The internet is significantly changing the delivery of health care in Australia. Practitioners can now Facetime patients, view patient data through secure online services and conduct various health assessments virtually. While the benefits of virtual care are obvious (convenience, accessibility, on-demand services and reduced wait-times), it is not without legal risk. In this article we highlight some issues practitioners should consider before deciding to engage in technology-based practice.
What is technology-based medical practice?
The Medical Board defines ‘technology-based medical practice’ as any patient consultation that uses technology as an alternative to a face to face consultation. This might include video conferencing, internet chat, an online questionnaire or a telephone consultation.
The primary risk of technology-based medical practice is that the practitioner will fail to fulfil their duty of care to their patient.
Regardless of how a consultation is conducted, each treating practitioner must assess each patient on a case-by-case basis. The practitioner must exercise a ‘reasonable standard’ of care. This means they must act ‘in a manner that (at the time the service was provided) is widely accepted in Australia by peer professional opinion as competent professional practice’ (Civil Liability Act 2001 (NSW), see section 5O).
There are a number of guidelines that set out the standards expected of practitioners involved in technology-based consultation.
AHPRA’s Good Medical Practice Guide sets out general principles for the practice of medicine that practitioners need to satisfy when treating a patient, in person or via technology. Notably practitioners must:
- Practice medicine safety and effectively;
- Not take advantage of the patient;
- Communicate effectively;
- Take into account the patient’s history, views and an appropriate physical examination, where clinically necessary;
- Formulate and implement a suitable management plan, including arranging any follow-up investigations that are clinically appropriate;
- Make appropriate referrals;
- Encourage patients to be well informed about their health; and
- Not exploit patients in any way, including financially.
The AHPRA Guidelines for Technology-Based Consultation provide more specific guidance for virtual care models. These Guidelines apply to both practitioners and employers of medical practitioners. Practitioners must:
- Make a judgment about the appropriateness of a technology-based consultation and whether a direct physical exam is necessary;
- Make their identify known to the patient and confirm the patient’s identity;
- Perform an appropriate examination;
- Ensure any medication is not contra-indicated;
- Ensure there is an appropriate mechanism for following-up the patient, if necessary;
- Ensure they are confident their medical advice will be clearly communicated to the patient in a manner the patient will understand; and
- Ensure there is an adequate plan in place to deal with emergencies.
Although written for general practitioners, other useful resources are the RACGP Guidelines for Video Consultation and the RACGP Position Statement On Demand Telehealth Services (RACGP Statement).
In 2015 the Australian Competition and Consumer Commission brought a claim of unconscionable conduct against Advanced Medical Institute Pty Ltd (AMI) and its practitioners. The doctors employed by AMI provided e-consultations (predominantly phone consultations) to men suffering Erectile Dysfunction (ED) and Premature Ejaculation (PE). The primary case against AMI related to practitioners having an undisclosed financial interest in the sale of various treatments they prescribed. However it is the commentary on the e-consultations that is illustrative for the purpose of this article. His Honour Justice North found the telephone consultations provided by the AMI practitioners did not adequately meet the standard of care the doctors owed their patients. His Honour found the specific conditions of ED and PE could not be properly diagnosed and treated via a telephone consultation because the EMI doctors could not adequately assess the cause and comorbidity without visual cues. Further, His Honour found the EMI practitioners had not sufficiently explained the side effects of the prescription medication and patients had not being referred to specialists where appropriate. His Honour concluded that especially initial consultations for ED and PD ‘should be conducted if not in person, then at least face-to-face, but not by phone‘.
His Honour noted that technology-based consultations could be appropriate if the practitioner was confident ‘A direct physical examination would not add important information to inform their treatment decisions or advice to the patient‘. This needs to be assessed on a case by case basis. We note the RACGP Statement provides that a patient’s usual General Practitioner will usually be best placed to make this assessment and provide technology-based care, given they have a thorough understanding of the patient’s medical history.
Although His Honour was critical of AMI’s model, he noted improvements in technologically-based practice might alter his view: ‘Whilst the conventional position requires in-person or face-to-face consultations, it must be acknowledged that this is a time of change. … A judge addressing the present issue in five years’ time may well be faced with developments and more sophisticated means of doctor-patient interaction which may lead to a different conclusion.‘
Before deciding to engage in any virtual care model, practitioners should review the relevant Guidelines and satisfy themselves that the proposed virtual model will enable them to fulfil their professional obligations to their patients. Ultimately it is a matter for each practitioner to decide whether a technology-based model is clinically appropriate.
Our team specialises in technology and health care. If you would like specific advice about your circumstances, please do not hesitate to contact Karen Keogh or Chelsea Gordon.
This article was written by Karen Keogh, Partner, Chelsea Gordon, Associate and Amelia Lingafelter, Law Graduate.