A New Era in Turkey Healthcare Sector: Remote Healthcare Services Officially Allowed and Regulated
Turkey has accepted a new regulation on remote health services (“Remote Healthcare Services Regulation”), effective as of February 10th, 2022. As this area was not specifically regulated until this new regulation, several questions could not be clearly answered and interpretation of the supporting legislation was required. Due to the fact that the main legislation regulating health matters was enacted decades ago, it was quite difficult to make a proper interpretation based on the intention of the lawmaker. While there have been certain healthcare providers that had already started their remote operations after the Covid-19 outbreak, the lack of a regulatory framework and the respective laws and court precedents were posing a substantial risk not only on those service providers but also for the associated doctors.
Traditional Doctor Examination
In the traditional procedure of medical diagnosis, doctors first acquire anamnesis from their patients. This is generally followed by a physical examination which is conducted in a manner that would be suitable for patients’ complaints. The classical procedures for physical examination include visual inspection, palpation, percussion, and auscultation. Based on doctors’ professional opinions, they choose the relevant methods and conduct their examination accordingly. It is not possible to set a general principle as to which procedures doctors are required to go through in conducting their examinations. Doctors may also ask the patients to have certain tests done (such as giving a blood sample) and bring back the test results. After going through these procedures, doctors diagnose the medical condition and, if the treatment is going to include the use of a medication, they should issue a prescription to the patient.
Inadmissibility of Online Examination and Treatment before the Remote Healthcare Services Regulation
The regulatory framework that would have been applicable in considering whether online examination, diagnosis, treatment or prescription would be legally admissible, were as summarized below before the Remote Healthcare Services Regulation was put in effect:
a. According to the Medical Deontology Bylaw (Official Journal: 19.02.1960/10436, hereinafter “Deontology Bylaw”) s.16 “Doctors shall report on a medical condition of a patient based on their conscious and scientific opinion which they concluded as a result of the examination which they personally carried out and based on their personal observations.”
b. According to Ethical Rules for Doctors s.23 “Except for emergency situations, doctors cannot start treating their patients before personally examining them.
c. According to Ethical Rules for Doctors s.32, “Doctors, when they deem appropriate, report to their patients, which they personally examined and treated [or have been treating], with respect to the disease.”
d. According to the Regulation on Private Health Institutions Conducting Ambulatory Diagnosis and Treatment (Official Journal: 15.02.2008/26788, “Private Health Institutions Regulation”) s. 17, doctors are required to record information on examination, diagnosis and treatment in compliance with the procedures designated by the Ministry of Health. Likewise, according to its s. 27, all patients must be registered to the protocol ledger. All of these records must be retained by the health institution.
As you may notice, the above instruments repeatedly used the word “personally” (in Turkish: şahsen). According to Turkish Language Institute’s online dictionary, the literal meaning of this word is “without the use of any intermediary.” The second noteworthy expression used in the above instruments is the word “observation” (in Turkish: müşahede). In Turkish, the root of this word is “witness” (in Turkish: şahit). Therefore, the literal meaning of the expression “personal observation” indicate physical observations made without recourse to an intermediary. This literal interpretation appeared to be against the possibility of remote diagnosis and prescription.
The Deontology Bylaw was enacted in 1960 and its section 16 has not been changed since then. The Ethical Rules for Doctors was enacted in 1999 and its above-mentioned sections have not been changed since then. At the time when these instruments were drafted, the technical resources were not sufficient for seeking remote medical attention and consultation with a health professional.
High Court Precedents
There have been several high court decisions holding that it was not permissible for doctors to prescribe medication without seeing the patients and that it would constitute a crime (forgery of documents /fraud against a public institution/abuse of duty) punishable by imprisonment. Furthermore, for prescriptions on medications about which Social Security Insitute (“SSI”) pays contribution, SSI has the right to reclaim the amounts paid from the doctors who issued the prescriptions without seeing the patients. Some of these judgments are briefly summarized below for establishing a general idea with respect to the jurisprudence before the enactment of the Remote Healthcare Services Regulation:
Yargıtay 4. CD., E. 2005/7907 K. 2006/14229 T. 20.9.2006 – In this case, the person for whom a prescription was called in testified that she never went to the health clinic. According to her testimony, she went to a pharmacy, but the medications that she was looking for were not available at that time, so she left her health certificate (in Turkish: sağlık karnesi) in the pharmacy. Although the first instance court exonerated the defendant, the Court of Appeals (Yargıtay) rescinded this decision by saying that the defendant’s action in prescribing medicine without seeing the patient constitutes a crime.
Yargıtay 11. CD., E. 2012/28286 K. 2014/18391 T. 5.11.2014 – In this case the indictment alleged that the defendant prescribed medications to patients having health certificates without actually seeing them and that the defendant was purchasing all medications from a particular pharmacy and giving them to the patients. The allegations also state that some of the prescriptions were not even known by the patients. Such patients testified that they did not even go to the health clinic and they have not acquired the prescribed medications. The first instance court exonerated the defendant, however the Court of Appeals rescinded this decision on the ground that the first instance court’s examination was not sufficient.
Yargıtay 11. CD., E. 2014/7776 K. 2014/20463 T. 28.11.2014 – This case is also concerned with doctors prescribing patients without actually seeing them. The defendants were found guilty of “abuse of duty” and “fraud”.
Yargıtay CGK, E. 2019/5-331 K. 2020/472 T. 19.11.2020 – The investigations leading to this case were triggered by the SSI. It was alleged that a health clinic doctor was prescribing medications without physically seeing the patients and by doing so inflicting damages on the part of the SSI and the doctor’s action should be regarded as fraud. The first instance court exonerated the defendant on the ground of lack of evidence demonstrating that his action was deliberate. The court considered that, as the doctor was seeing over 100 patients per day, he may not have been able to control their IDs individually. Furthermore, as the patients were registered to the patient protocol ledger before they are accepted for examination, it is reasonable that the defendant may not have felt the necessity to confirm their IDs. The first instance’s decision was rescinded on the ground that its examination on the procedure for accepting patients to the clinic was insufficient.
Yargıtay CGK, E. 2019/11-31 K. 2019/309 T. 11.4.2019 – This criminal action was brought to a number of doctors who were found guilty of forgery of documents on the ground that they were prescribing medications without seeing the patients.
Yargıtay 11. CD., E. 2016/1586 K. 2017/1371 T. 27.2.2017 – This action was brought against several doctors who were alleged to have been issuing prescriptions without seeing the patients. The prescriptions were drafted by the employees of a particular pharmacy and the doctors were affixing their stamps and signatures on such prescriptions. The defendants were found guilty of fraud, forgery of documents and establishing a criminal organisation. The decision was rescinded on the ground that investigations of the first instance court were insufficient. According to the Court of Appeal, amongst other things, the ledger of the health clinic should have been examined to see if the patients were examined by the doctors, if the treatments and the prescribed medications are consistent and all patients should have been summoned to testify if they have obtained their prescriptions and if they have used them. These remarks shed some light on the judicial requirements regarding adjudications as to similar matters.
Yargıtay 15. CD., E. 2014/20293 K. 2016/2595 T. 21.3.2016 – In this case one defendant (pharmacy employee) was bringing to the other defendant (doctor) ID information of people and having expensive medications prescribed to such people through the MEDULA system. The people to whom medications were prescribed were unaware of this situation. The medications were bought from the first defendant’s pharmacy with SSI’s contribution. The defendants were found guilty of fraud and forgery of documents.
Yargıtay CGK, E. 2012/11-1347 K. 2014/30 T. 4.2.2014 – Similar to the case mentioned above, in this case the doctor was prescribing without seeing the patients based on the request from a pharmacy. According to the expert reports and Forensic Medicine Institute’s report, some of the prescriptions did not include information on diagnosis, some medications were appropriate for the said diagnosis, but some of them were not. According to the testimonies of the persons for whom prescriptions were called-in, they did not go to the health institution in which the defendants are working, and they were not examined by the defendants. They left their health certificates in the pharmacy, but they were unaware about the prescriptions and the signatures indicating that the medications have been picked up from the pharmacy did not belong to them. The defendants were found guilty of abuse of duty.
In the literature, the general principle deduced from these High Court Judgments was that it was prohibited for doctors to diagnose and treat patients without physically seeing them personally.
What the New Regulation Brings
The structural changes that the Remote Healthcare Services Regulation brings are as follows:
a. Remote healthcare service is defined as the health service that is provided by the member of the health profession through the remote healthcare information system, in the healthcare facilities that obtained activity license.
b. To the extent that the nature of such services is applicable for remote healthcare services, the following services can be provided remotely:
i. Examination and medical observation of patients, check-up associated with diagnosed illnesses, providing medical consultancy services, consultation or second opinion could be requested through remote healthcare services.
ii. E-prescription and e-report can be issued by doctors of those patients who have been evaluated by them.
iii. Evaluation of the parameters such as blood pressure and blood sugar can be made for the management of diseases, and treatment and medicine management can be provided.
iv. Services relating to the protection of health, supporting healthy life, providing psycho-social support services.
v. To the extent technological means allow and provided that the required permissions have been obtained from the Ministry, interventional and surgical operation services can be provided.
vi. Health data of those requesting health services through wearable technologies and other medical appliances can be measured and followed.
We consider this legislative initiative as a very positive step in following up with today’s trends and technological developments. This new opening would make Turkey a source of attraction for those who are investing in telemedicine and remote healthcare services.