🗒 Potential exposure to complaints

Are you inadvertently at risk from treating patients located overseas?

All members should understand their potential exposure to complaints, claims and regulatory action and their indemnity cover when either deliberately or inadvertently treating patients outside of Australia.

Under Australian law, the location of the patient determines where the healthcare has been provided. It is not where the practitioner is located. For Australian doctors providing healthcare through video conferencing software, telephone calls, email or SMS correspondence, this may create a legal liability in the jurisdiction where the patient is located.

MIPS considers the risk to Australian doctors providing inadvertent or urgent telehealth/telemedicine to Australian residents temporarily outside of Australia to be low but increasing. The increased use of technology to communicate with patients remotely rather than face to face is increasing the likelihood of a complaint, claim or regulatory intervention arising from such advice.

Currently, as a result of restrictions in respect of regulation, reinsurance, Government’s High Cost Claims Scheme and Exceptional Claims Scheme, MIPS insurance can only assist in agreed and defined circumstances when members treat patients located overseas, eg gratuitous practice in a developing country where members must always make an Application for healthcare services outside of Australia prior to the practice.

MIPS understands that potential indemnity exposure through the inadvertent or urgent provision of healthcare to regular patients whilst overseas, is a real and increasing issue for members. MIPS would support legislative and other changes to protect healthcare practitioners in this area.

Important information for practitioners to understand regarding ‘telehealth’

  • Are you aware that any communication via a technological device constitutes telehealth?
  • Are you aware that under Australian law, the location of the patient is where the healthcare is provided, not where the practitioner is located?
  • Do you know that if you are providing health advice to patients overseas that you may be required to be locally registered or licenced for that foreign practice?
  • Are you aware that MIPS can assist in certain circumstances where you treat a patient located overseas but usually limited to when you have sought prior approval from MIPS?

Is providing test results to patients outside of Australia covered by my indemnity?

Arguably, yes, the provision of test results to patients which directly relates to a personal consultation in Australia would form part of the healthcare provided in Australia, regardless of where the patient was at the time the test results were received.

However, given the uncertainties the questions above may raise, MIPS believes any advice accompanying the provision of results may create difficulties. Whether this advice constituted the provision of healthcare outside of Australia is likely to only be determined on a case by case basis and may fall upon what further treatment or advice was provided. Note, if a course of action was advised to a patient while they were in Australia in anticipation of results received out of Australia, this is different to advice provided after the results have been provided to a patient now outside of Australia.

Minimise your risk

The potential to provide healthcare to a patient located overseas has increased. The physical location of the patient may or may not be known to you. Members should carefully consider their position before engaging in healthcare outside Australia.

In particular, MIPS recommends members take steps to minimise personal risk of any unregistered, unlicensed or uninsured foreign practice.

You can minimise your risk by taking the following steps:

  1. For each telehealth or telemedicine consultation ensure you know the location of your patient.
  2. Whenever you provide healthcare treatment via a technological device, you should request an acknowledgement from the patient confirming receipt.
  3. If you plan to intentionally provide foreign practice (for example, if the patient is permanently located overseas), the consultation should only proceed if you are registered or licensed in that jurisdiction and have obtained appropriate indemnity.
  4. If your regular patient is to travel overseas permanently or for more than a short holiday period be sure to advise them that:
    1. you are unable to provide any healthcare whilst they are outside of Australia.
    2. whilst they are still in Australia outline a management plan for ongoing health issues
    3. Advise the patient to seek the advice of a local medical practitioner at their overseas location.
    4. Assist in the transfer of care to any new practitioner by providing notes and results.
  5. Should you be aware in advance that the patient will travel overseas then a contingency treatment plan should be created. The patient should be advised that in the event of an abnormal result being returned then the patient will receive a communication from you advising them to urgently seek medical treatment locally. The local medical practitioner the patient attends should be advised to contact you to facilitate transfer of care. It would be sensible in this situation to request confirmation from the patient that your initial communication to them has been received.
  6. Carefully document all consultations where it is known your patient will travel outside of Australia.
  7. If sending results and providing advice to patients consider using a preamble to the communication: “This advice is provided to you on the understanding that you are in Australia. If this is not the case, please let me know. I can provide information needed to a local healthcare provider if required”.

Members should refer to the MIPS Member Handbook Indemnity Insurance Policy 13. What we do not insure 13.1.4 and the definition of Telehealth at 14.21. If you have any queries in relation to overseas practice or telehealth issue please contact MIPS on 1800 061 113 or email info@mips.com.au

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