Conducting online consultations - medico-legal advice

From next year all practices in England will be expected to provide online consultations. The MDU's Dr Sharmala Pranklin offers practical advice on consulting with patients remotely.

Under the five-year GP contract in England, from April 2020 all practices will be expected to provide online consultations and from April 2021 they will have to provide video consultations.

Over the next three years, NHS England says that up to £15m per year will be provided to support the delivery of online tools for patients in general practice, including online consultations where people can contact their GP to ask questions, report symptoms or have a video consultation. 

As well as practices providing online consultations, some GPs may also be interested in working additional sessions for an online provider, which could involve treating NHS and/or private patients.

Medico-legal risks

However, concerns persist about the medico-legal risks and limitations of interacting with patients online, rather than during a traditional face-to-face consultation. 

In its most recent report on the state of care in online primary care services, published in May this year,  the CQC noted that ‘the quality of online primary care services…has improved over the last 12 months but further action from providers and the wider system is needed to ensure they are as safe as general practice in physical premises'.

Meanwhile, the GMC has created an ‘ethical hub’ of relevant guidance on remote consultations. The resource includes a flowchart to help GPs determine whether a remote consultation is appropriate in a given situation.

Essentially, the GMC’s basic good practice principles apply as much to remote consultations as to any other consultation. Doctors must:

  • obtain adequate patient consent
  • ensure patient confidentiality
  • keep contemporaneous notes
  • make an appropriate assessment of the patient’s symptoms
  • communicate with other doctors to ensure continuity of care, especially when seeing people who may be registered with another GP
  • have appropriate indemnity.

Consent and confidentiality

Before carrying out a remote consultation, it is important to obtain consent from the patient. You should inform them of the limitations of clinical assessment by remote consultation and also of any potential security risks associated with the consultation taking place via the internet. It is important also to make an assessment of the patient’s capacity to make decisions about any treatment proposed.

Be aware that certain aspects of communication such as non-verbal cues will be lost which could lead to misunderstandings by the patient or healthcare professional.

You must ensure you carry out the consultation in an environment where you can maintain patient confidentiality. You may also wish to explain to the patient the importance of ensuring that they are somewhere private where details of the consultation cannot be overheard or seen by someone else.

Documenting consultations

Just as with face-to-face consultations, careful contemporaneous notes should be made of the discussion with the patient, any assessment and management plan.

If you plan to record the consultation, the GMC advises that you must inform the patient in advance and obtain consent. The patient should be told the reasons why you are recording the consultation, how it will be stored and for how long. Record details of patient consent in the records and remember that the recording will form part of the patient’s medical record, and should be treated in the same way as other medical records.

Ensure that there are appropriate security arrangements in place when personal information is stored, sent or received electronically. NHS Digital has a Codes of Practice for handling information in health and care.

Meanwhile, GMC guidance on Confidentiality says that if you are responsible for managing patient records or other patient information, you must make sure the records you are responsible for are made, stored, transferred, protected and disposed of in line with data protection law and other relevant laws.

You should also be satisfied that any members of staff you manage are trained and understand their information governance responsibilities.

Consulting patients without access to their record

If you are working for a digital provider you may receive a request for a remote consultation from a patient who has not previously used the service. If you do not have access to the patient’s medical records, and have not previously seen the patient face-to-face, a careful assessment is paramount. You must also give the patient your name and GMC number if you are prescribing.

Remote consultations with patients are as likely to result in complaints and claims as any other consultation.

The importance of careful clinical assessment, communication, safety netting and documentation cannot be underestimated. You may need to justify a decision to consult with a patient remotely in the patient’s best interests, safety and welfare, rather than convenience alone.

Back-up plan

Live telemedicine is very dependent on the quality of the system being used. For example, a poor, low quality connection for a video consultation could place severe limitations on your ability to observe the patient and interpret signs properly. It is therefore important that the quality of the audio-visual content of any consultation is of high quality in order to ensure that consultations are safe.

Even with the best will in the world, technology does go wrong and doctors must ensure that they have plans in place for a patient’s treatment if the system fails. The GMC advises that doctors must, where necessary, examine the patient so there should be a system in place to arrange a face-to-face consultation where appropriate.

Non-GP staff

Before other members of the practice team carry out remote consultations, they must have appropriate skills and experience to provide safe care. It is a good idea to consider specific training for appropriate staff and you should also arrange supervision. As with all patient care, there should be a system in place for staff to refer patients to a GP if they are unsure about a diagnosis or treatment.

Indemnity

Some digital health providers may provide indemnity insurance cover for the work that is carried out for them, but check with the organisation concerned and understand the indemnity terms.

The Clinical Negligence Scheme for General Practice provides indemnity for clinical negligence claims arising from primary care work under an NHS England or Wales contract. That includes NHS 111 services provided by the practice under GMS, PMS or APMS contract or sub-contract. Further details are set out in the Scheme Scope Document here.

GPs who are providing remote consultations to patients outside of an NHS contract should contact their defence organisation.

  • Dr Sharmala Pranklin is MDU deputy head of underwriting

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