Legal issues on medical internet counsel

 

Hans-Rudiger KERN

 

 

I. Introduction

New technologies, as - for example - internet is, entice to prove and to apply them in numerous professions. Thus one can discover complete new fields of activity with the effect, that traditional job descriptions have to be queried and occasionally have to be revised[1]. Whether this effect is wanted or not is a very own question of the profession itself. Its decision has to recognize on the one hand the demands of the profession and on the other hand the general legal rules.

Telematics can be integrated into medical treatment by various ways[2]. Today our focus shall be on psychotherapeutic treatment or counselling via internet only. Psychotherapy seems to be very destined for the net because of two reasons. First, because it does generally use words, second, because the net helps to lower the inhibition to ask for psychotherapeutic treatment.

This destination does contrarily not mean, that there were no legal problems. In fact, they are as numerous as in other medical special subjects. First of all questions do occur, which deal with the law of the profession, because the law of the medical profession prohibits such practice. Questions of medical standard and of further professional standard are closely connected to this: all treatments, which are permitted in Germany, base on personal contact. One must add questions on payment, especially because payment is widely organized with the help of insurers, who must acknowledge the means of treatment. Security of data and professional secrecy cause problems, too. Last but not least we have to discuss liability and the limitation or exclusion of liability.

 

II. Practical application

Before one can answer the legal questions, one has to point out, how internet-counselling works practically. In Germany, there are 500 - 1500 questions to hospitals, physicians, health organizations, insurances, producers of pharmaceutics and professional health services (as for example cyberdoc or Netdoktor[3]) by day!

Nevertheless, juristic literature did not notice that by now[4]: what happens daily, withdraws from critical legal examination[5]. Only one single court had to deal with an offer of advice at the homepage of a physician - but only under the aspect of prohibition of advertisement[6].

As a basis for the following one should notice a short, but significant query:

”Inquiry: I suffer from a speech disorder. I would not call it stuttering, but some kind of fear to speak... Speech therapists did only achieve quite the reverse. My question: Are there any medicine against this suffering? Does Fluctin even work against this speech disorder?”

”Answer: Concerning your description your speech disorder could be a certain extraordinary expression of a social phobia. This is proved by the amplification when you contact persons, who are not familiar to you. Due to this, it is useful to choose a way that treats social fears and unsureness instead of speech therapy. First of all you should take into account a psychotherapeutic treatment (self-confidence). Medicine can be assistantly applied to ease your anxieties and your exertions temporarily. As far as I know, scientific studies do not refer specific effecient medicine for social phobia. Fluctin can be taken into account, because it is said to have positive influence on anxieties in addition to its antidepressive effect. But there are other remedies, too - you should talk about them with a medical specialist for psychiatrics and psychotherapy. It is definitely not recommended to use medicine containing benzodiazepine (e. g. Valium etc.). Such substances would probably ease your suffering but bear the risk of addiction.”[7]

Of special importance is the question of how to pay. Sickness insurance funds have not been paying such practice by now. Thus the offerer deducts by time or by fix costs.[8] Different kinds of financing such advice are sponsoring or advertisement.

 

III. Telediagnostics and -advice

1. Physicians

Physicians must not advice or diagnose via screen due to the law of profession[9]. § 7 III of the Musterberufsordnung for physicians (Model Regulations of profession, MBO) states doubtlessly: ”The physician must not perform individual medical treatment, especially advice, either exclusively by letter, or by papers or journals, or exclusively by media of communication or computerized communication networks.”

This prohibition bases on the fact, that such distant treatment does not meet the necessary standard[10]: ”Distant treatment has been presented, once the patient or at his place a third person transmits data about the suffering, especially symptoma or findings to the treating physician, who then diagnoses and/or suggests any kind of treatment without having seen the patient and without having have had the opportunity of examination.”[11]

Concerning this, there is no difference to any psychotherapeutic treatment, which is permitted in Germany. Not only behaviour therapy does need direct contact and direct interaction. It is of essential importance for correct diagnosis to know not only what has been said but also how it has been said, to see the miming and the complete behaviour throughout the conversation, to know whether the patients hands do sweat or do not sweat, to observe, how the patient feels. All these facts can not be collected via internet – so the internet query can not and shall not replace personal interaction. ”The media internet is inappropriate for a psychotherapy, because the therapeutic essence – the human relationship – is absent.”[12] Therapy and diagnosis must therefore not be performed via internet.

Occasionally it might be difficult to deliminate: certain information is allowed to be transmitted via internet (D. Nr. 6 MBO). So the question is how to deliminate information from treatment and especially how to assign advice.

§ 7 III MBO offers a clear answer to the latter question. Advice is explicitly mentioned to be part of the treatment. Courts do follow this assignment of advice in perpetual jurisdiction: a mistake in advice is a mistake in treatment.[13]

According to this definition, the mentioned case has definitely to be regarded as treatment. The ”Netdoktor” offered advice, a first or tentational diagnosis and a selective therapeutic instruction. Since the answerer was a physician, this particular example proves prohibited internet treatment.

What remains is the question of how to deliminate permitted information in the meaning of § 28 MBO[14] from prohibited treatment. This delimination can finally succeed only with the term ”individual medical advice”. Individual medical advice presupposes, that it is related to a certain patient, which means, that it takes his mentioned symptoma for occasion to give him in his certain situation appropriate counsel. Permitted information on the other hand is general debate on a medical problem without reference to a certain patient and his clinical picture. Concerning to this, internet counsel by physicians is widely to be regarded as prohibited advice.

2. Psychologists

Possibly psychologists are free of these restrictions. For them, there are no equivalent rules. But no matter of this, one can destillate some indication from the ”Ethische Richtlinien der Deutschen Gesellschaft für Psychologie e. V. (DGPs) und des Berufsverbandes Deutscher Psychologinnen und Psychologen e. V. (BDP) – Ethic principles of the German Society of Psychology and of the Professional Association of German Psychologists”[15]. Fundamentally ”clients/patients do have the claim to be advised or treated by a psychologist in absence of any third person” (D. I. 4. claim of individual advice/treatment). From this rule and from the strictly pronounced necessity of a confidential relationship between psychologist and client (D. I. 1. confidential relationship) one can deduce that personal treatment is necessary. This necessity is still inforced by the PsychThG (Act on psychological psychotherapeuts). § 1 III 2 of this act demands, that on occasion of a psychotherapeutic treatment troubles shall also be clarified somatically. This clarification can again not be carried out via internet but demands personal contact. These facts taken as a whole could be interpreted in the very same way as the above quoted rule for physicians.

On the other hand internet advice is mentioned expressively (B. V. 7. public appearance): ”Once psychologists carry out advice or comment in public... via www or other media they are to obey the following rules...” According to that, the ”Ethic principles” are significant less restrictive than the ”MBO”. They do fundamentally permit advice and comment of psychologists. An internet information of the BDP[16] makes this more obvious. It states in its headline: ”No salvation of one’s soul via mouseclick - internet: advice yes – psychotherapy no”. The text continues: ”First of all it is important to notice the difference between psychological advice and psychotherapy. Qualified psychological advice in limited fields of problems might be a respectable internet service. Internet advice is but not psychotherapy and can not replace it, too.” Handling this text is difficult, because it does not explain, what the BDP means with the term ”psychological advice”. One may assume, that this psychological advice means individual advice at a level, which is higher than the level of every-day psychological counsel in glamour journals.

Conclusion: physicians must avoid internet advice, psychologists - within certain limits - must not. It is uncertain, whether this is good policy. The psychologists will have to resolve this discrepancy.

3. Special European legal features

European law does not influence the restrictive rules of the German professional law. The ”Richtlinie über den elektronischen Geschäftsverkehr – Principle on electronic commerce”[17] allows rules which restrict participation in commercial communications and which are necessary according to professional law.[18] Offerers from abroad have to obey the rules of professional law of that country, in which the offer is carried out (seating country, Art. 3 I). Consequently, this might produce that not only distant treatments, which are permitted in the concerning country, but also advice by non-physicians could expectantly be possible[19]. Germany could however limit the free internet commerce in order to protect public health (Art. 3 IV a) i).

4. Mutualities

It applies to all psychoscientific professions, that salvatorian clauses can not alter a non permitted treatment into a permitted information or advice. The following example thus shows a medical as well as legal valueless instruction: ”The documents contained within NetDoktor.de are presented only for informational purposes. The materials presented within NetDoktor.de are in no way ment to be substitutes for professional medical care or attention by a qualified practitioner... The materials within NetDoktor.de cannot and should not be used as a basis for a diagnosis or choosing a treatment.”[20] But, when a patient does not follow this advice – what seems very likely in the quoted example – one must consider an individual treatment anyway. Such an instruction may only be useful as a warning advice upon a certain risk.

5. Framework for permitted/prohibited internet applications

5 situations shall be examined:

a) Initiation of treatment

The internet initiation of a treatment is permitted. Limits follow the prohibition of advertisement (D. Nr. 6 MBO).

b) Commencement/performance of treatment

Both are not permitted for physicians. Psychologists may counsel.

c) Interruption of treatment

One may ask, whether something in legal assessment will change, when psychologigal or psychotherapeutical non-distant traditional treatment gets interrupted, for example during a temporaral absence of either the therapeut or the client, and one of the parties plans to continue treatment via internet as a substitution. In general, the fundamental non permittance of internet treatment has to be hold tight. The therapeut rather has either to plan the treatment by a subsitute colleague or, if this sould be impossible, by different media of communication (video conference, phone), which allow a more direct contact than the computer screen.

d) Continuation of treatment

Just the same applies to cases, in which one of the parties plans to continue a non-distant treatment via internet because of permanent absence - for example because of removal.

e) Emergency treatment

Distant internet treatment might be permitted in cases of sudden emergency - for instance in cases of abrupt attacks of anxiety - once the patient uses this media. More convenient was a videoconference or the use of phone even in these cases.

 

IV. Liability[21]

One should point out some remarks on the problem of liability yet. Since distant treatment has to be considered a fall short of standard it is always a mistake in medical treatment. Once the patient suffers from damage because of this mistake, he can sue for damages and for compensation of personal suffering.

Since distant treatment breaks secure and proved medical knowledge and experience it has to be regarded as a “gross mistake of treatment”[22]. From this it follows that the onus of proof becomes facilitated in favour of the patient - the plaintiff - in lawsuit, what may even result in the fact, that the onus shifts on to the defendant completely.

In order to exclude liability Netdoktor uses the following clause: ”NetDoktor.de is not responsible or liable, directly or indirectly, for ANY form of damages whatsoever, resulting from the use (or misuse) of information contained in or implied by these documents.”[23] It is more than doubtful, whether this stipulation is valid or not. In the health system such limitations and exclusions of liability are not permitted to a large extent[24]. Moreover it could not work in favour of the individual psychotherapeuts.

Furthermore difficulties may arise on behalf of the physicians/psychologists insurance coverage. It is in question, whether the professional liability insurance covers such practice.[25]

 

V. Acknowledgement by sickness insurance funds

Cases of non permitted distant treatment can not be considered to be performances within the meanings of the legal sickness insurance. Thus the funds are not obliged to refund these costs. As far as the GOÄ (Act on physician’s refunding) mentions charges for performances of advice, it presupposes performances of ”speaking medicine”, which again depends on the immediate contact. A performance of advice by phone can be charged under certain circumstances, but even this rule can not be transmitted to telemedicine. A time dependent charge is – according to the GOÄ – by now not possible.[26]

 

VI. Protection of secrets and data

Dangers threatening medical secrets and privacy in the www are manysided.[27] Of special interest is the protection against the possibility to connect a certain name of a user with a certain description of a clinical picture in an internet query. Only both facts together sum up to a protected secret within the meanings of § 203 StGB (Criminal Code), § 9 MBO and B. III. 1. of the Ethic principles.

These rules force the physician and the psychologist to keep the patients secrets. The medical secrecy obliges the medical and psychological assistants of the physician and the psychologist in the largest possible sense, too. They all must not reveal the secret.

In fact it is difficult to answer how these obligations can be obeyed in the net. No doubt: all technical possibilities of encryption, anonymization and firewalling need to be exhausted. None can demand more from psychotherapeuts. It is obvious, that this protection can not be perfect.

 

VII. Conclusion

According to the actual legal situation physicians must not perform advice to certain concerned patients via internet. The professional obligations of psychologists add up to a similar situation. Only general information is permitted. Such information can be delivered to a certain customer, client or patient, too.

The worldwide possibilities of application and the special European legal features might consequently provoke the fear, that legal harmonization at least in Europe will result in rules of the lowest common level.[28] This would mean, that Germany had to take one’s leave of the prohibition of distant treatment. This is – for sure – not in the best interest of patients and health offerers, who then would no longer deserve the title ”doctor” or ”physician”.