Pallavi Bradshaw: Can the usual legal tests be applied fairly in cases involving remote consultations during the pandemic?

We will have all heard the phrase “the Bolam test”—the case itself is so memorable because of its shocking facts. While new cases have added to and set precedence regarding specific areas of law, ‘”Bolam” remains fundamental to clinical negligence claims. In essence, to succeed a claimant must prove that the care provided fell below a “reasonable” standard. If it is deemed that a doctor’s actions are in accordance with a responsible body of medical opinion, then they would not be found to have been negligent. While the court is the final arbiter of negligence, medical experts are asked to opine on the reasonableness of the care provided. 

At the start of the covid-19 pandemic, usual medical care and practices were drastically altered with most of primary care and outpatient consultations being undertaken remotely. Even though telephone consulting and triage were practised widely prior to the pandemic, particularly by GP’s, defaulting to a non face to face model for all consultations was logistically challenging and demanded the learning of new skills. 

Added to this, is the use of new technology to undertake video calls and administrative tasks, often while working from home with reliance on broadband and platforms which at times have struggled to cope. Most doctors have had experience and training in consulting and communication at medical school, but assuming a face to face model with reliance on physical appearance, demeanour, gait and non-verbal cues, many of which are altered or missing when consulting with a patient remotely. 

Many patients have also been unsure of what to expect or how to engage, with some unable to. Vulnerable patients, or those who would normally attend with a carer, family member or interpreter may have suffered more from the greater use of remote consulting. Indeed, in a Medical Protection Society (MPS) survey of 1250 UK doctors 83% raised concerns about patients whose access to remote services may be impacted by factors such as digital literacy, disability, language, location or internet connection.

There are so many variables that are beyond the control of the doctor, and a limited ability to observe or build that all important rapport with the patient which can mitigate against medicolegal risks. 

How can all these interchangeable factors be taken into account when proffering an expert opinion on the reasonableness of the care provided in remote consultations during the pandemic?

For example, was the consent to proceed with these consultations truly voluntary given the limited alternatives options, and did the patient really appreciate the limitations of a non-face to face consultation? Who is at fault if the IT equipment or internet speeds were less than ideal, leading to poor quality sound or visual which results in a vital piece of information being lost? 

Similarly, if a face to face consultation was preferable for a particular patient, but they were too fearful to attend in person, or the doctor felt that them coming into the practice presented a higher risk to their health, where does the fault lie if a diagnosis was missed and that patient suffered a poor outcome? 

Would we and should we expect the same standard from these remote consultations as from a face to face interaction, and can that be right given the extraordinary pressures and difficult decisions being made?

The strain the healthcare system has been under, and government policy decisions at the time, must be considered in such cases. While the GMC has reassured the profession that it will consider the difficult circumstances of covid-19, how the courts and experts will deal with these complex issues is yet to be determined. There is also a risk that with time, the constraints and difficulties as well as the trade-offs with consulting remotely, will be forgotten.

Who too would be able to hold themselves out to be an “expert” in remote consulting, and should we be sceptical of those who claim to be? While telemedicine is not new, most clinicians have had “to learn on the job,” with varying degrees of proficiency and training. Should allowances be made for this when judging their competence, although this would contradict the principles of tort. And will there be enough “experts” to opine when the inevitable claims start to roll in.

To be clear, I am not advocating that Bolam is no longer relevant. What I am questioning is what would be the “medical body of opinion” with which one must accord and who could provide that opinion.

The one thing I am confident about is that contemporaneous records will be more important than ever in establishing the reasonableness or otherwise of a doctor’s actions. 

Recording the context for the remote consultation, the consent process taken, the rationale for any decisions, factors which may have impacted the consultation and ability to interact with the patient is imperative. Providing sufficient time for doctors to make these detailed notes is vital.

Pallavi Bradshaw is Medicolegal Lead in the Risk Prevention department at the Medical Protection Society.

Competing interests: The MPS provides the right to request access to expert advice and support on clinical negligence claims, complaints, GMC investigations, disciplinaries, inquests, and criminal charges such as gross negligence manslaughter. This article was not commissioned.