There has been a proliferation of businesses in the past decade both globally and in Australia which provide medical and dental advice over the internet. The appeal to patients is obvious: convenience, low expenses and instantaneousness. But if you are the medical practitioner employed or contracted by these businesses and something goes wrong with the treatment provided, will you be afforded the same protection under the law in defending a negligence claim as you would if you had reviewed the patient in a traditional manner (i.e. in person)?
The current common law authority supports the notion that the requisite standard of care provisions requires proof of established practices in ways that exclude protection for health practitioners participating in innovative health practitioners.
In New South Whales, section 5O of the Civil Liability Act 2002 (NSW) may not be available as a defence for practitioners who provide treatment in innovative ways.
Practically, health care professionals should take care in ensuring their clinical records accord with relevant codes of conduct and risks are discussed including the limitation of conducting treatment over the internet should be discussed.
One cannot turn on Instagram nowadays without being bombarded with advertisements for the newest online business that can cure your acne and help you obtain straight Hollywood teeth without even stepping into a doctor’s office. These business models usually involve a patient self-inputting their concerns, medical history and uploading photographs onto a website which would later be reviewed by a qualified health care professional. There may be other AI tools that are utilised by the businesses to filter through patients and images. A major disrupter in this space is the use of AI in analysing radiological imaging (e.g. x-rays and CBCTs) and providing a diagnosis. The health care professional then provides advice through the website or app. On one hand, the use of technology and innovation results in more efficient, accurate and cost-efficient treatment for patients.
On the other hand, the use of these technologies is new to the medical sphere and have not yet been fully adopted across the profession. Treatment provided in this format does not escape claims in negligence brought by patients and ultimately, the test of whether treatment was appropriate is measured against traditional practices.
In Australia, standards of care are regulated by the civil liability legislations which introduced a modified Bolam test. This means that the Court adjudicates between competing bodies of expert opinion which each sets out the requisite standard of care; the availability of supportive opinion is not the only consideration. In NSW the relevant provision is section 5O of the Civil Liability Act 2002 (NSW) (CLA) and it stipulates that a health practitioner does not incur liability if it can be established that he/she acted in a manner that was widely accepted in Australia by peer professional opinion as “competent professional practice” subject to rationality.
In NSW, “competent professional practice” has been interpreted narrowly by the Courts. In McKenna v Hunter and New England Local Health District  NSWCA 476 and affirmed by the majority in Sparks v Hobson (2018) 361 ALR 115, it was held that in order to demonstrate a practice at the time the services were provided, the practitioner would be required to demonstrate that his/her conduct conformed with a practice that was in existence at the time the services were provided and to establish that practice was widely accepted by peer professional opinion as competent professional practice.
Therefore, on the construction reached by the Court in McKenna, novel situations such as providing advice over apps may not be considered by the Court to be ‘widely accepted’. With technology and advancements in AI, comes new ways to ensure that patients are inputting the right information and photographs. However, this does not necessarily mean that expert witnesses will provide a favourable opinion to support a complete defence in negligence as there may be insufficient evidence (i.e. clinical studies or academic literature) to show that the use of such health care technology is an established practice to treat patients. Further, recent attempts by the Medical Board of Australia to set up standards for how to innovate responsibly with the medical discipline have failed which reflects a more conservative stance being adopted overall.
In practice, health care professionals should take a cautionary approach when taking part in these business models and have regard to the fact that their care will be compared with established methods of practice. A pragmatic approach may be to ensure that the clinical notes taken during these consultations are of a high standard such that an expert witness reading them can follow the clinical judgment to an extent that it would meet an existing practice. Ultimately, a level of clinical judgment should be utilised in determining whether the use of such technologies provides safe treatment to patients.
Innovation has connotations with terms such as inventiveness, differentiation and a departure from common practice. Although these businesses provide much needed treatment to a demographic of patients who might not have been able to afford the care, medical practitioners need to adopt a cautionary approach when engaging in these innovative practices including ensuring that their medical records accord with good medical practice and the limitations of virtual treatment are discussed with the patient.
Article written by Hicksons’ Partner, Emma Ellis, and Associate, Jessica Zhang.