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Telemedicine - location, location, location, when geography does matter!

17 May 2021
Vicki Swanton considers the regulatory challenges associated with the remote provision of health care services using telemedicine. 
 

Introduction

The boost that telemedicine has received due to the pandemic has been interesting to observe, as has the evidence that it produces a generally positive experience for practitioners and service users.  Who wouldn't find it helpful to have a 5 minute telephone call with a GP without having to leave work early, travel to a busy surgery, queue to book in, then wait to be seen by a harassed practitioner trying to catch up with their list?! 

The NHS Operational Planning Guidance for those delivering primary care issued during the pandemic was that GPs should use online resources to deliver a 'screen first' or 'total triage' approach as 33% of patient requests can be dealt with online. The Juniper Research Whitepaper (May 2021) estimated that globally, there were 348 million Telemedicine interactions in 2020 and that Telemedicine is a win win solution, delivering greater efficiencies for the providers and higher standards for the recipients. That positivity, however, is not reflected by organisations like the Patients' Association and The Royal College of General Practitioners and as at 14 May 2021 the messaging from NHS England was that GPs must make a clear offer of appointments in person. It remains to be seen how long this view persists and how achievable it is.

In reality, like many 'new normals' there will be no putting the genie back in the bottle – but it doesn't take a healthcare lawyer to highlight that there are risks in all consultations and that these need to be carefully considered and managed on both sides of the virtual consultation table.

So what is Telemedicine?

There is no internationally recognised definition, but in essence it is an interaction with a healthcare professional that does not take place in person or face to face. It is not limited to the telephone, but can involve use of a virtual platform such as Skype, Teams, Zoom subject to security issues (see below) and increasingly Artificial Intelligence via Chatbots.

The Risks involved in Telemedicine

Many insurers are now offering specific policies to those engaged in this activity, in recognition that the challenges include;

  • Privacy – confidentiality during the session is vital. Is the platform secure? Can the discussion be overheard? Are sessions being recorded, and if so are they stored safely or is there a risk that personal information could be accessed? 
  • Consent and Scope – is the consultation BAU (Business As Usual) and would work just as well as a face to face meeting, or is it a compromise? A compromise might be an acceptable first step but can be high risk where it is an attempt to gain diagnostic information that could be inaccurate, and particularly if accuracy is subject to user skills eg. providing a link to an App to enable the patient's mobile phone to act as a dermascope and provide an image of a suspicious skin lesion.
  • Training – healthcare staff need to be skilled in remote patient interaction to ensure a robust assessment technique is deployed. Sessions that are not in person risk missing out on cues that would be obvious in a face to face consultation.
  • Lack of continuity – widespread availability and speed of establishing an appointment with a range of providers creates the risk of 'doctor shopping' - the healthcare professional having only the information supplied by the patient at that session to go on. 
  • Need to verify key information – linked with the above will be the need to consider if the adviser should insist on being able to correspond with a GP or other professional to verify key information, e.g. patient age and all prescribed medication.
  • Lack of control – a remote adviser with limited contact details for a patient may be unable to provide/summon assistance should an emergency situation materialise.
  • Location - a patient seeking advice may be located in another jurisdiction creating coverage and regulatory issues. It is those regulatory issues that the rest of this article will address.

The Regulatory Patchwork Quilt that applies to International Telemedicine

For doctors to be able to work in the UK, registration with the General Medical Council (GMC) is mandatory. The GMC provides guidance on remote consultations which includes the sensible prohibition of prescribing injectable cosmetic products such as Botox. But what is the position if a patient seeks to engage with a UK registered doctor remotely and is not based at that time in the UK; could that doctor be acting contrary to the laws operating in that jurisdiction and putting their UK based registration at risk?

At the risk of providing that disappointing answer to every difficult legal question, the current situation is that – it depends!

Just as there is no internationally recognised definition of Telemedicine there is no one rule for providing out of jurisdiction healthcare advice/treatment, and of course the risk for the practitioner is that they may not appreciate the significance of the patient's location, or indeed not receive the correct information.

An out of jurisdiction consultation can generate the following hurdles: 

  • Follow up – a patient may refuse/be unable to travel 
  • Prescribing – drug licensing, recommended dosage and dispensing requirements will vary geographically (think vaccines!)
  • Policies of insurance/indemnity cover will typically be restricted geographically eg. to exclude medical practice in the USA or only respond if a claim is brought in a UK court.
  • Registration requirements – will vary subject to the location of the practitioner, patient and/or where prescribed medicines are ultimately dispensed.

What next?

The Juniper Research Whitepaper (May 2021) predicts that Telemedicine will deliver £15 billion of savings for the healthcare industry by 2025 and advocates deregulation to break down barriers.
As identified at the start of this article whatever the latest Government messaging is, Telemedicine is here to stay, but those involved in providing, using and regulating it will have to work together to ensure it can deliver many of the significant benefits recognised during the pandemic (if not before!) without introducing new risks and without devaluing face to face interactions.

For further information upon any issues arising in this article please contact Vicki Swanton.

For further DWF legal insight and commentary on this rapidly developing area of law please see below:  

Further Reading

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