COVID-19 EXPERT LEGAL INSIGHTS

Remote consultations during COVID-19: a doctor’s judgment as to when a face to face appointment is ‘clinically required’

22 April 2020

With the COVID-19 lockdown extended in the UK until at least early-May, primary care practitioners and consultants, who have been increasingly turning to remote consultations or telemedicine to treat their patients, will inevitably see an increase in their use to address more complex medical issues.
 

In this blog we consider the current guidance for doctors issued by the General Medical Council (GMC) and how doctors can deliver the best possible patient care within the confines of this guidance. In particular, we look at the judgement that needs to be brought to bear by doctors on the difficult decision of whether or not a face to face appointment is clinically required.


Remote consultations pre COVID-19

The General Medical Council’s (GMC) standard flowchart for remote consultations sets out a number of key criteria to consider when weighing up whether a remote consultation might be appropriate for any particular patient. Doctors must consider whether:

  • The particular consultation looks to be straightforward;
  • They have access to the necessary patient records;
  • Whether physical examination of the patient is required;
  • They can give the patient all the information they want albeit remotely;
  • There is a safe system in place for prescribing; and
  • The patient has capacity to decide about treatment.

It follows that if any of the reverse of the above criteria hold true, it is unlikely that a remote consultation would ordinarily be appropriate. However, in the current circumstances, there can be no doubt that the scenarios in which remote consultations might now be used are bound to increase, by necessity. The question then is, how should a registered medical practitioner more broadly use remote practice in a safe way, consistent with their duty to patients?

 

Remote consultations during the COVID-19 pandemic 

The GMC has sought to address the need for a different approach during the pandemic, in an FAQ document contained within their COVID-19 guidance pages, which references the normal remote guidance flowchart. The GMC notes, within this document, that “[d]uring the pandemic, we recognise that doctors may need to depart from this advice and apply their professional judgement to make best use of the resources available to them.

Exercising this judgement effectively will, to an extent, depend on the means of remote consultation. The current NHS guidance is that primary care practices should adopt a ‘triage first’ model, where telephone calls are used in the first instance to determine what might be appropriate as a next step.

Such telephone consultations of course have their limitations. The clinician cannot see the patient; cannot observe physical symptoms; cannot see how a patient reacts to questioning; and cannot therefore usually make a complete and informed assessment of the presenting complaint. There can be no doubt that for routine checks they will serve as an expedient means of checking-in with a patient, but it will be rare that they provide the practitioner with sufficient information to make considered clinical decisions.  

The clinician will then have to make a decision. Is the presenting complaint something which can reasonably be dealt with by another means, perhaps video consultation, or will it require a face-to-face consultation with additional measures in place to ensure patient and clinician are both safe? Indeed, the GMC guidance notes that “[r]ecent NHS guidance across the UK advises that patients should be enabled to get advice and care without attending a GP practice unless in-person care is clinically required.

Video consultations allow practitioners to interact with patients in a way that is arguably fully consistent with a doctor’s professional obligations and indeed with best clinical practice. The current situation, unlike the ordinary position in respect of remote consultations, will require clinicians to establish whether they are able to conduct relevant examinations in respect of the particular presenting complaint.

Using suitable, secure video conferencing software, doctors can request patients to show them physical symptoms (within reason) and can properly assess a patient’s demeanour and whether concerns are symptomatic or not. Of course, there are still limits. There may be difficulties with patient consent in displaying sensitive complaints, and some conditions (for example ENT concerns) are unlikely to be diagnosed under poor lighting and without the clinician being able to examine within the ear, nose or throat.

Matters will also be more complex in instances where the clinician has limited access to clinical records (which may even be in another language in the case of foreign nationals locked down here) and in situations where presenting complaints require prescription of opiates or other medications subject to abuse. In such circumstances, the GMC recommends that practitioners consider signposting patients to their online treatment guidance for patients. In such situations, the clinician is likely going to have to default back to a face-to-face appointment. There is, of course, nothing to stop a practitioner from attempting to resolve the concern by video consultation in the first instance, and then reverting to a consultation in person if faced with an insurmountable concern.

The key, according to the GMC guidance, is whether face-to-face consultation is “clinically required”. This is of course key in terms of preventing the potential further spread of COVID-19, but as highlighted above, may not be a straightforward decision, but it is one which rests solely with the practitioner, informed by any local or national guidance issued to them.

 

Accessing suitable video software

There are likely to be both practitioners and patients for whom video consultations will prove a new and challenging experience. The NHS has acknowledged that there has been a need to implement remote consultations at a rate than is quicker than was previously considered. The NHS guidance document referred to above contains helpful suggestions and recommendations, including a list of recommended software which better caters for medical professionals.

 

Obtaining patient consent remotely

Remote platforms inevitably have a bearing on the obtaining of patient consent. As a general rule, consent is likely to be implied where patients agree to and engage with video consultations. As highlighted above, there may be circumstances where a patient may disengage when they become concerned about having to discuss or display private concerns. It is hard to know what situations might arise, but clinicians will have to be more keenly aware of consent issues than ever before. For example, it may be that you decide to ask patients to fill in a questionnaire ahead of any remote consultation which provides detail on the presenting complaint and provides them with an opportunity to give prima facie consent which can be confirmed during the remote consultation.

Cases where there may ordinarily be a chaperone also present challenges. The GMC have existing guidance for chaperones, but clinicians will have to reflect on whether it is possible to conduct these appointments remotely and exercise their judgement on whether such appointments may need to remain as face-to-face appointments. For example, a child can be accompanied by a parent even remotely.  

 

The critical importance of record keeping

Finally, as with so many of the decisions which this current pandemic is forcing clinicians to make, the central protection from any future criticism is likely to be record keeping.

The GMC’s guidance in their joint statement with other regulators states clearly that “[c]oncerns about registered professionals will always be considered on the specific facts of the case. This includes taking into account the situation in which the professional is working and any protocols in place at the time. The scale of the challenges to delivering safe care would also be relevant to a question about the clinical care provided by a doctor.

In considering these criteria at the point a complaint is made, there can be no doubt that proper coding and detailed free-text notes setting out clinical decisions are likely to be central if a complaint is made. These, it would seem, ought to include notes about the appropriateness of a particular method of consultation, what was done during the remote consultation and also whether the clinician has satisfied themselves regarding those areas of risk which are exacerbated by the absence of a face-to-face appointment.

These are of course uncertain times. Your professional judgement is crucial in respect of whether a remote consultation is appropriate in each case. Ensure you have recorded your thought process and clinical reasoning. If in doubt, and as the position is changing so frequently, refer back to the guidance. 

 

About the authors

Julie Norris is a Partner in the Regulatory department and specialises in advising in the health, professional services, legal and financial fields. 

Jim Olphert is an associate in the Regulatory TeamHe is a barrister with experience in advising and representing clients in the fields of healthcare and qualifications regulation.

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