He observed that, whilst the Court was averse to giving declarations on statutory reconstruction, there were nevertheless circumstances in which it would do so. The instant case was one of them: paragraph 22 of the judgment. Sir Ross identified three criteria that must be satisfied. First, the application must raise a real question, rather than a hypothetical or academic one. Secondly, the person seeking the declaration must have a real interest. Thirdly, the Court must hear proper argument. Additionally, an application for a declaration in the abstract required particular justification: Stamford Chamber of Trade.

At paragraph 23 of his judgment, Sir Ross considered it "clear that the first criterion is met." There was a real question for the Court to answer; namely, the interpretation of important powers in the 1983 Act exercised over patients. The outcome of the Part 8 application would have significant impacts on the liberties of many individuals. Sir Ross also considered the second and third criteria to be satisfied. Not only the claimant but, importantly, the Secretary of State and NHS England had said it would be highly desirable for doubts to be removed about the interpretation of the relevant provisions, following Devon. Both the Secretary of State and NHS England would be involved in the hearing, "so the Court will hear proper argument": paragraph 23.

Sir Ross considered the justification for the application to be "obvious", as it followed in the wake of Devon and "both that case and this should be considered as one". In Devon, important rulings have been made in relation to the interpretation of some sections bearing on examinations conducted on patients under the 1983 Act. The present application should result in gaps of interpretation being closed.

At paragraph 25, Sir Ross noted that, as matters then stood, an appeal was pending to the Upper Tribunal. It was, however, not clear whether the Upper Tribunal had jurisdiction to consider PQR's case about the invalidity of the 2020 order. As well as this Court having undoubted jurisdiction in the matter, Sir Ross identified an "additional factor in favour of these proceedings over those in the Upper Tribunal, that the issues before this Court are wider than those raised in PQR's case": paragraph 25.

Although Sir Ross considered that the claimant could have kept PQR's solicitors better informed, any such failings "do not constitute egregious behaviour". So far as concerned the claimant's duties to this Court, even if there had been failings, which he doubted, Sir Ross held that it would not be proportionate to strike out the proceedings, since it was in the public interest and in accordance with the overriding objective that the doubts about statutory interpretation should be resolved.

At the hearing before me, Mr Simblet KC pursued the submissions he had made to Sir Ross Cranston in July 2023, concerning the alleged inappropriateness of the Part 8 claim. For the reasons given by Sir Ross, I reject PQR's challenge. This is, plainly, a case where, exceptionally, this Court can and should resolve the matter of statutory construction in respect of sections 20 and 20A of the 1983 Act. Whether the declaration sought by the claimant in respect of those provisions is appropriately framed is a different matter. On that issue, for reasons I will later explain, I find myself substantially in agreement with the case advanced by PQR, which is supportive of the position taken by the defendant.

Mr Simblet was critical of the evidence of Mr Andrew Coburn, on behalf of the claimant. Mr Coburn is the claimant's Assistant Director of Legal Governance and Mental Health Legislation. As the heading immediately above paragraph 17 of his witness statement says, Mr Coburn purports to give "the Trust's view" as to why "virtual assessments are appropriate in some cases and that allowing such flexibility can have benefits for the individual concerned as well as mental health services as a whole". Mr Simblet submits that, given he is not medically qualified, Mr Coburn is ill-equipped to give a medical (as opposed to an administrative) view on whether and, if so, when, a "remote" examination might be appropriate.

I do not consider that PQR's criticisms of Mr Coburn's evidence constitute, or add to, any in limine objection to the bringing of this claim. The criticisms are, however, of relevance in dealing with the substance of the claim for declarations.

The first of the declarations sought concerns section 17A of the 1983 Act. This differs from sections 20 and 20A, in that there is no express requirement in section 17A for an examination. Any exercise of statutory construction is, accordingly, of a different order in the case of section 17A. The defendant is opposed to the making of a declaration in respect of section 17A on the ground that what might be required of a responsible clinician acting lawfully to form an opinion under section 17A is a matter which may depend on the facts of the case. The particular circumstances in which an examination "in person" or in the physical presence of the examiner and P may be required is, according to the defendant, not for this Court to determine in the abstract. It is a matter best left to be determined in a case with real-life facts.

Despite this somewhat different stance on the part of the defendant and PQR in respect of the first of the declarations sought by the claimant, it is evident that that declaration too satisfies the three criteria identified by Sir Ross Cranston. Accordingly, the section 17A issue requires to be addressed substantively.

Mr Simblet asks that, in my judgment, I should make a finding as to the unlawfulness, as PQR contends, of the examination carried out on him in 2020. I shall deal with that submission later.

DEVON PARTNERSHIP NHS TRUST V SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE AND NHS COMMISSIONING BOARD [2021] 1 WLR 2945

In Devon, the Divisional Court was asked to make declarations on the interpretation of sections 11 and 12 of the 1983 Act, as regards the requirement to have "personally seen" P within the period of 14 days ending with the date of the application; and the requirement in section 12 for the medical practitioner to have "personally examined" P before completing a medical recommendation in support of P's detention.

Amongst the submissions made on behalf of the claimant in Devon were the following:-

26. For the Trust, Ms Morris submitted that the phrase "personally examined" in s. 12(1) MHA means at least that the examination must be carried out by the practitioner himself or herself, rather than by someone else. The same is true of the phrase "personally seen" in s. 11(5). The question is whether these phrases also require that the medical practitioner should examine, or the AMHP should see, the patient face-to-face or whether this may be done remotely in an appropriate case.

27. The context is deprivation of liberty, which in the case of a detention under s. 3 might be for up to six months. In those circumstances, and given that a face-to-face examination is likely to be preferable to a virtual one, Ms Morris accepted that it could be said that a strict construction is required. However, the words "personally examine" and "personally see" are ordinary English words and do not necessarily rule out the kind of interaction that could take place remotely. When pressed in oral argument, Ms Morris said that there was a strong argument that even an examination conducted by voice over the telephone could qualify as an examination for these purposes. Whilst it involved a little stretching of the language, she submitted that there was an argument that an AMHP who spoke to a patient by telephone could say that he or she had "personally seen" the patient (reading those words purposively and in context)."

The defendant's submissions began as follows:-

"32. For the Secretary of State, Mr Cornwell submitted that the phrases "personally examined" and "personally seen" should be given their ordinary meanings. The adverb "personally" could mean either "connoting the physical presence of the individual" or "connoting the doing by the individual themselves". The verb "examine" is defined by the Shorter Oxford English Dictionary as "investigate the nature, condition, or qualities of (something) by close inspection or tests; inspect closely or critically…; scrutinise; …give (a person) a medical examination". This, Mr Cornwell submitted, focuses on the intensity of the inspection, rather than whether or not it is carried out face-to-face. Likewise, "see" does not shed any additional illumination on the issue, since a medical practitioner or AMHP could "see" a patient using video-conferencing facilities. This can be contrasted with "visit and interview", which is used in other provisions of the MHA and which clearly entails physical presence. The fact that Parliament has used this phrase in other contexts may suggest that, where it was not used, physical presence was not required. Similarly, the flexibility inherent in the requirement on the AMHP in s. 13(2) "to interview the patient in a suitable manner" may be considered difficult to square with a reading which requires physical presence, since there is no reason why an interview using video-conferencing facilities would not be capable of being "suitable" in an appropriate case.

The submissions of the advocate to the Court were recorded as follows:-

"41. Mr Auburn began by emphasising that care must be taken not to reason from the convenience of the result sought in present circumstances. If, on proper analysis, it was not Parliament's intention to provide for the examination of patients by remote means, then the manifest challenges raised by the current situation maybe for Parliament, rather than this Court, to address. The court should guard against construing the MHA by reference to the experience of the current pandemic rather than the intention of Parliament when the relevant provisions were enacted. It should also be borne in mind that the restrictions on the manner of a medical practitioner's or AMHP's assessment represent an important safeguard of a patient liberty. Any construction of the relevant provisions by this Court will be for all time, not just for the duration of the pandemic."

42. Mr Auburn made five principal points.

43. First, the ordinary meaning of the word "examine" in a medical context is "to perform an examination of (a person or part of the body) for diagnostic purposes esp. by means of visual inspection, palpation, auscultation or percussion": Oxford English Dictionary. This suggests an activity carried out in. the physical presence of the patient. While the word "personally" might have a different meaning on its own, it is important to treat "personally examine" in s. 12(1) as a compound phrase. Read as such, there are reasons to believe that the phrase connotes the physical presence of the medical practitioner. The same goes for "personally see" in s. 11(5). More generally, in psychiatry, there are reasons why a proper examination may require physical presence. Such an examination may require the psychiatrist to read body language, discern non-verbal cues and other diagnostic aids, for example shaking or self-harming scars. Some examinations cannot be carried out remotely, for example taking a patient's blood pressure and temperature, which may be important for ruling out differential diagnoses with a better understanding a patient's mental state. Smell may be an important diagnostic tool, for example because it may suggest use of alcohol or poor personal hygiene. It may also be important to consider and test a patient's proprioception (the brain's understanding of the sense of movement and the positioning of the body in space), which would be difficult or impossible using video-conferencing facilities. Mr Auburn also drew attention to an academic article about the importance of a physical examination to rule out differential diagnoses: see Welch and Carson, 'When psychiatric symptoms reflect medical conditions', Clinical Medicine vol. 18(1), February 2018.

44. Second, there is no reason to believe that, at the time the 1959 Act or the MHA were enacted, Parliament foresaw the possibility of an examination taking place by video-conference. That being so, the use of the phrase "visit and examine" in other parts of the Act may indicate that Parliament intended there to be a requirement of physical attendance. The 2020 Act shows that, where in Parliament's view the pandemic makes it appropriate to modify the requirements of the MHA, it can and does do so. No such modification has been made in relation to subsections 11(5) or 12(1). The words "suitable manner" in s. 13(2) refer to the way the interview is conducted, not the minimum requirement of physical attendance.

45. Third, the statutory history may in fact tend against the declaration sought. The concerns which led to the use of the words "personally examine" included cases where "certificates of insanity" had been signed in blank for the proprietors of asylums to use: see McCandless, 'Liberty and Lunacy: The Victorians and Wrongful Confinement' in A. Scull ed. Madhouses, Mad-doctors and Madmen: The Social History of Psychiatry in the Victorian Era (1981), p. 346. An example, which attracted public attention at the time, was the case of Hall v Semple (1862) 176 ER 151, where a patient was committed to a "mad house" by a doctor who admitted that his only evidence of the plaintiff's insanity was the testimony of his wife. This suggests that the need for physical attendance may well have been as important in the minds of those who enacted the legislation as the need to avoid delegation.

46. Fourth, the interpretation of s. 11(5) and 12(1) must be informed by the common law principle that "a person's physical liberty should not be curtailed or interfered with except under clear authority of law" and that in consequence "[t]he court may be expected to construe particularly strictly any statutory provision which purports to allow the deprivation of individual liberty by administrative detention": Bennion on Statutory Interpretation (7^th ed., 2017), §27.3. It is for this reason that "circumstances in which the mentally ill may be detained are very carefully prescribed by statute": Re S-C (Mental Patient: Habeas Corpus) [1996] QB 599. This means that the court should be cautious about apply an "updating construction". It should be borne in mind that a court "cannot construe a statute as meaning something 'conceptually different' from what Parliament must have intended": Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74. He relied also on the observations of Lord Wilberforce in Royal College of Nursing v Department of Health and Social Security [1981] AC 800, at 822B-E, which – although part of a dissenting opinion – have subsequently been regarded as authoritative: R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2005] 2 AC 561, at [10] (Lord Bingham).

47. Finally, Mr Auburn submitted that there was a real risk that the construction advanced by the Trust and the Secretary of State could make legitimate a very significant and permanent change in clinical practice which would allow detention in circumstances not envisaged when the MHA was enacted. It could, for example, enable the contracting out of assessments by a mental health trust to UK qualified doctors abroad or in another part of the UK far removed from the physical location of the patient. Resource pressures on the NHS are real. Once the link with the physical presence of a practitioner is broken, the possibilities for making efficiencies in a system under pressure become open-ended.

The Divisional Court's analysis began as follows:-

"48. We begin with Lord Wilberforce's famous statement in the Royal College of Nursing case of the proper approach to statutory construction in cases where technology has moved on since the date when the statute was enacted: [1981] AC 800, at 822B-E. As Mr Auburn said, this statement has since been regarded as authoritative: see Quintavalle, at [10]. Lord Wilberforce was considering the statutory requirements for the termination of pregnancy. He said this:

'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.'

49. In this case, the MHA was a consolidating statute, so the relevant time for ascertaining "the state of affairs existing, and known by Parliament to be existing" is 1959. It is agreed on all sides that, in 1959, there was no way of conducting a medical examination other than by means of the physical attendance of the doctor. The possibility of doing so using video-conferencing facilities would then have been regarded as the stuff of science fiction. Even in 1983, an "examination" conducted by video-conferencing could not have been contemplated by Parliament. Applying Lord Wilberforce's test, the question is therefore whether such an "examination" falls within "the same genus of facts" as those to which the policy of the MHA is directed. Another way of putting the same question, using the words adopted by Sir James Munby in Owens from Lord Hoffmann's opinion in Birmingham City Council v Oakley [2001] 1 AC 617, 631, is whether such an "examination" is "conceptually different" from that intended by Parliament.

50. Mr Cornwell suggested that the fact that subsections 11(5) and 12(1) do not use the word "visit", whereas other parts of the MHA do use that word, shows that Parliament did not intend "personally seen" and "personally examined" to require the physical attendance of the AMHP/nearest relative or medical practitioner. We do not agree. Sometimes, the fact that Parliament uses one formula in one part of an Act and a different formula in another part shows that a different meaning was intended, but that is not invariably so. In this case, as everyone agrees, video-conferencing was not possible in 1959, or even in 1983. At those times, it would not have been possible to "examine" a patient other than by personal attendance on him or her. The same can be said, mutatis mutandis, of the phrase "personally seen" in s. 11(5). Although Ms Morris at one stage suggested that this latter requirement could be fulfilled by a telephone voice call, she did not advance that submission with any great enthusiasm and this was in our judgment understandable: "personally seen" must involve, at minimum, an arrangement in which the patient is visible to the person conducting the interview.

Having explained why it did not find the case law cited by the parties to be of assistance in resolving the question of construction before the Divisional Court, the judgment proceeded as follows:

"56. First, subsections 11(5) and 12(1) set preconditions for the exercise of powers to deprive people of their liberty. In this country, powers to deprive people of their liberty are generally exercised by judges. It is exceptional for such powers to be exercisable by others. Where they are (i.e. where statute authorises administrative detention), the powers are to be construed "particularly strictly": see the extract from Bennion cited above, which cites the decision of the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, at 111 (Lord Browne-Wilkinson) and the decision of the Court of Appeal in R (B) v Secretary of State for the Home Department [2016] QB 789, at [32] (Lord Dyson MR). The question of construction with which we are now concerned must, in our view, be seen through this lens."

57. Second, we do not think it appropriate to take the compound phrases "personally seen" and "personally examined", as used in the 1959 and 1983 Acts, and split them up, asking first what "examined" or "seen" means and then what "personally" was intended to add. We agree with Mr Auburn that this is an artificial approach which fails to capture the true import of these compound phrases as they would have been understood in 1959 and 1983.

58.Third, the meaning of the phrases "personally seen" and "personally examined" might no doubt depend on who or what was being examined or seen. In this case, it is a patient. The concept employed by s. 12(1) is that of a medical examination, not merely a consultation. We have no doubt that Parliament in 1959 and 1983 would have understood the medical examination of a patient as necessarily involving the physical presence of the examining doctor. That is confirmed by the use of the word "visit" in other parts of the Act (in circumstances where the difference in language cannot have been intended to connote a difference in meaning). It is also confirmed by the fact that a psychiatric assessment may often depend on much more than simply listening to what the patient says. It may involve a multi-sensory assessment for the purposes summarised at para. 43 above. It may involve a physical examination in order to rule out differential diagnoses. It is no answer to say that it should be up to the examining doctor to decide when physical attendance is necessary, because without the cues that could only be picked up from a face-to-face assessment, the doctor might wrongly conclude that physical attendance was not required.

59. Fourth, although we accept that it may sometimes be appropriate to apply what has been referred to as an updating construction, we do not think that such a construction would be appropriate here. As Lord Wilberforce said in Royal College of Nursing case: "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". In this case, the statutory history unearthed by Mr Cornwell shows that the words we are construing were indeed intended to be restrictive and circumscribed. They were inserted to address a particular problem in which doctors had certified patients as liable to detention without physically attending on them. Whilst it is true that part of the problem was doctors delegating their functions to others, the remedy fixed upon by Parliament was to require the examination to be carried out personally by the person whose recommendation was being relied upon. That would have been understood then, and should be understood now, as connoting the physical presence of the doctor.

60. Fifth, the fact that the Code of Practice requires physical attendance and that the Secretary of State's Guidance makes clear that in person examinations are always preferable seem to us to show that, even today, medical examinations should ideally be carried out face-to-face. The fact that the 2020 Act made amendments to other parts of the MHA does not assist one way or the other in construing the provisions we are considering today, because the lack of amendments to subsections 11(5) and 12(1) could suggest either an assumption that those provisions already authorised interviews and examinations by video-conference or an assumption that they did not and an intention not to attenuate the requirement for physical attendance in this context. Either way, however, the 2020 amendments do show that – where Parliament considers that the pandemic necessitated amendments to the safeguards in the MHA – it is willing and able to make such amendments. The decision whether to allow the AMHP/nearest relative to see a patient and/or to allow a medical practitioner to examine a patient by video-conference (contrary to the common understanding of all concerned until the start of the current pandemic) will involve balancing two important public interests: the need to ensure that administrative deprivations of liberty are properly founded on objective evidence and the need to maintain the system of MHA detention given the exigencies of the pandemic. In our constitution, the weighing up of competing and incommensurable public interests of this sort is for Parliament, even in times of national emergency.

61. The sixth point is related. We bear firmly in mind that the construction which we are asked by the Trust and the Secretary of State to endorse will be applicable immediately and may remain in force for some time after the end of the current pandemic. The benefit of allowing any modifications to be made by Parliament is that, if they are considered necessary, a judgment might be made not to bring them into force; and Parliament could also consider whether they should be time-limited. Both these things were done in relation to the modifications for which the 2020 Act provided. These techniques offer a tailored way of addressing a time-limited problem. They confirm our view that it is Parliament, and not the courts, that can best address the problems to which the pandemic gives rise in this area."