CHAPTER 7: CROSS-BORDER/INTERSTATE ISSUES

INTRODUCTION

Once a telemedical interaction involves a cross-border or a multi-jurisdictional component, a range of complex, and occasionally unprecedented problems arise.(1)

• Which State or Territory’s disciplinary body has jurisdiction if a complaint is lodged against a telepractitioner?
• Which State or Territory’s courts have jurisdiction if a medical negligence or other damages claim is pursued against the telepractitioner?
• Must the telepractitioner be registered in all jurisdictions in which he or she has or might have telemedical contact? If so, what is the consequence of a medical practitioner being unregistered in a "distant" jurisdiction where that practitioner has only a "virtual" presence?
• Must a medical practitioner comply with the rules and regulations that prevail in all the jurisdictions in which he or she practices telemedicine? If so, what happens if there is an inconsistency between the rules in the jurisdiction in which the doctor resides and the rules in which he or she has telemedical contact?
• Which jurisdiction’s procedural rules and substantive legal principles will be invoked to resolve a medical liability dispute arising out of a cross-border telemedicine encounter? Will liability insurers and medical defence organizations cover claims made in jurisdictions other than that in which the medical practitioner resides and practices "conventional" medicine?(2)

Many of these questions amplify legal problems which have long existed which went untested in the conventional medical setting.

This Chapter will address two specific issues arising out of cross-border, multi-jurisdictional telemedicine:

A. Litigation ramifications (jurisdiction and "choice of law" questions).

B. Registration/licensure issues.

SECTION A: CROSS-BORDER TELEMEDICINE AND LITIGATION

Where legal proceedings involve a multi-jurisdictional element, lawyers for the parties will seek to conduct proceedings out of that jurisdiction which is perceived to be most favourable to their client’s cause, or least favourable to their opponent’s. The reason that one party might prefer one jurisdiction over another are varied and included potential differences in rules, laws or procedures between jurisdictions; the strategic and financial advantage of either conducting proceedings in one’s home turf or making the opponent conduct those proceedings away from theirs.

In Australia’s federated system, each State and Territory possesses its own systems of laws. Who are parties are located and actions are performed in more than one State, laws may conflict and the courts must decide two questions: which States’ jurisdiction should prevail and which state’s laws will apply? This second concern is called "choice of law" and addresses the determination of the procedural and substantial law which applies to govern resolution of a dispute.

The suitability of established jurisdictional and choice of law principles to resolve disputes arising from technologically-mediated or electronic cross-border interactions is not a problem unique to telemedicine/telehealth, but is being addressed by law reform bodies nationally and internationally.(3)

JURISDICTION

As Robert Waters of the Centre for Telemedicine Law stated:

"Clearly, more than one jurisdiction may have a legitimate interest in the outcome of a case. The patient’s home State has an interest in protecting the health and safety of its citizens. The doctor’s home State as well as any State where he maintains an office, has an interest in regulating those who practice medicine within its orders. States may also assert jurisdiction over non-citizens who conduct business therein through theories such as "implied consent" or through "long-arm" statutes. Such statutes may be very broad and can base jurisdiction upon the defendant’s general activity in the State, upon the commission of certain acts within the State, or, in some cases, upon the commission of an act outside the State which causes or could potentially cause consequences within it. The potential ability to name manufacturers, distributors and telecommunications companies as defendants could expand the number of possible jurisdictions even more".(4)

Similar (but not identical) observations can be made regarding the jurisdictional issues confronted in Australia.

CHOICE OF LAW

Although the principles which apply to the resolution of "choice of law" questions are readily identifiable, their practical implementation is shrouded in controversy, uncertainty and complexity.

Each jurisdiction has its own approach to the application of choice of law principles and the analysis can and will vary depending on whether claims are brought in tort or in contract. In addition, each jurisdiction has more than one "set" of choice of law rules and it can sometimes be difficult to determine which set of rules needs to be, and is being, used.

TELEMEDICINE, JURISDICTION AND CHOICE OF LAW ISSUES -SUMMARY

While cross-border telemedicine might create novel models for the delivery of care, the law is accustomed to dealing with disputes arising out of transactions involving multi-jurisdictional elements. Commonly, these types of jurisdictional questions have arisen in motor vehicle litigation, where the drivers and passengers are injured as a result of a collision that occurred while all are traveling interstate. In some of these proceedings, the only matter in issue is the competence of the drivers. In other cases, allegations are made about the condition of the car, the adequacy of its service history or the condition/safety of the road where the coalition occurred. These factual complexities are commonly addressed by the courts.

Unfortunately, while there are legal principles already available to adjudicate upon these issues, the proper interpretation and applications of these principles to any given factual circumstance is complex, unclear, unwieldy and even less predictable. It is therefore inevitable that cross-border telemedicine or claims with multijurisdictional features will generate proceedings that take longer and are more costly than intrastate telemedicine disputes, as a combined result of the procedural complexity and uncertainty of the law regarding jurisdiction and choice of law and the strategic manoeuvres consequently deployed in an attempt to gain maximum advantage and generate maximum disadvantage for one’s opponent.

The complexity and breadth of these issues goes in many respects to the heart of Federal/State relations. Consequently, this Report is not the appropriate for a lengthy discussion of these issues. In short, it is likely that telepractitioners and their liability insurers and medical defence organisations must ready themselves for the possibility of litigation in a "foreign jurisdiction". If the telepractice has a multi-state flavour, the rules and procedures in that foreign jurisdiction may or may not differ substantially from the "home" jurisdiction’s. The likelihood of a "distant" teleconsultant being brought to a "foreign" court is, if anything, increased where that practitioner forms one side of a therapeutic triangle, with the patient and the local practitioner forming the other two sides.

SECTION B: TELEMEDICINE AND REGISTRATION OF MEDICAL PRACTITIONERS

The interstate practice of telemedicine raises challenges that may require a fundamental rethinking of the adequacy of the current system of State-based medical registration. As the IOM observed:

"Telemedicine challenges the traditional view of professional practice as involving a face-to-face encounter between clinician and patient. This encounter made "the place where medicine was practiced, and who was practicing… obvious". (Gilbert, 1995 b p. 28). Telemedicine breaks that physical link and thus complicates decisions about where a telemedicine practitioner should be licensed if the practitioner and patient are located in different states".(5)

The American experience reveals how complex and politicised the telemedicine registration (or as it is called in the USA, "licensure") debate can be. Regulatory and legislative approaches in the USA span the entire ideological "spectrum" but are increasingly requiring that doctors who wish to treat patients in one jurisdiction, whether in person or "virtually", must have a full and unrestricted licence in that jurisdiction.(6)

SCOPE OF THIS SECTION

The American experience, while illustrative of the complexity of this area, is not entirely representative of the issues which confront Australian and Victorian stakeholders. This Report will therefore not conduct an exhaustive analysis of the American "telemedicine licensure debate" but will instead focus on the most relevant developments to Australia.

The Report will also focus on the position of medical practitioners, specifically those registered to practise in the State of Victoria. The Report will also proceed on the assumption that the establishment of a national medical registration scheme is, for a variety of constitutional and other reasons, not a viable option.

COMMON, BUT NOT IDENTICAL CHALLENGES AND ISSUES

The American and Australian registration systems have much in common and face similar challenges. Of particular relevance to telemedicine is the fact that registration authorities in both countries are required to:

"Protect the public by establishing and enforcing standards of practice." (7)

In both countries, registration of medical practitioners is a State-based responsibility. Each country has a national, umbrella body.(8)

Registration authorities in both countries operating in an increasingly complex and challenging environment. This has required a fundamental rethinking of the role of medical boards and the establishment of closer collaboration and dialogue:

"The close of the millenium has brought an era in which no nation can ignore the lessons to be learned through sharing of experience, information, research and insights with others around the world".(9)

The challenge posed by telemedicine, which is certainly a major but not the only challenge facing medical boards, is how to permit the benefits of telemedicine to be brought to the public in a manner that is not unduly burdensome to the profession, but which ensures at the same time that the public is adequately protected.

Australia is arguably better positioned than the USA to achieve a harmonious approach, if not a solution, to these challenges. First, there are far fewer jurisdictions in Australia than the USA. There is arguably a greater degree of harmony and consistency between Australian jurisdictions than between American ones. This level of consistency is a critical pre-requisite to the third major difference between the countries: Australia’s mutual recognition scheme embodied by the Mutual Recognition Act 1992 (Commonwealth) and its mirror legislation in other States and Territories.(10)

Pursuant to the mutual recognition scheme, medical practitioners registered in one State or Territory who wish to be registered in another State or Territory can do so with evidence of registration and payment of a prescribed fee. The Victorian Medical Practitioners Board, a statutory body created by the Medical Practice Act 1994, will grant registration to medical practitioners who are registered in other States and Territories.

While not the same as a national registration system, the current mutual recognition system provides medical practitioners with a relatively simple and inexpensive means of obtaining registration in any or every Australian State or Territory. While the scheme is undergoing further streamlining and simplification, it has already successfully addressed many of the concerns voiced in the USA, relating to the time, cost and inconvenience of identifying and complying with diverse jursidictional requirements for obtaining registration.

REMAINING PROBLEMS

The mutual recognition system does not and cannot, however, resolve some of the major challenges which telemedicine poses to the current, State-based system of medical registration. These issues will now be discussed.

A. Jurisdiction - where is the doctor practising?

While the mutual recognition scheme facilitates multi-State registration, it does not determine the preliminary question as to when such registration will be required. Where a doctor registered in one State "sees" patients in another State via telemedicine, does that doctor have to be registered in that other State? The answer to this question depends on whether the doctor is effectively being transported to the patient (in which case the doctor is practising medicine in the patient’s State) or vice-versa.

In the USA, the jurisdictional issue is not yet settled but the general consensus is that the telepractitioner is in effect practising medicine in the patient’s locality. However, this position has been reached on the basis of US case and statute law, including the sometimes very broad definition of "practice of medicine" in American licensure statutes. The States have no direct Australian equivalents and consequently, the Australian position might differ.

While this jurisdictional issue is yet to be resolved in Australia, it is submitted that medical practitioners would be taking a significant risk if they assumed that cross-border telemedicine did not require them to obtain multi-State registration via the mutual recognition procedures. While this issue is yet to be resolved, it is submitted that States and their disciplinary and standards-setting boards would not readily surrender their jurisdiction.

B. The "Practice of Medicine"

Unlike many US statutes, Australian registration statutes generally do not define the "practice of medicine". (11) It is desirable that "the practice of medicine" be clearly defined in relevant legislation.(12) However, several problems will beset this process:

1. The risk that the definition will have an inhibitory effect on cross-border telemedicine rather than simply generating enhanced regulatory effectiveness.
2. The risk that the definition will inadvertently catch within its ambit professional practices and interactions that have traditionally not required multi-State registration. This was in fact the basis of much of the criticism levelled against the American Federation of State Medical Board’s model telemedicine license, in that it covered not only services that were provided where a doctor and patient were connected through telecommunications, but also covered the transfer of patient data or diagnostic findings transmitted by a doctor in another location by "any other" means.
3. For the sake of consistency and comprehensibility, it is desirable that the definitions in each State and Territory be similar or identical.

C. Inconsistency and conflict between Local Laws

A telepractitioner with a multi-State presence may be subject to unanticipated and even conflicting legal obligations where, for example, different State laws adopt differing positions in respect of public health reporting, confidentiality requirements or retention of medical records. Consequently, steps must be taken, both by practitioners and by peak bodies, to ensure that practitioners identify, understand, keep abreast of and comply with statutory and regulating differences between jurisdictions in which they treat patients. This can cause particular difficulties if and when provisions are either inconsistent or where they appear to be irreconcilably in conflict.

D. Other forms of cross-border medicine

It must be recognised that certain forms of cross-border professional interaction have long been undertaken without the requirement for registration, such as doctor-to-doctor telephone conversations about a patient or interpretation of images or review of data sent through the ordinary mail or by facsimile transmission.

Several American licensure statutes have addressed this issue by expressly exempting a number of "traditional" cross-border interactions from formal licensure requirements. For example, pursuant to the "consultant exception", an out-of-State doctors can be approached by an in-State healthcare professional for an opinion provided that the in-state professional maintains responsibility and overall control with ultimate clinical decision-making authority.(13)

Clearly, some forms of professional interaction which have conventionally not required registration in a State can be performed just as effectively via telemedicine. It is equally clear that telemedicine can also deliver cross-border services well beyond those which have in the past not been the subject of a registration requirement. The regulatory challenges which have been either created or highlighted by telemedicine will require regulatory authorities to identify the circumstances in which out-of-State doctors need to be registered.

The Australian Medical Council will need to assist State and Territory medical boards to develop clear policies governing the circumstances in which cross-border professional interactions of any kind, and particularly those in which telemedicine in all of its diverse forms and for all of its myriad of clinical purposes, requires registration.

Endnotes to Chapter 7

(1) This Chapter will focus on intrastate rather than international issues.

(2) These issues are even more complex when one moves from interstate to international telemedicine. International telemedicine legal and policy issues will not, however, be canvassed in this Report.

(3) In Australia, the issue was considered, albeit primarily in the context of national and international Internet Commerce, by the Commonwealth Attorney General’s "Electronic Commerce Expert Group"

(4) R.J. Waters "Telemedicine’ Establishing Health Care Links Around the World". A Paper delivered to the New York State Bar Association Health Law Section Fall Meeting, November 19, 1998, p. 22.

(5) Telemedicine p.89, citing Gilbert, "Licensure and credentialing barriers to practice of telemedicine" in Telemedicine Action Report: Background Papers, Denver, Western Governors Association pages 27-35, 1995

(6) In June 1996, the AMA House of Delegates voted to adopt a policy that "States and their medical boards should require a full and unrestricted licence for all physicians practising within a state. Similarly, the College of American Pathologists has adopted the position that "A physician rendering primary diagnosis and/or treatment should have a full and unretricted licence to practise medicine in the state in which the patient presents for diagnosis": See Telemedicine Report to Congress, pages 43 and 44.

(7) "Interprofessional Working Group on Health Professions Regulation (IWHPR): Views on licensure and regulation of healthcare professionals" in Federation Bulletin volume 84 number 2, 1997, page 183

(8) In the USA, the Federation of State Medical Boards (FSMB). In Australia, the Australian Medical Council (AMC). The AMC was established by the Australian Health Ministers’ Conference in 1988 as a national standards advisory body charged with the responsibility of dealing with medical qualifications and registration and advising State/Territory medical boards on a consistent approach to, among other things, medical registration.

(9) D G Breaden and E Smith "A report on the First International Conference on Medical Licensure Registration and Disciplinre" in Federation Bulletin volume 81 number 4 1994 243 at 247. A similar view was expressed by the Medical Practitioners Board of Victoria (MPBV) in its Annual Report for 1997, where it recognized:

(10) For example, Mutual Recognition (Victoria) Act 1983, which is specifically imposed upon medical practitioners pursuant to section 4 of the Medical Practice Act 1994 (Victoria).

(11) In Victoria, for example, although the Medical Practice Act 1994 defines "medicine" to include "surgery" (section 3) and although there are several references in the Act to "medical practice" or the "practice of medicine", these expressions are nowhere defined in the Act.

(12) The Australian Medical Council observed, in its submission to the House of Representatives’ enquiry into telehealth, that State medical acts will need to be amended to define a medical service or treatment: FCA 1074, Evidence given on 16 May 1997.

(13) Another statutory exemption in the USA is the "border-state exception", whereby practitioners in border communities may, subject to various restrictions, practise in a community across the border without seeking dual registration.

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