A recent Bombay High Court verdict dated 27 July, 2018 which charged a doctor couple of medical negligence under IPC, Section 304(A), has had a negative impact on the tele-consultation industry, with many doctors mis-interpreting the judgment deeming tele-consultation as illegal. However, the fact is that the tele-consultation industry which serves more than 10 million patients annually cannot be deemed illegal overnight.
The issue under consideration by the Court was “Prescription without diagnosis and hence resulting in death of the patient amounts to criminal negligence on the part of the doctors”. The ‘ratio decidendi’ as laid down by the Bombay High Court in this case can be comprehended to mean that prescription without diagnosis would amount to culpable negligence, which the Court affirmatively decided. The court also mentioned “The medicines were administered on telephonic instructions without even enquiring about the symptoms or nature of the pain suffered by the patient”.
However, the Court does not say medicines ought not to have been administered at all over the telephone. The Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations, 2002 (the “Code of Ethics”) laid down by the MCI, prescribes standards of professional conduct, etiquette and ethics for registered medical practitioners. There is nothing in this Code of Ethics that prohibits the online practice of medicine and there is no other law in India that prohibits online medical consultations or prescribes the manner of communication between a medical practitioner and a patient.
According to Internet and Mobile Association of India (IAMAI), in the absence of any legal provision that prohibits online medical consultations or prescribes the manner of communication between medical practitioners and patients, there is no illegality in providing medical consultations online in India subject however, to compliance with all other laws that may be applicable, including the MCI Act, The Code of Ethics and other laws that may be applicable to activities involved in the process, such as the Drugs and Cosmetics Act, 1940 that deals with the issuance of prescriptions.
In a press note, the industry body, which represents the digital industry including healthtech startups, has said that as long as the medical practitioners undertake due care and employ reasonable means for diagnosis, the different ways undertaken by the medical practitioner for such consultation is not the relevant question which the Court addressed and adjudicated in this case.
Unfortunately, post this verdict, some within the medical fraternity have unfairly condemned tele-consultations, declaring them illegal and unethical. Incorrect interpretation of the case is doing rounds on social media, which has created a sense of panic among doctors who have previously helped thousands of patients from their hand-held device. With doctors now being wary of connecting with patients online, it is unfortunate that millions of patients are losing out on basic healthcare services due to such knee jerk reactions. Prashant Tandon, Co-Chairman of IAMAI Health Tech Committee and Founder and CEO, 1MG said: “At IAMAI, we believe it is a national imperative that we find innovative solutions to improve access to healthcare and develop a healthcare model that serves the society well. In this journey, we believe technology solutions can bring significant value to both patients and the doctors. We are keen to collaborate and engage with Indian Medical Association to co-create the right model, with adequate checks and balances that enables this mission.”