Informed Consent for Telemedicine
Anay Shukla
Founding Partner, Arogya Legal – Health Laws Specialist Law Firm
Eshika Phadke
Associate, Arogya Legal – Health Laws Specialist Law Firm
The developments in the field of information technology have resulted in geographic borders becoming increasingly redundant. Within the healthcare system, this has had a marked impact on the access that patients have to medical care since it is becoming increasingly common for doctors to consult a patient remotely. The Telemedicine Practice Guidelines have re-affirmed that inter-state teleconsultations within India are lawful and permitted.
However, the liberty to practice across country lines is not without limitation; international consultations are still restricted by geographic boundaries. The Telemedicine Practice Guidelines, 2020 explicitly excludes consultations outside the jurisdiction of India.
What amounts to practise of medicine? Would telemedicine be included?
Practising medicine involves any or all of the following: diagnosing, treating, operating or prescribing medicines or other remedies for any ailment, disease, injury, pain, deformity, or physical condition. Irrespective of whether such activity takes place in person or remotely through a teleconsultation, it would amount to the practise of medicine.
What is eligible to practise medicine?
To be eligible to practice medicine (including offering teleconsultations) in India, a doctor must be registered with the National Medical Commission (erstwhile Medical Council of India) or a State Medical Council.
Similarly, it is safe to assume that the other countries may have laws which restrict who can practice medicine in those countries.
Whose location is relevant for determining the license requirements?
A frequently asked question is whether the doctor is required to be licensed in the jurisdiction where he/she is physically located, or where the patient is located. However, the issue is quite nuanced, and there is no clear cut answer.
It is important to understand that the laws that regulate medical professionals and services typically envisage a scenario where both parties are located in the same room. While some countries, including India, have come up with guidelines that specifically address remote consultations, these guidelines are still in tune with the parent laws for medical professionals and services, and do not have the power to confer the right to a medical practitioner who is not duly licensed in that region to practise medicine. Thus, while the Telemedicine Practice Guidelines endorse a doctor’s right to practise pan-India irrespective of which state medical council they are registered with, it does not give them the authority to practise in a territory where the regulator has no jurisdiction whatsoever. In the Indian context, if a patient was aggrieved and wanted to complain against a doctor, he/she would still be able to approach the medical council of the state where the doctor is registered. However, if the doctor was registered with an authority in another country, the patient would not be able to approach the NMC/state medical council to seek relief. The patient would be rendered helpless. Thus, the law may be interpreted in a way to support the patient, and take a position that the doctor who offers teleconsultation should be licensed to practice medicine in the place where the patient is located.
Are cross border second opinions permitted?
A doctor or patient may, in the course of a consultation or treatment plan, deem that it would be advisable to seek a second opinion from a specialist located overseas. It is important to note that, in such cases, the consultation takes place between two doctors (and not between a doctor and a patient located in different jurisdictions). The doctor who has been approached for a second opinion discusses the case with the treating doctor, and provides his/her inputs to the treating doctor. It is up to the treating doctor to evaluate all the information and provide suitable advice to the patient. The doctor who is providing the second opinion is not practising medicine per se, and is thus not bound by the borders imposed by his/her license.