We expect to see a huge increase in the numbers of remote consultations between healthcare professionals (including surgeons) and patients. Some of this has been planned for some time. Technology developments have made remote consulting by telephone, message and video calls a much more realistic option than in the past, and a number of companies are actively investing in this area on the assumption that it is an attractive option for some types of patient. But an immediate increase is also likely to happen because of the Covid-19 pandemic, and the consequent government advice aimed at slowing the spread of the virus. With the current government advice (at the time of writing) including that people should avoid travel in general and that vulnerable groups should self-isolate, remote clinical consultations are likely to be a necessity for the short to medium term at the very least. We understand that some private health insurers have already confirmed that they will fund remote consultations for their customers, as part of the response to the present advice.
With that in mind, we have drawn together some guidance on the insurance and risk management considerations for Incision members who may now be offering remote consultations.
We have already been asked by Incision members whether they are indemnified for remote consultations. Happily, the answer to that is yes. In principle, your Incision policy will cover you for certain legal costs in the event that GMC Proceedings, an Inquest or a Criminal investigation arises out of a remote consultation you carry out in your NHS or private practice. Your Incision policy would also cover you in principle for any clinical negligence claim that arose out of a remote consultation in your private practice (claims by NHS patients being covered by NHS Resolution in the usual way). However, there are still some insurance technicalities that you have to be aware of.
You need to be sure about where your patient is physically located when you carry out a remote consultation. This is because your policy has “Territorial Limits”, which stated in the policy schedule. If the patient is physically located in a country that is not included in the policy’s “territorial limits” then you would not be insured for that particular consultation. This would be because you would be providing medical professional services to someone outside of the territorial limits, even if you are physically located in the U.K.
Similarly, the policy will only cover claims (for example Court claims) if they are made in the UK or the European Union. If the patient physically located outside of the UK and EU, then it may be imprudent for you to go ahead with that remote consultation, because the policy would not respond if the patient went on to make a claim in the courts of their country outside the UK or EU. In that situation, as you can’t safely carry out the consultation yourself, all you can do is tell the patient to seek advice from a local physician, and document that advice.
For policy reasons, you need to think about the security of the device you are using for the remote consultation, especially if you could be following up on a call or video consultation using messenger service such as WhatsApp. For example, a smart phone falls within the definition of “portable media device” in the cyber part of the Incision policy bundle, so the phone must be encrypted for the cyber policy to respond to a loss of data if (for example) the phone is lost. If you are going to use a smart phone for video or other remote consultations or for messaging patients, then before any such interactions take place you need to make sure that the device is properly encrypted (not just password protected).
If you are planning to offer remote consultations by telephone or video conference, another aspect that you need to be extremely careful about is the security/encryption of the telephone/video consultation service. Some telephone/video conferencing providers are secure/encrypted, but not all. Therefore you will need to give careful thought to what telephone/video conferencing service to use to ensure that the consultation cannot be accessed by anyone else. If a third party was able to eavesdrop on your remote consultation, this would be a breach of patient confidentiality that could lead to real problems for you professionally. While we cannot recommend any particular service, www.nye.health is an example of a service which has been specifically designed to allow confidential telephone/video consultations between healthcare providers and patients, while at the same time protecting the healthcare professionals’ details such that patients do not end up with (for example) the doctor’s mobile phone number.
The other side of the coin is that it would be prudent to remind the patient to think about protecting their own confidentiality, for example by taking responsibility for ensuring that they have the remote consultation somewhere where they can’t be overheard.
For telephone or video consultations, you need to take care to ensure that you are not inadvertently recording the consultation (e.g. because of an auto-record feature on the telephone/video conferencing service). There are situations in which it is acceptable to record a consultation, but there is express GMC guidance to follow on that (https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/making-and-using-visual-and-audio-recordings-of-patients) and if the recording is made inadvertently then you are unlikely to be able to comply with that guidance.
If you follow up a telephone or video call with an exchange of messages with the patient, particularly if the patient is sharing photos with you for your clinical review, then please remember that those messages would form part of the patient’s medical records and need to be retained in accordance with the standard records-retention periods.
In general, it is good risk management to follow the GMC guidance on remote consultations, at https://www.gmc-uk.org/ethical-guidance/ethical-hub/remote-consultations. The GMC consulted on the question of remote prescribing, and was gathering evidence on this issue up to February 2020. We do not know if or when the GMC will update its guidance pursuant to that consultation, but you should stay alert to news from the GMC on this point, especially since the current Covid-19 pandemic might push the GMC to issue updated guidance sooner than it would otherwise.
As the GMC guidance already highlights, remote consultation is not suitable for every situation because (among other reasons) it is impossible to perform a physical examination. Depending on the situation, you could find yourself quite limited in what you can do for the patient remotely. Therefore it would be prudent to treat this issue as part of the overall advice/informed consenting process for the patient. Make sure that the patient understands the limits of what you can assist them with via a remote consultation. If you do recommend any particular treatment, make sure that the patient gives informed consent for that, to include any risks inherent in following advice given without the benefit of a physical examination. If you consider that a follow-up in person is needed, then make sure the patient understand the reasons why, and has the information needed to be able to balance the risks of travel (exposure to infection) against the risks of not having their condition properly assessed and treated.
Similarly, it may be that some patients are not well placed to participate in a remote consultation. Those limited by slow broadband or poor mobile phone signal might find that an uninterrupted discussion is impossible. Language barriers or certain disabilities might also be a more significant problem in a remote consultation, as you will be more reliant on the patient for a detailed description of their physical condition or symptoms, and less able to ‘fill in the gaps’ in their communication ability through a physical examination. Take care to only offer remote consultations to those who can participate sufficiently for you to be able to safely advise.
Record-keeping is of course key to good medical practice in any event. But for remote consultations you will need to take extra care to make complete records, which should include a note about how the consultation took place and why a remote consultation was necessary/appropriate in that case.
- In principle, Incision members are covered to carry out remote consultations as part of their private practice.
- However, there are some technical limits within the policy, so consider offering remote consultations only to patients who are physically located within the U.K. or EU, and expressly confirm with the patient where they are (and record their answer) for each consultation.
- Make sure that any technology you use to facilitate the remote consultation is suitably secure/encrypted to prevent patient confidentiality breaches. Similarly, make sure you expressly advise your patients to take responsibility for their privacy and confidentiality wherever they are, for example by making sure that they cannot be overheard while having the remote consultation with you.
- A successful remote consultation will depend on your ability to communicate clearly with your patient, so wherever possible warn your patients in advance that they need to be prepared to spend more time than usual describing their physical condition in detail, and consider where there are any language barriers or similar that might need to be overcome.
- Remind your patients to check in advance that they have sufficient broadband speed or phone signal to enable the consultation to proceed without disruption.