Dr Sara Sreih and Dr Ellen Walshe, Medico-legal Consultants at Medical Protection, advise on the growing field of telemedicine.
Since the start of the Covid-19 pandemic, Medical Protection has received numerous requests for advice on the risks involved in remote consulting, or telemedicine. If you are practising telemedicine, it is important that you are aware of the medico-legal pitfalls and how best to protect yourself against them.
According to the Medical Council, telemedicine is the delivery of healthcare services through information and communication technologies to promote the health of individuals and their communities.
Although the way doctors have practised has seen significant changes, the regulatory framework in Ireland remains mostly unchanged, and the Medical Council make it clear that the same standards of care apply to telemedicine as they do with face-to-face consultations. It is important to be familiar with the obligations outlined in the Guide to Professional Conduct and Ethics for Registered Medical Practitioners, as well as the ‘Telemedicine phone and video consultations guide for doctors’.
Medical Protection has produced a series of Digital Future webinars addressing various aspects of remote consulting. Here, some of the frequently asked questions will be addressed.
Prior to the appointment What issues do I need to consider around confidentiality?
In general, there are physical considerations such as who else is present in the virtual consultation, or physically in the room with the patient. It is also important that privacy is maintained from the doctor’s side and any disruptions minimised.
During a Medical Protection webinar on telemedicine in Ireland, 52 per cent of attendees said that they would not routinely ask a patient if anyone else was in the room with them when on a phone or video consultation. This can be an important question to raise; for example, if a patient cannot speak freely due to the presence of others, it may be appropriate to have a face-to-face consultation.
From a technological perspective, a secure system should be used, and the relevant data protection principles adhered to, in line with General Data Protection Regulation (GDPR) and Medical Council guidance. A drawback of remote consulting is the possibility of technological difficulties, so it is helpful to agree a contingency plan with the patient in advance should the consultation be interrupted, for example, due to lost internet connection.
What if the patient states they want a family member present on the video call to act as an interpreter?
When this question was posed in our webinar, 33 per cent of attendees reported that they would decline and arrange for an official interpreter. The ideal situation is to have an official interpreter to overcome any language barrier, and there are clinical and medico-legal risks in having a family member or friend take on this role. However, the clinical risk and urgency of the situation would need to be considered. If the delay in organising an interpreter might put the patient at risk, it may be appropriate to go ahead with this consultation with the intention of arranging a further appointment with an interpreter. Doctors should clearly document their reasons for making this decision.
It is essential, if you do choose to go ahead in such circumstances, that you bear in mind that the family member or friend may not be objective, you would not be able to guarantee that the translation is correct, and sensitive information may be withheld. A record should also be made of any third parties present during a consultation, including interpreters, family members or friends.
What if I become aware that the consultation is being recorded?
There is no legal barrier in Ireland, which would prevent a patient from making a recording of a consultation if they are the subject of that consultation. This may make some doctors feel uncomfortable, especially if recording is initiated covertly. It is important that doctors remain professional during all interactions with patients whether they are being recorded or not.
If a doctor discovers that a patient is recording their consultation, it would be helpful to discuss this and explore the reasons. The patient may be worried about forgetting key information or would like to consider the content of the consultation further, especially in relation to decisions they may need to make. It may be that the patient is making a recording because they have concerns about the care provided; discussing these concerns at an early stage reduces the risk of a formal complaint arising and can assist in preserving the therapeutic relationship. A copy of the recording could be requested to be stored as part of the medical records, with the usual data storage and security requirements considered.
The consultation –
What if a patient declines an in-person physical examination that I believe to be clinically necessary?
Recognising the need to recommend a face-to-face consultation in the right circumstances is key to ensuring that patient care is not compromised due to the method of consulting. The Medical Council guidance states that “you must satisfy yourself that the services you provide through telemedicine are safe and suitable for patients”. Doctors should explain to their patients that there are aspects of telemedicine that are different to traditional medical practice – for example, explaining that a teleconsultation does not involve a physical examination and any additional risks that may arise as a result. The reasons behind the patient’s decision should be explored as the situation could perhaps be resolved. At the heart of this question, however, is the issue of informed consent – if the patient has capacity, their autonomy should be respected. However, their decision to attend or not must be appropriately informed.
You must therefore be satisfied that the patient understands the limitations of the assessment that can be carried out remotely, the rationale behind your advice to attend in person, and the risks of not attending in person. Your management plan and safety netting advice may need to be adjusted in light of this decision, perhaps advising a further remote consultation to review the situation, for example. Consent is dynamic, and people’s decisions may change as circumstances and risks change, and so it is important to revisit this discussion.
After the appointment – What should I document following a remote consultation?
Medical Council guidance says that you must follow the standards of good practice set out in their guide, whether your service is via telemedicine or face-to-face. Its advice on record-keeping states the following: “You must keep accurate and up-todate patient records either on paper or in electronic form. Records must be legible and clear and include the author, date, and, where appropriate, the time of the entry, using the 24-hour clock.” As with all consultations, the management plan and any safety netting should be clearly documented, but additional conversations such as the need to convert to a face-to-face appointment may also need to be recorded. If doctors are in doubt about the risks they face when consulting remotely, they should contact Medical Protection or their medical defence organisation for advice.
For more resources on telemedicine, visit medicalprotection.org/ireland/hub/
telemedicine Medical Protection’s consultant and GP conferences are on 11 and 25 September respectively. Free for
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