Medicolegal and Ethical Aspects of E-Mail

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Medicolegal and Ethical Aspects of E-Mail and
Internet Communication Between Patient and
Healthcare Provider Benedict Stanberry, LLB LLM
MRIN Director, Centre for Law Ethics and Risk in
Telemedicine
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Treating Patients by E-Mail

• Prescriptions are posted to the patient or the
  patients pharmacy is contacted directly
• British Medical Association want a ban on
  prescribing drugs over the Internet

• Dr. Julian Eden (below) is the first doctor in
  the UK to offer both diagnosis and prescriptions
  over the Internet
• Most e-patients are professionals under the age
  of 45 and both men and women are using the
  service over 600 have already signed up
• Initial subscription fee, followed by 15.00
  charge per consultation
• Patients may be asked to come in for a
  face-to-face consultation

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What are the Benefits?

• E-mail contains a permanent record of the
  doctor-patient encounter
• Doctor still has the option to ask a patient to
  come in for a face-to-face consultation

• Health advice may be available at any hour of the
  day or night
• Gives patients fast and easy access to health
  advice

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What are the Dangers?

• E-mail may be insecure and may be retrieved from
  a central system long after it has been deleted
  from the senders / recipients system
• E-mail can be forwarded to unintended or unknown
  recipients

• You may not be able to ascertain sufficient
  detail about a patients condition simply by an
  exchange of e-mail
• There are presently no regulations to protect
  patients
• Patients could find that they are being treated
  by bogus doctors with little or no
  qualifications, or by doctors who have actually
  been struck-off
• These services are only available to paying
  patients

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On-line Prescribing

• Foreign on-line pharmacies may be selling drugs
  that are unapproved or have been banned in other
  countries
• Patients G.P. is not involved so there is no
  opportunity to advise against drugs that may be
  unsuitable for the patient, have adverse
  contraindications or dangerous interactions with
  other drugs.

• Currently only available for private
  prescriptions and a paper copy must be provided
• Patients may use the service to obtain drugs that
  they do not need or to obtain illegal drugs
• US Food and Drug Administration (FDA) has made 43
  arrests and has obtained 22 criminal convictions
  for selling medicines without a valid
  prescription over the Internet
• On-line pharmacies may be unregistered and
  unsupervised (and therefore illegal)

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What are the Dangers?

• For example
• A patient with a heart condition may be given the
  anti-impotence drug Viagra

• A slimming drug may be prescribed to someone
  without getting adequate details of his diet
  history

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The Issues

• E-mail and the Internet are reconfiguring contact
  by patients with their physician in a way that
  the telephone never did  
• The telephone dramatically altered medical
  consultations but had never threatened to replace
  a face-to-face consultation in the way that
  e-mail does  
• Some doctors have begun using e-mail to
  communicate with patients, health payors and
  colleagues. A very small minority of doctors have
  created informational or interactive websites and
  there are a handful of centres offering
  international access to specialised care  
• Patient demand for electronic contact with their
  health care practitioner is growing

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Electronic communication as a medical record

• Any document about a healthcare interaction
  usually becomes a part of a patients permanent
  medical record  
• Likewise, all communication that is generated by
  or about the patient, including any photographs
  or images, is part of the medical record  
• The law requires the retention of these
  materials  
• A failure to preserve them may constitute
  malpractice

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Authorship

• In the past no element of the patient record has
  ever been written by the patient symptoms
  described verbally by the patient have usually
  been objectively and passively turned into
  objective facts about the patients symptoms.
  By isolating certain facts from the patients
  narrative the health care provider has been able
  to focus their attention on potential diagnostic
  clues.

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Authorship

• Patient may have the right to require that
  e-mails are treated as being especially sensitive
  information (just as they may ask the doctor with
  whom they are face-to-face not to record certain
  information they give him to go off the
  record) 
• E-mail is both the medical decision-making
  process at work AND the record of those medical
  encounters 

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Authorship

• Case narrative is tolerated grudgingly because
  it enables clinicians to describe the nonlinear,
  subjective, and uncertain aspects of their
  experimental field. But, as the professions
  prohibition against anecdotes recognises,
  narrative that bursts the generic constraints of
  the strict case history, especially narrative of
  any length and fullness or speculative force,
  inevitably pulls against medicines commitment to
  the objective, scientific study of human illness.
  The medical case history is, after all, a
  history a narrative that attempts both to
  control the subjectivity of the observer-narrator
  and to stabilize and evaluate the encapsulated
  narrative of the patient who is its object.
• - Kathryn Montgomery Hunter, Doctors Stories
  The Narrative
• Structure of Medical Knowledge (1991)

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Authorship

• With e-mails, patients own words will appear in
  the medical record 
• There will be a full transcript of the encounter
  but these e-mail communications will no longer
  be prescreened or medically relevant
  material  
• E-mails should be maintained in the patients
  medical record like any other relevant
  document 
• Privacy of such elements of the healthcare record
  must still be maintained 

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Solutions to problems of Authorship

• Maintain clinical e-mails in a separate, private
  section of the medical record which is not
  available to all known and authorised users of
  the medical record
• Be aware that some patient e-mails may be too
  sensitive and personal for inclusion in the full
  record, and that sharing them with colleagues may
  require the full, express consent of the patient

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Malpractice

• According to the UK General Medical Councils
  Handbook Good Medical Practice (available at
  http//www.gmc-uk.org)
• The use of phone or e-mail should not diminish
  the quality of healthcare consultations and
  prescribing by such means may seriously
  compromise standards of care where the patient is
  not previously known to the doctor, no
  examination can be provided and there is little
  or no provision for appropriate monitoring of the
  patient and follow-up care".

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Malpractice

• The German Code of Conduct for Medical
  Practitioners (100. Ärztliche Muster-Berufsordnung
  ) states that
• Accordingly, the medical practitioner is
  prohibited to treat a patient, in particular to
  advise a patient, solely through mail,
  newspapers, communications technology means or
  computer networks. He is simply permitted to
  publish information in print media or on the
  Internet if such information is limited to
  generalities about diagnostic or therapeutic
  measures that the medical practitioner uses.

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Other issues.

• Reimbursement e-mail consultations are unlikely
  to be indemnified for the time being
• Licensing risk of violating licensing laws when
  engaging in consultation, diagnosis or treatment
  in the distant state  
• Jurisdiction even in cyberspace, physician and
  patient location will likely determine legal
  jurisdiction
• Duty of care how far does an e-mail dialogue
  with an unknown patient have to go before a
  doctor-patient relationship is established?
• Standard of care still emerging but explicit
  guidance urgently required