Recent events have caused a surge in the use of telemedicine, or remote medical consultations by telephone or by video link.

However in Hong Kong, and to a lesser extent the PRC, legacy regulations still restrict telemedicine's wide adoption. The obvious concern with telemedicine is that symptoms can be easily missed by consultations that are not "in person". This leaves the medical service provider open to claims of negligence and difficulties with insurance coverage. Meanwhile the patient is open to undiagnosed or misdiagnosed problems. Nevertheless, some jurisdictions have authorised its use within certain parameters.

Teladoc Health, the largest US standalone telemedicine service provider, reported a 50 percent increase in service in the week ending March 20 compared with the week before. Sweden's KRY International, one of Europe's biggest telehealth providers, reported that registrations were up more than 200 percent.

In Asia the Korean government has temporarily relaxed the restriction on telemedicine consultations as a result of the COVID-19 outbreak. In Daegu and Seoul telemedicine centres have been established to provide free medical treatment for self-quarantined COVID-19 patients with minor symptoms. They rely on self-reported information of vital signs, questionnaires, live video links and other procedures. These centres report handling around 1,500 patients a month.

Online Consultation Infrastructure in Hong Kong and China

Hong Kong is not new to telemedicine. Since 1998, public hospitals in Hong Kong have used limited video-based consultation mainly for patients living in elderly homes. This method has recently been extended to psychiatric patients and those in need of occupational therapy and physiotherapy.

However telemedicine has yet to see large adoption in Hong Kong. In 2019, Cigna Hong Kong partnered with the healthcare app, DoctorNow, to provide customers with virtual care services, where patients can meet doctors online and order medicine to be delivered directly to their home from clinics. Likewise, partnering with Teladoc Health, APRIL International Care launched their TeleHEALTH service in Hong Kong in 2019, allowing customers to request a callback from a licensed healthcare practitioner or request a second medical opinion for more serious conditions.

In China, telemedicine has grown much faster. For instance, Ping An Healthcare & Technology Co., listed in Hong Kong in 2018, offers online family doctor services through its healthcare app Ping An Good Doctor, including online consultations and electronic prescriptions by its in-house doctors. It also operates a Health Mall, where users can order medicines and a wide spectrum of healthcare and wellness-related products. Using artificial intelligence, the app can draw data from previous consultations or health check-up results and generate personalised recommendations for general health and wellbeing.

Regulatory Challenges – Online Consultation and Medicine Delivery Service

In December 2019, the Medical Council of Hong Kong issued Ethical Guidelines on Practice of Telemedicine (the Guidelines) to provide guidance to doctors who wish to engage in telemedicine. Contravention may render a doctor liable to disciplinary proceedings.

Online Consultation

The Guidelines require doctors in Hong Kong to exercise the same standard of care during an online consultation as an in-person consultation. In other words, doctors should ensure that the patient is suitable for a telemedicine interaction and that the standard of care delivered via telemedicine is not compromised. In particular, the Guidelines state that it is advisable (yet not mandatory) to have a prior in-person consultation with a patient before practising telemedicine and/or prescribing any medicine for the first time. They further state that if a physical examination is likely to add critical information, the doctor should not proceed until a physical examination can be arranged.

These Hong Kong regulations place the full responsibility on the doctor as to whether telemedicine is appropriate and this discourages its adoption. In other jurisdictions telemedicine is permitted in particular classes of cases, for example mental health conditions or where the patient requires a check-up for a repeat prescription having previously been examined in person by the doctor.

The PRC has taken such an approach. The Chinese National Health Commission have promulgated three administrative measures: (i) Measures for the Administration of the Internet-based Diagnosis and Treatment; (ii) Measures for the Administration of the Internet Hospitals; and (iii) Measures for the Administration of Telemedicine to regulate telemedicine. Under these measures, the permitted scope of telemedicine is generally limited to online diagnosis and treatment of certain common and chronic illnesses such as dermatosis, chronic hypertension and diabetes in a stable condition. Importantly, telemedicine is expressly prohibited for first visits, meaning that patients must first visit a doctor face-to-face and only after then are follow-up examinations permitted online.

Medicine Delivery Service

In Hong Kong, regulations governing the sale and supply of medicines are complex and differ depending on the type of medicine involved. Broadly, there are three main types of medicines: (i) pharmaceutical products, (ii) antibiotics and (iii) dangerous drugs and only certain authorised categories of people (for example, registered medical practitioners or pharmacists) may sell or supply them and these are governed by the Pharmacy and Poisons Ordinance, Antibiotics Ordinance and Dangerous Drugs Ordinance respectively. The restriction on which type of entity can sell or supply these medicines (whether for payment or not) constrains how medicine delivery services work. For example while a doctor's clinic may arrange for the delivery of medicines by courier to a patient, a service provider which is not authorised to sell or supply such medicines may not supply medicines by courier or at all. So, for example, after a doctor issues a prescription on the DoctorNow app, a patient may have the medicines delivered to their home but the medicines are delivered directly from the doctor's clinic, and not, as we understand it, from any central facility operated by DoctorNow.

In the PRC, the position is more restrictive. Medical practitioners may prescribe drugs during the course of online diagnostic services, but the online prescription of certain drugs, including narcotic and psychotropic drugs, is expressly prohibited. Telemedicine service providers in China, such as Health Mall run by Ping An Good Doctor and TMall run by Alibaba, can only sell and supply over-the-counter medicines (i.e. non-prescription medicines) and health supplements.

Opportunity for Telemedicine

Current events are driving the adoption of telemedicine in many parts of the world. While obviously not suitable for all medical conditions, telemedicine can reduce the cost of delivering healthcare and making it easier for patients, particularly those with mobility problems, to access it. The technology has been available for some time, but social habits and cautious regulation have held back its adoption. The COVID-19 outbreak has been forcing changes in social habits for many throughout the world and this will likely have a permanent, positive impact on telemedicine.

However, for there to be a real improvement in the adoption of telemedicine, the regulatory position needs to be developed, for example with clear safe harbours within which doctors are permitted to use telemedicine for particular types of cases (or parts of the medical service process) without fear of breaching ethical rules or losing insurance coverage.

Visit us at www.mayerbrownjsm.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2020. The Mayer Brown Practices. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.