Updated: June 6, 2021 8:55:30 pm
Written by Sahil Raveen and Harpreet Singh Gupta
The second wave of the Covid-19 pandemic in India exposed the frail Indian health infrastructure in no uncertain terms. At the peak of the second wave, social media and news was full of stories of patients being unable to even consult doctors telephonically, leave alone meeting them for a physical consultation. As the pandemic grew, various institutions and organisations came forward with details of healthcare professionals available for consultation through video conference or telephonically. In the absence of clear regulations, doubts remained in people’s mind about the authenticity of such consultations. Therefore, as states begin to prepare the healthcare system for further waves of Covid-19, it is important to understand the need to promote and regulate telemedicine in reducing the stress on healthcare infrastructure.
India faces a difficult challenge in rapidly bringing up the level of healthcare infrastructure, especially in rural areas. The difficulty is augmented by the fact that about 75 per cent doctors stay in cities and towns, whereas about 65 per cent of India’s population resides in rural areas. In order to bridge this gap, the Centre has recognised telemedicine as the solution in the short to medium term. The recent expansion of the National Digital Health Mission with the rollout of unified health interface (UHI) in the future gives clear hints about the intention of the government to place substantial reliance on telemedicine in the fight against Covid-19. However, while the move is in the right direction, it is important to safeguard the interests of healthcare professionals as well as patients.
While telemedicine has been present in India since the early 2000s, there have been several doubts about its legality. As India entered its first lockdown in March 2020, the board of governors, Medical Council of India, published the Telemedicine Practice Guidelines, 2020 (‘Telemedicine Guidelines’) that lay down the basic framework for practising telemedicine in India. While the guidelines remove the ambiguity surrounding the legitimacy of telemedicine, they still leave several questions unanswered, including those regarding the safety of the entire process and the involvement of technology providers.
First, the guidelines fail to address the issues relating to the data generated in the process of telemedicine. While the guidelines prescribe that the registered medical practitioners (RMPs) are to ensure patient privacy and confidentiality, they fail to lay down any standards relating to technology required to ensure safety of the patient’s electronic records or the explicit liability in case of leak of data from communication mediums chosen by the RMP. Secondly, the guidelines also fail to lay down the minimum technical requirements required for the purpose of a successful telemedicine programme. Thirdly, the guidelines also fail to deal with the liability of technology providers or institutions in case of breach of data or in case of presence of unauthorized RMPs on such platforms. The guidelines only provide for blacklisting of such technology providers who fail to verify the persons providing telemedicine services on their platform. The absence of a clear grievance redressal mechanism with respect to telemedicine service providers is another significant omission in the guidelines.
These aspects taken together create significant doubts about the privacy of people’s healthcare data in the telemedicine process, which can lead to reduced confidence in the entire exercise. Further, as the popularity of telemedicine and even telesurgeries grows in India, significant challenges such as medico-legal liability of doctors in case of negligent consultations or surgeries are likely to arise, which also have not been addressed by the guidelines. Therefore, it can be stated that the guidelines in their current form do little to address the regulatory issues that are likely to arise once technology providers and healthcare institutions get involved in the telemedicine and telesurgery sector on a large scale.
Covid-19 and the challenges arising from it have provided central and state governments with a great opportunity to increase the popularity of telemedicine in India and reduce the burden on the overstretched healthcare sector. The central government’s latest attempt to push the National Digital Health Mission by developing initiatives such as unified health interface and Digi Doctor are likely to boost the reach of telemedicine in India. However, as is clear from the discussion above, there is an urgent need to address the issues relating to data safety, privacy as well as for demarcating liability of technology providers and healthcare workers in order to address the trust gap between patients and telemedicine providers. For addressing these issues, India can look for guidance at the telemedicine guidelines of various provinces in Canada and the United States, which have a well-established regime for telemedicine. At the same time, we need to also keep in mind the unique problems that India is likely to face in remote areas. In conclusion, we believe that a timely intervention in updating the regulations is the need of the hour for increase in acceptance as well safety of the stakeholders involved in telemedicine.
The writers are Delhi-based lawyers.
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