The Rise of Telemedicine

Telemedicine is a general term that refers to the provision of medical care at a distance through telecommunications technology.

Synchronous telemedicine is performed in real time, such as a video call between a patient and a provider. It can also be provider-to-provider such as when an A&E doctor consults with a remote cardiologist on the best treatment for a patient.

Asynchronous telemedicine includes “store-and-forward” technologies, such as online portals that allow patient–provider or provider–provider communications. It also includes chat bots such as those designed to help a patient decide whether to get tested for the virus that causes COVID-19 and remote monitoring of patients through wearable or implantable devices.

Advantages

Telemedicine comes in many shapes and sizes and offers many advantages over the traditional healthcare visit. Two key drivers of health and social care policy in the UK over the last decade have been related to patient convenience and controlling the growing budgetary pressures.  

Telemedicine is known to save time on travel, admin and waiting and there is no need for those with chronic medical conditions to go through the commute to an appointment. Additionally, telemedicine has a number of cost saving benefits. A McKinsey report estimates that adoption can reduce the number of unnecessary A&E visits by approximately 20%. Digital health services can also reduce the workload on the consistently stressed, under resourced, and understaffed healthcare workforce in the UK.

The use of technology also provides better confidentiality for patients who may not want to be seen in a clinic and affords family members scattered across the globe the opportunity to participate remotely. Furthermore, virtual visits can give doctors access to information they might not otherwise have. For example, doctors get a glimpse into the patient’s home environment which can provide important clues about their health and wellbeing. Patients can visually present medication labels and lifestyle information such as where they sit and sleep.

With COVID-19 symptoms developing quickly, telemedicine is being seen as a good way to take care home residents’ vital signs and to enable care home staff in isolating care homes gain access to an external healthcare practitioner to assist with swifter symptom management. On 21 May 2020 together with the North and West Hampshire CCGs and other local organisations, the Hampshire Hospitals NHS Foundation Trust launched a telemedicine service for its care home residents with the aim to help prevent unnecessary admissions to hospital. The service was planned to be launched later in 2020 but the pandemic expedited its roll out to over 80 care homes by 27 May, which were all within that area of the country. My colleague Chris Dexter covered this in more detail in an earlier blog.

Adoption in the UK & COVID-19

While many countries had made significant advances in adopting telemedicine services over the last decade, the UK’s provision prior to the COVID-19 pandemic was comparatively underdeveloped.  

In February 2019, health secretary Matt Hancock unveiled NHSX in recognition of the opportunities, benefits, and efficiencies presented by telemedicine. NHSX was established to drive digital transformation and lead IT policy across the NHS by bringing together teams from the Department of Health and Social Care, NHS England, and NHS Improvement into one central unit. With more than £1 billion pounds invested a year, NHSX is leading the largest digital health and social care transformation programme in the world. In hindsight, its conception and investment came at just the right time.

As a natural consequence of the pandemic and lockdown there was a dramatic fall in emergency department and clinic visits and a surge in digital healthcare adoption across the UK. Registrations to use the NHS app increased by 111% from February to March 2020. Use of the nonemergency online advice site, NHS 111 online, for the period of June to November 2020 was up 257% compared to the same period in the previous year. Remarkably, around 99% of GP practices now offer remote consultations and nine in 10 GPs have said they want this to remain.

The NHS published guidance in January 2021 to update the Code of Conduct for Data-Driven Health and Care Technologies. The guidance provides a set of good practice principles that third-party partners should follow. The Principles set out the standards the NHS will use to assess the implementation of any telehealth innovation. Any technology provider that is seeking to enter the UK healthcare sector should take heed of the NHS principles.

Healthcare regulation

The Care Quality Commission requires all service providers to register to deliver remote medical advice. Providers must satisfy the CQC that the care and treatment they provide will meet the requirements of the Health and Social Care Act 2008 and associated regulations. This means digital providers of medical advice are regulated by the same regime as traditional in person services.

Recent General Medical Council guidance has sought to lead practitioners through the problems that telemedicine can create, starting with a flowchart which helpfully deals with when a remote consultation would, and would not, be appropriate in the first place. The GMC’s reminds us that the fundamental principles of good medical practice are just the same as for face to face consultations. NHS England have also recently (May 2021) updated their own (detailed) guidance on the subject.

There is no doubt that remote consultations provide pitfalls, including: how to deal with the lack of a physical examination; the higher risks of missing a diagnosis; the use of images, and how to transfer them and store them safely as part of the medical record; safeguarding; communication problems; IT problems. It is inevitable that some of these factors will feature in patient complaints and regulatory investigations,  and in fact already have, and the wise doctor will ensure that they stay familiar with the various guidance, and stay vigilant to ensure that standards of care do not slip.

The GDPR will play an important role in regulating telemedicine services as it places limits on the lawful processing of an individual’s personal data. In other sectors, organizations typically rely on individual consent as a lawful basis to process data. However, the Information Commissioner’s Office advises that consent will not always be necessary for data protection purposes in the healthcare sector. Providers of telemedicine services may rely on exceptions that apply to official authorities and health or social care systems.

Regulatory treatment of the software and other equipment used in telemedicine is complex. Software designed to enhance X-ray or ultrasound scans will likely be considered a medical device and have to adhere to strict compliance requirements. However, software that functions purely as a patient management system or a records storage system will not be considered a medical device.

Healthcare claims

It is too early to determine the impact of the increased adoption of telemedicine services in the UK during the pandemic to the healthcare claims sector. However, we can get a sense of the trend lines based on the data already available in other jurisdictions such as the US.  Telehealth claim lines increased 2,817% from December 2019 to December 2020, rising from 0.22% of medical claim lines in December 2019 to 6.51% in December 2020. This patterns is likely to be replicated in the UK.

Uncertainty over medico-legal issues related to telemedicine continues and the impact of telemedicine on insurance rates remains unclear. Some insurance companies believe that since telemedicine encourages physicians to work together, patient treatment is more comprehensive, and therefore entails less overall risk of malpractice.

However, sceptics worry that an improved technology that raises patient’s expectations may result in additional medical malpractice claims. They point out that the very nature of telecommunication makes the practice of telemedicine a riskier form of treatment compared with face-to-face consultation and examination. Technological problems like incorrect or incomplete data transmission may have harmful consequences and also lead to further claims. This is also likely to lead to coverage disputes between insurers of health professionals and medical device manufacturers or software developers.  Moreover, the insurance premium may vary from one jurisdiction to another and can complicate the matter further.

Scope for future reform

The absence of wide-ranging and specific professional standards, procedures, and protocols for telemedicine is likely to become an increasingly pertinent issue in the UK. Restricting the scope of remote prescriptions is a common policy consideration in other jurisdictions.

Even prior to COVID-19, Germany passed legislation in the form of the Digital Healthcare Act which sought to address the country’s future healthcare provision through digitalization and innovation. By legislating to accommodate digital health tools, such as fast-tracking regulatory approvals, Germany’s approach has been described as a model for other nations.

A joint Lancet and Financial Times Commission was established in October 2019 with the aim of producing recommendations for the future governance of telehealth in the UK. The Commission aims to consider how best to balance the potential for considerable scientific benefits derived from data sharing with individuals’ rights to privacy. The Commission aims to conclude its consultation of sector stakeholders and experts in December 2021.

This is a complex and evolving area that the government, healthcare practitioners, and regulators will have to keep under regular review.


Abhinav Parameshwar
Trainee Solicitor, BLM
abhinav.parameshwar@blmlaw.com

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