Just wondering what your views are on RCs undertaking, dialogue/discussion over the phone to help confirm whether a patient is consenting to their proposed treatment for purpose of a CTO12 or SOAD certificate for CTO11. RCs although penciling in outpatient appointments for this purpose find the patients always DNA - so there could be a long period where the patient is not seen but patients will still take their meds without the certificate in place which I know is unlawful and will generate an incident.
I should add I am fully aware of the all the barriers that would make it extremely difficult to truly ascertain capacity/consent over the phone and video assessment for the above purpose would always be preferable. We would always advise that the RC under takes a face to face assessment - as a remote assessment could always be subject to legal challenge - but it is difficult to push this when it is not clearly specified in the Act as a âmustâ.
This is an issue for us at the moment. Our stance is the discussion for a CTO12 must be done face to face and if patient DNA then recall could be used. We also have the issue where the patient is accepting depot from GP and next one will be due imminently without the authorisation being in place in time.
This is a personal response not a corporate one. Iâm not so sure that it is a requirement to do a face-to-face meeting to determine and certify that a CTO patient consents. The Devon case (Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin) - Mental Health Law Online) that established judicial interpretation over face-to-face vs remote assessments hinged on the actual wording used in the MHA (sections 11 and 12) about assessments for detention. The MHA uses very different terms in those sections than in the sections of Part 4 dealing with CTO consent certification. At section 12 it is stated that a medical practitioner must have âpersonally examinedâ a patient before completing a medical recommendation and at section 11 the AMHP must have âpersonally seenâ the patient before making an application for detention. None of these phrases, or anything like them, appear in the MHA in relation to CTO consent certification. Section 64C(4A) merely states that the AC must certify that the patient has capacity to consent and does consent. CQC currently conducts remote SOAD assessments, so it would seem odd if it were unacceptable for an AC to do something similar. I canât see why it is impractical or in some sense unethical to determine the questions of capacity and consent by speaking to a person without meeting them face to face. Particularly if this would be that personâs preference: by contrast using coercive powers to recall someone to hospital just to discuss the fact they consent to treatment seems unnecessary and actually quite wrong.
I studied all of your post. If I understood correctly the situation is about an RC assessing capacity to consent over the phone.
âDifficult to trulyâ - are important words.
All that matters is whether you (or any other RC) can get away with it. From my long experienced based knowledge there is a high probability of âgetting away with itâ. Nobody really checks on standards of practice. And nobody is going to sue for a range of reasons - most notably nobody has nous nor money to sue. All the latter may sound sarcastic but it is true. Donât start me up on dodgy assessments of capacity - the usual tickbox forms - and widespread breaches of GMC standards (if a medical AC) - that has been happening for the last 20 years - all totally unseen.
The big issue though, is âreliability of capacity assessmentâ over the phone. It appears that capacity for the purposes of the MHA does not include in *law all aspects that need be considered under S3 MCA 2005 - nor is materiality written into the MHA 1983 as a consideration as per Montgomery 2015. And further the MHA couldnât care less about prescribing practices relevant to medical ACs and *SOADs.
[*I said âlawâ - Iâm not talking about so-called âbest practiceâ which is usually made up on the fly from my experience.
**Many SOADs are totally unaware how GMC standards on precribing applies to them - no, I have donât an audit - but I could see with my own eyes whatâs going on.]
Iâve only once from memory carried out a capacity assessment over the phone: it was a patient I had recently (like 3 days previously) in the community, assessed capacity for a specific treatment. I needed to add one other medication.
For medical ACs the MHA does not spell out what is proper medical practice. The GMC spells out what is proper for capacity/consent assessments. But based on all that Iâve seen over the last 30 years, one could be led to a hypothesis that âGMC standardsâ are a waste of time. How? Any standard that is not audited (randomly for example) by the maker of the standard is a waste of time. In the case of the GMC - it is not an âinspectorateâ - it sits there are waits for somebody to make a complaint. Trusts do not properly audit standards applicable for capacity/consent assessnemts. I could walk into any Trust in the UK and within 2 hours of full access to records find 5 dodgy capacity/cosnent assessments by doctors - and thus engage relevant parts of S11, 22, 23 â The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The good news for Trusts is that I donât work for the CQC, else it would have been fines and prosecutions left right and centre.
In addition there the GMC has standards applicable to remote assessments/consultations. Not many doctors read GMC standards, so not many will know.
In closing, I think that no medical doctor - save in genuinely exceptional circumstances - should be assessing capacity/consent to treatment over the phone. Why? In summary there is too much law surrounding the matter, and too many (to list here) regulatory standards applicable - if one was the type like me not to try to get away with dodgy practice that doesnât meet GMC expectations.
But no worries - nobody checks the standards with a âfine toothed combâ (except me of course) - fill out the incident form - and carry on as usual. Nobody will know or care enough to do anything - except perhaps you.