AUSTRALIAN TELEHEALTH CONFERENCE 2017 MEDICO-LEGAL ASPECTS OF TELEHEALTH MOVING INTO VIRTUAL CARE Friday, 28 April 2017 Presented by Michael Regos, Partner, DLA Piper 1215353636 www.dlapiper.com Friday, 28 April 2017 0
Don't ignore and don't be afraid of Medico-legal aspects of telehealth www.dlapiper.com Friday, 28 April 2017 1
Don't Ignore Cross border issues Health records management Credentialing Varying duties of care All of the above affect the legal and regulatory framework applicable to medicine by traditional face to face means. www.dlapiper.com Friday, 28 April 2017 2
Cross Border Issues The laws throughout Australia are similar, but not the same. For those conducting interstate or international telehealth services, there will be aspects of the service which will be subject to the laws of another State or another Country with which you must comply. Eg. With the exception of Western Australia and South Australia, each State and Territory has their own data protection legislation. www.dlapiper.com Friday, 28 April 2017 3
Health Records Management There are statutory laws both Commonwealth and State requiring the keeping and maintaining of health records. There is a common law obligation to do the same. The statutory regime incorporates the Privacy Act 1998 (Cth) and most of the States of Australia have their own specific legislation regarding the maintaining and keeping of records. www.dlapiper.com Friday, 28 April 2017 4
Health Records Management (continued) In telehealth, the responsibility for managing an individual's health record is less clear than in traditional provision of health services. The requirement to create a record will differ in different circumstances. For example: Patient attends rural health service (RHS) who seeks advice from a tertiary health service. RHS is the only one required to keep a record. It is their patient. It might be in the interest of the tertiary health service to do so as a form of self protection against complaints, disciplinary action or litigation. www.dlapiper.com Friday, 28 April 2017 5
Health Records Management (continued) Patient attends a RHS with a complicated medical condition. The RHS has insufficient expertise so tells the patient that it would be best to be seen by a specialist but this would be private. The RHS contacts the specialist who agrees to consult by telehealth. The specialist must maintain and keep records. Why? The patient is his patient. The RHS must keep a record of the care it provided because the patient is their patient also. www.dlapiper.com Friday, 28 April 2017 6
Retention and Disposal of Records Various States in Australia have legislation about how long records must be kept and how they can be disposed of. www.dlapiper.com Friday, 28 April 2017 7
Credentialing issues for consideration Should healthcare services require health professionals providing telehealth services to be credentialed to the host provider's organisation? Yes, if the telehealth provider is providing services directly to the patient. No, if the telehealth provider is advising the host provider. www.dlapiper.com Friday, 28 April 2017 8
Duty of care SCENARIO 1 PATIENT via technology TELEHEALTH PROVIDER Health Service or Health Practitioner What is the duty owed by the telehealth provider? reasonable care (each State and Territory has codifying legislation) are technological limits taken into account? www.dlapiper.com Friday, 28 April 2017 9
Duty of care (continued) SCENARIO 2 PATIENT via technology The host provider, health practitioner: reasonable care of a person professing that skill. HOST PROVIDER Health Service or Health Practitioner with insufficient expertise Referral via technology TELEHEALTH PROVIDER Health Service or Health Practitioner Specialist The host provider, if a health service: does non-delegable duty apply? The telehealth provider health practitioner: reasonable care of a person professing that skill. The telehealth provider health service: vicarious liability can the health service be negligent if the health practitioner is not? www.dlapiper.com Friday, 28 April 2017 10
Duty of care (continued) SCENARIO 3 The host provider, health practitioner: PATIENT reasonable care of a person professing that skill non-delegable duty? HOST PROVIDER Health Service or Health Practitioner The host provider, if a health service: is it liable for acts of telehealth provider? The telehealth provider health practitioner: Seeks advice Gives advice is a duty owed to the patient? Albrighton v Royal Prince Alfred Hospital TELEHEALTH PROVIDER Health Service or Health Practitioner The telehealth provider health service: vicarious liability can the health service be negligent if the health practitioner is not? www.dlapiper.com Friday, 28 April 2017 11
Don't ignore and don't be afraid of medico-legal aspects of telehealth
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