- 30 October 2015
- Duration: 44:22
Thank you, Elise. The first thing when I was asked to do this and it follows on a bit from what Anthony says, which is where is the government’s support for this? I know that the state government has greatly invested in this, but I wanted to know where the federal government – and fortunately when I did a search of the internet, I found Senator Nick Xenophon, and he was able to sum it up in a very short, soundbite almost, and the IT department has sort of found this video and we are just about to play it for us. (Video plays).
All right. So there is support there, but that was only the start of it and this also follows a bit from what Anthony says. Well, what is it like actually in real life? Anthony gave us a few photos of what was going on in his place, but I found this, and once you see this, you might recognise some of the medico-legal implications. (Video plays).
I am not sure whether that is a very good example, but hopefully not, and hopefully Anthony has improved a little bit on what we saw there. Now, as far as the medico-legal issues go, it has already been seen that has been a paper that has been prepared that you will get when you leave this forum today, and what I have been asked to do is just to speak about a couple of those things. I cannot in 45 minutes go through the whole gamut of what that paper covers, or the issues in medico-legal issues in Telehealth. So what I am going to talk about today is these four issues, which are cross-border issues, duty of care, credentialing, health records and insurance.
I am not going to spend much time on cross-border issues because that is complex. This presentation that I am about to give is really about intra-state not interstate or international Telehealth. When we are talking about intra-state, sorry, when we are talking about intra-state services, as distinct from interstate and overseas, it is really only necessary to look at the laws of Victoria. But I will say this about the cross-border issues, is that generally speaking the laws throughout Australia are similar, but be warned that they are not the same.
So those of you who would be conducting Telehealth services interstate or overseas would need to have some understanding of what the laws of the areas in which you are operating apply. And in that regard, as an example is that, with the exception of Western Australia and South Australia, each state and territory has their own data protection legislation. Another example would be that if you are delivering services overseas, your obligations in Victoria regarding the dissemination of health information requires that you ensure that the country in which you are dealing overseas has a similar regime or adopts the Victorian regime.
Now, you might think they are similar, well, that is not the case. If it was familiar, and I understand this from a discussion with one of my partners yesterday, is that if it is anywhere in Europe you probably are going to be okay, but if it is anywhere else, not at all. Europe is probably the only place that actually has similar privacy legislation, as does Australia.
Now, the first sort of major topic I want to talk about, and probably the most significant, is duty of care. To us lawyers it seems quite basic, but I know from my presentations to health professionals that it is something that not confuses them, they are interested in, they are uncertain about. I am not sure that I am going to clear up the uncertainty but the idea is to give you some bit of understanding of what those duties are.
Now when delivering Telehealth services there are really two parties to the delivery. And one is the health service or the health practitioner, where the patient has presented for the treatment and I am referring that throughout the presentation as the host provider, and the Telehealth service, or the health practitioner who provides the services via technology. And I am referring that as the Telehealth provider.
Now, the first aspect to consider then is what is the duty of care owed by the host provider and its employee? So when the patient presents for treatment, and that is at the host provider, so that host provider and its employees, what is their duty? Well, the host provider, health service, that is a service itself as it is seen from the employees, has a duty to exercise reasonable care in the provision of the health services that it provides to its patients. That has got to be no surprise to anybody. The health professional at the host service provider owes a duty to the patient in the same way. But, it is a bit more refined. If you are a midwife and the patient has presented to you and you are providing midwifery services, you must live up to the standard of care of a reasonable midwife.
The one that is applicable probably significantly to Telehealth, but it is this question here is, does a rural health service with limited experience and limited resources have the same duties as a tertiary institution with vast experience and vast resources? For the moment, I do not specifically refer to Telehealth. I just say that as a legal concept, so if you are a rural health service with limited resources and you have got a facility, an emergency department or an orthopaedic outpatients clinic, do you owe the same standard of care as does the major centre, such as the Monash Medical Centre?
Surprisingly, perhaps to you, considering all the medical cases you read, but there is a dearth of case law on the point, but my opinion is that a health service is obliged to provide services to the standard expected of a reasonable health service providing the services which the service holds itself out as capable of providing. Sort of put simply, if you have got an orthopaedic outpatients clinic, you have got to provide the services that one would expect from a responsible orthopaedic outpatients clinic.
The one that is quite prevalent around Victoria is perhaps the next example, which is a rural health service who might have what it calls as an emergency department. For rural health service has a sign out the front saying ‘Emergency Department’ then I would say to you that that rural health service must live up to the standard of care that one would expect from a reasonable emergency department. Not, it will not be an excuse I do not think to say, ‘Well, it is an emergency department.’ We all know what an emergency department is, but you have got to understand that we are in a remote area, so our emergency departments are actually only staffed by a nurse. Now, that is actually the case in a lot of rural areas. That will not be good enough. I think that once you put the sign out the front, saying you have an emergency department, then the person who attends the emergency department is entitled to expect the services that a patient would reasonably expect from an emergency department. Now, what has happened, with that issue having arisen a couple of times is that a number or rural health centres where they have had what they have called emergency departments, but in reality were almost outpatients departments attended to by a nurse who they could call in medical services if necessary, they have been rebranded, and this is through the department, they have been rebranded to call themselves urgent care centres. So, we are probably now going to have an argument at some point, future point, about what is the reasonable standard of an urgent care centre, but at least the initial problem has been fixed.
And to give you a – you might thing well, is this real life? I mean, I have been involved in a case in which a woman who had an ectopic pregnancy attended a rural emergency department, and when she attended there, she was told yes, you have got an ectopic pregnancy and look this is an a bit of an emergency, but we cannot – you need surgery, but we cannot perform the surgery, so you are going to need to be transferred. Now there was a mix-up in the ambulance arriving, so it is not necessarily the hospital’s fault, but what happened is that the patient died on the way to the next centre, and of course when there was an inquest, you can imagine what the husband of the deceased way saying, well, if I had known that they could not do the surgery there, I would have just kept going to the more major centre. And that was a problem, for us is that we were, well, not us, for the hospital was holding itself out as having an emergency department.
Now, the other thing that is a sort of quirky area of the law regarding the duties owed by hospitals is that unlike most areas, or most organisations, a hospital is in a category of organisations and there is a very special and small class of organisations which the law says owe a non-delegable duty of care to its patients. What that means is that if it is your patient, you are not only responsible for your own acts and omissions, but you are responsible for the acts and omissions of anybody else who you ask to perform some of the duties or services for that patient. Now, I might need to say at the outset that, private hospitals fall into a different category than public hospitals for reasons I will explain in a moment. But on this non-delegable component is that if you undertake the care of a patient, and as a public patient, then you are required to, or you are going to be responsible for not only your own acts or omissions but the acts or omissions of anybody else that you ask to perform any part of the service.
An example I have given here is if a public patient has an X-ray done by an outsourced X-ray department, the hospital is liable for the negligent conduct of the radiologist. Now, as mentioned before about private hospitals, there is a difference with private hospitals. It is not because private hospitals do not owe a non-delegable duty – they do. All hospitals owe a non-delegable duty to their patients. The difference with a private hospital is that the private hospital agrees with the patient to provide medical, to provide hospital service such as theatres, nursing services, and the like. The medical services are not provided by the hospital. The patient privately engages their medical practitioner under whose care the patient is admitted to the hospital and it is the private medical practitioner that is responsible for the delivery of medical services. There is no agreement between the patient and the hospital for the delivery of medical services, so, the private hospital has not undertaken to provide the medical services. Where a public hospital, when a patient attends a public hospital, the public hospital undertakes to provide the whole service.
So if you if you subcontract as a public hospital, then you are liable for the acts or omissions of the person who you have subcontracted to. But in a private hospital, the private hospital has not subcontracted to the medical practitioner. The medical practitioner has been engaged privately by the patient.
Now, I have just said that that applies to hospitals, but that is clear. The law is relatively definitive about that. But I ask the question is, does it apply to health services generally? Am I being semantic here? Is there a difference between a hospital and a health service? I am not sure myself, other than to say that it applies to hospitals, and maybe you have to make up your own mind as to whether a health service is a hospital. But the more important issue for individuals is, does it apply to individual private or individual practitioners? No. An individual practitioner undertakes to provide the services that they are capable of providing, so if you go to a doctor and the doctor says you need an X-ray, then the doctor has not undertaken to provide the X-ray. It is quite clear that you are going to another service provider to get the X-ray.
Now, that is the host provider, so where the patient has presented, but what about the person or organisation who is delivering the health service via the technology, and that is the Telehealth provider. Now the Telehealth provider is either going to be, deliver that service through, as an organisation through its employees, or independently of any organisation. So I would need to look at both of those. And the first of those is, well, what is the duty owed by the Telehealth provider, when providing the services directly to the patient?
Well when the Telehealth provider is doing that, the provider owes a duty to the patient to exercise reasonable care when treating the patient. Again no surprise. But the duty is a little bit more refined from just you have got to take reasonable care. For the health professionals who are working in that organisation, their obligation is to live up to the standard of care relevant to the skill that they profess to have, and I gave the example before that if you are a midwife then you have to live up to the standard of a midwife.
Well, what is, how does the law regard that standard? And I use this quote because it is what the law is and it is embedded in the Wrongs Act 1958, and it reads this way, it is in the negative rather than the positive, it does not say what the duty is, it is more about when you are not liable, and it says this, "A professional is not negligent in providing a professional service if it is established that the professional acted in a manner that at the time the service was provided was widely accepted in Australia, by a significant number of respected practitioners in the field, which is referred to as peer professional opinion, as competent professional practice in the circumstances."
That may sound like the same thing, but it is not. It is not the same thing because, what it means is that if you treat a patient in a particular way in which another medical practitioner of your speciality considers was below the standard of care because that practitioner would not have done it that way, they would have done it a different way, that does not automatically make you liable. If the manner in which you deliver the service was in accordance with what a number of respected practitioners in the field would do as well, and a number does not mean the majority, it just means, there is no magic as to the number, the courts do not define the number, but it would mean a body of people, it might be 20%, but if they would do it the same way, then you are not negligent.
So maybe the argument is if you have got enough friends you can bring them to court and you will not be liable, but that is the test. Surprisingly it is different, I do not want to get too deep into the law here, but it is different. That is when you are providing treatment. When you are providing advice. The high court has said, we are not really interested in what your colleagues would do when it comes to advice. We are interested in what your colleagues would do when it comes to treatment, but when it comes to advice, we, the court, decide. We decide what is reasonable. We do not leave it to you or your colleagues to decide what information you ought to have given to a patient. So there is a subtle difference between the two.
Now, what about when providing advice to another health service about how to treat that other health service’s patient? It is different than providing care to a patient. That is when the host provider contacts the Telehealth provider and says I have got a bit of a problem with this patient, can I have your advice? Does that Telehealth provider, in those circumstances, owe a duty to the patient? I do not think anyone actually knows the answer to this. Does anyone know the answer? Well, maybe I will just ask it. Who says to a, I know you will know the answer to this, so, hands up those who say that the Teleheath provider, who has not seen the patient, owes a duty directly to the patient and those who do not think the Telehealth provider? Yes, okay, that don’t think have it, and you would be right if it was not for this 1980 New South Wales case and this case was such that the plaintiff was admitted to hospital and treated by an orthopaedic surgeon, who sought a second opinion from a neurosurgeon about the risk of applying traction to correct a spinal deformity. The traction was applied and the plaintiff ended up with a permanent deformity of the spine, rendering him paraplegic. The plaintiff sued the hospital and both the surgeons, so the orthopaedic surgeon and the neurosurgeon and it is quite clear that the hospital and the orthopaedic surgeon owed a duty of care to the plaintiff, but what about the neurosurgeon who never saw the patient and was just contacted to provide an opinion?
Now I have said, as I have said before, the neurosurgeon did not consult the plaintiff, and all the neurosurgeon did was made a note in the medical record after receiving a consultation sheet from the hospital from the orthopaedic surgeon with the instructions from the orthopaedic surgeon about what the orthopaedic surgeon wanted the opinion about. The main judgment in that case held that the neurosurgeon knew and accepted the question of the possible danger to the plaintiff's spinal cord would to some extent be dependent upon his advice and just that factor alone was enough, according to the court to impose upon that neurosurgeon a duty directly to the patient.
So, if the patient – and the patient did, the patient sued the hospital, the orthopaedic surgeon and the neurosurgeon, but had the patient just sued the neurosurgeon alone for that neurosurgeon’s negligence, then the patient would have succeeded.
Now, there is no High Court in New South Wales court, there is no High Court or Victorian case on the particular issue, but my view is it is unlikely, I mean that case was a long time ago, it is unlikely that a court today would see it any differently. So, why it’s all relevant to Telehealth, as I ask the next question, which is, ‘So does a Telehealth provider owe a duty to the host provider’s patient?’ And, on the basis of that, yes. So, in a way, they become your patient. Yes, Corinne?
Corinne: It is more than that though, because, in most cases, the Telehealth provider is actually consulting with the patient. So it depends on the definition of the consultation, as opposed to purely provider-to-provider Telehealth.
Michael Regos: Yes, yes. What you are saying is that if the patient is at the other end of the consultation and did not receipt directly of your service, then clearly they owe the duty of care. The more remote possibility from that is that if the Telehealth provider provides the advice to somebody else, as to how to treat the patient. But that duty still arises, even though the Telehealth provider – now, when I say, it is not, there will be parameters around this step. The case we spoke about was not a Telehealth scenario, but whether – yes, I am sure you could all think of examples where, you know, what about this, will the Telehealth provider be under a duty of care in that instance? And maybe not, but you get the general concept.
So what happens if the Telehealth provider acts negligently when advising another health service about how to treat its patient? Well, I say the upshot of that is that the plaintiff could then choose to sue both the host provider and the Telehealth provider, or either of them. You might think, ‘Well, what has their host provider done wrong?’ Well, if you absorbed what I was saying earlier, and I forgive you if you did not, perhaps for two reasons - I may have not have articulated it well, and secondly, it was hard to absorb – but the host provider who has done nothing wrong would be liable under the principles of non-delegable duty. They have got the Telehealth provider to chime in with some advice on how to treat the patient. So they have done nothing particularly wrong, but they are going to be liable under this principle of non-delegable duty.
But what they can do, it is not all bad news, is that they might be able to be successfully sued. But they can recover their own liability, meaning whatever they might have had to pay to the patient, they can recover that from the Telehealth provider. Now, sometimes there are two parties that might be responsible. A Telehealth provider might have recommended a particular dose of medication. It might have been a nurse at the other, the host provider end, but the nurse did not realise that that was clearly an excessive dose of the medication, and that has happened in the past. Well, in that situation the liability would be shared.
Now that is about duty of care. It is a bit of a sort of Law 101 on it, but that is where it stands and that is the environment in which the Telehealth providers and service deliveries have to operate.
Credentialing – I was asked to do this. I did not think it was actually that big an issue, but apparently it is, and …
Male Speaker: Yes.
Michael Regos:Well, there we go - should have had it number one on the list, I think. Anyway, the starting point is this, is that the Australian Commission on Safety and Quality in Health Care developed a national standard, and the Victorian Department of Health and Human Services has adopted that standard. And what it defines credentialing as, is as follows:
"It is the formal process used to verify the qualifications, experience, professional standing and other relevant professional attributes of medical practitioners for the purpose of forming a view about their competence, performance and professional suitability to provide safe, high quality healthcare services within specific organisational environments."
That involves defining the scope of that person’s practice, and defining the scope of clinical practice follows on from the credentialing. It involves – and this again, is a quote,
"Delineating the extent of an individual medical practitioner’s clinical practice within a particular organisation, based on the individual’s credentials, competence, performance and professional suitability, and the needs and capability of the organisation to support the medical practitioner’s scope of clinical practice."
The last one, perhaps, is sometimes a bit overlooked, which is the ability of the organisation to actually support the scope of practice.
Now, so what does that mean for those involved in Telehealth? Does that mean that if Telehealth services are to be provided, that those providing those Telehealth services should be credentialed to the host provider? So you are at the host provider, patient presents for treatment, you need to get some input from, well, the patient needs to get some input from another provider, and that is going to be done by Telehealth. Does that provider have to be credentialed to the organisation? I do not think this is a lot different than as it would be if the Telehealth provider would actually physically go to attend the hospital to provide this service. But what I say is this, is if the health professional providing a Telehealth service is providing the service directly to the patient, then that health professional should be credentialed by the host provider. So we are having the patient at the host provider, the Telehealth consultation comes along, some expertise is going to be added by the Telehealth provider. I say that the Telehealth provider, in those circumstances, needs to be credentialed to the organisation, just as if the Telehealth provider were going to attend the health service to deliver that service directly to the patient.
So what if, however, that Telehealth provider is already credentialed somewhere else? And I raise that because the obvious question to ask is, ‘Oh, my God, if I am going to do Telehealth, does that mean that I have to arrange for every Telehealth provider that I might engage to provide services to our health services patient, to credential them all?’ And the answer is there is no right or wrong to this, but the answer, I believe, is no, is that if that health professional has already been credentialed by another reputable health service in that field of practice, then you can rely upon their process of credentialing. And the reason I say that is that credentialing is not a law, but could you be sued for not, for inappropriately credentialing that practitioner to your organisation? Most definitely, yes.
So if that is the case, then you need, for self-protection, to ensure that those delivering services to your patient are appropriately credentialed, but I do not think the law requires it. You do the credentialing yourself, as long as the – as long as it passes the sniff test, I suppose, is if the person has the credentialing. As long as you are reasonably satisfied that that credentialing is real, then I believe that you are entitled to rely upon it. So no need to panic, really.
What about if the Telehealth provider is providing these services, not to the patient, but is to the host provider? So the host provider just wants to contact someone outside the organisation for advice about how to best treat their patient, then the answer to that is no. I do not think you need to worry about credentialing at all. I think the only concern there is that you should satisfy yourself that the person from whom you are seeking the advice is suitably qualified and experienced. How you do that could be from a number of sources, but that is the test. As long as you are reasonably satisfied that the person has the necessary qualifications and experience.
Now health records was the next topic that I was asked to address, and that looks awfully complicated. There are four Acts that govern the management of health records - and here I am talking about Victoria - and it is the Privacy Act, Commonwealth, the Public Records Act, the Health Records Act, the Privacy and Data Protection Act. Combined those Acts stipulate who has to keep records and how they are to keep them, and for how long they have to keep them.
So the first point in dealing with records then is, ‘Who is responsible for keeping and managing the health record?’ That is, I can easily understand how this is a thorn in the side of those delivering Telehealth services, and I say this, is that in Telehealth the responsibility for managing an individual’s health record is less clear than it is in traditional forms of medicine. It is going to differ in different circumstances, and I give you two, these two examples. If a rural health service seeks advice directly from a tertiary health service and the patient is not present, then only the host provider, not the Telehealth provider, will be required to create or keep a record. I mean, it might be, in that situation that it is in the interests of the Telehealth provider to keep the record as a form of self-protection against future complaints, disciplinary action, or litigation, but I say there is no requirement in that situation for the Telehealth provider to keep a record of the attendance.
The second situation is different, which is a patient attends a rural health service with a spinal fracture. The rural health service has insufficient expertise and so tells the patient and gives the patient the option of being referred as a private patient to a particular private specialist orthopaedic surgeon. The rural health service contacts the surgeon, who agrees to consult with the patient via the use of Telehealth facilities. In that circumstance, the surgeon is obligated to maintain and keep records. The reason the surgeon has that obligation, is because the patient is now the surgeon’s patient. The patient has been referred to the surgeon, and then in that same situation the rural health service must keep a record of the care it provided, because for a time it was its patient, and I do not want to say to you that the moment that the Telehealth button was pressed and the face of the orthopaedic surgeon arrived on the screen meant that the rural health service, that it was no longer their patient. It is probably a shared obligation at that stage, and the rural health service must keep a record, not only of the attendance up to the referral, but what they are aware of occurred during that Telehealth conference. So now we have got two people who are obligated to keep records.
So creating them is [unclear], but then there is the retention and disposal of the records. For public health services the Public Records Act regulates for how long a public health service must keep records, and how they are to be disposed. It is very prescriptive, and it specifies a range of timeframes that the records must be retained, and it depends upon the type of document that it is – patient records, radiology reports, etcetera, all have different timeframes, surprisingly, but they do, and they range from 2 years to 25 years.
Now, most of the records, and this is a generalisation, if you wanted to know how long you have got to keep a particular record, you need to go to that Act to find out exactly how long that record must be kept for. But, as a generalisation, most of the records are required to be retained for 25 years, sorry, I will start that again. Most of the records which relate to having to be kept for 25 years, relate to newborns. In respect of adults, generally speaking – again, it is a generalisation – but they have to be kept for 12 years after the last attendance. So if you took that as your obligation to retain records, you would be safe in the sense that there will not be periods longer than that.
I could tease you and say that there is, with the new Australian Privacy Principles which have been in existence for a year, that that sort of makes it now quite clear that you are not to retain records longer than necessary. And there is an obligation upon you to, once the use of the record has been outlived effectively, so the reason why you collected it in the first place, if it is no longer useful and no longer relevant, you actually have to destroy it. So it will not be good enough to just simply store it in your database and keep it forever. At the moment that is, well, until 12 months ago, that might have been regarded as acceptable, and you are saying, ‘Well, why have I not heard a lot about this?’ Well, the Australian Privacy Principles have been set in for 12 months and the Commissioner has been on an education programme, I suppose, for the past 12 months, and I suppose at some point someone is going to have to be audited about this. I do not think it will be a health organisation – well, I could be wrong – that would be audited. I think that there are – the Privacy Commissioner has created targets in mind, but at some point this issue of keeping records and personal information forever will be addressed. I do not think you have to take any steps at the moment about it, but at some point in the future you may have to.
Now that is public health service organisations generally, but what about private practitioners and private health services? Well, they are mainly governed for their health records by the Health Records Act, and it is – I have got it there as the Health Privacy Principle 4.2. And generally speaking for them, they have to retain the records for seven years following the last attendance. So I am sorry if that is such a great generalisation, but it gives you some idea as to what your obligations are. And I am sorry that I have not spent more time on when you actually have to be obliged to destroy these records, and I have not done that because it is completely unclear at the moment, other than to say that it will not be that you can keep them forever. In another 12 months’ time, there will be more airplay about your obligations to destroy these records in due course.
Insurance was another area which I was asked to talk about, because apparently clinicians, particularly, are paranoid about what cover they have got if they are providing Telehealth services. So I was unsure how to do this, because talking about insurance, it is easy for you to say, ‘Well, we all should be covered for whatever we do.’ Well, insurance does not quite work like that, because we should all be covered for everything we do. Well, what happens if you decide to give advice about how to treat somebody in the United States of America? You might think, well, if that was not the case beforehand, that might be an elevated risk, because damages in the United States of America can be multiples, hundreds of multiples of times the damages in Australia. So it is unfair, or not right, that you should feel that, well, we should be covered for everything.
So what I thought I would do is that I would go through the policy of insurance, which is underwritten by the Victorian Managed Insurance Authority, which underwrites the insurance for all public health services in Victoria, and just see how all this applies. And I am not sure whether you will absorb this, but I will give you a summary of it in the end, which is this, is that these are the things that are covered. If you are a health organisation – I am not talking about the individuals now, I am talking about the organisation itself, I will come to the individuals – but for the organisation itself, they are covered when giving care, advice, or treatment. That is important, because I am going to separate advice out later, but, so when they are giving care, advice, or treatment, they are covered when they are giving that to their own public patients, their own private patients, but if you needed some convincing that credentialing was important, but only if the practitioner providing the medical service was appropriately credentialed to the organisation. So you are covered for your own public patients, your own private patients, subject to the credentialing, and you are also covered when providing advice, care or treatment to public patients of another public, Victorian public health service.
Equally you are entitled to indemnity, in respect of the advice that you give to another healthcare facility that is not a Victorian public health service. So if you are giving advice to another non-Victorian public health service, you are covered for the advice you give, but not the treatment. So if you were to give treatment, you would not be covered. Fortunately, for Telehealth services, probably you are giving advice more than care or treatment, but I know it would be rattling around your mind already, there are circumstances in which maybe your conduct, as the Telehealth provider, you might be doing it remotely, but may well be deemed to be the care, rather than just the advice.
And the next, the final item where the Victorian public health service is covered is, I say, they are probably covered. It is not entirely clear about this, but they are probably covered when giving advice, care or treatment to the patient of another medical practitioner, as distinct from a patient of a non-public health service healthcare facility. So another private medical practitioner - probably covered.
Now where there is no cover in all of that, so the organisation is not covered when providing care or treatment to another healthcare facility that is not a Victorian public health service, unless you reach an agreement with the VMIA. Victorian Managed Insurance Authority, beforehand. So if you find yourself in a situation in which you believe that the services you are providing are not covered because they are being provided, or they might constitute, or do constitute, or might constitute, or might be interpreted as constituting care or treatment to another non-Victorian public health service facility, you need to speak to the VMIA. And Ed Brannigan from the VMIA is here, and he will gladly allow you to lock him up over lunchtime and get his approval to whatever you are doing. He has brought his VMIA stamp along, so … Now, what about employees? That is the organisation itself, but what about employees? And this is the one that causes the most angst, which is that, ‘Am I covered when I am providing a Telehealth service?’ So these are the situations in which the employees of the public health service are covered, and that is when providing advice, care or treatment to patients of their employer health service, or public patients of another Victorian public health service. So if it is your own hospital, patient of your own hospital and you are an employee, you are covered. If it is a public patient of another public health service, you are covered. You are also covered when providing advice to another healthcare facility or registered medical practitioner, about the care or treatment of that other facility’s or medical practitioner’s patient.
So – so far, so good. So where are you not covered? So the individual is not covered, or the employee is not covered, when providing care or treatment – and I say care or treatment, as distinct from advice, advice is covered, but not care or treatment – when care or treatment is provided to patients of a healthcare facility that is not a Victorian public health service, or private patients of another registered medical practitioner.
Then there is a quirky – the exception is when I am referring to employees, I am referring to all employees of the health service. But there is an additional exception, and that applies to employee-registered medical practitioners. They are not entitled to indemnity when providing care or treatment – again as distinct from advice – to private patients of another Victorian public health service.
A bit messy, I know, but the summary of this is pretty much as follows: it is not too far off the mark to say that the cover is almost universal. It is not universal, but it is almost universal. And the exception, and main exception, is where a registered medical practitioner provides services privately and directly to a patient referred to it by a Victorian public health service. You know when I said if you are concerned about it, you do not have to be concerned about it today, but if you get back to your health services and you are concerned about the cover, you can either ask me or, better still, ask Ed, because it is his say-so that is going to dictate whether you are covered or not.
Medico-legal aspects of Telehealth, presentation by Michael Regos, DLA Piper
Reviewed 30 October 2015