TELEMEDICINE IN INDIA DURING THE COVID TIMES

by Akanksha Chhabra


Introduction

In simple words, telemedicine means “healing a patient from a distance”. there's no such specific definition for an equivalent but it's been observed that the planet Health Organization has given it a broader meaning stating "The delivery of health care services, where distance may be a critical factor, by all health care professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of health care providers, beat the interests of advancing the health of people and their communities” .


The health Ministry of India advised the Telemedicines Guidelines 2020, laying down standards for an industry that has thus far functioned during a regulatory gray area after Honorable Prime Minster said in March that citizens should follow consulting the doctors via online modes instead of visiting them face to face .The guidelines place the onus on the doctor to work out whether a teleconsultation will suffice, or if an in-person review is required, based upon factors like complexity of the patient’s situation, whether he/she can identify the patient, among other things. aside from direct doctor-patient consultation, telemedicine consultations are often done among a caregiver and doctor; doctor to doctor; and doctor to doctor.


Telemedicine and India

In a country like India, which is very populated, telemedicine plays a really critical role in rendering medical services easily available and accessible to the people living even within the corners of the country.

In India the start of telemedicine was introduced by ISRO with a Telemedicine pilot program in 2001, linking Chennai's Apollo Hospital with the Apollo Rural Hospital at Aragonda village within the Chittoor district of Andhra Pradesh . With the efforts of ISRO the private sectors has also given their initiatives for the general public health management.


In India, the telemedicine service comes subordinate the jurisdiction of the Ministry of Health and Family Welfare and therefore the Department of data Technology. Telemedicine has also been prolongated to traditional medicines in India, like the National Rural AYUSH Telemedicine Network which intent to spice up the advantage of traditionalistic methods of curative to the general public at large using the medium of telecommunications.

In order to encounter the crisis faced by the country and therefore the demand to implement social distancing and do away with unneeded movement of patients to the clinics/ hospitals, on 25th March 2020 Ministry of Health and Family Welfare, Government of India issued Telemedicine Practice Guidelines, 2020 which were prepared in partnership with NITI Aayog (Also called "The National Institution for Transforming India" – which is that the premier policy 'Think Tank' of the govt of India, providing both directional and policy inputs).


Guidelines Issued

The professional judgment of a Registered medical man should be the leading rule for all telemedicine consultations: An RMP is well positioned to make a decision whether a technology-based consultation is adequate or an in-person review is required . Practitioner shall exercise proper discretion and not compromise on the standard of care.


Following Elements to be considered before any telemedicine consultation

I. Context

II. Identification of RMP and Patient

III. Mode of Communication

IV. Consent

V. Type of Consultation

VI. Patient Evaluation

VII. Patient Management


1. Doctors have a right to choose the medium of teleconsultation.

2. Same standard of physical interaction to be maintained during teleconsultation: It states that doctors cannot use teleconsultation as a defence in case of any negligence caused.

3. Patient is responsible for the accuracy of information: Patient should disclose the correct information and should answer to the question as asked.

4. Prescription can be issued in any format

5. Invoice of fees must be provided

6. Registered Medical Practitioner (RMP): A person who is enrolled in the state medical Register or the Indian medical register is only permitted to give the teleconsultation.

7. Consent of telemedicine: can be expressed or implied.

8. Certain obligations on the technology platform: It is to be ensured by the doctors that proper medium is been used for teleconsultation so that the secrecy is maintained in all aspects and no confidential information to be leaked out. In the case Mr.X. V. Hospital Z [1], it was held that it is important in doctor - patient relationship that the doctor should not disclose any information of the patient to any third party.


Various laws related to practice of medicine in India are:

1. Drugs and Cosmetics Act, 1940

2. Drugs and Cosmetics Rule, 1945

3. The Narcotic Drugs and Psychotropic Substances Act,1985

4. The Indian Medical Council Act, 1956

5. Indian Medical Council Regulations,2002

6. Information technology Act,2000


Liability in Civil Negligence

When there is a breach of contractual obligations between the telemedicine provider and the patient then civil suit arise. That if there is a breach of duty caused by the negligence to do something then it is negligence.


Doctor Patient Relationship

That there must be a contract which must be expressed or implied between the doctor and the patient which means that the patient should with consent and knowingly take the assistance of a doctor and the doctor accepts such consent. The doctor-patient relationship has not been judicially or legislatively examined extensively in India, except to the extent of privacy and confidentiality requirement.


The scope of the knowledge Technology Act, 2000 is sort of restricted and it doesn't specifically deals with the pattern of drugs through technology. However, there are definite provisions within the said Act which within the opinion of the author will definitely apply on the appliance of Telemedicine. Section 4 & 5 of IT Act has given legal acknowledgment to the electronic record and digital signatures. The IT Act has also amended Indian Evidence Act, 1872 thereby devising the electronic record admissible in evidence. Section 2(1)(t) of the IT Act defines “electronic record” as data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.


Liability In Criminal Negligence

The provisions for the criminal offences are the Indian Penal Code, 1860 (IPC) where the negligence is 'gross' in nature and proven beyond doubt. The common charges faced by doctors and other providers of such services are causing death by negligence (Section 304-A of the Indian Penal Code [IPC]), endangering life or personal safety of others (Section 336 of the IPC), causing hurt by an act endangering life or personal safety of others (Section 337 of the IPC) and causing grievous hurt by an act endangering the life or personal safety of others (Section 338 of the IPC). Punishment includes imprisonment as well as fine under the relevant sections.


Vicarious Liability

In vicarious relationship between the doctor or any other healthcare provider and the hospital, or equivalent institution should be inferred for e.g. in case of errors which occur due to a breakdown in communication or organisation during the telemedical application, the primary principles of organizational responsibility will apply.


Liability Under The Consumer Protection Act, 1986

The Consumer Protection Act (CPA) allows consumers to claim compensation from service providers in case there is a deficiency in the service provided. Consumers can file claims for defective products and unfair trade practices. Consumer forums have been set up at the district, state and national levels to hear such matters. The Supreme Court in the case of Indian Medical Association versus V.P. Shantha[1] and others held that medical services would fall within the ambit of the CPA, provided the patient is being charged for the service. One of the essential elements of a claim is the payment for the services, as the CPA excludes services that are rendered free of charge. Disciplinary control by the Medical Council of India .

A patient is eligible to raise a complaint with the relevant state medical council against a doctor for professional misconduct. If a complaint against a doctor has not been decided by the state medical council within 6 months from the date of receipt of the complaint, the Medical Council of India (MCI) may, on its own or on the request of the patient, ask the state medical council to decide on the complaint or refer the same to the Ethical Committee of the MCI. Consumers who are aggrieved by the decision of the state medical council also have the right to appeal to the MCI within a period of 60 days from the date of the order that was passed by the state medical council.

Conclusion

In this global pandemic of COVID-19, the telemedicine consultation has made for itself a wider space in the community. Despite of so much improvement and efforts put forth in making this flourishing, there are certain loopholes left to be covered. Government and other officials are controlled to provide proper healthcare to the people of the country. But, this is the time to keep the ambiguity aside and help the officials in making this telemedicine booming in this pandemic.

[1] (1998) 8 SCC 296: AIR (1999) SC 495 [2] AIR 1995 SCC (6) 651

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