Telemedicine

on a delicate legal footing

Telemedicine

In our digitalised society, there is a great need for telemedical services. In order to create more security, both in terms of application and legality, for all the parties involved, the following uniform guidelines and recommendations for correct implementation would be desirable. 

Telemedicine refers to any provision or support of healthcare services using information and communication technologies where the patient and the healthcare provider (HCP) are not physically present in the same location. In concrete terms, this includes any form of remote treatment, whether by telephone, by video conference or in the transmission of findings via an online platform. It can be used in a wide array of applications, which extend from telemonitoring (medical monitoring of a person’s state of health from a distance) to teletherapy, in which a HCP actively intervenes in the treatment of patients from a distance, as well as teleconsultations and teleconferences. 

During the coronavirus pandemic in particular, these telemedical forms of treatment are becoming more and more appealing. As hardly anyone is keen to sit in the packed waiting room of their doctor’s surgery, many patients prefer to clarify with their doctor in advance whether they can receive treatment remotely. More and more doctors have been offering this kind of remote treatment since the ‘shutdown’ in March, if not before. However, in order to create legal certainty for all those involved, there is a need for appropriate technical preparation and compliance with numerous legal provisions. Unfortunately, there is no ‘telemedicine law’ listing all the specifications: instead, a multitude of laws must be observed, depending on the area of application at hand. They include, for example, the Doctors’ Act, the Hospitals and Health Resorts Act, the General Data Protection Regulation and, also, the Health Telematics Act, which must always be taken into account when health data is processed electronically on a regular basis. When selecting platforms or providers, it is particularly important to ensure that encrypted data transmission is guaranteed. Under no circumstances should correspondence containing confidential health data be sent by ‘normal’ email. 

With regard to the Doctors’ Act, special attention must be paid to the principle of immediacy pursuant to section 49 (2) when assessing the admissibility of telemedical treatment. Although more modern doctrines hold the view that telemedicine is compatible with the principle of immediacy, I do not believe that it should go so far as to consider purely remote treatments as being permissible, in principle. Rather, it is recommended that a minimum of ‘personal’ contact takes place, with the result that a certain immediacy of the doctor-patient relationship remains guaranteed. This means that the doctor has ‘physically’ examined the patient in their practice at least once and subsequent (further) treatments are carried out remotely, provided that this does not have a negative impact on quality. In this context, it should be emphasised that there is currently (also) a lack of experience or guidelines as to when telemedical treatment is to be considered ‘lege artis’ in the sense of maintaining quality. This assessment must be made by the attending physician, without this physician being able to refer to corresponding studies or other specifications. 

A further advantage of telemedicine can be the comprehensive data obtained through it. This can be made available for medical research, provided that there is a legal basis for this and/or anonymisation is available. Here, countries such as Denmark, Estonia or Sweden are already much further along than Austria, which is probably also due to their more moderate understanding of data protection. 

In summary, it can be said that telemedicine is an important building block for future medical care across the nation. In order to create certainty in terms of application and legality, it would be desirable to provide the protagonists involved in this field with uniform guidelines and recommendations for correct implementation. In particular, a pan-European certificate for providers, platforms and other applications would facilitate the process of selection. In addition, uniform educational materials, for both doctors and patients, could help ensure consistent standards and provide more legal certainty. 

Author:

Mag. KATHARINA RAABE-STUPPNIG, Managing Partner and Head of TMT at LANSKY, GANZGER + partner

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