Cold calling or "nuisance calling" is defined as unsolicited telephone calls usually as an attempt to sell goods or services to individuals who have not previously consented or expressed interest in the business or their product/service. Under British Law, cold calling is not illegal per se. However, the Privacy and Electronic Communications (EC Directive) Regulations 2003 imposes restrictions on marketing via cold calls, and unsolicited texts, emails and faxes. The 2003 regulations require companies to obtain an individual’s consent before sending marketing communications to them.
However, laws and NHS guidance dictate that consent to treatment means a person must give permission before they receive any type of medical treatment, test or examination. This must be done on the basis of an explanation by a clinician or in our case, Pharmacists. Consent from a patient is needed regardless of the procedure, whether it's a physical examination, organ donation or something else.
The principle of consent is an important part of medical ethics and international human rights law. NHS guidance on consent state: For consent to be valid, it must be voluntary and informed, and the person consenting must have the capacity to make the decision.
The meaning of these terms are:
Voluntary – the decision to either consent or not to consent to treatment must be made by the person and must not be influenced by pressure from medical staff, friends or family.
Informed – the person must be given all the information about what the service involves. Including the benefits and risks, whether there are reasonable alternative options, and what will happen if it does not go ahead.
Capacity – the person must be capable of giving consent, which means they understand the information given to them and can use it to make an informed decision. If an adult (over 18 in this scenario) has the capacity to make a voluntary and informed decision to consent to or refuse a particular service, their decision must be respected. This is still the case even if refusing treatment would result in their death, or the death of their unborn child.
If a person does not have the capacity to make a decision about their treatment and they have not appointed a lasting power of attorney (LPA), the healthcare professionals treating them can go ahead and give treatment if they believe it's in the person's best interests.
The PSNC released new guidance on consent, applicable from the first of 1st September 2020. They stated that:
From 1st September 2020, it is no longer a contractual requirement that written consent is obtained from patients prior to the provision of the service. Instead, verbal consent can be obtained and a record of that made in the pharmacy’s clinical record for the service. These changes were agreed by the Department of Health and Social Care and NHS England and NHS Improvement (NHSE&I), following a proposal to move to a verbal consent model made by PSNC.
Prior to service provision, verbal consent must be sought from each patient. In seeking consent, contractors need to ensure that the patient is made aware that the consent enables:
The provision of the service.
The sharing of information between the pharmacy and the patient’s general practice if needed, to enable appropriate care in the provision of the service.
The sharing of information about the service with NHSE&I as part of service monitoring.
The possible sharing of information about the service with NHSE&I and the NHS Business Services Authority (NHSBSA) as part of post-payment verification (PPV).
The General Pharmaceutical Council’s (GPhC) Guidance on Consent provides information on consent for pharmacists and their teams, for further information see:
Find out what consent is, how it can be given, when it's needed, as well as situations when it's not needed.
Paul Summerfield (a seasoned Pharmacist who is legally trained and who often represents healthcare professionals at various tribunals) has outlined the basic do's and don'ts of cold calling patients for MURs and NMS reviews.
He states the following best practice for professionals required to conduct telephone advanced services:
"You can't just cold call a patient and then proceed with a review in the same call. That is really shaky practice. For informed consent, the patient needs to be aware of the service and what it entails but they must also be given time to make a choice to either say yes or no. Put yourself in the shoes of the patient. If you had a HCP call you and request you to participate in review, there may be a potential imbalance of power and the patient may feel obligated to say yes. You also have the question of getting consent to call the patient in the first place. How was this obtained and when? Patients have to be able to renew or withdraw their consent at any time and this needs to be checked every now and again. It is not acceptable, from an ethical viewpoint, to proceed with any service because at some point in the past they ticked yes in a box at the bottom of a paragraph which they probably did not read properly in any event. Cold calling patients is, in my opinion, akin to receiving junk mail. Unnecessary and annoying. Sometimes calling a patient is acceptable such as when an error has occurred or you believe that their health would be detrimentally affected due to something that has happened in the pharmacy, but an MUR is an advanced service, not an essential service, so not really top of the list of things that need to be done to fulfil the contractor’s obligations under the NHS contract that they hold".
So as guidance for Pharmacists expected to conduct any advanced services via telephone to meet corporate KPIs, it is advised that you gain prior consent and allow patients to have a cooling off period where they can weigh up their options and properly consent to the service, allowing them to review, reconsider or accept the service.
I urge all Pharmacists to review their procedure of conducting MUR/NMS teleconsultations and ensure their patients have the ability to take a moment and make informed decisions. If a corporate body is forcing you to carry out a "cold calling" duty to meet KPIs, it is within your right to refuse and report such behaviour.
These services cannot be imposed on you, and as healthcare professionals you must always put the patient first and gain consent. After all, if things go wrong, you will be the person held accountable.
If you have been advised to conduct cold calling practice, I urge you to report this behaviour and remind employers of the law and ethics behind it.
Also please inform The Pharmacist Cooperative team, so we are able to help support you and others being asked to conduct this practise. We are collating data to help Pharmacists know their rights.
For tips on how to conduct telephone consultations ethically and legally with full participant engagement see the following link: