Keeping yourself safe when consulting remotely

Medical Protection Society (MPS) has received numerous requests for advice on the risks involved in remote consulting, or telemedicine, since the start of the COVID-19 pandemic. It is important that you are aware of and protect yourself against the medicolegal pitfalls. Dr Sara Sreih and Dr Uzair Sidek, medicolegal consultants of MPS, answer frequently asked questions on safety during remote consulting.

The Malaysian Medical Council (MMC) published an advisory on virtual consultation (during the COVID-19 pandemic) reminding physicians that the use of technology does not alter the ethical, professional and legal requirements in the provision of care. [https://mmc.gov.my/wp-content/uploads/2020/04/MMC_virtualconsultationADVISORY.pdf] This means the same standards of care apply to telemedicine as they do with face-to-face consultations.

Prior to the appointment

What issues do I need to consider around confidentiality?

Firstly, consider who else is present during the virtual consultation. It is also important that privacy is maintained on your side and any disruptions minimized. During an MPS webinar on telemedicine in Malaysia, 62 percent of attendees said they would not routinely ask a patient if anyone else is in the room with them during a phone/ video consultation. This can be an important question to raise; for example, if a patient cannot speak freely due to the presence of others, it may be more appropriate to have a face-to-face consultation.

A secure system should be used, and the relevant data protection principles adhered to, in line with the Personal Data Protection Act 2010 and MMC’s guidance. In case of a technological failure, it would be helpful to have a contingency plan with the patient in advance.

What if the patient states they want a family member to act as an interpreter during the video call?

When this question was posed in the webinar, only 20 percent of attendees reported that they would decline and arrange for an official interpreter which is the ideal situation to overcome any language barrier and avoid clinical and medicolegal risks in having a family member/ friend take on this role. However, the clinical risk and urgency of the situation need to be considered. If the delay in organizing an interpreter might put the patient at risk, it may be appropriate to go ahead with the consultation with the intention of arranging a further appointment with an interpreter. Clinicians should clearly document their reasons for making this decision. It is also important to confirm with the patient that they are happy with the family member/ friend to take on this role and this would also include the sharing of sensitive medical information.

If you do choose to go ahead in such circumstances, bear in mind that the patient’s chosen interpreter may not be objective, the translation may not be accurate, and sensitive information may be withheld by the patient.

A record should be made of any third parties present during a consultation, including interpreters or family members. 

What if I become aware that the consultation is being recorded?

There are no provisions in Malaysia that prevent a patient from making a recording of a consultation if they are the subject of that consultation. This can, however, lead to the clinician feeling uncomfortable, especially if the recording is initiated covertly. If you discover that a patient is recording their consultation, it would be helpful to explore the reasons why.

The patient may be worried about forgetting key information or would like to consider the content of the consultation further, especially in relation to decisions they may need to make. It may be that the patient is making a recording because they have concerns about the care provided; discussing these concerns at an early stage reduces the risk of a formal complaint arising and can assist in preserving the relationship. A copy of the recording could be requested to be stored as part of the medical records, within the usual data storage and security requirements.  

The consultation

What if a patient declines an in-person physical examination that I believe to be clinically necessary?

MMC advises that a clinician should consider whether the telemedicine medium affords adequate assessment of the presenting problem, and if it does not, arrange for a timely in-person assessment.

The reasons behind a patient’s decision to decline an in-person visit should be explored. If the patient has capacity, their autonomy should be respected. However, their decision must be appropriately informed. You must therefore be satisfied that the patient understands the limitations of remote consulting, the rationale behind your advice of a face-to-face consultation, and the risks of not attending it. Consent is dynamic, and people’s decisions not to attend may change as circumstances and risks change, so it is important to revisit this discussion.

Your management plan and safety-netting advice may need to be adjusted considering your patient’s decision, perhaps advising a further remote consultation to review the situation. Good safety-netting advice generally includes a time frame of what the patient should expect with regards to their symptoms and how to access further care if matters do not resolve or worsen; the key here is being specific regarding which symptoms the patients should be mindful of and clearly communicating (and documenting) this.

After the appointment

What should I document following a remote consultation?

MMC clarifies the medical records of the teleconsultation need to be in accordance with professional and legal requirements. [https://mmc.gov.my/wp-content/uploads/2020/04/MMC_virtualconsultationADVISORY.pdf] When consulting remotely, it is important to record this mode of consultation in the patient notes, and whether the consent discussion has taken place. MMC mentions specific requirements, for example, to ensure that the identities of all other participants are disclosed and approved by the patient and documented in the patient record.

There is further emphasis on ensuring follow-up and referral to other facilities which would also warrant adequate documentation. As with all consultations, the management plan and any safety netting should be clearly documented, but additional conversations such as the need for an in-person appointment should also be recorded.

What should you do if your patients contact your personal number to consult on their health issues? 

Members are entitled to seek assistance from MPS for matters that arise from their clinical practice, regardless of the method of communication.  Any correspondence sent to and from a personal number, including images, would be subject to the usual legal, regulatory and ethical requirements of processing and storing of confidential health data.

When a patient contacts you on your personal number, it may blur the professional boundaries and could lead to a misunderstanding of your availability in a professional capacity.

Even if you respond out of your working hours, you would be obligated to act appropriately with the knowledge given by your patient which may include making further enquiries or directing a patient to emergency services.

To avoid this situation, the availability of your practice and contact methods should be clearly communicated to the patient, and they should be advised what to do if they need to be seen outside of those hours or in an emergency.

If clinicians are in doubt about the risks they face when consulting remotely, they should contact their medical defence organization for advice.

MPS has produced a teleconsulting webinar series, which is available for members to view online: https://www.medicalprotection.org/malaysia/digitalfuture/telemedicine