The doctor can “see” you now – the ethical considerations of patient rights and safeguards in online mental health act assessments during Covid-19

By Lisa Schölin and Arun Chopra.

It is fair to say that when the pandemic hit we were not entirely prepared to move our social lives, work, and healthcare to online platforms. Yet, we had to. But in which services, and more specifically in what situations, can remote contact sufficiently, legally, and safely be used to support patients?

On Radio 4 in July 2020, Matt Hancock (whose responsibilities extend only to England as health and social care are devolved) said: “only 3% of doctors before going into this crisis offered video consultations. That is now 98%”. While this statement implies that the vast majority of services were able to move online, it also suggests this is not possible for some.

When looking at mental health it is especially important to get this right, particularly when managing detentions for care and treatment.

In Scotland, for people who might be experiencing severe mental ill health, involuntary hospitalisation (in Scotland referred to as detention under the Mental Health (Care and Treatment)(Scotland) Act 2003; ‘the Act’) may be needed. A mental health act assessment needs to be conducted as part of the process of considering detention. Detention deprives an individual of their liberty and a thorough assessment is key to ensure that it is in the patient’s best interest. But, can this happen remotely?

The Mental Welfare Commission for Scotland (‘the Commission’) monitors the use of the Act and promotes the rights of individuals. During the pandemic, the Commission received questions from psychiatrists about whether a mental health act assessment could be done remotely. This, of course, was in the context of added ethical and clinical complexities for individuals being assessed or psychiatrists who might be in high-risk groups or situations where face-to-face contact would result in increased transmission risk.

The legal implications of a detention made it a complex matter and the Commission, through its reading of the legislation, stakeholder discussions, and internal consideration of the ethical arguments, issued guidance outlining a position on the use of remote assessments. In seeking to answer the question, the most important point was to make sure the decision benefited the person who is unwell.

At this time, there was limited evidence available to underpin such important and complex guidance. The published literature has looked at the use of tele-psychiatry for psychiatric emergencies, and for interventions for individuals with severe mental illness. While there appears to be some clear benefits of tele-psychiatry in certain contexts, evidence for the use of remote technology for mental health act assessments is lacking. The reason, perhaps, is that until now we have not needed to consider seeing a patient virtually and the general sense was that a mental health act assessment must be face-to-face. But why?

Without clear evidence to underpin development of guidance, and thinking about these issues from scratch, the Commission arrived at the decision that in some cases, remote assessments may actually be preferable for the patient rather than a second choice. This is in contrast to recent developments in case law in England (Devon Partnership NHS Trust v Secretary of State for Health and Social Care) where the view was that the Mental Health Act 1984 requires that a patient needs to be “personally seen”, which was interpreted as in person.

In Scotland, the Commission interpreted the Scottish Act differently. The Scottish Act requires that a person is “medically examined” and while some cases were considered appropriate, to undertake remotely, they are considered to be rare and limited. Three considerations should guide the decision on modality: 1) criteria for compulsory treatment must be fully assessed regardless of assessment modality; 2) for new episodes of such treatment people should be assessed face-to-face, but extensions to detentions or involvement of professionals who have longitudinal knowledge of a patient but for whom attendance would be difficult might be done virtually if the patient competently agrees; and 3) patient participation and consent for remote technology is vital to minimise distress.

The extraordinary times we are living through has put a lot of strain on the NHS and on patients. Finding the right way, and the safest way, to provide care and treatment is more important than ever. We stress in our article that ‘relaxing’ the advice on remote assessments is not a lowering of standards, but an attempt to best make use of technology and also facilitate patient participation in times of concern over personal safety and social distancing.

These ethical issues will continue to surface as we recover from the pandemic. However, we now need to think about how we want services to work in the future, what changes we may wish to continue, and how the Act is adhered to while providing continuity of care and patient participation. Instead of by default reverting to pre-pandemic ways of working, we need to learn from changes we have made and principles that should guide future decisions to ensure we are always prepared to provide care and treatment in the best ways possible. A key issue will be to ensure we include patients and relatives/carers in those discussions for the longer term.


Paper title: Limits of remote working – the ethical challenges in conducting Mental Health Act assessments during COVID-19

Authors: Lisa Schölin1, Moira Connolly1, Graham Morgan1, Laura Dunlop2, Mayura Deshpande3 & Arun Chopra1

Affiliations: 1 Mental Welfare Commission for Scotland, Edinburgh, UK; 2 Mental Health Tribunal for Scotland, Hamilton, Scotland – commenting in personal capacity; 3 Southern Health NHS Foundation Trust, Southampton, UK

Competing interests: The authors have no competing interests to declare.

Social media accounts of post author(s): @lesaangelica @arun_chopra @mayudeshp @GrahamM23694298

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