Telehealth and Capacity Assessment

Telehealth and Capacity Assessment

Oluwatoyin A. Sorinmade, ¹ Lana Kossoff ^2,  Carmelle Peisah, ^3,4
1. Oxleas NHS Foundation Trust
². Faculty Old Age Psychiatry, Royal Australian and New Zealand College of Psychiatrists
^3. School of Psychiatry, University of New South Wales
^4. Capacity Australia

The global COVID-19 crisis has necessitated adaptations to health care delivery, in order to minimize spread of the disease. While Telehealth has emerged as a key alternative solution for service delivery, one of the most challenging applications of this modality is capacity assessment. 

Digital technology has been used across a range of public and private mental health, forensic and justice health services to undertake capacity assessments and clinical discussions. These assessments usually help guide important issues ranging from health care consents, guardianship and administration and testamentary capacity, to detention and deprivation of liberty for the purposes of care and treatment. The gravitas and impact of these assessments has mandated high standards to ensure that the technology is not a disadvantage to the person by inadvertent widening of inequalities nor increased future risk. ¹ 

The COVID-19 pandemic and the exigencies to deal with such have posed challenges to the observation of some of the rights guaranteed under the European Convention on Human Rights (ECHR).  ² Notwithstanding this, in the UK the Court of Protection has taken pains to emphasise that “nothing has changed” as far as the obligation to safeguard the rights of the frail and vulnerable - often the subjects of these assessments. ³  COVID-19 and its exigencies have not removed the right of individuals to make autonomous decisions on personal matters or obviate the need for health or care professionals to ascertain whether individuals consent to their care and treatment, or to issues relating to their personal life. The first principle (s 1(2)) of the Mental Capacity Act ⁴ in England and Wales is the assumption that we all have the mental capacity to make a required decision until proven otherwise and case law is also clear that an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo and their consent must be obtained before treatment interfering with their bodily integrity is undertaken.⁵

Cognisant of the rights at stake, a recent judgment by the Court of Protection, acknowledged the necessity of remote assessments of capacity and the need for careful scrutiny of such: 

‘Can capacity assessments be undertaken by video when it is established that P is happy to do so and can be “seen” alone?

· Suggested solution:  In principle, yes. The assessor will need to make clear exactly what the basis of the assessment is (i.e. video access, review of records, interviews with others, etc.) Whether such evidence is sufficient will then be determined on a case by case basis. It is noted that GPs are rapidly gaining expertise in conducting consultations by video and may readily adopt similar practices for assessments. Careful consideration will need to be given to P being adequately supported, for example by being accompanied by a “trusted person.” These considerations could and should be addressed when the video arrangements are settled. It should always be borne in mind that the arrangements made should be those which, having regard to the circumstances, are most likely to assist P in achieving capacity.’⁶ This latter statement, which also informed a guidance document, captures the key elements of a dignity and rights-sensitive approach to remote capacity assessments of vulnerable people, particularly those with cognitive impairment, namely:

1. the importance of the person “being happy with” i.e. consenting⁷  to remote capacity assessment with all its inherent risks, as outlined below;
2. ensuring that the person is seen alone. This is crucial to maintain rights of privacy and confidentiality, as well as safeguarding against abuse and undue influence, particularly for home-based capacity assessments if potential perpetrators of abuse are in proximity. The complexity of maintaining such privacy assessments for older people who may be hearing impaired or raise their voices during assessments has led to recommendations that practitioners screen for such concerns. ⁸
3. while maintaining privacy, the person may need the support of a trusted person to negotiate the technological challenges and optimize assessment ⁸
4. promoting the fundamental human right to supported decision making, assisting the person, where possible, to “achieve capacity;”    
5. as with any medicolegal report, the basis of the opinion (e.g. video access, medical records, court documents, interviews with others) must be outlined in the report. While access to past records and legal documents such as Powers of Attorney financial records,  past Wills and Affidavits, may be more difficult to procure for telehealth assessments, it is still important that opinions are comprehensively based and informed by adequate corroborative information.

Optimising communication, location, timing and support in order to put the person at ease and improving their ability to make a decision are all generic principles for best practice capacity assessment. ⁹ It is essential that the capacity assessor has experience with conducting capacity assessments remotely and with available research and guidelines to ensure the reliability and validity of the assessment.⁸

Determining capacity is part of everyday work for health care professionals working in old age psychiatry. ¹⁰ Notwithstanding the major challenges associated with remote capacity assessments, it is still business as usual as far as empowering people to make decisions for themselves where possible, including planning ahead for the future, while safeguarding them against abuse and undue influence.  The stakes are high, and we cannot lower our standards. Capacity assessment by telehealth is not easy, but someone has to do it, properly.

References

1. https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2020/03/C0454-mhlda-spec-comm-legal-guidance-v2-19-may.pdf​.  Accessed July 1, 2020
2. Sorinmade O. Highlighting some of the challenges COVID-19 has posed to the European Convention on Human Rights. BJ Psych Bulletin doi.10.1192/bjb.2020.64
3. https://courtofprotectionhandbook.files.wordpress.com/2020/05/letter-vp-to-adass-4-may-2020.pdf. Accessed July 1, 2020
4. Mental Capacity Act 2005
5. Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 On appeal from: [2013] CSIH 3; [2010] CSIH 104 para 87
6. BP v Surrey County Council & Anor [2020] EWCOP 17.
7. Sorinmade O. Relevant Information and the Mental Capacity Act. Journal of Patient Safety and Risk Management 0(0) 1-5, 2019. https://journals.sagepub.com/doi/10.1177/2516043518820148
8. Luxton DD. Pruitt LD Osenbach J.E. Best practices for remote psychological assessment via telehealth technologies Professional Psychology: Research and Practice 2014, Vol. 45, No. 1, 27–35
9. Department for Constitutional Affairs (2007) Code of Practice Mental Capacity Act 2005 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf
10.  Peisah C. Yaffa Lerman Y. Herrmann N., Rezmovitz J Shulman K Piloting the Global Capacity Education e-Tool: can capacity be taught to health care professionals across different international jurisdictions International Psychogeriatrics 2019b Jul 16:1-4. doi: 10.1017/S1041610219000723. [Epub ahead of print]