- about us
you are being redirected to the website of our parent company, Schönherr Rechtsanwälte GmbH
The health care sector continues to see competition from traditional and non-traditional industry participants. At the same time, patients want continuously available, affordable and better health care and increasingly view medical treatment like any other (professional) service. Patients therefore are demanding cost-efficiency, high quality, ease of access and 24/7 availability.
A technology boom in health care | Telemedicine at the forefront
How can this be achieved? Clearly, technological advancement and digitalisation can contribute on both fronts. As a result, the health care sector is seeing a technology boom, raising a number of questions about legal issues. A key question is whether and to what degree new technologies may be used in compliance with the law and in what manner.
One area receiving particular attention from various stakeholders is telemedicine. Telemedicine allows patients to be evaluated, diagnosed and treated from a distance (i.e. remotely), using telecommunication technologies. According to the World Health Organisation (WHO), there are four criteria defining telemedicine:
Historically, telemedicine was especially important in developing countries and underserved areas, as well as in military use. Those days are long gone. The rapid increase in the availability, popularity and quality of low-cost broadband internet combined with advancements in means of communication has led to the widespread application of telemedicine. Thanks to mobile applications and smartphones, the original distinction between asynchronous and synchronous (i.e. real-time) telemedicine no longer applies, as the capabilities of real-time interactions are now unparalleled.
Will Austria take the plunge?
While telemedicine, including video consultation, has been broadly accepted for a number of years in Switzerland and Scandinavia, for example, the situation used to be different in Austria and the regulatory framework is a concern. The Austrian Act on the Medical Profession (Ärztegesetz) requires the "direct" treatment of the patient by a physician. This has typically been understood to mean that the doctor and the patient must be physically present in the same place. However, this interpretation is not convincing for video consultations, which offer a degree of direct, real-time, live, two-way and audio-visual interaction between the doctor and the patient comparable to being in the same location. It also needs to be considered that established forms of teleconsultations in other countries are used to supplement traditional interactions between patients and doctors but will likely never replace them entirely. The overriding principle remains "patient safety first", and whenever an additional or more detailed examination is required, the patient may still be referred to a resident doctor, clinic or hospital – by e-referral, of course.
It needs to be seen as a very important step against this background that, for the first time, in December 2018, the Austrian Medical Council (Ärztekammer) adopted a resolution describing telemedicine as positive, both as regards diagnosis and therapy. While the wording of the resolution implies that the Medical Council would still take the view that "direct" contact between a patient and a doctor cannot occur via telemedicine, the text also clearly states that a physician may determine within his professional responsibility whether the use of telemedicine is appropriate in a specific case.
The resolution goes on to say that the Medical Council considers it necessary that a (pan-European) register of certified e-Health applications be established to provide quality assurance. Furthermore, attention should be paid to data security and integrity to ensure that medical and patient data are handled with utmost care and confidentiality.
While the Medical Council's 12/2018 resolution addresses certain key points without necessarily providing clarification, it is nevertheless a welcome and timely development. It clearly documents that technological developments and the advancement of e-Health and telemedicine are not seen as inevitable, but as something that health care can benefit from if applied responsibly and appropriately.
The legal framework for telemedicine clearly is not yet where it could or should be. This starts with the absence of an international legal framework to allow health professionals to deliver services in different jurisdictions and countries. There are also questions at the micro level, such as whether e-prescriptions and e-referrals may be used. In all likelihood, patient demand will continue to strongly influence how the regulatory framework needs to adapt to today's reality and tomorrow's visions.
Author: Florian Kusznier