The ethics and legalities of telehealth

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The 2014 Guidelines

In terms of the 2014 Guidelines, travelling distance must be a contributing factor to the practice of telehealth. Services may be rendered by means of information and communication technology. Its aim is the diagnosis, treatment and prevention of diseases and injuries. It includes guidelines on the education of healthcare practitioners, and the rendering of clinical and non-clinical services.

Various issues are outlined in the 2014 Guidelines, including the competence, registration and authorisation of healthcare practitioners and services which may be offered. Mere completion by the patient of an online questionnaire is not acceptable and informed consent must be obtained from the patient. In addition to having a conversation with the patient during which the patient is informed of the options, benefits, risks and consequences and the patient being afforded with the opportunity to ask questions, informed consent to telemedicine services requires disclosure by healthcare practitioners of the types of electronic medium through which services will be rendered.

The practice of medicine is based on a relationship of mutual trust between healthcare professionals and patients. In terms of the 2014 Guidelines, telemedicine services may therefore only be offered to a patient following a face-to-face consultation and a physical examination of the patient in a clinical setting.

It places a duty on the servicing healthcare practitioner to decide whether the condition can be diagnosed or treated through telemedicine. Security measures must be in place to ensure password protection and data encryption. Risks to confidentiality of patient information must be considered and express consent to transmission of patient information to and from healthcare professionals or other third parties is required.

The 2014 Guidelines were not issued in contemplation of Covid-19 becoming a worldwide pandemic. Nobody would have predicted the exact duration for which and the extent to which the Covid-19 pandemic would have persisted, as it does today.

The March 2020 guidance note

Following Covid-19 being declared a worldwide pandemic, the HPCSA issued a guidance note in which it said that to prevent the further spread of the virus, self-isolation and social distancing were imperative. Healthcare practitioners were expected to continue providing healthcare services and had to remain accessible to patients.

The reference to “Telemedicine”, in the March 2020 guidance note was replaced with “Telehealth”, which includes the provision of telemedicine services, tele-psychology, tele-psychiatry and tele-rehabilitation. The definition was amended to include remote consultations using telephonic and virtual platforms as a means of consultation.

Of importance is that an established doctor/patient relationship was necessary except in the case of tele-psychology or tele-psychiatry services being rendered. Healthcare practitioners can, at their discretion, decide that the patient in question requires a face-to-face consultation.

The March 2020 guidance note says that it is only applicable for the duration of the Covid-19 pandemic and that it would cease to apply after the end of the pandemic.

The March 2020 media statement

Due to an increase in the demand for healthcare practitioners with resources and skills to provide telehealth services, and the growing concern that telehealth would result in the norm rather than the exception, a further media statement was issued in which the circumstances under which telehealth could be practiced was clarified.

One objective for the practice of telehealth is that it is a tool which can be used to bridge the gap between rural and specialist healthcare. Further, the media statement says that the practice of face-to-face healthcare should not be replaced with the practice of telehealth.

Formal informed consent, more specifically in relation to diagnosis, prescription and information technology equipment is required. Patient confidentiality and patient record-keeping are dealt with.

Due to the challenges of Covid-19 and the fact that the 2014 Guidelines are aimed at making healthcare more accessible to patients, the requirement that there be an existing doctor/patient relationship under all circumstances attracted great criticism.

Concerns were raised that the relaxation of the 2014 Guidelines did not take the position any further because an existing doctor/patient relationship was still a prerequisite for the practice of telehealth. This, despite what is said in the March 2020 guidance note regarding social distancing and self-isolation, which are both necessary to prevent the further spread of Covid-19.

The April 2020 guidance note

A further guidance note was issued in April 2020 which referred to the President’s announcement regarding the roll-out of screening, testing and treatment of those in rural areas to establish who required in-hospital treatment and who could be treated at home by self-isolating.

The March 2020 guidance note was amended to say that, “Telehealth should preferably be practised in circumstances where there is an already established practitioner-patient relationship. Where such a relationship does not exist, practitioners may still consult using Telehealth provided that such consultations are done in the best clinical interest of patients.”

The WHO’s approach

According to the World Health Organisation’s Global Strategy on Digital Health: 2020 to 2025, the practice of telehealth is encouraged and more than 120 member states, which include low and middle income countries, have developed strategies and policies in line with those of the WHO on telemedicine.

The strategy document states that, while the development of technology to include virtual care visits, remote monitoring, big data, artificial intelligence, blockchain smart wearables, and data exchange tools might be disruptive, it creates the ability to improve and continue diagnosis and healthcare, clinical trials, self-management of care, and it creates more evidence based knowledge, and skills and competence for professionals.

Telehealth is encouraged by the WHO as an integral priority where it is practised in an ethically safe, secure, reliable, equitable and sustainable manner.

The position as it stands in South Africa

In South Africa, the practice of telemedicine has not been discouraged by the HPCSA. Telemedicine services may be offered to those at risk of contracting severe diseases, and to preventing the further spread of the pandemic. Telemedicine services may be offered in the clinical interests of the patient and at the discretion of the healthcare practitioner.

Telemedicine services will most likely be offered as an option in the future where distance is a factor, patients are immuno-suppressed or at higher risk of contracting Covid or other illnesses, or where a follow-up consultation does not necessitate an in-person consultation.

Following the Covid-19 pandemic and its impact, and having regard to the fact that other strains of the virus have surfaced, and that other types of viruses could possibly result in future pandemics, many healthcare facilities and healthcare practitioners have modelled their businesses to provide telemedicine services.

A major issue for consideration is the costs factor involved in making telemedicine services available in line with the objectives of the 2014 guidelines. What is clear is that telehealth services require collaboration between the private and public healthcare sectors and the implementation of policies, legislation and regulations to ensure continued and co-ordinated healthcare.

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