Founding Partner, Arogya Legal – Health Laws Specialist Law Firm
Associate, Arogya Legal – Health Laws Specialist Law Firm
The Telemedicine Practice Guidelines specify that consent may be implied when a patient initiates a teleconsultation; however, there are certain situations wherein a doctor is legally required to obtain consent from the patient.
Consultation not initiated by the patient
If someone other than the patient – including their family member, a healthcare professional, another doctor, or even the doctor who is consulting the patient themselves – initiates the consultation, explicit consent must be taken from the patient.
If a healthcare professional seeks a medical consultation for a patient through telemedicine, both the healthcare professional and the consulting doctor would need to obtain explicit consent from the patient. The healthcare professional would be required to counsel the patient on the risks and limitations of telemedicine, and the doctor would be required to seek the patient’s consent to proceed with the consultation.
No capacity to consent
If the patient is a minor or does not have the mental capacity to legally provide consent, the person’s caregiver is authorised to consult with a doctor and take decisions on their behalf. However, the doctor must first confirm that the person is the patient’s caregiver by asking to see either a formal authorisation to that effect, or a government-issued document that establishes the person’s relationship with the patient. This would not be required if the doctor has previously treated the patient in-person, and is aware of their relationship with the caregiver. For the sake of documentation in such cases, the doctor ought to record that they have treated the patient in-person prior to the teleconsultation, and may even request that the caregiver confirm the same through a text message or email.
If the doctor will be recording the consultation, they ought to inform the patient and seek their consent for the same. This is especially vital for specialists like psychiatrists, venereologists, gynaecologists, etc, who discuss highly sensitive and personal information and may receive private visuals from the patients.
Refusal to comply
If the doctor is of the impression that the patient ought to go for an in-person consultation for their condition but the patient refuse, the doctor should inform them of the risks and consequnces of not seeking in-person treatment. If the patient still refuses, the doctor should require the patient to send a statement that they were informed of the risks and elected to proceed with the teleconsultation against medical advice in writing or as a voice note, and the doctor should preserve the consent with the records that he/she maintains for the consultation.
Transmitting Prescription to Pharmacy
If the doctor issues a prescription post a teleconsultation and the patient wishes that the prescription be sent directly to a pharmacy of their choosing, the doctor must obtain explicit consent from the patient prior to doing so, since without consent, the act of transmitting a patient’s prescription to a pharmacy would constitute a breach of confidentiality.
If the doctor starts virtual support groups for patients suffering from or people affected by a disease/condition where they will be sharing information and/or allowing the group members to provide emotional support to one another, the doctor must seek explicit consent from a patient/person before adding them to the group, since the patient’s identity would be revealed to other members of the group, and confidentiality would thus be compromised.
Limitations of Telemedicine
It is advisable that doctor’s refrain from tending to spontaneous teleconsultations unless it is an emergency; they should put in place a process whereby the patient takes an appointment. Along with the appointment confirmation, the doctor should send a brief statement outlining the risks and limitations of teleconsultation, and informing the patient that by proceeding with the consultation, they are providing their consent.
How to record consent
For the teleconsultation itself, the consent will be implied if a patient proceeds to initiate the consultation after being informed of the risks involved.
For situations where explicit consent is required or advisable, the doctor may ask the patient to record it in any form – they could send an email, text, audio note, video recording stating that they are providing their consent for telemedicine (and any other context that may be required). The doctor must always record the fact of receipt of consent in his notes which should be preserved with the patient’s records.
Telemedicine Practice Guidelines