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Legal Issues for Telehealth Services

Michael Gorton AM

The average reading time for this Alert is six minutes.

The rapid growth in telehealth services by practitioners and health services, necessitated by the COVID-19 pandemic, raises issues of legal risk. It has also been noted by many that an expanded use of telehealth services is likely to continue after the COVID-19 pandemic is gone.

It is easy to minimise the potential risks at present when the only options are telehealth services or none. However, there are real risks in this present situation with are likely to be even more significant in more “normal” times.

Is Telehealth appropriate?

The first question to ask is whether it is appropriate to use telehealth rather than face-to-face. This will depend on a range of factors including:

Nature of consultation – is it valid for diagnosis or treatment, without physical presence?

Nature of client – aged/impaired/disability/cultural factors may impact on the effectiveness of diagnosis or treatment.

Nature of issues emerging – can you determine the likely impact and advances of the disease or disability, without a physical examination?

Is the client supported on site, if necessary – especially with mental health issues, assisting with understanding and follow up.

Consider and plan for risks – things can change rapidly with a patient’s condition, systems can fail. How do you follow up if this is needed quickly?

Prepare for disclosures/changes during a telehealth session – expect the unexpected which may require an urgent response.

Your competence/comfort with IT – are you IT literate, able to deal with potential IT issues or failures?

System Clarity and Failure

The system you choose and the patient’s reception will impact on the effectiveness of the consultation, and any treatment and diagnosis. Consider:

Quality of sound and picture – check in advance. What systemcan the patient receive? Is there sufficient visibility for your purposes?

Ability to detect body language and expression – this may be an important part of the consultation

Follow up after system break or failure – immediate follow up may be required in some cases. Do you have contact information for the patient and carer/family?

Plan back up arrangements (phone?).

Preparation and Consent

It is important that all of the usual information in advance is obtained, and that informed consent is given. Consent to the use of telehealth should include the provision of details of the limitations and risks of telehealth services compared to face-to-face.

Confirm for telehealth (and explain purpose and limitations) – a simple “fact sheet” sent in advance can provide this information, aid consent and include other useful information relating to the consultation.

Provide information in advance? (RANZCP guidelines) The College of Psychiatrists and state and federal governments now have information sheets for practitioners and patients that can guide both

Recording? If you propose to record the consultation, specific consent will be necessary, and an explanation as to how the recording may be used or disclosed

Location appropriate (family, overhearing, duress?) Check whether other people are around, in earshot. Is confidentiality preserved? Could there be duress by another person present? (Domestic violence?) Or should there be a person/carer support be present to help the patient?

Confirm Identity

Especially when “seeing” a patient for the first time some conformation of identity will be appropriate, and the need to gather individual information.

New client? - Collect all the usual information necessary. Can this be done in advance?

Information for billing – necessary information for Medicare and private health claims?

Privacy

Obviously privacy and confidentiality obligations are heightened with the use of technology. Not all platforms have the same level of protection and security. Microsoft Teams seems to find favour with government agencies. The limitations of Zoom have been canvassed in the media. Be aware and use all appropriate privacy setting of the platform you choose. You could be liable for privacy breaches.

Secure systems (Zoom?) – get good advice on the weaknesses of the system you choose/use.

Does the client have privacy in place? Is the patient in a private place? Can they be overheard? Check with the patient at commencement.

Balance between support/privacy/pressure in place – consider the need for a support person with the patient, but consider any information that may require the patient to be alone.

Recording? – Consent required as above.

Record Keeping

It is important to keep good notes and records – including information in relation to consent, explanations, risks, etc discussed – as well as the records of the treatment and diagnosis. Keep a record of all advice and instructions you give the patient – particularly in relation to follow up and timelines.

Keep all notes and records as usual – and extra notes of the process, consent and follow up advice.

Record all extra observations (body language, comprehension, concerns) – keep a note of the appearance, temper, and apparent understanding of the patient. Keep a note of unexpected issues or if the system does not perform as expected.

Be cognisant of the limitations of a telehealth consultation – be vigilant for misunderstandings, inability to appreciate your advice, and the lack of full visual and physical assessment of the patient.

Limitations

Be alert/aware - Honesty/frankness of the patient? - Visual cues?

Warning signs? Unexpected information or comments. Unusual reactions? Interruptions?

Follow up - Document your advice and information relating to necessary follow up/tests/referrals –Writing? – Phone? - Further consultation? – Check and confirm with family/carers where appropriate? - Further referral?

Liability – Standard of Care

You have all the medico-legal risk of a normal physical consultation, and potentially a heightened risk because of the limitations of telehealth for the reasons above.

Same legal obligations as face-to-face – all normal legal obligations apply.

Possibly increased due to limitations - Be aware/alert.

In the event of a Clinical emergency during the telehealth consultation be prepared - (client details/location/emergency contact details for the patient and support person).

As always confirm insurance – you may wish to check that all planned telehealth consultations are covered by your medical defence insurer, particularly if there are any unusual features or risks in particular cases.

As many health services and practitioners have discovered, telehealth can be a useful tool in the “right” circumstances. It can fill gaps, save costs and unnecessary travel, and extend service to rural remote and disadvantaged communities and individuals. However, we need to be aware of its limitations and risks, and how and when and when not to use it.

How we can help

For further information on telehealth services and the associated legal risk, please contact Michael Gorton AM or another member of our expert Health Law team. 

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