Virtual assessments do have a role in quantum cases but should be appropriate to the claimant’s clinical condition and need, while contextualised to the interests of the instructing solicitor and their client, writes Jessica Thurston of Somek & Associates
What prompted the change from face-to-face assessments to virtual assessments?
As a consequence of the Covid-19 situation and the government rules in respect of social distancing, we at Somek & Associates found ourselves in the unprecedented situation of our experts suddenly being unable to undertake face-to-face assessments in respect of quantum case instructions. 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 virtual assessments.
To date, we have been very pleased with the assessments we have undertaken, and we are continuing to review them. We have, of course, now returned to undertaking face-to-face assessments following careful risk assessment, but virtual assessments continue to play a vital part in our service provision during these challenging times.
What were our first considerations?
Our first consideration was data protection but we were aware that data protection rules had, according to NHSX information governance guidance, 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 have been using Skype Consumer and recommend that our experts use this too. Of course, there are 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 it acknowledged in its official monthly magazine (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, RCOT also recognised that: “But 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, 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, the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers published the guide, Best Practice for Mutual Co-Operation, 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 [British Medical Association] 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; and
- The claimant’s context and environment.
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 extent of socket fit;
- Assessment for specific ankle, foot orthosis, which involves 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 visual field; and
- Where a risk assessment indicates the need for the assistance/close guidance of a therapist when undertaking 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 to 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 smartphone, tablet or 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 (for example, a close relative living in the same household) during the assessment. This is encouraged so that they can hold the tablet or smartphone, such that the expert can observe the claimant in activities of daily living, for example, mobilisation, transferring and negotiating the stairs. It would be difficult for a claimant to undertake activities of this nature safely while also trying to hold their device. 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 that they run 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 a 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, for example, items for functional activity such as cutlery, vegetables?
What happens during a virtual assessment?
Depending on the quality of broadband strength and visual/auditory quality, some experts are using Skype for the entirety of the assessment, whereas 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 on their future care needs and ways in which they would like care provided; and
- Summary of equipment that has been provided via the statutory services or which they have purchased.
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, for example, 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 environment (access, room size, wheelchair/mobility accessibility throughout, suitability of furniture, size of garden and property);
- Concentration and memory and administrate certain cognitive standardised assessments through screen sharing; and
- Use of the eye gaze system.
What do we see as the benefits of virtual assessments?
- The litigation process need not be delayed, with the expert being able to provide a fully reasoned robust Civil Procedure Rules-compliant report on the basis of a comprehensive assessment (along with the important documentary evidence).
- Skype offers unlimited time for speaking to the claimant. 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 or longer, 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 still take photos of the claimant’s environment, 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. The expert can also request (if it is safe to do so), that measurements 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, 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.
What do you see as being the challenges of 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 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 breaks the flow somewhat but isn’t impossible to deal with.
- The claimant needs an account (not needed with other platforms, such as 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 what measures should be taken to provide them with the information required. It may be, depending on the case and the circumstances, that a face-to-face assessment is still required at a later stage in some cases.
Do you consider that virtual assessments will still have a role in the post-Covid-19 era?
At Somek & 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 Civil Procedure Rules-compliant report for many cases on the basis of the virtual assessment. It is possible that cases limited by budget or time could continue to be undertaken via a virtual platform on an ongoing basis, depending on 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 is the observations (for example, concentration, pain, fatigue). Many of these 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, suitability of lighting and presence of small internal thresholds. 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, while 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.