Desperate times call for desperate measures. Is telemedicine the way to go?
This is the 6th post of our COVID-19 Series.
The recent outbreak of COVID-19 (“Coronavirus”) has led to lockdowns in almost all affected countries all over the world. On March 24, 2020, Prime Minister Narendra Modi also announced a complete lockdown in the country for 21 days. However, in most places, essential services have been allowed to continue. Such essential services inter alia include grocery, central armed police forces, military, medical services. It is worthwhile to point out that doctors and other medical facilitators have been the flagbearers in our fight against Coronavirus. However, there are multiple cases recorded all over the world and even in India where doctors have been tested positive of Coronavirus. In such situations, there exists a possibility of the virus spreading more rapidly and to a large chunk of people as a lot of people come in contact with medical practitioners daily. This puts our country to a heavy risk of shifting towards Stage-III, where community transmission of the virus may begin. While the author understands that to detect the possibility of Coronavirus, physical presence of the patient is needed but, the same is not the case for patients who are undergoing treatments for routine ailments and diseases and may not compulsorily be required to be physically present for diagnosis. Telemedicine is one such technique that can help such patients undergo proper treatment without exposing themselves to the risk of Coronavirus, i.e. while observing complete quarantine. On the other hand, it also helps the medical practitioners to avoid the risk of Coronavirus and perform his duty of treatment of patients. This write-up, thus, seeks to discuss the legal issues associated with telemedicine in India.
Telemedicine in India: A legal introduction
According to the World Health Organisation (WHO), ‘Telehealth’ or ‘Telemedicine’ involves the use of telecommunications and virtual technology to deliver health care outside of traditional health-care facilities. Telehealth, which requires access only to telecommunications, is the most basic element of “eHealth,” which uses a wider range of information and communication technologies (ICTs). In India, there is no specific legislation that legalise or disallows telemedicine practice. The Department of Information Technology, Ministry of Communications and Information Technology issued Recommended Guidelines & Standards for Practice of Telemedicine in India in 2003. However, these guidelines are not binding. On March 25, 2020, the Medical Council of India in a meeting issued Telemedicine Practice Guidelines for Enabling Registered Medical Practitioners to Provide Healthcare Using Telemedicine adding Appendix 5 to the Indian Medical Council (Professional Conduct, Etiquette and Ethics Regulation, 2002. However, these Guidelines merely provide for standards, ethics, and conduct of a medical practitioner while conducting treatment through telemedicine and are merely directory in nature.
Thus, legally speaking, telemedicine in India is governed by the statutes governing general medicine such as the Medical Council Act, 1956, Drugs and Cosmetics Act, 1940. Under these laws, only a person who is (A) a registered medical practitioner and (B) provides a valid and legal prescription under Drugs and Cosmetics Rules, 1945, is allowed to practice medicine in India. A registered medical practitioner generally provides a handwritten prescription with his signature on it. In the case of telemedicine, a prescription is valid even if it is provided by the way of digital signatures as per Section 5 of the Information Technology Act, 2000 (“IT Act”). Through the IT (Amendment) Act, 2008, electronic records are admissible as evidence in a court under the Indian Evidence Act, 1872.
Issues with Telemedicine in India
Even though there is no specific law on telemedicine in India, there are several diverging views on this matter. The Supreme Court in Martin F. D’Souza v. Mohd. Ishfaq held that only in acute emergency cases can a prescription be given via telemedicine and the doctor is required to make their analysis including tests and investigations where necessary. Moreover, current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly. Whether the expression ‘acute emergency’ is to be construed according to the need of every patient on a case to case basis or situation such as that of Coronavirus prevailing these days can also be considered as an instance of emergency is not explained in the judgment.
Moreover, in general cases of medical negligence, a reasonable degree of skill is generally expected of a medical practitioner. In Poonam Verma v. Ashwin Patel, it was held that a doctor or a surgeon does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skill, as there may be persons more learned and skilled than himself, but he undertakes to use a fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test. However, in cases of telemedicine, there are no established standards of medical malpractices so far. In Deepa Sanjeev Pawaskar & Anr. v. State of Maharashtra, the patient was directed to be admitted in the absence of doctors and medicines were administered on telephonic instructions. Additionally, there was no resident medical officer. An alternative arrangement for a doctor was made by the staff when the condition of the patient started deteriorating. The Bombay High Court held that it was criminal negligence, which is defined as gross negligence so extreme that it is punishable as a crime. It is further stated that the element of criminality is introduced not only by a guilty mind but by the practitioner having run the risk of doing something with recklessness and indifference to the consequences.
Since, in the process of telemedicine, the patient is not diagnosed physically, a higher standard of duty of the doctor may be established. On the contrary, it can also be argued that because the doctor has not seen the patient, the doctor’s duty is not as strong. Moreover, contributory negligence by the patient could be established. The patient would be well aware of the fact that they are not being examined physically and understand that the treatment is not per traditional standards. However, some states in the United States require doctors to have a much higher standard. As per the American Medical Association’s statement on telemedicine, there should be a face-to-face relationship between the doctor and the patient before telemedicine encounters. The position of law with respect to these issues is not clear in the Indian scenario.
Telemedicine vis-à-vis Coronavirus pandemic: Learning from the west
The USA is one of the most affected countries due to Coronavirus. More than 8,000 people had died in the USA due to Coronavirus as of April 5, 2020. Donald Trump, the President of the USA, has signalled that there could be 1-2 lacs fatalities due to Coronavirus. Thus, in order to fight Coronavirus more efficiently, the US Government passed a USD 8 billion bill for medical and other aids during the pandemic out of which $500 million have been earmarked for telemedicine. As a result, the US Government passed the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, authorizing federal spending to combat the ongoing coronavirus outbreak in the United States.
This Act, among other things, gives the Secretary of the United States Department of Health and Human Services the authority to temporarily waive certain medicare requirements for telehealth services. With the passage of the Act, the Government has shown intent for Medicare to reimburse providers for telemedicine services provided to existing patients so long as the nation remains subject to a public health emergency as a result of the Coronavirus.
Old age patients, who are more prone to Coronavirus deaths are no longer required to visit hospitals for regular check-ups which minimizes the Coronavirus threat for them. Trump lifted restrictions on telemedicine and declared that “Medicare patients can now visit any doctor by phone or videoconference at no additional cost, including with commonly used services like FaceTime and Skype”. He urged senior citizens to use telemedicine as much as possible in an effort to slow down the Coronavirus’ spread and to maintain hospital capacity by shifting in-person visits to doctor’s offices and hospitals increasingly inundated by Coronavirus cases to remote visits conducted by phone or various video chat platforms.
In my view, the current situation of Coronavirus in India should be considered an acute emergency and doctors should be allowed to use these techniques for diagnosis and treatment of patients with appropriate rules and regulations. Italy is one such country that has been affected severely due to Coronavirus. Touted as India’s Italy, Bhilwara in Rajasthan witnessed its first case of Coronavirus on March 20, 2020, where a doctor was diagnosed as Coronavirus positive. Additionally, 25 Coronavirus positive cases were detected in Bhilwara as on March 28, 2020, out of which 19 people are staff members and patients from the same hospital which was owned and operated by the doctor diagnosed earlier. There is a high possibility that such instances will become more frequent and ultimately lead to a widespread transmission of Coronavirus in India.
India can also follow the US model where separate funds may be allocated to telemedicine, thus minimizing the risk of transmission of Coronavirus. It is, therefore, the need of the hour for India to have a proper set of rules and regulations for governing telemedicine in India during this pandemic. We need rules to objectively define the kind of ailments or medical conditions that can be treated via telemedicine along with specific standards. Moreover, we also need rules to establish the culpability of a medical practitioner in cases of negligence in providing medical aid through the process of telemedicine. If such rules are issued by the Government of India, it can work as a very useful tool in our nation’s fight against Coronavirus.
The author is a student at NLU, Jodhpur.