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Mental Health Act: Doctors should not use video assessments to detain patients during pandemic, say judges

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Guidance from NHS England that doctors may lawfully use video assessments during the pandemic to decide whether patients should be detained in hospital under the Mental Health Act was wrong, two High Court judges have ruled.

The act makes it a legal requirement that doctors must “personally examine” a patient before recommending detention. A code of practice requires “direct personal examination of the patient and their mental state.” But guidance from NHS England just after the start of the first lockdown last March said that “temporary departures from the code of practice may be justified in the interests of minimising risk to patients, staff, and the public.” Revised guidance in May 2020 included a section drafted jointly by NHS England and the Department of Health and Social Care for England (DHSC) “for use in the pandemic only.” This stated, “It is the opinion of NHS England and NHS Improvement and the DHSC that developments in digital technology are now such that staff may be satisfied, on the basis of video assessments, that they have personally seen or examined a person ‘in a suitable manner.’ ”

The guidance added, “While NHS England and NHS Improvement and the DHSC are satisfied that the provisions of the Mental Health Act do allow for video assessments to occur, providers should be aware that only courts can provide a definitive interpretation of the law.” It went on, “Even during the COVID-19 pandemic it is always preferable to carry out a Mental Health Act assessment in person. Decisions should be made on a case-by-case basis and processes must ensure that a high quality assessment occurs.”

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Source: BMJ, 25 January 2021

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