So with the recent announcement that social distancing is likely to continue in one form or another for a while, we are all having to get used to ways of working more remotely.
Remote assessments have been approved, in principle, by the government in the guidance on the MCA/DoLS that is available here https://www.gov.uk/government/publications/coronavirus-covid-19-looking-after-people-who-lack-mental-capacity. The principle has also been confirmed by the Court of Protection in 2 hearings on the same case, which are available here https://www.bailii.org/ew/cases/EWCOP/2020/17.html and https://www.bailii.org/ew/cases/EWCOP/2020/22.html.
There has been some feedback from professionals that the additional thought that is having to be put into planning and carrying out these assessments is leading to more of a focus in how to support the person to make their own decisions, and involving carers (whether formal or informal) in the process. So there are definitely lessons to be learned from these times.
So far so good.
But we still need be sure that any assessments we conduct are in compliance with the relevant legislation, be it the Care Act or the Mental Capacity Act 2005.
There are all sorts of practical issues that need to be considered, such as testing the technology, making sure everyone has the right information in advance of the assessment, how to present questions and whether these should be shared in advance, giving advance warning etc. There will not be a single process for remote assessments, any more than there is one single way to approach the in person assessments that we are all used to.
I’m hoping that by now, you have started to get an understanding of those basic practicalities, so I am not going to go into detail on those. What I want to talk about is some of the less obvious issues that can arise.
First off, we have to consider if the individual will be able to meaningfully engage in the process remotely such that we’ll be able to get an accurate outcome from the assessment and what support they might need to be able to meaningfully engage. It is difficult for anyone to concentrate on a screen when there might be other things going on around them. It will be even more difficult for them to engage if the background for the screen is also distracting. But I think there is more to it than the practicalities of having a blank background and reducing disruptions. Because having someone speak to you through a phone or screen can be very confusing for people. And so preparation for an assessment will have to include discussions about with carers and those who know the individual best about what strategies will work best for that individual. I have heard, for example, stories of using pets as ice breakers, to encourage a dialogue, and of individuals giving a virtual tour of their homes, and showing assessors what they have been working on to promote that engagement and that working relationship. But we need to have an understanding of what will be effective before we go and start that assessment conversation, and we may well need to adapt as we go along. It is entirely possible we’ll need to do multiple ‘visits’ to ensure that we have got an accurate understanding of that person and their needs.
We’ll also need to consider to what extent others need to be involved. In any type of assessment, you are likely to need information from others involved in the individual’s care. But this might become even more important in a remote situation where the individual might need assistance to use the technology, or reassurance throughout the discussion. There are risks too, that there might be someone off screen listening in, or prompting the person. In a face to face interaction we have so many non-verbal cues to assist us. These will be harder to discern in a remote assessment, but background noise, eye contact, facial expression and body language cues will still be there. The trick is in giving attention to these things, and being aware of the problems.
I’m a lawyer after all, so I also can’t post about this issue and not talk about data security. So please please please be live to this. Think about how information is shared before and after assessments. Use secure means, or don’t share the information is the general rule. My authority use egress, and we have CJSM to communicate with the courts, but I know different organisations use different tools. Security during the assessment is important too. Think about who might be able to overhear at each end of the discussion and whether the technology used is secure. I heard a top tip today that was to have a window open to shoo out flies. And that may well be a good idea BUT if your window is open, think about whether anyone can overhear you. I know that reduced traffic noise is making it possible to hear my neighbours’ conversations when they have their windows open, so if you have close neighbours who might be sitting on their garden, shut your windows before discussing anything confidential, please. But if you are lucky enough to be somewhere in the countryside right now, without nearby neighbours, then good for you, I am not jealous at all.
And above all, detailed recording will be key. Record why you didn’t meet the person face to face, record the measures you took and the reasons why you took them. State in your assessment what technology you used, and why you considered this to be appropriate, and that you were in your room alone and couldn’t be overheard. Assessments undertaken remotely will need to be even more carefully worded than you would otherwise because of the uncertainties surrounding much of what we are all doing right now.
I like to think of what we are doing as a maths test, where we get points for showing our working. Articulate the thought process clearly and logically. I have already discussed how we can apply logical principles to our recording in a previous post accessible here https://musingsoflocalauthorityasclawyer.wordpress.com/2020/01/29/evidence-or-assumption/
None of us have any precedent to rely on here, so we can’t say with absolute certainty that you’ll not be challenged in the adequacy of the assessment you have undertaken. But that risk is significantly mitigated against if you can demonstrate that you have considered all of the relevant information and are transparent in the processes you use.
For anyone looking for a more in depth discussion on this topic, the National Mental Capacity Forum has a half hour webinar on its website that you might find helpful.
In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority