Introduction
What factors are driving an increase in telemedicine?
What is the current regulatory landscape?
What are the challenges and potential risks to patients?
Comment


Introduction

Telemedicine (or telehealth) broadly describes the delivery of healthcare services through remote means of communication (eg, telephone or video general practitioner (GP) consultations). Despite a significant increase in usage of telemedicine services over recent years, much of the sector in the United Kingdom remains largely unregulated. This fragmented regulatory landscape, combined with the impact of data protection laws and recent advancements in artificial intelligence (AI), presents various challenges to both public and private sector organisations wishing to implement or scale up the usage of telemedicine.

This article pieces together the legal and regulatory landscape surrounding telemedicine.

What factors are driving an increase in telemedicine?

Although the use of telemedicine in the United Kingdom has been established for some time, there has been a sharp increase in its uptake following the covid-19 pandemic. It is likely that this trend will continue as healthcare providers, governments and patients alike face tightening healthcare budgets, increasing energy costs and the ongoing cost-of-living crisis. Many solutions are driven by public-private partnerships with a view to reducing waiting times and clearing backlogs in the National Health Service (NHS).

Data published by NHS England evidence a notable increase in the percentage of virtual GP appointments when comparing the percentage of digital consultations (including telephone appointments and appointments undertaken through video or other online means) before and after the covid-19 pandemic, with this figure almost tripling between January 2020 and in January 2022. The statistics indicate that, although more appointments are being held in person now than during lockdown, the percentage of digital consultations is still around double that immediately prior to the onset of the covid-19 pandemic.

While the primary contributor to the increase in digital consultations between 2020 and 2023 is most likely to be the covid-19 pandemic, the fact that the percentage of digital consultations remains around double the figure immediately prior to the pandemic indicates that other factors are driving an increased reliance on telemedicine. These may include:

  • technological development – continued reliance on, and further development of, digital health technologies and working practices (some of which may have been utilised in direct response to the pandemic in the first instance);
  • rising provider costs – increased overhead costs (eg, energy, facilities and personnel) driving healthcare providers to streamline the methods used to deliver appointments;
  • individual circumstances – the convenience of providing or receiving healthcare remotely from a healthcare professional's or patient's perspective without the need to travel, whether due to time constraints or for other reasons; and
  • budgetary and resource strain experienced – finding efficiencies in patient consultation where wait times are impacted by widely reported budgetary and resource strain in public healthcare.

What is the current regulatory landscape?

There is currently no specific legislation in the United Kingdom regulating telemedicine. There is, however, guidance from various industry bodies.

The Care Quality Commission is the regulator for healthcare providers in England (with corresponding bodies in the other UK nations) and requires that all service providers register with it to perform remote medical advice and meet the requirements of the Health and Social Care Act 2008.

Telemedicine in the United Kingdom is, therefore, regulated in the same way as healthcare activities in a non-digital setting. Despite the lack of specific legislative provisions, a number of professional industry bodies have published their own high-level guidance to healthcare professionals on the use of telehealth for virtual consultations. These include:

  • the Health & Care Professions Council;
  • the Royal College of Surgeons of England;
  • the Royal College of General Practitioners; and
  • the General Dental Council.

In broad terms, a number of common themes emerge from the various guidance, including:

  • adequate verification of a patient's identity at the beginning of a consultation;
  • building rapport with patients and reassuring them of the format, confidentiality and efficacy of a virtual consultation;
  • recognising when a remote consultation may not be appropriate or where a follow-up face-to-face consultation may be necessary (eg, due to the patient's circumstances, or the nature of the medicine or treatment being prescribed); and
  • detailed note taking during consultations to ensure that findings are captured and that any advice given is justified.

Although this guidance is presently non-binding, the principles outlined nevertheless provide a useful framework for healthcare providers operating in this area and may form the basis of legislative requirements in the future.

What are the challenges and potential risks to patients?

A lack of specific medical sector regulation, combined with an increasing usage of disruptive technologies and reliance on telemedicine, has led some to question of whether the current legal position regarding telemedicine goes far enough to protect the interests of patients or whether additional, specific legislation is needed.

A report by Europe Economics (commissioned by the General Medical Council) dated 1 March 2018 identified some of the key challenges affecting the provision of telemedicine in the United Kingdom, including:

  • accessing long-term patient medical records for use in diagnosing and/or treating patients;
  • verifying the identification of patients;
  • using, in some cases, communications outside of real time (eg, emails, questionnaires) to obtain initial information before diagnosing or treating a patient; and
  • patients abusing confidentiality requests to restrict the flow of information between the telemedicine provider and their primary healthcare provider.

These challenges are compounded by:

  • the risk of misdiagnosis (whether due to incorrect or inaccurate information being provided by a patient or an incorrect or uninformed assessment by a healthcare professional);
  • a denial of access to certain services (eg, if, prior to a consultation, it is determined by a questionnaire or automated means that a patient does not require an in-person or telephone consultation); or
  • a hesitance by patients to utilise telemedicine services.

A study published by the University of Cambridge in 2021 concerning the use of telemedicine in rheumatology found that, of the study respondents, 86% of patients and 96% of clinicians felt that telemedicine was worse than in-person consultations for the accuracy of assessment and building trust. The study also found that telemedicine was perceived to have increased misdiagnoses, inequalities and barriers to accessing care.

Although it is possible that advances in AI and other medical technologies could operate to improve accuracy and efficiency in telemedicine, those technologies carry their own inherent risks and obstacles. It is, therefore, important that these are considered and addressed collectively, alongside the issues facing telemedicine as a whole, to grow confidence in, and increase uptake of, these technologies.

Comment

The United Kingdom's approach to regulating telemedicine is fragmented at present, drawing upon various pieces of legislation and supplemented by industry guidance in the absence of a single, unifying regulation. This contrasts with some European jurisdictions which have a more developed regulatory system. Although there is still some residual caution around the use of telemedicine when compared against traditional face-to-face healthcare, attitudes are changing. It is possible that medical innovation, combined with effective government policy, could further normalise telemedicine and instil confidence in patients and healthcare professions.

For businesses and organisations to avoid further legislative and regulatory requirements in this field, the best approach is to show that current requirements are already sufficient to safeguard data and patients. By complying with current obligations and thus avoiding and reducing the risk of harm arising in practice, bodies can provide supporting evidence for this conclusion.

For further information on this topic please contact Indradeep Bhattacharya, Olaf van Haperen or Liz Fitzsimons at Eversheds Sutherland by telephone (+44 20 7919 4500) or email ([email protected], [email protected] or [email protected]). The Eversheds Sutherland website can be accessed at www.eversheds-sutherland.com.