Lawyers Enore Panetta and David McMullen explain how to manage the legal risks of telehealth during COVID-19 and beyond.
Since March 2020 (and, at the time of writing, continuing at least until the end of the year) temporary telehealth items have been made available on the Medicare Benefits Schedule in response to COVID-19.
Whether due to pandemics or as a product of new and evolving technologies, it seems telehealth is going to play a growing role in the healthcare of the future.
However, while telehealth may seem more informal compared to a physical consultation, it is important that medical practitioners stay mindful of the legal risks and challenges associated with using telehealth. Some of the main considerations include:
1. The standard of care must be maintained. Telehealth does not excuse a lesser standard of patient care. You must still meet your legal duty to the patient with quality and safety informing everything you do via telehealth. Just because you are consulting by telehealth, don’t forget the usual risk management practices that you would undertake when consulting in person. Obtain fully informed consent to provide medical treatment or perform tests or procedures. Keep accurate and contemporaneous records including the start and end times of consultations and all elements of your professional assessment and decision-making processes. Identify your patient, taking particular care if consulting by voice/audio only. Reduce medical legal risk by adhering to the Good Medical Practice Code of Conduct and the Medical Board’s Guidelines for Technology-Based Patient Consultations.
2. Patient and case selection: Telehealth is not a substitute for physical consults. Is the patient suited to telehealth? Where the patient has special needs, is impaired or elderly or a child, or there are language barriers, telehealth may not be appropriate. Is the patient’s health condition suited to telehealth? Consider the limitations of non-face-to-face consultation. If the inability to physically examine could lead to errors in diagnosis or treatment, or missed opportunities for preventative care, then a physical consult may be needed. This requires a case by case assessment. Stand by your assessment and insist on a traditional physical consultation if appropriate – even if a patient asks for services via telehealth due to perceived accessibility or convenience.
3. 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.
4. Ensure a suitable consulting environment: When a patient visits you at your practice, you control the environment. You lose this level of control when you consult by telehealth. Put clear protocols in place for both you and your patients around the setting in which telehealth consultations will be performed.
5. Technological limitations: The type and standard of equipment, and the speed and bandwidth of data connections, is important when providing services via telehealth, as interruptions to video and/or audio can compromise the delivery of care and therefore lead to increased risk. In short, equipment and connections must be fit for purpose. As a practical matter, the onus is on the practitioner to ensure the integrity of electronic communications. For example, a specialist who needs to receive and interpret medical imaging must be able to receive images with sufficient clarity to perform their work. These needs will differ from, say, a GP who is performing a more routine task such as writing a repeat prescription for a returning patient.
6. Privacy and confidentiality: Healthcare providers should already be aware of their obligations under the Privacy Act 1988 (Cth) and the Australian Privacy Principles (“APPs”) (and additional state/territory legislation in some locations). Of particular relevance in a telehealth setting is the obligation to protect personal information from misuse, interference and loss; and from unauthorised access, modification or disclosure (under APP 11.1). Telehealth providers therefore must use secure systems to conduct telehealth consults and always transmit personal information (including health information) in a secure manner.
7. Insurance: Ensure that your telehealth consultations are covered by your professional indemnity insurer. Pay particular attention to how ‘telehealth’ is defined in your policy, and whether you or the patient must be in a particular location. Some policies will not, for example, cover claims relating to telehealth provided to patients outside Australia.
With the right measures in place, telehealth can be a viable and prominent part of the future healthcare landscape, without opening up areas of undue legal risk for the practitioner. The key is to recognise the purpose, limitations and inherent risks of telehealth and to remain vigilant.
ED: Enore Panetta and David McMullen are lawyers with Panetta McGrath.
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