Telemedicine – Considerations for the clinical negligence lawyer of the future

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

Introduction

Matt Hancock, the UK’s Health Secretary, praisedthe app “Babylon Health” earlier this year. The app claims to monitor yourhealth, check symptoms and lets you ask a question amongst many other featuresit advertises. Matt Hancock has been accused of acting unethically afterpraising GP at Hand, another app similar to Babylon Health and is classed as afull NHS GP Practice. He claims that “GP at Hand helps to deliver a better service. I think that it helps patientsand it can help clinicians.” Whilst these apps seem like anattractive option the key concern that arises is whether the law is able tokeep up with such developments whilst balancing patient’s right toconfidentiality, regulation and professional standards of those doctorsdelivering it.

Medico-LegalConsiderations

As with any doctor-patient relationship there isa privacy and confidentiality issue that arises more prominently with atelemedicine app. The General Medical Council, public body that maintains theofficial register of medical practitioners within the United Kingdom, states intheir guidance that “patients have the right to expectthat you will not disclose any personal information which you learn during thecourse of your professional duties, unless they [the patients] givepermission.”

With such apps, there has to be sufficient IT protectionas health records are much more personal and therefore of high value to thirdparties. Last year the British Government came under pressure after many NHShospitals experienced a cyber-attack which not only jeopardised third partiesaccessing patient records but also leaving it vulnerable to deletion.

Challenges

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

MalpracticeClaims and Jurisdiction

To overcome the issue of jurisdiction andregulation 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 medicaladvice provided remotely’. However, the CQC still does not provide specificrequirements for doctors and neither do other national regulators providespecific telemedicine polices for healthcare providers.

To briefly recap; for a clinical negligence or malpracticeclaim the doctor should have offered a standard of knowledge and skill lowerthan that is expected of a doctor in the jurisdiction for which they arelicenced or registered to practice medicine.

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

However, it seems that regardless of thejurisdiction for which telemedicine operates for the general requirementsstated by the GMC guidance is not that different to a Hospital Doctor. They arelisted as follows:

• Using the Bolam test a doctorsactions must be to the same standard of knowledge and skill to anotherindividual skilled in that particular art.

• Having access to sufficientinformation

• Assessing the appropriatenessof telemedicine

• Having an already establishedrelationship

In addition there are also proceduralrequirements 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

• Technical and equipmentrequirements

Ifthese requirements listed above are not met it seems highly likely thattelemedicine service will be experiencing high volumes of negligence claims dueto an error in scans/electronic images or the failure of technical equipment.

Conclusion

The benefits of telemedicine are undeniable forNHS healthcare providers under ever growing pressure. They will be able totreat their patients quicker and faster, thus potentially alleviating thepressure on beds in the UK. In remote areas of the world it can prove crucialfor collaboration between various healthcare professionals from differentlocations, allowing them to communicate and share research fundamental indeveloping the practice of medicine itself. It allows a safe net for thoseexperiencing 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.

by Ceylan Simsek

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

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

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

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