Telemedicine, also commonly known as online medical consultations, has been used for some time now, and has gained popularity with technological advancement. Opponents of this way of medical practice argue that a doctor’s diagnosis and resulting medical recommendations may be flawed by the virtual factor. In such a case, where does the doctor’s responsibility begin, where does it end, and what happens in case of misdiagnosis? Are videoconferences, voice calls or instant messaging platforms enough to replace in-clinic consultations, and can a legal approach to this practice delimit the cases where telemedicine can be practiced, and cases where it cannot?
The article looks into the practice of telemedicine in Iraq, with focus on the legislative framework. The aim is to determine how specific or general laws and regulations tackle these essential questions, which particularly need to be addressed in order to provide patients with not only proper respect of their rights, but also a quality of service that rivals that of in-clinic consultations.
II. General Provisions Under Iraqi Law
There are no specific laws and regulations targeting the practice of telemedicine in Iraq. For this reason, general provisions relating to the practice of medicine are considered, specifically Law of 1925 on the Practice of Medicine in Iraq (the “Law”).
The words ‘consultation’ or ‘medical consultation’ are not defined by Iraqi legislative instruments relating to the practice of medicine or by codes of practice relating to the medical or paramedical fields. The Law on the Practice of Medicine however prohibits any person from practicing medicine or any of its branches without prior registration or licence. The Law also forbids medical practitioners or employees of medical practices from engaging in or publishing advertisements with the intent to mislead public opinion. Even if not specifically mentioned in the Law, these provisions should be considered by medical practitioners and extended to online platforms, where committing advertising faux-pas is much more likely.
The lack of legislation targeting telemedicine does not completely stifle its practice, as there are numerous platforms which offer such services. These are however not Iraqi platforms, but rather international or regional ones which include Iraq in their services. They allow Iraqi medical practitioners to register with them as medical service providers and Iraqi residents to access their remote services. The range of offered services is often limited to basic medical advice on common medical conditions provided by certified doctors. As Iraqi law mainly requires the practice of medicine to be provided by a registered and licensed practitioner, as long as this requirement is fulfilled, the other main legislative provisions to be considered are those relating to a doctor’s liability and medical errors in the practice of medicine.
III. Liability and Penalties for Medical Error
A medical practitioner’s first responsibility is to be registered and licensed in Iraq in order to be allowed to practice medicine. A doctor is also responsible for respecting instructions published by the Public Health Directorate on preventive measures. Penalties in case of non-compliance with these provisions include fines and imprisonment.
Although these provisions do not specifically include virtual consultations, common practice would dictate that a doctor’s responsibilities remain unchanged in the framework of virtual consultations, since the latter also requires them to be certified and registered. They would thus be liable to medical errors, which, although not defined in legislative provisions, are referred to in common practice as a doctor's diagnostic, surgical, or treatment administration/recommendation errors, or acting without the patient’s consent or that of their legal representative. Therefore, it can be said that diagnoses and the recommendation of medical treatments or drug prescriptions are included in the practice of telemedicine and can be done virtually, and are thus subject to provisions of medical liability.
As for criminal liability, the Criminal Authority of the Federal Court of Cassation considers a doctor’s breach of his duties towards the patient and his failure to provide the necessary medical care as wrongful acts. The Penal Code is applicable in cases of medical error leading to the unintentional death of the patient. The Court of Cassation considers these provisions as a discriminatory principle, and the punishment for anyone who violates their duties is thus used as a deterrent, especially for those who neglect the treatment of patients. Although not likely to happen in a virtual setting, these provisions still apply.
For these reasons, medical error and negligence are applicable in the context of telemedicine, and a doctor remains liable in the virtual practice of their profession. A doctor is consequently responsible for deciding whether a case can be addressed virtually or not and retains the right to refuse to do so when they believe that the virtual factor will affect the quality of the provided medical advice/service.
Although laws and regulations regarding telemedicine and e-health have yet to be introduced to the Iraqi legislation, there are still many platforms which offer such services in Iraq. In this regard, questions of which cases can be treated virtually, which cases cannot, and what are the limits of a doctor’s responsibilities and liability remain unanswered. This lack of specific regulations targeting telemedicine imposes the consideration of general provisions relating to a doctor’s responsibility and liability. These suggest that just like in a clinical setting, a doctor would be liable in a virtual one. A doctor is specifically responsible for deciding if a case is eligible to be treated virtually, and when they do so, the same laws relating to in-clinic medical errors are applicable to telemedicine, including cases of misdiagnosis caused by the virtual factor.
The observed lack of regulation does not seem to impede the practice of telemedicine, as online platforms are looking to expand their services in Iraq. Although there is no current licensing system for online medical services, which enables them to make their own rules, it is still recommended for such platforms to consider all potential liabilities applicable to their practices and how potential medical errors would impact them in order to take all reasonable precautions and apply all due diligence. This should naturally also apply to the practicing doctors registered with these platforms. Until targeted legislation is developed, taking example on countries which have paved the way in the field of e-health and telemedicine also remains a safe way for these service providers to proceed, as long as these do not clash with provisions relating to the practice of medicine in Iraq.