Brazilians have been learning to adapt their routines since the beginning of the new coronavirus (Covid-19) pandemic. With Ministry of Health Ordinance No. 467, published at the end of March, and Law 13,989/20 of April 16, another practice was changed and fitted into this new reality: medicine. Telemedicine was authorized on an emergency basis for the duration of the pandemic, to reduce the movement of people and unnecessary exposure to the virus. Although telemedicine can only operate with some limitations, care will follow the same standards as in-person consultations.

Federal Council of Medicine (CFM) Resolution No. 1,643/2002, which defined and governed the provision of services through telemedicine, and which will again be the legislation in force after the pandemic, only allowed remote interpretation of tests and issuance of medical reports. “We can see great progress in telemedicine, even if temporary. There has been a relaxation of what we had before”, says Stephanie Monteiro, an attorney specializing in Medical Law.

This discussion is an old one in the country. In 2019, CFM Resolution No. 2,227/18 was published, approving remote consultations, but, according to the attorney, the rule caused controversy, and some medical associations came out against it, leading to its revocation. “The telemedicine recognized in 2020 fits into a scenario that already understood the need for more complete and comprehensive legislation than the 2002 resolution, which did not keep up with technological changes in medicine and communication.”

Like the regulatory and ethical standards, the legal aspects that assist physicians and patients and ensure safety are the same as in in-person care. For Mérces da Silva Nunes, also an attorney specializing in Medical Law, this new modality requires care from both parties to work. “The physician must take care to always inform the patient about the limitations of remote care. The patient, in turn, should try to describe the symptoms as accurately as possible, so that the physician can reach an accurate diagnosis”, she explains. For her, misdiagnosis is one of the greatest risks.

In addition to these topics, labor rights issues also remain unchanged. According to the substitute judge of the 13th Labor Court of Porto Alegre, Guilherme da Rocha Zambrano, the new rule is nothing new. “For a physician employed by a hospital, for example, telework had already been expressly authorized since the 2017 labor reform. So it is more of a clarification that telemedicine may be used to maximize care capacity.”

Specializing in Labor Law, attorney Luiz Fernando Plens de Quevedo acknowledges the lack of significant changes and also stresses the need for care regarding the responsibility assumed in caring for patients. “It is important for physicians, regardless of the modality, to keep records of their interactions with patients and other physicians, to safeguard their position regarding any adverse events.”

Zambrano also points out the precautions that self-employed professionals should take. “The main one is compliance with the rules of Ordinance No. 467: proper recording of the care provided in the clinical record and validation of prescriptions and certificates by electronic signature — or another type of signature accepted by the recipient.”

Although the provision of Law 13,989/20 that would have allowed telemedicine to continue after the pandemic was vetoed, the Medical Law specialists believe the practice will become popular. “If technology reaches remote places where people are deprived of access to health care, I believe it will be a way of democratizing health”, argues Mérces. “Telemedicine does not come to replace conventional medicine; that is a myth that needs to be dispelled”, stresses Stephanie.

Remote consultations are already a reality

Fácil Consulta, an online platform that facilitates access to and booking of private consultations, has already implemented telemedicine. According to the startup’s co-founder and Marketing Director, Patrick Goulart, most of the more than 30 health professionals registered on the site are already seeing patients remotely.

The co-founder says demand has been high from patients who cannot leave home and that the experience has been positive. “Positive both for patients and for physicians, who can try to keep consultations flowing even at this time.”

The practice requires attention to data security

Fácil Consulta’s concern with the security of physicians’ and patients’ information is also the concern of many people in the field. For Mérces, leaks of confidential information are the second biggest risk of telemedicine. “Physicians and patients must make sure that technology is used securely to guarantee the privacy and confidentiality of information. Patients’ medical records are strictly confidential information under the General Data Protection Law (LGPD)”, argues the attorney.

The LGPD, Law 13,709/18, which was scheduled to come into force in August 2020, will affect the health sector. The precepts and rules contained in the law regarding care in processing personal data must be observed in telemedicine.

Cândida Terra, an attorney specializing in the LGPD, explains that patient data may only be collected, processed and stored after authorization. “Telemedicine platforms will necessarily have to include means of collecting authorization, through a form in which the patient gives consent for the physician or health professional to use their information.”

For Cândida, the LGPD has certain regulatory gaps regarding telemedicine. “I believe that, although there are several CFM resolutions, a bill regulating the activity and, in parallel, the LGPD, there is still a long way to go in the legal sphere for patient data to be sufficiently protected”, she argues.

“Professionals must pay attention to the processing of patient data and images, which should only flow through their systems after patient authorization, and on an infrastructure that ensures the integrity, accuracy, confidentiality, privacy and secrecy of the information”, Cândida advises.

Forms of Telemedicine

Tele-guidance: physician and patient;

Telemonitoring: another health professional and the patient, under medical guidance;

Tele-interconsultation: between physicians.

Report originally published by Yasmim Girardi in Jornal do Comércio of Porto Alegre (in Portuguese), on 04.28.2020.