Summary: The court refused to strike out an NHS trust’s Part 8 claim which sought to clear up the ambiguity around the meaning of the word “examine” in Section 20 of the Mental Health Act 1983, which arose from the case Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021]. That case had directed that examinations under further sections of the Act must be conducted face-to-face.
A patient (P) requested to strike out the respondent NHS Trust’s Part 8 claim seeking clarification of the term “examine” as used in s.20 of the Mental Health Act 1983. P had previously been made the subject of a community treatment order by the Trust who subsequently renewed that order, following a telephone assessment during the Covid-19 pandemic.
In September 2022, P challenged the lawfulness of that renewal in the First-tier Tribunal based on the assertion that a face-to-face examination should have been conducted.
In response, the Trust advised both the Tribunal and P that it intended to issue proceedings seeking clarification as to whether face-to-face assessments were actually required by the 1983 Act. The decision to do so stemmed from doubts created by the outcome of Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021] which had indicated that the words “personally seen” and “personally examined” in s.11(5) and s.12(1) of the Act respectively, did require face-to-face attendance.
In October 2022, P requested the Trust join him in to its proposed proceedings and agree to pay his costs. The Trust, however, said its claim related to a statutory interpretation, as opposed to any individual, and that other avenues of challenge were available to P.
In November 2022, the Trust issued proceedings in the First-tier Tribunal seeking clarification of the meaning of the word “examine” in s.20(3), s.20(6), and s.20A(4) of the Act, which pertain to authorisations, extensions and renewals of guardianship, detention, and community treatment orders.
In December 2022 the First-tier Tribunal found it lacked the jurisdiction to determine P’s case as to the lawfulness of the renewal of his community treatment order.
In January 2023 the Tribunal refused P’s application for permission to appeal, stating that a Part 8 claim had been lodged such that the matter would be resolved by the relevant court. Thereafter, a successful application to the Upper Tribunal gave P permission to appeal, having found that he had a reasonable prospect of success. The matter was then listed for hearing in August 2023.
P wanted the Upper Tribunal to examine the validity of the renewal of his order arguing that as the Trust lacked reasonable grounds for bringing the claim, it was engaged in an abuse of process and had not complied with court orders to the effect that the Part 8 claim should be struck out under CPR r.3.4(2). P submitted the matter could be heard more swiftly by the Upper Tribunal which was the appropriate setting for consideration of a statutory interpretation of the Act. He submitted that: the Part 8 claim was abstract, whereas examination of the instant issue required the contextualisation of an actual dispute between parties; that the decision in Devonshire case had been exceptional due to its Covid-19 pandemic backdrop; and finally that the Trust had failed to advise the court that his case was relevant to its claim which sought to determine his rights without keeping him informed.
The application to hear the matter in the Upper Tribunal was refused on the basis that the Trust had reasonable grounds for bringing the Part 8 claim; that a real and important question existed to be determined; that the Trust, NHS England and the Secretary of State for Health and Social Care all agreed it was desirable for the doubts created by Devonshire to be resolved; that it raised wider issues than those arising in P’s case; that the claim would close gaps in interpretation of the 1983 Act; that any decision would have a significant impact on numerous individuals’ liberty and it was not clear that the Upper Tribunal had jurisdiction to consider P’s case.
The Court agreed the Trust could have kept P better informed but was not persuaded that it had failed in its duty of candour. The court ordered P be joined as an interested party to the proceedings but without any basis for making an order against the Trust for his costs if he participated accordingly.
CASCAIDr Comment: Reports on this case suggest it will be heard in October 2023. This will be an interesting case as it will determine whether the conclusion in the Devonshire case applies to “similarly worded but different provisions in the Act” relating to hospital detention renewals, renewals of guardianship, and renewals of Community Treatment Orders.