Following his previous article for TotalHealth looking at the concerns around current models of medical indemnity. Medical indemnity insurance expert, Simon Gale now takes a look at the risks, if any, associated with the general shift to remote consultations and telemedicine.
Managing the medical risk
As we enter 2023 and we look back on what has been termed the “new normal”, it is time to accept that the way medical practitioners engage with their patients has changed, perhaps forever. The question that needs to be asked is how will this affect the patient / practitioner relationship and what are the risks, if any, of remote consultations?
As a practitioner, the starting point to managing these risks is to understand the three principles set out by the General Medical Council (GMC), namely:
1. Standards of good practice apply to both face-to-face and remote consultations.
2. If the Practitioner cannot meet the standard of safe prescribing in a remote consultation then the consultation should be face to face.
3. The Practitioner should agree with the patient the most suitable method of consultation within the resources available.
Minimising any potential risks from remote consultations
.. examination, complexity and capacity
One could ask why the provision of medical services should be any different now, compared to prior to the Covid-19 pandemic, when the majority of services have returned to ‘normal’. However, we need to accept that remote consultations are very much here to stay. The challenge therefore is to make sure that any risks involved are managed and minimised where possible.
The GMC go on to set out ethical guidance as to the factors that need to be considered when deciding whether it is safe to treat a patient remotely. These include whether you need to examine the patient, the complexity of the patient's clinical needs and the patient's capacity to decide on treatment. From a risk perspective is it the practitioner who makes those decisions or part of an administrative team who make the appointments and do they think it is possible to assess the complexity of clinical needs and patient capacity without meeting the patient face-to-face?
Pitfalls of remote consultations for patients with chronic disease
Towards the end of 2021 The University of Cambridge in collaboration with other experts prepared a report considering the risks and benefits of telemedicine. The study undertaken in the field of Rheumatology specifically looked at the pitfalls for patients with chronic disease. 86% of patients and 93% of Clinicians felt that telemedicine was worse than face-to-face consultations for accuracy of assessment with some reporting misdiagnoses. In addition one of the criticisms laid at health professionals doors, is that, through remote consultations, there is a lack of building a relationship with patients and GPs or practitioners lack an understanding of their own patients. The days where a patient saw their own GP has long gone but one must question whether remote consultations will further weaken that personal relationship. The question is also raised as to whether remote consultations increases the perception of potential inequalities in treatment, specifically where the patient has cognitive issues, where language is a barrier or where there are mental health issues.
However, what can be appreciated is that from both a patient and practitioner's perspective remote consultations can be more convenient, with no travelling and often reduced waiting times.
Key points for reducing risk
So, what can be done from a risk perspective when carrying out a remote consultation, over and above those usual considerations for face-to-face consultations? The list below is not exhaustive but sets out a few key points which should be considered.
- Is the IT equipment you're using fit for purpose and secure ?
- Has the patient already been seen previously in person?
- What are the social/economic circumstances of the patient and could these be relevant?
- Is this a physical or mental health problem ?
- Are there any special considerations in view of the patient's age (very young or elderly)?
- Can the patient provide the necessary consent?
From a legal perspective, it is early days and there is little guidance in UK case law specifically relating to telemedicine, but we can look at previous case law on duty of care and informed consent to determine what may or may not be applicable. The starting point in any medical malpractice claim will be the tortious liability tests set out in the 1932 case of Donoghue v Stevenson. In this test, the claimant had to prove:
1. The Defendant owed the claimant a duty of care.
2. The Defendant failed to exercise reasonable care leading to a breach of that duty.
3. The claimant suffered injuries caused by the breach.
The reasonable standard of care is then defined in the case of Bolam (1957) where the judges ruled that if a clinician's actions are in accordance with a responsible body of medical opinion then there would be no finding of negligence. There is an argument to say that any further guidance provided by the GMC could form the basis of the “Bolam test”.
Courts will most likely continue to rely upon the “Montgomery test”
In relation to the specific issue of informed consent the Courts will most likely continue to rely upon the “Montgomery test”. This test requires the patient to understand any “material risks”. It is however subjective, hence it is the understanding of the specific patient and what they may consider significant. The subjective element could be harder to satisfy if the patient is not seen face-to-face as the clinician may miss physical signals if just speaking to a patient on the phone. With the rise in remote consultations, it is without a doubt that at some point in the future the courts will have to adjudicate on how to get over this hurdle.
Make sure that your indemnity insurance includes telemedicine
It is too early to reach a definitive view as to whether the benefits of remote consultations outweigh the risks. However if you, as a medical practitioner, provide remote consultations then there are additional matters to consider, but no reason why if managed correctly the risk should be any greater than in a face-to-face consultation. The only caveat is to make sure that your indemnity insurance includes telemedicine and remote consultations or if no reference is made, it doesn’t specifically exclude it.
If you are at all unsure about the provisions within your insurance policy, then the expert team at Howden are here to help. Speak to us and we can advise you and help to make sure your insurance policy is suitable for your individual requirements.
