What do psychiatric examinations legally require? Tom Cross in important Mental Health Act case, handed down today


Before the detention of mentally unwell patients in hospital or subject to guardianship can be renewed, or before Community Treatment Orders can be extended, the patient must be “examined” by a clinician. In Derbyshire NHS Trust v Secretary of State for Health (MIND intervening), handed down today, Mr Justice Lane has decided that such examinations require the clinician to be in the physical presence of the patient, such that they may not be carried out remotely e.g. by video-conferencing facilities. 

The judgment, which is not being appealed by the Trust, resolves a rumbling controversy about the use of remote technology for assessments in the field of mental health.

The judgment is also notable for its treatment of the presumption of statutory construction that a statute is “always speaking” or must be given an “updating construction”, discussing Lord Hoffmann’s distinction between the “concept” and the “content” of legislation in Oakley v Birmingham City Council. 

Tom Cross acted successfully for the Secretary of State for Health and Social Care, who argued that the relevant examinations must be “in-person”, including so as to safeguard the liberty of the subject. 

You can read the judgement here.