Ask the Expert: Medicolegal risks of remote consulting

14 January 2021

Julie Baylis
, Case Manager at Medical Protection, answers a commonly-asked query from a member concerning remote consulting during the COVID-19 pandemic.

“I am a GP in Ireland and in light of the COVID-19 pandemic, the practice and I have had to adapt considerably to new ways of working, including how we consult with patients during this crisis.

As we progress through winter, I am concerned about the potential medicolegal risks that the continued increased frequency of remote consulting poses, as opposed to the traditional ways of working. In particular, knowing when it is appropriate to conduct a remote consultation with patients and prescribing remotely.”

The GP was concerned about the medicolegal risks that the practice may be exposing themselves to by continuing with remote consulting much more frequently than before the COVID-19 pandemic. He contacted Medical Protection for advice on the considerations required and ways to potentially reduce liability that may arise from claims.

Expert advice

Medical Protection understands that remote consulting has now become standard practice for clinicians due to the COVID-19 pandemic. For doctors, this has raised questions over whether patient interactions should continue to be limited to remote consultations and in what circumstances they should be inviting the patient in for a face-to-face review.

It is important to note that the treatment of patients is of paramount importance and we recognise that this continues to be an extremely challenging time for all healthcare professionals and practices. The Medical Council have acknowledged the exceptional circumstances faced by medical practitioners in managing the COVID-19 pandemic in Ireland.

The Medical Council has published guidance on telemedicine. This states that, regardless of the method used, the usual standards of good practice must be followed. In particular, the Medical Council advises it is imperative, when conducting the consultation remotely, that consent is provided for the method of consultation and to any treatment provided.

The Medical Council advises: “You must satisfy yourself that the services you provide through telemedicine are safe and suitable for patients. You should explain to patients that there are aspects of telemedicine that are different to traditional medical practice – for example, a consultation does not involve a physical examination and any additional risks that may arise as a result.”

When conducting consultations by remote consultation or telemedicine, it is important to be aware of the risks, both from a patient safety and practical aspect. There are a number of factors to consider when consulting in this way, including whether it is safe for the GP to proceed. For example, a GP should ensure they are in a position to obtain and provide evidence of valid consent from the patient. It is important that this consent is fully informed, where there has been a discussion of the benefits and risks of the remote consultation, and the patient has been given the opportunity to say if they feel that a remote consultation is not appropriate. 

There must be a facility for real-time communication in circumstances where there is a need for clarification or an urgent response. Additionally, in some circumstances, the types of illness discussed, for example mental health symptoms, may not lend themselves to remote consultations due to the importance of the ability to pick up non-verbal cues from the patient, which may be overlooked during telephone or video consultations. From a practical perspective, there may be technical issues that place limitations on the availability or accessibility of the full relevant information.

Medical Protection understands that while face-to-face consultations are usually preferable, a remote consultation with their doctor may, for the time being, be preferable for some patients. In fact, there may be some patients who are concerned about the risk of coming to the practice at this current time.

When considering a remote consultation, a GP should weigh up whether the patient can be adequately assessed remotely. It is important to recognise that where there are doubts, the GP should recommend the most appropriate route for the patient to seek medical assistance, in accordance with local public health and government guidance. Where in-person consultations are not feasible, a GP would need to be satisfied that the patient can be adequately assessed remotely. The assessment of children remotely may be particularly challenging and GPs are likely to have a low threshold for suggesting a face-to-face review in these patients.

Unless there are exceptional circumstances, Medical Protection advises that remote consultations are conducted with those patients who are already known to the GP and that they will have access to the patient’s full medical records. A GP should consider deferring the consultation or converting to a face-to-face consultation if the patient was unknown to the GP, the GP had safeguarding concerns, there was a requirement for a physical examination, technical issues occurred or a potential confidentiality breach was possible.

During any remote consultation, both the GP and patient should be able to reliably identify each other. If an in-person consultation is preferred, but not possible, then the GP should inform the patient of this and explain why the GP has, on this occasion, pursued a teleconsultation. In cases of emergency, patients should be encouraged to seek assistance via the recommended route, in accordance with the most recent government and public health guidance.

GPs should also ensure that the platform that is being used is secure. The use of the internet to allow for teleconsultation via virtual consulting platforms introduces an additional risk to data security. Both the GP and the practice should ensure they are satisfied that all appropriate safeguards are in place to minimise the potential for data breaches.

In addition to the areas highlighted by the Medical Council within their guidance on telemedicine, all other areas of the guidance are equally applicable to teleconsultations as they are to traditional consulting. For example, the guidance on prescribing is particularly relevant to teleconsulting and a GP should be familiar with this guidance prior to prescribing remotely.

Regardless of the unique circumstances, a GP should record the reasoning behind any decisions made, and the information given to patients, in case it is necessary to explain the approach taken later. Doing so may assist in reducing any potential liability that may fall to the GP in the event of a claim arising.

Key issues

Important issues for the practice and the GP to consider are as follows:

  • In all remote consultation situations, it is a GP’s responsibility to ensure that their practice is in accordance with any applicable laws and regulations around the diagnosis, treatment, prescription and provision of medication to patients in Ireland.
  • When considering a remote consultation, record keeping is particularly important and an example of one of the ways to potentially reduce the medicolegal risks that remote consulting poses. It would be pertinent for a GP to note that the consultation is not face-to-face and why the consultation is proceeding in this way, noting that a discussion has taken place with the patient surrounding any limitations that might be present and their consent, the history and any examinations or observations that were possible. As always, a GP should document the follow up requirements and any safety net advice given. If referrals are being made, or reverting to a face-to-face consultation, a note of this should be recorded.
  • Good communication is essential, especially when conducting remote consultations via video. GPs should consider the impact of their communication, including their language, lighting and eye contact.
  • The practice and GP should ensure data security and confidentiality of data when consulting remotely.

For more on this topic, visit our Telemedicine hub.