COVID-19 | Telehealth and managing medico-legal risks

by | Mar 30, 2020 | COVID-19 Blog, Health Blog

On 29 March 2020, in response to the increasing threat of COVID-19, the Australian Government announced expanded telehealth access for patients to consult general practitioners and other medical specialists without leaving home.

The new telehealth arrangements are a vital measure so that patients can access care without increasing their risk of exposure to, or spreading, the coronavirus.

However, while telehealth may seem more informal compared to a physical consultation, it is important that medical practitioners stay mindful of the medico-legal risks and challenges associated with using telehealth, including:

  1. Limitations of non-face-to-face consultation: The inability to perform a physical examination (i.e. general observation, palpation, percussion, auscultation and checking vital signs) may increase the risk of misdiagnosis and for missed opportunities for preventative care. The practitioner must remain acutely sensitive to whether proper assessment and treatment requires a physical examination.
  2. Fragmentation of continuing care: Fragmentation of care can occur because patients have easier access to services via telehealth from providers other than their usual doctor. Telehealth services should ideally be provided by a patient’s usual medical practitioner or practice wherever possible (i.e. practitioners with knowledge of the patient’s history and access to complete medical records). Practitioners must recognise the increased risks of advice without having the patient’s medical history.
  3. Confidentiality and privacy: Privacy, confidentiality and security may be problematic. Practitioners must ensure the protection of the patient’s health information.
  4. Technological limitations: The quality of technical systems, internet connection and equipment by which the telehealth services are provided may hamper the delivery of care and lead to an increase in risk to patients. As a practical matter the onus is on the practitioner to ensure the integrity of electronic communications.

The medico-legal risks for medical practitioners can be reduced by adhering to the Good Medical Practice Code of Conduct and the Medical Board’s Guidelines for Technology-Based Patient Consultations. This means a medical practitioner must:

  1. apply the usual principles for obtaining their patient’s informed consent, protecting their patient’s privacy and protecting their patient’s rights to confidentiality;
  2. make a judgement about the appropriateness of a technology-based patient consultation and, in particular, whether a direct physical examination is necessary;
  3. make their identity known to the patient;
  4. confirm to their satisfaction the identity of the patient at each consultation – practitioners should be aware that it may be difficult to ensure unequivocal verification of the identity of the patient;
  5. provide an explanation to the patient of the particular process involved in the technology-based patient consultation;
  6. assess the patient’s condition, based on the history, clinical signs and appropriate examination;
  7. ensure they communicate with the patient to: establish the patient’s current medical condition and past medical history, and current or recent use of medications, including non-prescription medications; identify the likely cause of the patient’s condition; ensure that there is sufficient clinical justification for the proposed treatment; ensure that the proposed treatment is not contra-indicated – this particularly applies to technology-based consultations where the practitioner has no or little prior knowledge or understanding of the patient’s condition(s) and medical history or access to their medical records;
  8. accept ultimate responsibility for evaluating information used in assessment and treatment, irrespective of its source – this applies to information gathered by a third party who may have taken a history from, or examined, the patient;
  9. make appropriate arrangements to follow the progress of the patient and inform the patient’s general practitioner or other relevant practitioners;
  10. keep an appropriate record of the consultation;
  11. keep colleagues well informed when sharing the care of the patient.

Telehealth can be a valuable and effective mode of receiving clinical information and providing medical advice.   However, telehealth also has its inherent limitations and practitioners must remain vigilant, even where telehealth as a communication platform is beneficial or reasonable for broader safety reasons.

The content of this article is intended to provide a general overview and guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Enore Panetta

Enore Panetta