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”.
[1] Klaus
Ulsenheimer/Nicola Heinemann, Rechtliche Aspekte der Telemedizin - Grenzen der
Telemedizin, in: MedR 1999, 197-203, 197 report on fears of medical
professional organizations, which are afraid of a complete warp of images of
profession.
[2] Cf.
Bundesminister für Gesundheit (ed.), Telematik - Anwendungen im
Gesundheitswesen, 1998; Christian Dierks/Hubertus Feussner/Albrecht Wienke
(ed.), Rechtsfragen der Telemedizin, 2001; Heinrich Hanika, Telemedizin -
Handlungs- und Weiterbildungsbedarf, MedR 2001, 107-111.
[3] Cf.
e. g. http://www.netdoktor.de; http://www.medi24.ch; http://www.psychologische-beratung-online.de.
[4] Recently
Hanika, MedR 2001, 107-111, did not even name this application in his extensive
listing of ”several telemedicine-applications”. Günther Schneider, Abrechnung
telemedizinischer Leistungen, in: Dierks/Feussner/Wienke, p. 109-118, 110 f.
mentions it as ”beyond cases of ideal type”.
[5] Refusing
by few words Bernd-Rüdiger Kern, Rechtliche Konsequenzen für
medizinischen Standard, Methodenfreiheit, Sorgfaltsmaßstab und
Aufklärung, in: Dierks/Feussner/Wienke, p. 55-66, 58.
[6] OLG
Koblenz, MedR 1998, 28, with critical remarks by Michael Heinrich, MedR 1998,
32. Cf. D. Nr. 6 MBO - public accessive medical information in communication
networks. This rule does only focus the prohibition of advertisement, too.
[7] http://www.netdoktor.de/frage_antwort/index2.asp?/
[8] http://www.bdp-verband.org/html/aktuell/prinfo/prarchiv/
prarchv5.html
[9] Rudolf
Burger, Berufsrechtliche Aspekte der Telemedizin, in: Dierks/Feussner/Wienke,
p. 119-124, 122.
[10] Cf.
Hans-Dieter Lippert, in: Rudolf Ratzel/Hans Dieter Lippert, Kommentar zur
Musterberufsordnung der deutschen Ärzte (MBO), 2. Aufl. 1998, § 7,
Rdnr. 8.
[11] Lippert,
in: Ratzel/Lippert, § 7 Rdnr. 8.
[12] Reinhard
Finger, cit.
http://www.bdp-verband.org/html/aktuell/prinfo/prarchiv/prarchv5.html.
[13] Cf.
Bernd-Rüdiger Kern, Die ärztliche Aufklärungs- und
Beratungspflicht, in: Der Arzt und sein Recht, 8/1991, p. 6-11, 9/1991, p. 10-14,
8, p. 6-10, 10; Martin Rehborn, Arzt. Patient. Krankenhaus, 3. Aufl. 2000, p.
156 ff.
[14] “Publications
of medical content and contributions of the physician to informative
publications in the media are permitted, as far as the publication or
contribution of the physician is limited to material information and as far as
person and activities of the physician are not pointed out in advertising
manner. The same shall apply to public lectures of medical content.
[15] As
amended on April 1999.
[16] http://www.bdp-verband.org/html/aktuell/prinfo/prarchiv/
prarchv5.html.
[17] Richtlinie
2000/31/EU vom 8. Juni 2000, EuZW 2000, p. 526-530.
[18] Art.
8 – regularized professions – (1): Member countries guarantee, that
the use of such commercial communications, which are part of an information
society service offered by a member of a regularized profession or which
represent such a service, is permitted as far as the rules of professional law,
especially those which protect independence, dignity and honour of the
profession, secrecy of the profession and integrity of acting, are obeyed
towards customers and professional colleagues; remark: this is not the official
English version!
[19] Cf.
Hanika, 110.
[20] http://www.netdoktor.de/disclaimer.htm.
[21] Cf.
in general on liability of the psychologic psychotherapeuts Mirko Gründel,
Psychotherapeutisches Haftungsrecht, 2000.
[22] Cf.
on the “gross mistake of treatment” Adolf Laufs, in: Adolf
Laufs/Wilhelm Uhlenbruck, Handbuch des Arztrechts, 2. Aufl. 1999, § 110
Rdnrn. 1-12.
[23] http://www.netdoktor.de/disclaimer.htm.
[24] Cf.
Hans-Jürgen Rieger, Lexikon des Arztrechts, 1. Aufl. 1984, Rdnrn. 792,
1044.
[25] Cf.
Ulsenheimer/Heinemann, 203.
[26] Cf.
in general Schneider, p. 113 f.
[27] Cf.
Werner Schmidt, Datensicherheit, in: Dierks/Feussner/
Wienke, p. 101-108.
[28] Hanika,
p. 110.