Amidst the Indian COVID-19 pandemic, the situation is so that people are quite reluctant to visit their doctors physically and are instead seeking consultation through Telemedicine by the means of several techniques of digital communication.
At present, there are no specific laws or guidelines in India which we have regarding the practice of telemedicine and also the existing provisions mentioned under the legislations related to it, like, Indian Medical Council Act, 1956, the Indian Medical Council (Professional Conduct, Etiquette and Ethics Regulation 2002), The Drugs & Cosmetics Act, 1940 and Rules 1945, The Clinical Establishment (Registration and Regulation) Act, 2010, and the Information Technology Act, 2000 (“IT Act”) are the acts which primarily govern the practice of medicine.
Accordingly, for the Ministry of Health & Family Welfare (“MoHFW”), this is an opportune time to issue specific ‘Telemedicine Practice Guidelines’ (Telemedicine Guidelines) dated 25th March, 2020 which enabled ‘Registered Medical Practitioners’ (RMP) for providing Healthcare using Telemedicine. The Medical Council of India for overarching principles and a practical framework has adopted the Telemedicine Guidelines.
Any of the drug-lists contained in Telemedicine Practice Guidelines can be modified by the Board of Governors in supersession of the Medical Council of India/Medical Council of India from time to time, as required.
Now, such practice is lawful as long as it is done in compliance with Telemedicine Guidelines where doctors who are providing teleconsultation independently or through such companies can be rest assured. Teleconsultations can also be provided by the Doctors to the patients from any part of India.
Artificial Intelligence based Technology platforms are not allowed to counsel the patients or prescribe any medicines to a patient. Also, Technology Platforms shall conduct their due diligence before listing any RPM on its online portal.
The Telemedicine Guidelines, in fact, specifically permits Doctors to provide teleconsultation for prescribing medicines, providing counselling (e.g. food restrictions, do’s and don’ts for a patient on anticancer drugs, proper use of a hearing aid etc.) and imparting health education (e.g. advice on contagious infections, immunizations, exercises, hygiene practices, etc.).
The doctor to patient ratio is not that great in India. This coupled with the fact that India is a huge country and that the density of doctors is far higher in cities than in rural areas where the bulk of India’s population resides, is the reason why teleconsultation has great demand and potential in India.
Unfortunately, there were hardly any standards for doctors to follow and patients to expect during a teleconsultation.
Indian patients now will be able to hold doctors accountable to provide teleconsultation as per the Telemedicine Guidelines, which provide a clear set of do’s and don’ts for doctors. A violation of the Telemedicine Guidelines will give patients avenue to complain against the doctor before the appropriate State Medical Council for ‘misconduct’.
In the light of new developments such as telemedicine, there are increasing legal risks of medical malpractice litigation. Medical malpractice has two basic requirements. There must be a doctor-patient relationship and the doctor must have breached his or her professional duty of care.
The Supreme Court in Indian Medical Association v. V.P. Shantha 1995 has settled the dispute regarding the applicability of Consumer Protection Act, 1986 to persons engaged in the medical profession, either as private practitioners or as government doctors working in hospitals or government dispensaries. It is also settled law that a patient who is a ‘consumer’ within the meaning of the Act has to be awarded compensation for loss or injury suffered by him due to the negligence of the doctor by applying the same tests as are applied in an action for damages for negligence.
To conclude, while practicing medicine and providing services through telemedicine, the medical practitioner should use the same approach as in his face-to-face practice, which is compliant with all the statutes, regulations, guidelines and rules that generally apply to practice by medical professionals.