Ethical and Legal Considerations

Clinician-Patient Relationship

   

relationship In traditional health care delivery, the patient and clinician meet to discuss symptoms, challenges, and goals of care. The clinician identifies a plan of care and the timing of a follow-up reevaluation is determined. The clinician-patient dyad is often intimate with a bond of trust and implicit fidelity. When discussing the idea of telehealth and telemedicine, it is crucial to uphold these values, even though the conversation is virtual. Patients feel a separation from their clinicians during appointments with results from the National Poll of Healthy Aging in the AARP Bulletin (2019) reporting that 68% of respondents had concerns about “not feeling connected” to their health care clinician. This sentiment has the potenial to be exacerbated with the modality of telehealth causing an increase in the “depersonalization of medicine,” an issue frequently addressed by researchers (Borgetti et al., 2017).

Moreover, clinicians must deem the appropriateness of utilizing telehealth in diverse settings while balancing the limtations of this modality. The clinician should encourage an open dialogue with patients regarding issues of depersonalization and changes to the traditional doctor-patient relationship” (Borgetti et al., 2017, p.5) with regard to the changes that telehealth introduces. An open dialogue and honest discourse ensures that the patient stays at the center of any healthcare interaction to uphold trust and patient satisfaction and this may be even more essential in the telehealth paradigm. Many researchers have found that telehealth connects patients and clinicians more effectively. When used correctly, telehealth has the chance to “enable physicians to use that most valuable of commodities, time spent in person with patients, to greater effect” (Chaet et al. 2017, p.1139). This article emphasizes the ability of clinicians to have access to charts and results, which in turn allows for more quality time spent during any face-to-face, interaction.

It is important to note that telehealth should not be used to replace personal interactions, but rather to enhance it. Some clinicians may suggest the use of at-home monitors for conditions such as diabetes mellitus, COPD, hypertension, and more. A patient could take their blood pressure daily, for example, and have the results sent in real time for their clinician to address as needed. By having the ability to see health information on a daily basis, the clinician can have a “more complete temporal picture of a patient’s overall condition,” which can in turn “assist in medical management” of the patient (Borgetti et al., 2017, p.3). This article provides general guidelines on suggestions for when and when not to utilize telehealth. An appropriate opportunity to include telehealth into practice would be for a discussion about “symptoms of an upper respiratory tract infection,” but should perhaps be avoided when discussing issues such as “serious diagnoses or end-of-life issues” (Borgetti et al., 2017). If a clinician is able to assess a situation and understand when telehealth may enhance care as opposed to deter it, it can be a great tool to uphold and improve the clinician-patient relationship.

Security and Privacy

securityThe security and privacy of the patient-clinician relationship, its intimacy and confidentiality, are in question in the telehealth delivery system. The traditional patient-clinician dyad becomes a sort-of triad with a third party as transmitter and/or receiver of health information. This third party may or may not be a trained health clinician and as such may or may not be sensitive to the health privacy concerns. If this information is encrypted, who has access to it, and what protocols are in place for its management and storage (Hall & McGraw, 2014).

Patients can be harmed in many ways if privacy is compromised, as health information is not public: it is protected information by law. As described in the article entitled, Mobile Health Technology and Home Hospice, the protection of health information in the telehealth process is critical. Though telehealth increases access to healthcare with processes such as “virtual visits,” security of this health data is a major area of concern. Telehealth technologies require careful planning to ensure the safeguards that are used to handle data are compliant with the Health Insurance Portability and Accountability Act (HIPAA) (Phongtankuel, Adelman, & Reid, 2018).

In the article, For Telehealth to Succeed, Privacy and Security Risks Must Be Identified and Addressed, the specific challenges to privacy and security are delineated and whether current laws are adequate to cover/address this new technology explored. The particular devices that are used for telehealth include mobile apps, body scanning devices, video transmitters, and machines that monitor health values through blood sample (Hall & McGraw, 2014). The concern becomes that the remote data transmission does not necessarily fall under the protection of HIPAA rules, which calls into question the maintenance of security of the information. The applications themselves have the potential to have security risks, as well, within their own software and implementation. In 2009, via the Health Information Technology for Economic and Clinical Health (HITECH) Act, Congress extended HIPAA to include business entities “that ‘create, receive, maintain, or transmit’ identifiable health information to perform a function or services on behalf of covered entity” (p.18). In addition, Hall and McGraw (2014) call for policy on the federal level to be implemented to better ensure the privacy and security of health information that is collected by telehealth means (Hall & McGraw, 2014).

Lastly, in Mehta’s article entitled, Telemedicine Potential Ethical Pitfalls, he states that patients want to know who has access to their electronic health information. In telehealth, a patient who is transmitting data in order for the clinician to evaluate, either in video, by email or phone app does not always know who “sees” this information along its journey to the clinician. Mehta (2014) states, “in order to gain patient confidence, it is essential that a robust privacy and security plan accompany any new telemedicine program” (p.1015). Patients must trust that this new mode of care to uphold the privacy and security of their health information.

Responsibility and Liability

risk

Apprehension regarding the ethical and legal considerations of healthcare delivery services provided under the umbrella of telehealth are emerging as fast as the technology is developing. Due to the variability in levels of clinician-patient engagement in the range of services offered; such as mHealth and remote monitoring and the different applications in the use of synchronous versus asynchronous care, it is important to note how these different modes of care influence these discussions, as each has its own implications in terms of clinician accountability. A useful framework for this discussion is provided by Chaet et. al (2017), who described different points along the continuum of electronic interactions between physicians and patients or prospective patients who set expectations for differing levels of clinician accountability. In short, the more direct the clinician-patient interaction, the more accountable the clinician is for the outcomes of that interaction. For example, on one end of the continuum, a clinician may be indirectly providing very general health information on a website to a healthcare information seeker whereas, on the other end of the continuum, provide direct care in real time to a patient through synchronous service. However, these more remote models and less personalized modes of service delivery do not absolve clinicians from responsibility. Regardless of the service, it is important to note that despite any disclosures shared on these more generalized modes of care, clinicians may ultimately still be held liable for the care rendered and patient outcomes (Chaet et al, 2017).

Concerns arise when, without more stringent oversight and consistent regulation, particulalry  in some modes of telehealth delivery, it may be difficult to verify the credentials of those providing services regardless of the legitimacy of the distant site (Gosia et al., 2016). As was summarized in one article, but significant to note, telehealth has the potential to “mask quality of the remote clinician” (Dorsey &Topal, 2016, p156). Not only are the legal aspects of such practice brought into question, but concern for the ethical implications, as engaging in such practices are in direct contrast to principles of competence, integrity, fidelity and veracity, among others. Worth mentioning, although considered outside the scope of this review, are federal and state regulations related to practice that are just developing. One such concept central to these discussions is that of “borderless care,” which at its best, contributes to telehealth’s ability to increase accessibility, but also brings up concerns regarding liability (Borgetti, et. al, 2017). Currently, differences in state licensure, practice laws, and credentialing all provide barriers to telehealth utilization and less than ideal operationalization of services from an ethical standpoint and argument has been made to identify a single, Federal body to provide this oversight (Hall & McGraw, 2014).

While evidence about the benefits of telehealth is considerable, it is important to keep in mind that these modes of health care delivery are not necessarily appropriate for everybody; which is important to highlight in discussions regarding the ethical and legal aspects of telehealth. While the concept of consent is largely considered in discussions about privacy and security, in the realm of telehealth, a new way of thinking comes to light (Chaet et al., 2017). As was noted by Gilmartin et al. (2018), “any introduction of medical devices into healthcare must be matched with increased patient education as to their benefits and risks” (p. 5). Traditionally, obtaining consent involves being informed of rights and protections and accepting risks associated with treatment. In the context of telehealth, the additional burden upon the clinician of services is not only to obtain consent in the traditional meaning, but to also ensure that the patient is technologically competent to participate in this level of service (Chaet et al., 2017). Transparency and the ability and willingness of the patient to understand and participate in the modes of service being rendered are important considerations in discussions regarding clinician responsibility and liability, as “lawsuits are often the result of unmet expectations” (McLean, 2003, p.687).

Continuum of Telehealth Services