Telemedicine – Considerations for the clinical negligence lawyer of the future

It is clear that the lawyers of the future will need to get ahead of the curve when it comes to technology in whichever sector they work in. The healthcare sector in the UK has seen a boom in interest from tech companies in recent years, and telemedicine is one such area receiving a lot of attention.

Introduction

Matt Hancock, the UK’s Health Secretary, praised the app “Babylon Health” earlier this year. The app claims to monitor your health, check symptoms and lets you ask a question amongst many other features it advertises. Matt Hancock has been accused of acting unethically after praising GP at Hand, another app similar to Babylon Health and is classed as a full NHS GP Practice. He claims that “GP at Hand helps to deliver a better service. I think that it helps patients and it can help clinicians.” Whilst these apps seem like an attractive option the key concern that arises is whether the law is able to keep up with such developments whilst balancing patient’s right to confidentiality, regulation and professional standards of those doctors delivering it.

Medico-Legal Considerations

As with any doctor-patient relationship there is a privacy and confidentiality issue that arises more prominently with a telemedicine app. The General Medical Council, public body that maintains the official register of medical practitioners within the United Kingdom, states in their guidance that “patients have the right to expect that you will not disclose any personal information which you learn during the course of your professional duties, unless they [the patients] give permission.”

With such apps, there has to be sufficient IT protection as health records are much more personal and therefore of high value to third parties. Last year the British Government came under pressure after many NHS hospitals experienced a cyber-attack which not only jeopardised third parties accessing patient records but also leaving it vulnerable to deletion. [1]

Challenges

In addition, consent may not always be appropriately sought in relation to who is at the receiving end of the transmission. There is also the issue of accessing patients’ long term medical records and the quality of text-based relationships, tele-imaging and standardised emails may not prove as beneficial as a dialogue. 

Malpractice Claims and Jurisdiction

To overcome the issue of jurisdiction and regulation Europe Economics, (description please), has published the document “Regulatory approaches to telemedicine” which states that Care Quality Commission (CQC) is required to register (confirm please) telehealth providers under the regulated activity of ‘transport services, triage and medical advice provided remotely’. However, the CQC still does not provide specific requirements for doctors and neither do other national regulators provide specific telemedicine polices for healthcare providers.

To briefly recap; for a clinical negligence or malpractice claim the doctor should have offered a standard of knowledge and skill lower than that is expected of a doctor in the jurisdiction for which they are licenced or registered to practice medicine.

The challenges this arises with the context of telemedicine is that in theory a negligence claim could be brought to the jurisdiction of the doctor providing telemedicine, or in the jurisdiction where the intermediating company is located or in the jurisdiction of the patient.

However, it seems that regardless of the jurisdiction for which telemedicine operates for the general requirements stated by the GMC guidance is not that different to a Hospital Doctor. They are listed as follows:

  • Using the Bolam test a doctors actions must be to the same standard of knowledge and skill to another individual skilled in that particular art.
  • Having access to sufficient information
  • Assessing the appropriateness of telemedicine
  • Having an already established relationship [2]

In addition there are also procedural requirements laid out in the guidance to be fulfilled by telemedicine services:

  • Ensuring confidentiality, safety and/or security of the exchanged information
  • Obtaining patients’ consent
  • Confirming patients’ identity
  • Maintaining medical records [3]
  • Technical and equipment requirements

If these requirements listed above are not met it seems highly likely that telemedicine service will be experiencing high volumes of negligence claims due to an error in scans/electronic images or the failure of technical equipment.

Conclusion

The benefits of telemedicine are undeniable for NHS healthcare providers under ever growing pressure. They will be able to treat their patients quicker and faster, thus potentially alleviating the pressure on beds in the UK. In remote areas of the world it can prove crucial for collaboration between various healthcare professionals from different locations, allowing them to communicate and share research fundamental in developing the practice of medicine itself. It allows a safe net for those experiencing chronic diseases requiring

However, it is clear that – for all the pressures facing NHS – the telemedicine app is still far from solving the root of the problem such as shortage of doctors and lack of funding to improve services. In fact, with the soaring clinical negligence pay-outs having an app to meet the healthcare demands of individuals would be a boon for the NHS, but until it is fully regulated and the data security elements of it are resolved it may just end up contributing to the ever increasing numbers of negligence claims.[4]

by Ceylan Simsek


[1] https://www.telegraph.co.uk/news/2017/05/12/nhs-hit-major-cyber-attack-hackers-demanding-ransom/

[2] https://www.gmc-uk.org/about/what-we-do-and-why/data-and-research/research-and-insight-archive/regulatory-approaches-to-telemedicine

[3] https://www.gmc-uk.org/about/what-we-do-and-why/data-and-research/research-and-insight-archive/regulatory-approaches-to-telemedicine

[4] http://www.pulsetoday.co.uk/news/gp-topics/legal/cost-of-nhs-clinical-negligence-payouts-continues-to-soar/20037086.article

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