Consent in care homes

The scenario

Mary, practice owner

“I’ve received a complaint about a domiciliary sight test I performed. I visited a patient with cognitive impairment in their care home recently and supplied two new pairs of spectacles, but soon after I received a letter from the patient’s daughter, saying the patient had been taken to a High Street opticians three months ago, and had already purchased spectacles there. The complainant is saying I shouldn’t have performed the sight test as the patient didn’t have capacity to consent to the examination. They also suggested that I have defrauded the NHS and have demanded a refund for the spectacles I supplied. What should I do?”

The advice

David Knight, lead optometrist – North East, at Visioncall

The circumstances surrounding why the examination took place need to be considered. Was anyone present aware that the patient’s last eye examination was three months ago? Care givers regularly record this information, though it is not clear if the care home staff were aware that the patient had been for an eye examination.

If known, there are valid reasons a practitioner would examine a patient who had been tested three months ago, particularly as care home residents are more likely to experience or exhibit vision changes due to their age and comorbidities. For example, a test may be considered appropriate following a recent fall, change in behaviour, or upon the request of their GP. The care home should be able to provide documentation confirming your decision to test was valid as they have a duty of care to document these concerns.

Establishing facts

If the previous eye examination was not recorded (as the daughter did not inform the care home), the optometrist performing Point of Service checks may have determined that neither that patient nor the home can declare the date of their last eye examination. Making Accurate Claims (2018) states:

•  “[…]failure by a patient to produce documentary evidence [of eligibility] should not prevent you performing a sight test if you deem this to be clinically necessary.”

An optometrist would only be defrauding the NHS if they were knowingly aware of the full circumstances; though without access to their health records, this becomes unlikely due to the patient’s cognitive impairment.

Gaining consent

Domiciliary optometrists regularly examine patients who have varying degrees of cognitive impairments, commonly resulting from physical disabilities including varying types of dementia, and stroke. A cognitive impairment varies in severity and manifests as difficulty in understanding, processing, retaining and/or communication. The severity of cognitive impairment can vary throughout the day, and some days their impairment may be better or worse. Under the Mental Capacity Act 2005, the practitioner should always assume a patient has the capacity to consent to an eye examination. The practitioner should assess the patient’s capacity at the time of examination. Verbal consent is sufficient, though written consent where possible can be helpful.

Patients lacking capacity may ignore the practitioner, perhaps continuing an unrelated discussion or habitual mannerisms. If capacity is in doubt, patients should be assisted in making their own decision by simplifying questions, repeating information, giving extra time to process information, avoiding environments with visual and auditory clutter, and through alternative means of communication. Many care home residents have speech or hearing impairments which could be misinterpreted as cognitive impairment. Often in care home environments, care workers that the patient is familiar with are more successful in obtaining consent, though where possible privacy should be maintained throughout the examination.

There are valid reasons a practitioner would examine a patient who had been tested three months ago, particularly as care home residents are more likely to experience or exhibit vision changes due to their age and comorbidities

If the practitioner judges that the patient lacks capacity to consent to an eye examination, they must consider the best interests of the patient – through discussions with relatives, friends, and care providers. Those with Lasting Power of Attorney (health and welfare) and Deputies have legal power to act on the patient’s behalf in respect of healthcare decisions. An eligible patient who lacks capacity can and should have an eye examination if the practitioner considers it to be in their best interests. The domiciliary optometrist should adopt a patient-centred approach, considering their disability, form and type of visual aid, environment, independence, and welfare; in particular, the presence of both cognitive and visual impairment is a known contributor to frailty and falls. The practitioner should document the circumstances leading to their decision, including the determination of capacity and whether any consent was explicitly or implicitly provided.

Next steps

Considering the Data Protection Act (2018) legislation, my response to the daughter would be to request evidence that their relation has authorised the disclosure of sensitive personal data in the form of an Advance Statement, or to confirm they hold Legal Power of Attorney (health and welfare) or equivalent documentation. If provided, the clinical grounds for the examination can be disclosed. Provided the practitioner is satisfied that their documentation - reinforced with care home documentation - justifies their decision to examine and dispense new glasses, the accusation of NHS fraud is invalid, and no refund should be given.