The increase of IT in modern-day healthcare is irresistible. The growth of telemedicine (meaning literally the practice of medicine at a distance) is transforming the provision of medical advice. The potential benefits of telemedicine are huge, but so are the potential problems, in particular those of patient confidentiality, the need for valid consent and the absence of personal contact between doctor and patient.
The nature of these potential problems was illustrated in June this year. The Privy Council heard an appeal by a general practitioner against a finding of serious professional misconduct made by the General Medical Council’s (GMC) Professional Conduct Committee (PCC), following a complaint relating to medical advice provided through a website. The advice in question had been given by email, without the benefit of a face-to-face consultation with the patient or any discussions with the patient’s regular GP. The advice was based upon information provided by the patient’s wife on an online checklist. The PCC was particularly critical of the fact that the online GP had asserted that the treatment and management regime recommended by the patient’s regular GP was incorrect.
Although the Privy Council deleted two of the conditions imposed on the GP’s registration by the PCC, it upheld the finding of professional misconduct on the basis that the relationship between the patient and his regular GP had been undermined, contrary to good medical practice. The court did not pass comment on the rights and wrongs of the advice given, or, perhaps more significantly, on the way in which it had been given.
The case reflects the issues facing healthcare providers and patients arising from the growing use of communication technology. With the availability of web server software, practically anyone can now set up a website and publish any kind of data that is accessible to all.
Within the NHS, the highly successful NHS Direct and NHS Direct Online programmes are the most high-profile, but by no means the only, examples of the changes taking place. Other Government-led initiatives include the much-heralded implementation of a national broadband network by 2005, the proposal to introduce video equipment in ambulances and the increasing use of video and telelinks to hospital specialists. A growing number of NHS trusts are looking at ways of using telemedicine to provide new services and improve existing ones.
In the private sector it is a similar story. The explosion of interest in telemedicine has led to an exponential growth in the number of research and development projects being undertaken in the UK and
Europe. The private telemedicine industry is expanding rapidly and there are now several telemedicine websites.
In the course of such growth, it is not surprising that questions will be asked about the adequacy of the existing legal framework and safeguards for appropriate standards of medical practice in a profession where face-to-face consultations remain the gold standard. There are no formal guidelines that encompass all of the various types of ‘e-consulting’, but guidance is available from several sources.
The GMC guidance
In assessing whether telemedicine practitioners are providing an acceptable standard of care, the GMC has continued to rely on the guidelines for conventional medicine as set out in its booklet ‘Good Medical Practice’. The GMC’s guidelines are not law, but in practical terms are very important to practitioners as the GMC regulates a doctor’s registration, and therefore their livelihood.
The PCC consistently emphasises the importance of an appropriate assessment. Practitioners should exercise extreme caution before making a diagnosis and before prescribing a course of treatment to patients that they have not examined. The PCC has relied on the following provision from its definition of good clinical practice in disciplining telemedicine practitioners in the past: “An adequate assessment of the patient’s conditions, based on the history and symptoms and, if necessary, an appropriate examination.”
The GMC has also stressed the importance of adequate follow-up care. In November 1998 it published specific guidelines regarding telephone and e-consultations, in which it cautioned that consultations and prescriptions by phone or email are particularly ill-advised when: the patient is not previously known to the doctor; no examination takes place; and where there is little or no provision for appropriate monitoring of the patient or follow-up care.
The British Medical Association guidance
In February 2001, the British Medical Association (BMA) produced a consultation paper that considered the various options currently available to patients and clinicians and provided guidance to GPs. While these guidelines are not law, they are nevertheless a useful code of good practice for doctors to follow in a number of types of e-consultation.
The BMA considers that telephone consultations, when correctly conducted, can be considered a safe and acceptable practice; that there are few benefits to be gained from live online consulting; and that time-delayed email exchanges are not safe for consultation because of difficulties with authentication, security, consent and confidentiality issues.
The BMA also advised that particular caution should be taken over prescribing drugs electronically or over the internet. Such prescriptions ideally should be limited to repeat prescriptions.
Websites – the law
Unsurprisingly, the law is evolving as it endeavours to keep pace with the changes. Difficulty arises from the fact that practically anyone can access advice given over the internet from anywhere in the world. It is not clear, as a matter of law, whether the internet publisher would be held liable in their own country or the country in which their advice was downloaded in the event of a claim.
A decision made by the Australian Supreme Court on 10 December 2002 raised concerns. It ruled that those publishing material on the internet could potentially face legal liability wherever that material was received. In addition to highlighting the impracticality of internet publishers potentially having to be aware of the provisions of every legal system in the world, the decision also raises questions about the validity of practitioners’ private indemnity cover. Such cover usually excludes claims arising in the US and Canada, and sometimes all claims outside the UK. The Australian court’s decision has no binding authority here, but as a Commonwealth case it may be seen as persuasive.
In light of the uncertain legal position, effective self-regulation is vital if published information is to be safe and reliable. Practitioners, therefore, receive encouragement to comply with various principles recommended by organisations such as the Health on the Net Foundation Code of Conduct (HONcode). This is a voluntary organisation established specifically for medical and health websites, which addresses one of the internet’s main healthcare issues – the reliability and credibility of information. Members adhere to certain principles, including agreed standards on the following issues:
• Authority – confirmation that medical advice is given only by medically-trained personnel, unless otherwise stated.
• Confidentiality – an assurance to visitors to the site that individuals’ confidentiality will be respected.
• Attribution – information to be supported by clear references to source data.
• Justifiability – claims relating to the benefits or performance of specific advice or products to be supported by objective evidence.
• Transparency of authorship – authors’ contact addresses to be made available.
• Honesty in advertising and editorial policy – if advertising is a source of funding, it will be clearly stated.
It is important to note that, while compliance with HONcode demonstrates that the practitioner has addressed relevant issues, it is not protective. A practitioner will not be immune from investigation by the PCC simply by reason of being HONcode-compliant.
There can be little doubt that telemedicine is here to stay and that it will become increasingly central to the provision of healthcare in years to come. While this represents a great opportunity for patients and practitioners alike, it is essential that, in the rush to embrace the new technology, healthcare providers do not lose sight of the safeguards required to protect their patients and themselves in a rapidly changing world.
Will Marshall is an assistant solicitor in the health law department at Reynolds Porter Chamberlain