Confidentiality, and Legal Components

of Telemedicine

Telemedicine and e-medicine have the potential to

transform medical practice. However, while the benefits
have long been known, many physicians and health sys-
tems have been reluctant to engage in such practices
due to unresolved legal and ethical concerns1 .

There still remains concern on the ethical issues of security, privacy and
confidentiality, in telemedicine consultations 2. In dealing with tele-
medicine including tele-diagnosis and tele-assistance, the legal and ethi-
cal components of medical liability must be satisfied 3,4. With medical
tele-diagnosis, the spreading of medical liability is the main risk. How can
a clear identification of the medical liabilities involved be ensured in cases
where damage occurs? From a legal point of view, the spreading of the
liability is not allowed and the use of tele-diagnosis must ensure a total
transparence. As the cost of a medical act based on the cost of the image
records and the cost of image interpretation cannot at present be estima-
ted, it is necessary to establish a contract. Today the most convenient
contract is similar to the contract between laboratories which implies that
the liability is on the practitioner who has received the sample. In future,
other legal obligations may appear as tele-diagnosis develops5,6,7,8.

Indeed, with the increase in reliability in tele-diagnosis it could become a

part of the medical obligation to use the latest technology. However, the
excessive use of tele-assistance, when there is neither emergency nor
medical isolation, is dangerous because it may affect the integrity and
quality of the traditional medical act. In general, medical practice without
any clinical examination of the patient is contrary to medical ethics 9.

Generally speaking, the medico-legal position of doctors involved in a

telemedicine consultation is similar to that when telephone, fax, email or
letter is used instead. All amount to the provision of advice from a dis-
tance and the normal standards of care and skill will apply. There is
therefore a duty to practice to a reasonable level of skill. In a telemedi-
cine consultation between general practitioner and hospital specialist, the
referring doctor must give an accurate history (note that a video record
would provide retrospective proof). For anything more than treatment
purposes, the patient's permission is required before recording. There
may be occasions when it is inappropriate not to use telemedicine if that
is considered to be best practice in the circumstances. Time will tell
whether teleconsulting is a more efficient method of practising medicine,
as some people already believe. Ultimately, many of the questions raised
here about the medico-legal implications of such telemedicine will be de-
termined in the courts 10.
A paper by Tachakra on confidentiality and ethics reviews the results of
a survey of 200 members of the public. The topics examined were ethical
issues and patient confidentiality related to the use of telemedicine bet-
ween an accident and emergency department and emergency nurse
practitioners providing a minor accident treatment service based in com-
munity hospitals 11.

A study by Kenyon demonstrates that security is not merely a technologi-

cal problem, but represents a potentially significant human factors barrier
12
. The medico-legal and financial impact of telemedicine remains to be
determined 13. Telemedicine: Legal, Ethical and Liability Considerations"
sponsored by the Ethics Committee for dieticians, has been published to
support dieticians utilising telemedicine as part of their job 14. Historical-
ly, the doctor-patient relationship has been characterized by the clinici-
ans duties relating to confidentiality, risk disclosure and the patients
right to privacy and autonomy. With the introduction of electronic media-
tion and the potential for expanded services, the physicians responsibili-
ties also increase. In the more complex telemedicine scenario, obliga-
tions, appropriately, are placed on both the distance provider and the lo-
cal site. The service must be provided in a private setting with a digital
line. The consumer must be educated about the nature and purpose of
the equipment, any potential breaches of confidentiality inherent in the
technologies deployed and questioned regarding the level of satisfaction
with the service.

Staff credentials, at necessary intervals, are essential to ensure that qua-

lity services are being provided through optimal use of the equipment. A
local provider must be available to render emergency care in a timely fa-
shion 15 . Silverman conducted a systematic examination of United States
and European statutes, regulations and civil, criminal and administrative
decisions pertaining to telemedicine and e-medicine. In addition he revie-
wed the ethical, legal and medical literature pertaining to the practice of
telemedicine and e-medicine in the United States and Europe.

There appear to be four main areas of concern: the doctor-patient rela-

tionship, malpractice and cross-border licensure, standards and reimbur-
sement. The lack of generally agreed interstate and international stan-
dards of law and ethics means that telemedicine and e-medicine will con-
tinue to struggle to gain widespread support from providers, patients and
regulatory bodies as an acceptable means of health service delivery. Pro-
gress may depend on federal and international leadership Further papers
document the importance of ethical issues 16
Searches were conducted in two legal databases dealing with civil law in
Austria. The searches produced 12 references relevant to telemedicine
which were obtained from a university legal library. From the literature, it
can be concluded that Austrian civil regulations are sufficient to clarify
the question of liability arising in connection with the practice of tele-
medicine. Although no specific legislation has been enacted as yet, one
would not expect such legislation to produce different results in the legal
assessment of the case patterns discussed in this paper. Traditional prin-
ciples of professional ethics can be extended to e-therapy. The wheel
does not need to be reinvented, although it does need to be modified for
this new terrain 17.

As the proliferation of technology is observed and the promises it brings

to improving human health are considered, new and compelling ethical
questions arise from e-Health services and the consequences of living in
an electronically wired world. The purpose of this article was to explore
selected e-Health trends and emerging ethical concerns 18. Patel gives
consideration to why empirical research into Info-ethics and other deon-
tological and legal issues relating to telemedicine and e-health are so im-
portant.

Five evolving health telematics applications are examined in some detail,

electronic health records, the transmission of visual media in disciplines
such as teleradiology, teledermatology, telepathology and teleophthal-
mology, telesurgery and robotics, the use of call centres and decision-
support software and, of course, the growing role of the Internet in
healthcare. These are discussed in the light of their moral, ethical and
cultural implications for clinicians, patients and society at large. Tele-
medicine and e-health present unique opportunities for both patients and
clinicians where they are implemented in direct response to clear clinical
needs. However, excessive reliance upon technology will damage the tra-
ditional clinician-patient relationship and so complacency must be
avoided regarding the risk and responsibilities, many of which are as yet
unknown, that distant medical intervention, consultation and diagnosis
carry 19.

Telemedicine is fast becoming popular in many countries in the world. It

has several advantages such as being cost saving and providing better
access to health care in remote areas in many parts of the world. How-
ever, it has some disadvantages also. One of the major problems is that
of patients' rights and confidentiality in the use of telemedicine. There
are no standard guidelines and procedures in the practice of telemedicine
as yet. Both the patient and the physician are unsure of the standard of
practice and how to maintain confidentiality. The patient is uncertain as
to how to protect her/his rights in the use of telemedicine. The issue of
litigation is also unclear as to where the physician is practising when he/
she uses telemedicine. Is she/he practising in the country where the pa-
tient is or is the physician practising in the country of her/his origin?
These issues require to be addressed urgently so that telemedicine will
have standards of ethical practice and the patient's rights and confidenti-
ality are protected 20.
One of the key barriers to the expansion of the telehealth industry has
been the lack of widely accepted standards and guidelines for telehealth
or e-health practice. Historically, few professional associations, national
health organizations or international health care institutions have offi-
cially adopted clinical, operational or technical guidelines or standards
specifically for telehealth applications.

Two studies by Kumekawa provide an overview of important telehealth

and telehealth related standards or guidelines developed by national and
international standard setting bodies. Kumekawa attempts to capture a
snapshot of where regulations are today and suggests where they may
be going in the creation of telehealth standards. Without common techni-
cal standards or guidelines, interconnection and interoperability across
existing independent networks or within expanding systems may prove to
be too expensive or not technically feasible.

In any networked system, interconnection, interoperability, scalability,

security and privacy all depend on widely accepted, open standards and
guidelines. Otherwise, networks using ATM cannot easily interconnect
with an ISDN system. In addition next generation equipment cannot in-
ter-operate and talk with older versions of the same equipment. Without
such safeguards it may be difficult to create large local consortia or re-
gional, provincial, national or international telehealth systems. Rather
than developing new technical standards for each telemedicine applica-
tion, telehealth practitioners, for the most part, have adopted existing
general technical guidelines and standards and applied them to their own
needs.

Exceptions include specific telemedicine standards for medical imaging,

medical record data sharing, telemammography, teleradiology, and tele-
cardiology. While telehealth practitioners have been quick to adopt exist-
ing technical standards, the development of clinical, operational, ethical
and privacy guidelines and protocols for telehealth practice has been
comparatively glacial 21 22.
Remedy References Confidentiality and Legal Aspects of Tele-
medicine

1. Silverman RD. Current legal and ethical concerns in telemedicine and

e-medicine. Journal of Telemedicine and Telecare 2003;9:S1.

2. Magnusson L, Hanson EJ. Ethical issues arising from a research, tech-

nology and development project to support frail older people and
their family carers at home. Health and Social Care in the Commu-
nity 2003;11:431-9.

3. Gulick PG. E-health and the future of medicine: The economic, legal,
regulatory, cultural, and organizational obstacles facing telemedicine
and cybermedicine programs. Albany Law Journal of Science and
Technology 2002;12:351-408.

4. Norris AC. Essentials of telemedicine and telecare. New York, NY:

John Wiley & Sons, 2001.

5. Skouma G, van Eecke P. Health telematics: towards harmonisation of

the legal framework? Studies in Health Technology and Informatics
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6. Stanberry B. Graschew G. Schlag PM. Legal and ethical challenges of

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tele-medicine. Medinfo 1995; 8 Pt 2:1593-5.

10. Brahams D. The medico legal implications of teleconsulting in the UK.

Journal of Telemedicine and Telecare 1995;1:196-201.

11. Tachakra S, Mullett ST, Freij R, Sivakumar A. Confidentiality and eth-

ics in telemedicine. Journal of Telemedicine & Telecare 1996;2
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12. Kenyon JI, Sessions GR. Security and confidentiality issues

[abstract]. Telemedicine Journal and e-Health 2003;9:S71.
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medicine [abstract]. Telemedicine Journal and e-Health 2003;9:S33.

14. Ashley RC. Telemedicine: Legal, ethical, and liability considerations.

Journal of the American Dietetic Association 2002;102:267-9.

15. Gunter TD. Best practices: Ethics and professionalism in the provision
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16. Yeo CJJ. Ethical dilemmas of the practice of medicine in the informa-
tion technology age. Singapore Medical Journal 2003;44:141-4.

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practice. pp 73-82. London, England: Royal Society of Medicine
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environmental scan [abstract]. Telemedicine Journal and e-Health
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Responsible for the contents:

Eileen Brebner, University of Aberdeen