Near or far? Ensure virtual consult maintains standard of patient care

COVID-19 has been a disrupter forcing adaption and compromise. The media-focused areas, where ability for family and social support have been compromised, are the beginning and end stages of life, but as readers will know, this is the tip of the iceberg. The move to distance/virtual consultations is one of the necessary adaptions, so it is timely to examine this in terms of the medicolegal risks and issues to consider and address.

You should consider the patient’s safety, security and privacy when they engage with you in a telehealth consultation

It is your obligation to provide a reasonable standard of care and to take steps to enable that to happen. Where the care you can provide is suboptimal, you have a duty to inform the patient and advocate for optimal care.¹

Tempered against this, the law recognises that compromises to optimal care can and do occur through no fault of the healthcare providers. The Code of Health and Disability Services Consumer’s Rights specifically provides that healthcare providers are not in breach of the code if they can prove they took reasonable actions to provide reasonable care (hdc.org.nz).

The Medical Council of New Zealand has guidelines on telehealth, which recognise that non-face-to-face consultations are a compromise.

The guidelines place responsibility on you to ensure the device you use is secure and fit for purpose:²

“Any device, software or service you use when you provide telehealth services must be secure, fit for purpose, and must preserve the quality of the information or image being transmitted. You should consider the patient’s safety, security and privacy when they engage with you in a telehealth consultation. You should also check that the patient knows how to operate the device they are using for the telehealth consultation.”²

There is also this clear statement: “It is never appropriate to prescribe a class A or class B controlled drug, for the first time, to a patient who has not been appropriately assessed or where the patient does not have a regular doctor.”²

In October last year, the New Zealand Medical Journal published the results of a single-practice patient satisfaction survey about phone consultations. The findings revealed high satisfaction with the service.³

Patients reported that phone consultations took less (64 per cent) or a similar amount (26 per cent) of time and were more convenient (56 per cent) than face-to-face consultations. A similar proportion of patients found it easier to disclose sensitive information at face-to-face consultations (31 per cent) as at phone consultations (29 per cent). Men were less satisfied than women.³

Of interest, and predictably, having a pre-existing relationship improved the experience for patients. Some people reported issues with accents or felt the GP missed visual cues, such as the level of patient anxiety. Patients understood the COVID-19 imperative for this adaption.³

What this and other studies have highlighted is the importance of choosing the right consultations and patients when consulting at a distance. Obviously, consultations where examination is required or the means of communication is not reliable should not be held virtually.

A UK study in an orthopaedic clinic found patients with a degree preferred face-to-face consultations, and, generally, patients preferred face-to-face consultations for longer appointments. Disabled patients preferred the convenience of virtual consultations.⁴

Consistent with the New Zealand Medical Journal survey, patients preferred face-to-face consultations where there was no existing relationship. The authors recognised that virtual consultations could impede empathy and non-verbal communication.⁴

Studies do show that patients with chronic conditions and requiring regular follow-up prefer virtual consultations, many of whom are trying to minimise risk of exposure to COVID-19. A survey of patients with diabetes is an example.⁵

The authors reported: “Some people with diabetes would still prefer a face-to-face consultation. However, in light of the COVID-19 pandemic, people with diabetes have readily transitioned to virtual methods…There are also concerns that people with diabetes may find it difficult to build rapport with their healthcare professional in a virtual clinic, but in our experience, the opposite is true.⁵

“People with diabetes have been far more relaxed in the virtual clinic and able to speak more openly with their diabetes team, which is essential to improve their diabetes management. But this is dependent on high-quality video image and sound, highlighting the essential role of technology to optimise communication between people with diabetes and their HCP.”⁵

Balanced against this, some doctors have reported to me that given a choice between a masked in-person consultation and a virtual consultation where the face can be seen, patients prefer a consultation where the full benefit of communication is available.

There is also the benefit of input from family at home, who provide useful information.

In light of these studies and feedback I have received, I suggest the following factors are worth considering in the context of virtual consultations:

• Explain why the consultation is not in person, and have a low threshold for suggesting an in-person consultation, being realistic about wait times.
• Where you believe that the virtual medium is suboptimal, volunteer the limitations and advise of alternatives.
• Don’t be afraid to say that you need to stop the virtual consultation and continue in person. You are ultimately responsible for the standard of care you provide.
• If you feel pressured to compromise care, ensure your concerns are documented, so they are available in your defence if there is a complaint.
• In these COVID-19 times, take time in face-to-face consultations to talk about the patient’s comfort with future virtual consultations, and record this in the notes.
• If patients have been tense or critical in the past, don’t compromise your professional safety by seeing them other than in person.
• Ask who else is present in the room with the patient. Consider whether you can be sure that the consultation meets the patient’s needs of privacy.
• When relying on a photograph, such as of a skin lesion, import this into the notes.
• When giving advice by text or email, carefully check the contents before sending – word prediction can be hazardous.
• Look after yourself as well as your patients.

Gaeline Phipps is a barrister with Lambton Chambers in Wellington. If there is an issue you would like addressed in this column, email gphipps@professionallaw.co.nz