Telemedicine and the standard of care: a call for a new approach?

Telemedicine, understood as the provision of health care by a health professional to a patient who is physically not in the same location as the health professional, has many actual and potential benefits. It also has some disadvantages though, including a higher risk of misdiagnosis or another unfavorable outcome of certain remotely-provided services. In principle, the regime of legal liability for medical malpractice is the same for telemedicine as for traditional physical care. The general outline of the standard of care, which includes respect for medical science, the patient's individuality and objective possibilities, is abstract and flexible enough to be used for remote care without the need for redefinition. The quality of health care should be evaluated on the basis of the whole scale of risks and benefits it brings to a particular patient, including accessibility and comfort. In general, it should be permissible to provide a medical service remotely on the condition that its overall quality is at least as good as its comparable physical alternative. In other words, certain decrease in quality of some aspects of remote care can be compensated by other advantages. In terms of public health, support for telemedicine may bring a great improvement in the access to health care, and thus help significantly the individual members of the population. From the individual perspective, respect for personal autonomy implies that a patient should have every right to opt for a remote service, provided that there exists a true choice between meaningful options which is made on the basis of full information. If telemedicine is to fulfill its potential without sacrificing the protection of patients and their rights, reasonable guidelines for remote services need to be defined for particular medical fields, and for specific procedures within them. Among other issues, these guidelines must address the question of when it is necessary to refer the patient to physical care.

The phenomenon of harmonisation in European medical law.

As the field of medical law is regarded, since the 1950s two most significant entities recognized by international law have been present in the sphere of Europe: The Council of Europe which members signed to protect fundamental rights and freedoms and the European Union established upon the original European Communities which influence protection of fundamental rights steadily tends to grow especially in the last decades and results in a legally binding Charter of Fundamental Rights of the European Union. Despite the impressive amount of reservations and exceptions to the conventions, the European Convention for Protection of Human Rights and Fundamental Freedoms and particularly the Convention on Human Rights and Biomedicine are presented as great instruments for influencing national laws. The role of European institutions in coordinating, harmonising or even unifying national laws as far the issue of public health is concerned is much more difficult - on one hand there are the legal binding measures permitted under specific provisions of EU Treaties to define the minimum standard, on the other hand the subsidiary of the Union's action in the area of public health and the doctrine of complementary competence happen to be rather dominant.