Clinical law updates
On these pages I discuss the clinical law on which our nursing and medical staff rely when caring for our patients.
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Mr Robert Wheeler, director, department of clinical law
Virtual consultation, actual peril
Without doubt there are benefits from virtual practice. The markedly improved attendance at multidisciplinary meetings is testament to that. Finally one can properly see the images and the histology. Many clinical assessments can also be achieved by a remote consultation properly and safely, with unfathomable savings for climate and convenience. Whilst the central function of the consultation with a patient is to provide thorough clinical evaluation, it is often possible to avoid physical examination, and in those circumstances unexpected benefits accrue.
But few incidental advantages lack an obverse face, and in a judgement earlier this year the court in Devon Partnership NHST v Secretary of State for Health & Social Care scrutinised government guidance prepared for use only in the current pandemic.
This guidance indicated that remote consultation would be sufficient for the purposes of making a mental health assessment, which could ultimately lead to compulsory detention in hospital. The court’s scrutiny was prompted by the Trust’s application for a declaration (amongst others) that a remote examination was ‘...deemed sufficient to fulfil...’ the longstanding statutory requirement that the doctor has ‘personally examined’ the patient before completing documents supportive of detention. Counsel for the Trust explained to the court that the Secretary of State’s guidance had not provided certainty of lawfulness to professionals and the public, and that clinicians and Trusts were generally concerned that the guidance might lead them unwittingly, wrongly, to detain a patient.
Unusually, both parties agreed from the outset that the declaration was required. Since the normally ‘opposing’ counsel were on this occasion in agreement, a third barrister was engaged by the court to ensure that all possible contrary arguments could be considered during the case.
Courts are usually unable to give advisory theoretical opinions on how statutes are interpreted. However, since the declaration being sought was a real (as opposed to academic) question, the Trust had a real interest in the matter, and the court (thanks to three counsel) had heard proper argument, the hearing was justified.
The level of clinical detail examined by the court was revealed in the judgement, and is applicable far beyond mental health practice. Reasons were given why ‘proper examination’ might require physical presence. Body language needs to be read, non-verbal cues picked up, and diagnostic aids such as tremor or the signs of self-harm elicited. The self-evident diagnostic benefits of temperature and blood pressure measurement were noted. A sense of smell, only feasibly available during an encounter in person, was highlighted as a means of detecting alcohol or poor personal hygiene. Consideration was given to tests of proprioception, amongst other psychiatric signs and symptoms that may reflect medical conditions.
The court had no doubt (at the very least in the context of the Mental Health Act) that Parliament understood that physical examination of a patient necessarily involved the physical presence of the examining doctor. It also found, as a fact, that a psychiatric assessment may often depend on much more than simply listening to what a patient says. 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 (in advance of the consultation) 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’.
We should fully acknowledge that this was a judgement founded upon a question about an assessment that could result in a person losing their liberty. The Mental Health Act addresses a particular problem that arose decades ago, when doctors certified patients as liable to detention without physically attending on them. That was why Parliament provided a remedy: requiring personal examination by the person whose recommendation for detention was being relied upon.
Even in the setting of a pandemic, neither Parliament nor the regulators have modified or relaxed clinical standards. Whilst NHS England has provided detailed advice for clinicians and patients on conduct and safeguards for remote consultations, the guidance from the GMC and other regulators has explicitly avoided modifying standards of care. Rather, the principles it has advanced are ‘underpinned by existing standards and guidance from professional and system regulators’. These explore, for example, remote prescribing and provide ten ‘key principles’ for virtual consultations, but do not contemplate a relaxation of the need to examine the patient, where required to make an ‘adequate clinical assessment’.
Although most of us are not constrained by a statutory rule to examine our patients, the lessons that can be drawn from Devon v SSH&SC are easily and obviously applicable to the assessment of physical illness. We need to remain alert to the perils of missing on a screen something that would be self-evident, easily ascertained, in person.
Department of clinical law, February 2021