Legal Implications of Telemedicine in India During the Coronavirus Pandemic

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Telemedicine is the effective method by which patients are remotely treated and diagnosed through the telecommunications technology furthering the accessibility of such services to the public. According to WHO (World Health Organisation), through a peer review of various definitions, telemedicine is, “The delivery of health care services, where distance is a critical factor, by all health care professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of health care providers, all in the interests of advancing the health of individuals and their communities.”

Application of Modern Telemedicine 

In this day and age, the feat of information and communications technology in healthcare services is ever rising. The first ever recorded incident of telemedicine includes the passing of ECG through telephone. Currently, WHO has created a “General Observatory for eHealth”, that provides a platform to review opportunities like telemedicine; give healthcare solutions; standards; policies and best practices in eHealth. Telemedicine is applied through two ways, one with the  time needed for the information to be transmitted and the other where there is an interaction between two individuals, such as, between two professionals or a professional and a patient. 

The transmission of medical messages or services, such as teledermatology or  telepathology, takes place in two major ways: Asynchronous and/or Synchronous. When there is an application of telemedicine via pre-recorded data between individuals at varying times, it is known as Store-and-forward or Asynchronous. For example, using emails, audios, text messages or so on for the communication of a medical case to and fro between the patient and the medical professional relating to diagnosis. Conversely, real time or synchronous telemedicine takes place between the individuals virtually present at the same time for conveying the messages, such as through videoconferencing.

Using telemedicine during the Coronavirus pandemic 

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The current tough times of the coronavirus pandemic, has caused a worldwide state of distress, and the utilisation of telehealth technology or telemedicine has paved it’s way in an effective manner. In various parts of the world, such as the US, telehealth has been credited to respond to the needs of the patients. Telemedicine is a sustainable method to treat the spread of COVID-19, especially by catering to the needs of quarantined and symptomatic patients. It has also aimed to ensure the prevention of the virus reaching to the larger population and the frontliners working day in and day out. The frontline healthcare staff can divide patients into “risk and non-risk” groups and effectively minimise the risks of the spread of the virus especially for the chronic patients. The doctors in the US, for tele-triage (virtual healthcare systems), are using acute telemedicine methodology to protect the healthcare workers at a low risk from contracting the virus.

India’s use of telemedicine during the ongoing pandemic 

With the huge and ever growing population of India, health care services are of prime importance to the county. The telemedicine initiatives in India began with ISRO (Indian Space Research Organisation) when they established the ‘Telemedicine Pilot Project in 2001’. Later, many such projects were initiated to make healthcare services more available the public by the government such as the  Integrated Disease Surveillance Project (IDSP), National Rural Telemedicine Network, Digital Medical Library Network, and so on, by the Ministry of Health. 

There have also been standard practice guidelines set up to apply telemedicine by the government. There are also other ventures and international collaborations such as the SAARC (South Asian Association for Regional Co-operation) Telemedicine Network Projects to enhance the information and quality on telemedicine. The population in India is extremely high, and having a balanced doctor and patient ratio is of vital need, although WHO recommends the ratio as 1:1000, in India it is 0.62:1000. In such a scenario telemedicine plays a significant role in providing effective healthcare services to both the rural and urban population.

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During the ongoing COVID-19 crisis, various institutions such as hospitals, e-pharmacies, governments etc., have accepted and applied telemedicine and teleconsultations on the recommendations of the WHO. These have taken place with the issuance of guidelines by the work of the Ministry of Health and Family welfare, NITI Aayog and Board of Governors of Medical Council of India (MCI). Further, these guidelines permit registered medical practitioners to use telemedicine amidst the virus that has caused a heavy loss in the lives of the healthcare staff too. 

Legal implications and barriers to telemedicine application 

Telemedicine has been a novel and growing phenomenon, however, it’s effective success is yet to be chalked out in terms of daily telemedicinal services and investment in this field. The ideologies of the healthcare workers and patients may also differ wherein the services are preferred in a more traditional way.  Further, the barriers in language and culture prevent the adoption of our technological methodologies. More studies are also required to be done with relation to cost and time cutting, along with the overall economic advantages. 

Furthermore, there are a also emerging legal barriers to it, such as not having a proper international legal framework to provide the healthcare workers with a standardised method to treat patients using telemedicine. Different countries also have various different policies, rules and regulations to govern telemedicine. Certain key subjects of data privacy/confidentiality in online data transferring are also missing from the purview of policy considerations. Other barriers are also with relation to the technology at use itself, dysfunctional softwares and hardwares can cause differing diagnosis than that intended and hence affect the morbidity or mortality of patients. Threats to vital information can be seen in the form of cybersecurity issues, while management inefficiencies can be seen through the regulation of Medicare and Medicaid Reimbursement, Medical Malpractice cases, and cases of fraud and abuses. 

Telemedicine Practice Guidelines 2020

The Telemedicine Practice Guidelines 2020, established in the wake of COVID-19, promote the application of telemedicine to provide teleconsultations. These guidelines came to forefront as an amendment to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (“Code of Conduct”) ensured the legalisation of the application and practice of telemedicine. These guidelines legalise remote services through telemedicine by a registered medical practitioner (M.B.B.S and above). The doctors providing teleconsultation as a mandate have ‘to display their registration number’ while communicating with all the patients through technology.  For chronic diseases (e.g. asthma or hypertension etc) prescription of medicines shouldn’t be allowed unless it is with relation to a previous consultation. Other features of these guidelines provide doctors to choose the medium of teleconsultations; require the doctor’s to maintain the standard of care similar to that of in-person consultation; there is an obligation on the patient to provide relevant and accurate information for the doctor to provide an effective diagnosis; and if the patient is a minor or is incapacitated then the caregiver is authorised to take decisions. Furthermore, there is no fixed methodology to provide any prescription, however, a digital copy of the prescription and invoice has to be provided. 

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It is clarified that the judgement of Deepa Sanjeev Pawaskar and Anr. v. State of Maharashtra, 2018, doesn’t clash with the current telemedicine guidelines. In the said case, there were two gynaecologists who were held responsible for criminal negligence towards a patient that died under their care. One of the doctor’s treated the patient through the telephone through the means of teleconsultations and instructions to the nurse present. The doctors interpreted this case in a way to deem telemedicine illegal, however, the case strongly pertained to medical negligence and not otherwise. It is important to note that these guidelines are published as an amendment to the Code of Conduct, hence, any violation of these guidelines  would be a ‘misconduct’.

Conclusion 

It is submitted that telemedicine is the effective method by which patients are remotely treated and diagnosed through the telecommunications technology furthering the accessibility of such services to the public. During the current ongoing situation of the COVID-19 pandemic, it is pertinent to note there are global and national measures taken by states to apply the practice of telemedicine. India, through issuing the Telemedicine Practice Guidelines 2020, has established and promoted the application of telemedicine to provide teleconsultations. The field of telemedicine is not void of barriers, hence only time will tell, how effectively we sought to provide this novel practice.


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