Teleconsultations in times of COVID-19 epidemic

By: Tertius Rebelo
Tertius Rebelo

Telemedicine is regulated by the Federal Council of Medicine & #8211; CFM since the resolution of CFM No. 1,643 / 2002.

For CFM, Telemedicine is defined as the practice of Medicine through the use of interactive methodologies of audio-visual communication and data, with the objective of assistance, education and research in Health.

In addition, the services provided through Telemedicine must have the appropriate technological infrastructure, relevant and obey the CFM technical rules custody, handling, data transmission, confidentiality, privacy and guarantee of professional secrecy.

In 2018, CFM published the Resolution 2,227 / 2018, which brought more specificities about telemedicine. However, the CFM itself revoked this resolution a few days after its publication under pressure from doctors and professional representative bodies.

One of the complaints was the lack of clarity about charging medical fees.

On March 19, 2020, the Federal Council of Medicine sent the letter 1,756 / 20 to the Minister of Health, Luiz Henrique Mandetta, who allows, as an exception and for the duration of the battle to fight the contagion of Covid-19, the possibility of using telemedicine in three modalities: teleorientation, telemonitoring and tele-consultation, without expressly mentioning the teleconsultation.

Due to the COvid-19 pandemic, the Ministry of Health published in the Official Gazette the Contact No. 467/ 20, which regulates remote medical care. The telemedicine release will be valid only during the Coronavirus & #8211; on a temporary and exceptional basis and we are in the process of approving Bill No. 696/20, which releases Telemedicine for the duration of the crisis caused by Covid-19.

According to the government, the measure aims to reduce the spread of Covid-19. The distance interaction modality can be used for pre-clinical care, assistance support, consultation, monitoring and diagnosis both in visits to the Unified Health System, supplementary health care, and in the private network.

Despite the good intention of the Ministry of Health, some points about Telemedicine were still neglected in Ordinance 467/2002. As, for example, the issue of the collection of medical fees, which, once again, has been neglected.

However, we observe in art. 3 of Ordinance 467 that the general purpose of the temporary regulation of telemedicine was to protect people during the Covid-19 epidemic.

Which leads us to the conclusion that, due to the decrease and recommendation to suspend elective care, the Ministry of Health made this decision so that the population in a state of isolation can have access to doctors in pre-clinical cases and, even diagnostic.

The service must be carried out directly between doctors and patients, using technology that guarantees the integrity, security and confidentiality of information. In effect, this non-face-to-face service should be recorded in a clinical record.

Physicians who perform Telemedicine care must follow the ethical principles of beneficence, non-maleficence, confidentiality of information and autonomy; and observe the rules and guidelines of the Ministry of Health on compulsory notification, especially those listed in the Coronavirus Clinical Management Protocol (COVID-19), available at the Ministry of Health's electronic address.

The text of the new ordinance determines that all consultations must be registered in a medical record with the necessary clinical data for the good conduct of the case, being filled out in each contact with the patient & #8211; with date, time, information and communication technology used, in addition to the number of the Regional Professional Council of the physician and his federation unit.

In addition, doctors are also allowed to issue certificates or prescriptions as long as they sign the documents electronically.

The issuing of prescriptions and medical certificates at a distance will be valid electronically. However, the Ordinance indicates the need to use an electronic signature, by means of certificates and keys issued by the Brazilian Public Key Infrastructure & #8211; ICP-Brasil (which most doctors do not have) or meet the following requirements: a) identification of the doctor; b) association or data attachment in electronic format by the doctor; and c) be admitted by the parties as valid or accepted by the person to whom the document is opposed. (The issue of “white” prescriptions that are filled in two copies has also been neglected, as one of them is retained by the pharmacist).

In any case, it is necessary to know that in a medical prescription it must contain: Patient data - full name and age; the name of the medication he should take and its pharmaceutical form; the dose to be taken daily and the recommended concentration of the drug; the doctor's guidelines for the patient; date, signature of the responsible physician, full name of the professional and his CRM record; In cases of pediatric prescriptions, doctors usually put the child's weight and height and other information about treatment, such as rest or diet.

With regard to teleconsultation, we need to inform that the informed consent of the patient is indicated, by written document (to be made available virtually to the patient before or right at the beginning of the consultation). This Free and Informed Consent Term in teleconsultation should indicate the platform where it will be carried out, as well as all the risks and benefits of the technology, the duration of the consultation and the price to be charged. Making the exceptionality of the moment clear.

It is also good to remember that the Medical Code of Ethics, in its art. 37 already made it possible, in urgent or emergency cases, that the doctor can prescribe treatment and other procedures without direct examination of the patient.

Therefore, given the scenario faced by the epidemic and the possibility of contagion between the patient and the health professional, it is currently ideal to keep the patient in social isolation, and to minimize the exposure of the health professional, enabling and encouraging these services by using interactive methodologies of audiovisual and data communication.

In fact, we can see two situations in this new type of telemedicine service. First, the care for patients who are already assisted by the doctor (patients with chronic diseases and who need continuous medical care) and teleconsultation for new patients, who need the service, either because they are in isolation or because they are within the risk group and who cannot leave their homes and attend in person.

In addition, if it is necessary to complement the service by diagnostic tests, the virtually assistant physician should proceed to face-to-face assistance and / or refer the patient to another professional who can do it or to a health unit in cases of hypothesis of patient to have Covid-19 or a more serious health condition.

In the case of patients insured by health plans and insurance, the physician must establish contact with the health plan and insurance companies that are accredited and check in each one the viability of the consultation by telemedicine and how the proof of care will be done and prior consultation release.

We can conclude that TELECONSULT should be used as an exception, in order to avoid / minimize the exposure of the patient and the doctor to COVID-19 contamination and protection of people.

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Tertius Rebelo

Lawyer specialized in Medical and Health Law