GPs must be cautious about advising patients over the internet lest they leave themselves open to negligence claims, as Dr Gerard Panting explains


Medical advice provided over the internet falls into two main categories. The first is general advice on a variety of medical topics, similar to the sort of information that is available in books, magazines and on radio or television programmes. The second involves a response to an enquiry by a particular individual, and which is tailored to his or her specific needs, just as if it were a face to face consultation.

General advice

Doctors and other healthcare workers have been providing general information via books, magazines and radio for many years. Websites are simply another medium for conveying this sort of information.

Any general advice must be reviewed regularly to ensure that it is accurate and up to date. All such communications should carry a clear message stating that the advice is general in nature and patients who require specific advice should consult their own doctor.

Doctors who provide information via websites that might draw patients to their own services should follow the GMC’s detailed guidance on advertising (see ‘How far can you go in promoting your practice services?’ Guidelines in Practice, November 2002).

Doctors who are associated with telemedicine companies or organisations should also be careful to avoid including information to their own professional advantage in the organisation’s promotional literature.

When general information is provided, there is no attempt to provide specific advice to individuals, no duty of care is established and, consequently, it is most unlikely that providing such a service could give rise to a claim of clinical negligence.

Giving advice to individuals

The tele-consultation

When advice specific to an individual is offered, a duty of care will be established. To discharge that duty of care, the doctor must first put him- or herself in a position to make a sound clinical judgement and manage the patient appropriately thereafter. If the doctor fails to do so and the patient suffers harm as a result, he or she may sue on grounds of negligence.

Providing advice by telephone and other means has been a feature of general medical practice for decades, with obvious benefits to both patients and doctors. However, there are drawbacks. The doctor is not able to examine the patient or to see the patient to pick up non-verbal cues but must rely entirely on what is said and the intonation.

With e-mail, there is the added complication that exchanges may not be in real time, particularly where the doctor and patient are in different time zones, and poor keyboard skills may reduce the information flow well below what might be achieved in a telephone conversation.

In tele-consultations, a duty of care is established. Fulfilling that duty of care requires a doctor to ensure that he or she has sufficient information to be in a position to advise the patient. If not, the only advice must be to see another practitioner locally who will be able to assess the patient thoroughly.

Jurisdictional issues

If a doctor in England provides poor advice to a patient in Spain, and the patient suffers harm as a result, where did the negligence take place? In England or in Spain?

Under the Civil Jurisdiction and Judgments Acts 1982 and 1991 a plaintiff can issue proceedings in the defendant’s country of domicile if both claimant and defendant are citizens of the EU. This is known as the primary jurisdiction.

Alternatively, the case may be brought in the place where the harmful event occurred, which has been interpreted by the European Court of Justice to include both the place where the negligent advice was given and the place where the resultant harm was suffered. Consequently, in the Anglo-Spanish example above, a suit may be brought in either country.

Because issues of jurisdiction worldwide are not clear, all doctors practising telemedicine across international boundaries should be aware of the risk of negligence claims being brought against them in places other than their country of residence. There may also be problems over whether or not a practitioner is registered or licensed to provide information in other countries.

This question is important also from an indemnity point of view. Doctors indemnified by the MPS or other UK-based medical protection organisations should be particularly cautious about engaging in telemedicine that may give rise to claims in the USA or Canada as these jurisdictions are specifically excluded from their indemnity provision.

Consent and confidentiality

The general principles of both consent and confidentiality apply every bit as much to electronic consultations as to any other circumstance.

Data and images transmitted over electronic networks are an extension of the medical record. Failure to protect them properly may give rise to both criminal and civil liabilities (under the Data Protection Act) as well as accountability before the General Medical Council.

The sort of issues that can give rise to criticism include leaving telemedical data on a screen that may be visible, forwarding information electronically to an inappropriate party and inadequate physical and electronic protection of medical records allowing unauthorised access to them.

As in any other aspect of medical practice, doctors and other healthcare workers providing treatment must ensure that the patient understands the risks, benefits and limitations of the technology. If not, the validity of the patient’s consent may be in doubt.

The learned telespecialist

When one doctor seeks advice over the internet from another specialising in a particular field, this is similar to a referral and the specialist takes on certain responsibilities. The scope of those responsibilities will depend upon the facts of the individual case.

It might be argued that the specialist is providing services only to the referring doctor and not the patient, and he or she has no opportunity to examine the patient fully and so cannot carry out the treatment personally. However, there can be no escaping the responsibility upon the specialist to ensure that he or she has sufficient information to provide an opinion or advice before doing so. If insufficient facts are available, the specialist should advise what further information is required before an opinion can be ventured.

The General Medical Council

A doctor who gave medical advice to patients over the internet was found guilty of serious professional misconduct by the GMC in 2002. Conditions were attached to his registration for a period of 12 months.

The case was referred to the GMC after the wife of an elderly patient with Alzheimer’s disease contacted the doctor’s website in her search for further help. Without seeing the patient, the doctor recommended large doses of testosterone, despite there being no evidence to support its use.

Risk management

Telemedicine raises some new problems and expands the boundaries of others. Some issues to consider are:

  • Are you offering general advice or advice to individual patients? If offering specific advice, do you have sufficient information to enable you to make a sound clinical judgement? If not, consider alternatives.
  • Medical records: Doctors providing information by e-mail or over the internet should document each consultation just as they would for face to face encounters. This is important for both continuity of care and evidence in case that consultation ever comes under scrutiny.
  • Confidentiality: Are your records kept securely, and are you complying with the Data Protection Act?
  • Consent: This is just as important in these circumstances as it is in any other area of medical practice.

Conclusion

The use of telemedicine will become more widespread as its applications increase. There are some particular risks, but you can guard against them by following established principles derived from traditional consultations.

 

 

Guidelines in Practice, June 2003, Volume 6(6)
© 2003 MGP Ltd
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