CHAPTER 3: THE TELEMEDICINE POLICY AND REGULATORY ENVIRONMENT IN NORTH AMERICA: WHY SHOULD WE COMPARE AND COLLABORATE?

In seeking to deliver quality healthcare to all of its citizens at a reasonable cost, Federal and State/Territorial/Provincial government in Australia, the USA and Canada (among others) confront several, identical problems:

• Large land masses with widely distributed populations, many of whom reside in rural or other remote locations.
• Uneven geographic distribution of healthcare resources (both facilities and manpower) throughout the country.
• Inadequate access to healthcare on the part of segments of the populations such as the under-privileged, isolated and confined.
• Continual rise in the cost of care.

Additional factors in each country have required policy-makers and managers to rethink the way healthcare is delivered, including: larger, aging populations; advances in medical technology; increase in the ratio of chronic to acute disease resulting in longer, more extensive treatments; technological breakthroughs that have expanded treatment options and costs and the shift from inpatient to outpatient care.

Each country’s healthcare system is in a phase of rapid transition and restructuring, in which traditional health service models are being replaced with business-driven models that focus on the delivery of services that are efficient, cost and outcome-effective and customer-focussed. Each country and all jurisdictions within each of those countries is in effect seeking to "do more with less" and each nation has identified telemedicine as a means of achieving this end.

This commonality of interests in an era of increasing globalisation - of information technology, communications technology, medicine and law - suggests that much can be learned from international comparison and collaboration. While, slavish adherence to an overseas model is clearly inappropriate, given that wide variations exist in practice patterns, policy structure and policy ethos, nevertheless, in the words of the noted health policy analyst, Professor Stephen Duckett, developments in the American health system exert:

"A powerful influence on Australia" (1)

Comparison with and analysis of developments in the USA are appropriate and desirable, it is submitted, for several reasons:

• The sheer size of the American healthcare system and the "economies of scale" thereby permitted has made it an ideal test bed for experimentation and innovation of both in the private sector and at governmental level. As Professor Duckett has observed, the policy experiments undertaken in the USA "also provide learning opportunities for Australia". (2)

• The USA is a world leader in telemedicine practices and policy analysis, (3) involving input from a plethora of policy-makers and policy-shapers in various ways, including the publication of reports, guidelines and Standards, the creation of specialist bodies, lobby groups, industry associations and, occasionally, the passage of legislation. The USA leads the world in the commitment of resources directed towards the implementation of strategies to overcome barriers to optimal use. This commitment is demonstrated at all levels of government and in the private sector.

Consequently, the breadth and variety of activity and analysis being undertaken in the USA is unparalleled. Australia, therefore, has the opportunity to observe and learn from overseas experience, particularly the American experience. This will not only avoid the unnecessary reinvention of "policy wheels", but may also, but more importantly, avoid the reinvention of "flat tires". Through a selective and careful review of the overseas scene, Australian telemedicine stakeholders can derive enormous benefit in the formulation and implementation of strategies that will ensure the long term health of telemedicine/telehealth in Australia.

• America’s well-deserved reputation as the "litigation capital of the world" suggests that American courts will be the first to scrutinise and analyse telemedicine/telehealth liability issues. Somewhat surprisingly, there has to date been little, if any, US judicial authority addressing these issues.

TELEMEDICINE’S ROLE AND STATUS IN THE MEDICAL LIABILITY ENVIRONMENT

Despite the current paucity of US case law, there is general unanimity that it is only a matter of time before the courts will be required to adjudicate upon the liability, evidentiary and other repercussions of the family of technologies associated with telemedicine. In the meantime, policy-makers, telepractitioners and their advisors will need to make "educated guesses" about these issues, usually by arguing from "first principles."

Endnotes to Chapter 3

(1) S.J. Duckett Health Care in the US: What Lessons for Australia? The Australian Centre for American Studies 1997, p. vii

(2) Duckett, Health Care in the US: What Lessons for Australia?, p. 74

(3) See the Selected Reading List at the conclusion of this Report for relevant examples.

Index