Telemedicine and Apology Ordinance – The Legal Position and How to Use Them Safely

Our Senior Associate, Chantel Pang, was recently invited by the Hong Kong Children's Hospital ChildSim Centre to give a talk on 'Telemedicine - Doctors' Duties and Obligations' and 'Legal Implications of Apologies and Disclosure'.

Hosted by Hong Kong Children's Hospital’s Consultant, Dr. Chan Hin Biu Bill, Chantel addressed over 400 doctors on the legal position of telemedicine and the Apology Ordinance (Cap. 631) in Hong Kong, and how to use them safely. 

The talk was livestreamed (through Zoom and YouTube Live) to all Hospital Authority paediatric departments and private doctors. The videos (in Cantonese) are now available.

Here were some key takeaways from the talk:

Practical tips on using telemedicine 

  • Choose your patients for telemedicine carefully. Pre-consultation preparation (collection of medical background, chief medical complaints, photos etc.) is paramount. If in doubt, advise for an in-patient consultation.
  • Ensure you are communicating with the actual patient by putting in place adequate processes for verification of identity.
  • Be adaptable. Review suitability of teleconsultations in accordance with changes in clinical circumstances.
  • If you make an audio / video recording, you need to obtain the patient’s prior consent.
  • Data security and limitations cannot be overlooked. Consider having a standardised leaflet and consent form for the use of telemedicine as a starting point.
  • If you are only licensed to practise in Hong Kong, be cautious when giving advice to overseas patients. A complaint / claim can possibly be made in Hong Kong or overseas in the event of an adverse incident. Does your insurance cover overseas complaints / claims?
  • Provide written guidance on warning symptoms; how and when to contact the doctor if needed.
  • Consider proactive follow-up steps with the patient to identify appropriate course of action in case of change of circumstances.
  • Keep detailed records of the information received and advice delivered.

Watch the full interview on 'Telemedicine - Doctors' Duties and Obligations' below

Full interview in Cantonese with Senior Associate, Chantel Pang, hosted by Consultant, Dr. Chan Hin Biu Bill.

Telemedicine - Duties & Obligations

Practical tips on apologising and open disclosure 

  • Determine the nature of the complaint - apology protection does not cover criminal complaints against doctors, only civil, disciplinary and certain non-criminal proceedings.
  • The fact that you made an apology cannot be held against you - only the facts disclosed in the apology carry a risk of being admitted in exceptional circumstances. If unsure, seek legal assistance when crafting your apology.
  • Avoid making guarantees as a way of righting a problem.
  • The Ordinance does not apply to apologies made before 1 December 2017.
  • Incorporate training to doctors on the skills necessary for effective apologies, and promote learning culture by incorporating apology-making into the protocol for responding to patient’s grievances.
  • Doctors should make a record of the details of the apology.
  • An apology should not affect your cover under an insurance policy or indemnity.
  • Think and craft the apology and open disclosure appropriately before apologising. Seek legal advice and consider having legal representation if appropriate.

Watch the full interview on 'Apology Ordinance' below

Full interview in Cantonese with Senior Associate, Chantel Pang, hosted by Consultant, Dr. Chan Hin Biu Bill.

Legal Implications of Disclosure & Apologies - a Review of the Apology Ordinance

List of references and further reading:

 

Telemedicine

  1. Ethical Guidelines on Practice of Telemedicine. (2019, December). The Medical Council of Hong Kong. https://www.mchk.org.hk/files/PDF_File_Ethical_Guidelines_on_Telemedicine.pdf
  2. Questions and Answers to Ethical Guidelines on Practice of Telemedicine (2022, March). The Medical Council of Hong Kong https://www.mchk.org.hk/files/Questions_and_Answers_to_the_Ethical_Guidelines_on_Practice_of_Telemedicine.pdf
  3. Cheng, I. (2021, January 21). Development of telehealth services. The Legislative Council. https://www.legco.gov.hk/research-publications/english/essentials-2021ise14-development-of-telehealth-services.htm
  4. Tong, L. G., Chiu B. C. F., Kan D. K. F. (2021, September). Telemedicine – medicolegal issues and answers: an update article. HK Pract 2021;43:96-101. https://www.hkcfp.org.hk/Upload/HK_Practitioner/2021/hkp2021vol43Sep/update_article.html
  5. Shaping the future: is telemedicine here to stay?. (2021, June 10). Medical Protection. https://www.medicalprotection.org/hongkong/casebook-resources/medicolegal-articles/articles/shaping-the-future-telemedicine-int-1
  6. Benefit of remote consultations is unquestionable, but challenges must be considered. (2020, July 30). Medical Protection. https://www.medicalprotection.org/uk/articles/benefit-of-remote-consultations-is-unquestionable-but-challenges-must-be-considered

 

Apology Ordinance

  1. Apology Ordinance (Cap. 631). (2017, December 1). Hong Kong E-Legislation. https://www.elegislation.gov.hk/hk/cap631
  2. Cheung, C. (2020, July 18). Does the Apology Ordinance protect the healthcare professionals who apologize?. Department of Justice. https://www.doj.gov.hk/en/community_engagement/speeches/pdf/lo20200718e1.pdf
  3. Leung, G. K., & Porter, G. (2018). New Hong Kong statute protects factual statements in medical apologies from use in litigation. Medico-Legal Journal, 86(4), 198–201. https://doi.org/10.1177/0025817218771803
  4. Tsang, C, Kennedys (2017, October). How to say sorry: a guide and insight into the Apology Ordinance. HKMA News
  5. Mayer Brown (2017, August). How does the apology legislation affect doctors? HKMA News
  6. Special scheme introduced for delivering prescription medications to Hong Kong people in Guangdong and Fujian with urgent need for medications. (2020, February 24). The Government of HKSAR. https://www.info.gov.hk/gia/general/202002/24/P2020022400501.htm [Note: The scheme has now ceased.]