Rather than the whole assessment being postponed for an unknown timeframe, and in awareness that solicitors were informing us that they wished to continue to litigate cases, we considered the possibility of digital/ video-based assessments.
To date, we have been very pleased with the assessments we have undertaken, although naturally they have only been happening for approximately one month and we are continuing to review them.
Our first considerations
Our first consideration was Data Protection but we were aware that data protection rules had, according to NHSX IG Policy, been relaxed: “The health and social care system is going to face significant pressures due to the Covid-19 outbreak. In the current circumstances, it could be more harmful not to share health and care information than to share it. The Information Commissioner has assured NHSX that [she] cannot envisage a situation where she would take action against a health and care professional clearly trying to deliver care”.
This advice was further endorsed by the Information Commissioner’s Office, the National Data Guardian and NHS Digital: “We encourage the use of videoconferencing to carry out consultations with patients and service users. This could help to reduce the spread of COVID 19. It is fine to use video conferencing tools such as Skype, WhatsApp, Facetime as well as commercial products designed specifically for this purpose. The consent of the patient or service user is implied by them accepting the invite and entering the consultation. But you should safeguard personal/confidential patient information in the same way you would with any other consultation”.
We were aware that some of our speech and language therapy experts were very familiar in their clinical practice with the use of virtual assessments, so we were able to draw from their experiences.
We have been using Consumer Skype and recommend that our experts use this. There are, of course, other platforms available and we may consider the use of these in time. We contacted the Royal College of Occupational Therapy (RCOT) for guidance and they acknowledged (OTnews, April 2020) that “remote working usually requires extensive planning and we know that members have faced introducing new working practices without that stage”. However, they also recognised that: “…even in these times, occupational therapists need to use their clinical reasoning skills to determine what are the right tools to use at the right time”. Indeed, the RCOT continued to rapidly expand the advice in this area.
We were aware that some of our speech and language therapy experts were very familiar in their clinical practice with the use of virtual assessments, so we were able to draw from their experiences. Subsequent to us undertaking our first few virtual assessments, APIL and FOIL published the Best Practice for Mutual Co-Operation, 31/03/20 in which they stated that: “It is inevitable in the current circumstances, face-to-face examinations will be difficult to arrange. It will often be in the client’s best interests to agree to use some form of video conferencing for experts’ ‘examinations’ of the injured person. The BMA has issued guidance to medics indicating that the NHS is turning to remote consultations in order to minimise the risk of infection for staff and patients”.
Are virtual assessments suitable for all Claimants?
Whether an assessment can be carried out virtually depends on:
- The nature and complexity of the claimant’s condition,
- The claimant’s knowledge, skills and abilities in respect of digital/ video technology,
- The nature and complexity of the assessment techniques the expert clinician wishes to use,
- The claimant’s context and environment.
With the agreement of the claimant’s solicitor, we have asked that the expert contacts the Claimant prior to the assessment to ensure they have access to a telephone/ iPad/ computer on which they can video conference.
For cases where the clinical hands-on assessments are key to the opinion, they will be unable to be replicated by video means. Examples of these include:
- An assessment of grip strength, commonly measured by a dynamometer,
- Range of motion assessments using a goniometer,
- Assessments of muscle tone and power,
- Prosthetic check out to determine the extent of socket fit,
- Assessment for specific ankle, foot orthosis which involves a detailed assessment of anatomical alignment and symmetry and sometimes involves the insertion of a block under a foot to identify potential deviation correction methods,
- Assessments of sensation using a monofilament,
- Assessments of balance,
- Assessments of the visual field,
- Where a risk assessment indicates the need for the assistance/close guidance of a therapist when undertaking an activity.
Ultimately every case requires consideration on its merits and careful discussion with the instructing solicitor because much depends on the clinical presentation, nature of litigation/case, budget constraints, state of proceedings and client choice.
What happens prior a virtual assessment?
With the agreement of the claimant’s solicitor, we have asked that the expert contacts the Claimant prior to the assessment to ensure they have access to a telephone/ iPad/ computer on which they can video conference. At this stage, the expert also checks that the claimant is indeed happy to be assessed by these means. It has been our experience that many claimants’ solicitors have already discussed and obtained permission for this. To date, we have not, however, had any Claimant refuse a video assessment.
We do ask that where possible (and we strictly reinforce that there must be no breach in social distancing rules), for a claimant to have somebody present (e.g. a close relative living in the same household) during the assessment. This is encouraged so that they can hold the iPad/phone, such that the expert can observe the claimant in activities of daily living e.g. mobilisation, transferring and negotiating the stairs. It would be difficult for a Claimant to undertake activities of this nature safely whilst also trying to hold their phone/iPad. On some occasions, it has been possible for the lone Claimant to prop the device up and for the expert to observe their function.
Preparation by the expert is paramount and we, therefore, have the following checklist which the expert runs through with the claimant prior to the day of the virtual assessment:
- Do they consent to the assessment happening via video/telephone?
- Do they have access to a computer, smartphone, tablet?
- Can they ensure the device is sufficiently charged?
- Is the device sufficiently portable, such that someone can carry the device around the property for assessment purposes?
- Do they have Skype account already/will they be able to set one up? Have they used Skype before?
- Do they need them to have any items to hand, for assessment purposes, e.g., items for functional activity, such as cutlery or vegetables (etc.)?
What happens during a virtual assessment?
Dependent upon the quality of the broadband strength and the visual/auditory quality, some experts are using Skype for the entirety of the assessment where others have used a combination of Skype and telephone.
Our experts have been able to discuss the following with the claimant and/or family member:
- Pre-existing condition and lifestyle
- Claimant’s subjective account of their clinical condition – grip strength, range of motion, pain
- Claimant’s subjective account of their functional level and associated difficulties (mobility, transfers, personal care, shopping, meal preparation, social and leisure activities and gardening and decoration)
- Claimant’s past care provision
- Claimant’s perspective upon their future care needs and ways in which they would like care provided
- Summary of equipment that has been provided via the statutory services or which they have purchasedThe expert may potentially be able to assess and report much quicker than they would if they were required to travel some considerable distance to assess a Claimant.
Our experts have been able to objectively assess through observation:
- Bed, chair, toilet, bath and car transfers
- Carers hoisting child from bed to wheelchair/in and out of standing frame
- Stair and step mobility
- Functional abilities e.g. hot drink preparation, play activities
- Dressing/ undressing skills
- Manipulative/prehensile skills (including use of upper and lower limb prostheses)
- Putting prosthesis on/taking it off
- The home environmental (access, room size, wheelchair/mobility accessibility throughout, the suitability of furniture, size of garden and property)
- Speech
- Concentration and memory and administrate certain cognitive standardised assessments through screen sharing
- Use of the eye gaze system
The Skype picture can sometimes be poor, which makes it difficult to see 'micro expressions' and it is, therefore, harder to tell if a Claimant is tearful or on the verge of tears which you would see instantly in person.
The benefits of virtual assessments
- The litigation process need not be delayed, with the expert being able to provide a fully reasoned robust CPR compliant report on the basis of a comprehensive assessment (along with the important documentary evidence).
- Skype offers unlimited time for speaking to the Claimant (unlike Zoom which on the free basic account stops after 40 minutes). This takes the pressure off the expert when undertaking lengthy assessments of between two to four hours.
- Skype allows for breaks. Should the Claimant become fatigued or need to attend to their medical condition (for example, need to inject insulin, take medication, eat to maintain blood sugars, use the toilet, empty their stoma bag), the client can take this break in the privacy of their own home. This is more dignified than the Claimant having to rush back from the toilet/kitchen when the expert is in their home. The breaks can be short at around five minutes, or longer circa 30 minutes, and as the expert is in their own home, they can also have a cup of tea and plan the next stage of the assessment.
- The expert can take still take photos of the Claimant's environment e.g. a bathroom, with help from the Claimant or their family as appropriate, to carry the laptop around the house. These can allow you to assess basic layout issues in certain rooms, such as bathrooms or kitchens. The expert can also request (if it is safe to do so), measurements (of steps or door widths) which are undertaken as part of the assessment process.
- It is possible to assess the Claimant functionally in their environment. This may need some prior preparation - for example, either before the assessment, or during the break, and the expert can ask the Claimant to collect items required for the assessment or get their family member ready to help.
- They are more cost-effective because there are no costs associated with expert travel time and expenses.
- The expert may potentially be able to assess and report much quicker than they would if they were required to travel some considerable distance to assess a Claimant.
- It remains possible that a follow-up, face to face assessment can be undertaken in due course when the lockdown is lifted.
Our findings, so far, are very positive with many experts reporting that they feel very able to prepare a CPR compliant report for many cases on the basis of the virtual assessment.
The challenges experienced with virtual assessments
- The Skype picture can sometimes be poor, which makes it difficult to see 'micro expressions' and it is, therefore, harder to tell if a Claimant is tearful or on the verge of tears which you would see instantly in person. As an expert, you need to compensate for this by asking the Claimant more frequently how they are feeling.
- It is generally easier to build rapport with a claimant in their own home, where one can engage in polite friendly conversation about, for example, the claimant’s dog, to set the Claimant at ease.
- Gaining a full understanding of the flow of the property is less easy and the Claimant needs to be encouraged to go much slower when navigating the expert clinician through the rooms.
- Skype 'freezing' where both the picture or the sound can stop temporarily means that you need to keep asking the Claimant to repeat their last sentence. This somewhat breaks the flow but isn't impossible to deal with.
- The Claimant needs an account (not needed with other platforms e.g. Zoom). However, this is easy to set up.
Of course, ultimately, the most significant consideration is the reliability of the assessment findings, and the extent to which the expert considers that the assessment findings were sufficient for them to form a robust opinion on. Practice Direction 2.4 requires that: “Experts make it clear when they are not able to reach a definitive opinion, for example, because they have insufficient information”.
Experts should: “Indicate if an opinion is provisional, or qualified. Or where they consider further information is required or if, for any other reason, they are not satisfied that an opinion can be expressed finally and without qualification”.
If, therefore, an expert did find that they were unable to provide a definitive opinion because they could not observe a function, record clinical findings or the quality of the sound/image was unclear they must make this clear within their report. It is imperative that the expert informs their instructing solicitor on the measures that should be taken and to provide them with the information required. It may be depending upon the case and the circumstances, that a face to face assessment is still required at a later stage in some cases.
In conclusion, virtual assessments do have a role but should be appropriate to the claimant’s clinical condition and need, whilst contextualised to the interests of the instructing solicitor and their client, but in no way compromise an expert’s ability to discharge their responsibilities under the Civil Procedure Rules.
Will virtual assessments still have a role in the post-Covid-19 era?
At Somek and Associates, we are continuing to evaluate all of the virtual assessments that we undertake and are establishing a comprehensive knowledge base as to which cases are and are not suitable for virtual assessments. Our findings, so far, are very positive with many experts reporting that they feel very able to prepare a CPR compliant report for many cases on the basis of the virtual assessment. It is therefore possible that cases limited by budget or time, could continue to be undertaken via a virtual platform on an ongoing basis, dependent upon the nature of the case.
However, by no means does it exclude the need for in-person assessments to be undertaken. A large part of the in-person assessment, are the observations (e.g. concentration, pain, fatigue) many of which are subtle and happen from the minute the claimant opens the door. An in-person assessment of the environment will be better at identifying safety considerations, for example, the extent to which carpets are well-fitting, the suitability of lighting and presence of small internal thresholds (etc.). Furthermore, the expert witness will be considering if there are any inconsistencies in information provided with reference to what they are observing.
In conclusion, virtual assessments do have a role but should be appropriate to the claimant’s clinical condition and need, whilst contextualised to the interests of the instructing solicitor and their client, but in no way compromise an expert’s ability to discharge their responsibilities under the Civil Procedure Rules.
References
Best Practice for Mutual Co-Operation, APIL and FOIL, 31/03/20
Covid-19 Information Governance advice for Health and Care Professionals, www.tinyurl.com/NHSx-guidance
Remote working rollout sped up to keep staff and service users in touch, OT News April 2020
Jessica Thurston, Chief Operating Officer and Care and Occupational Therapy Expert, Somek & Associates
Somek & Associates Limited
9 Chess Business Park, Moor Road, Chesham Buckinghamshire HP5 1SD
01494 792711
admin@somek.com
https://www.somek.com/
Jessica qualified an Occupational Therapist in 1994 and specialised in the field of adult physical disability, with a particular interest in amputees (upper and lower limb and the management of individuals with multiple limb loss). She has been an Expert Witness for approximately 20 years.
Somek & Associates is a brand leader in providing Expert Witness services for clinical negligence and personal injury litigation, as well as other areas of dispute, involving health or disability issues including family matters, criminal cases, tribunal, coroner’s court and professional regulation issues.
