Update: Telemedicine - Katharina Raabe-Stuppnig

Update: Telemedizin - Katharina Raabe-Stuppnig

Digitalisierung im rechtlichen Spannungsverhältnis

Update: Telemedizin - Katharina Raabe-Stuppnig

In our increasingly "digital" society there is a great need for so-called telemedical services. Especially in times of Corona, hardly anyone likes to sit in the full waiting room of a doctor's practice if it can be avoided. It is better to clarify in advance with the doctor whether treatment can take place from a distance, i.e. with the help of telemedicine. Telemedicine in this context means any provision or support of health care services using information and communication technologies where the patient and the health care provider (GDA) or two GDAs are not present in the same place. The spectrum of telemedicine is therefore broad and ranges from telemonitoring, i.e. the medical monitoring of the state of health from a distance, to teletherapy, in which a GDA actively intervenes in the treatment of patients from a distance, to the teleconference.

Many doctors already offer such remote treatments. However, in order to create legal certainty for all those involved, comprehensive technical preparation and the observance of numerous legal regulations are required. Unfortunately, there is no "telemedicine law", but rather - depending on the respective area of application - a multitude of laws must be observed. These are, in particular, the physicians' law, the law on hospitals and health resorts, the DSGVO and, in particular, the special matter in the form of the health telematics law. With regard to the physicians' law, the principle of immediacy from § 49 (2) must be taken into account in particular in connection with telemedicine. More modern doctrines hold the view that telemedicine is compatible with the principle of immediacy. However, there is a lack of experience or guidelines as to when a telemedical treatment is to be considered "lege artis". Furthermore, in my opinion, one should not go so far as to regard purely remote treatment as compatible in principle. Rather, there should be a minimum of "personal" contact so that there is a certain immediacy of the doctor-patient relationship. As a rule, this means that the doctor has at least once examined the patient "on the body" in the practice and subsequent (further) treatments take place from a distance, provided that this does not result in a loss of quality.

A further advantage of telemedicine can be the comprehensive data material obtained in this way, which - provided that a legal basis and/or anonymization is available - is available for medical research. Here, other countries such as Denmark, Estonia or Sweden are already much further ahead than Austria, which is probably also due to a more moderate understanding of data protection. In Austria, from a data protection point of view, special care must be taken to ensure that data transmission is secured in a special way. Encryption, for example, is suitable for this purpose. Under no circumstances should correspondence containing health data be sent by "normal" e-mail.

To meet the need for legally compliant telemedicine as quickly and comprehensively as possible for all parties involved, it would be desirable to develop certificates for suitable applications or platform providers and to provide physicians with uniform guidelines and recommendations for correct implementation.