Legal Interpretation of Face-to-Face Consultation in Telemedicine

Legal Interpretation of Face-to-Face Consultation in Telemedicine

Yasumitsu Tomioka (Tokai University School of Medicine, Japan)
Copyright: © 2012 |Pages: 11
DOI: 10.4018/jehmc.2012010102
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Abstract

In legal studies on telemedicine, the requirement of face-to-face consultation emerges as a major concern. Although the legal basis of the “face-to-face consultation” requirement is often assumed to come from Medical Practitioners Law Article 20, it is actually from a notice issued on 24/12/1997 in Health Policy Publication No. 1075 by the Ministry of Health, Labor and Welfare (MHLW). In this article, through analysis of how the court made a judgment in regard to “face-to-face consultation” in previous rulings related to the Medical Practitioners Law Article 20, the authors clarify that judgment is based on these “notices”. In addition, through analysis of what policy on telemedicine the MHLW announces in the government ministries’ response issued on 20/10/2009 to the questionnaire from the members of a task force in the IT Strategic Headquarters, it is ascertained that interpretation of the “face-to-face patient care” in telemedicine becomes broader than the “notices”. This paper accelerates the broader interpretation and establishes a legal system defining telemedicine independently.
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Review And Analysis

In this article, previous rulings related to the Article 20 will be reviewed to analyze how the court made a judgment in regard to the “face-to-face consultation”. Before the analysis, the legal intent of the Article 20 (paragraph 2) will be described. For example, Professor Norio Higuchi, Faculty of Law, the University of Tokyo (who holds the chair of medical laws at Faculty of Law, the University of Tokyo since 2008) says “the intent of the Article 20 is to prohibit a physician from conducting a certain practice without his/her medical examination, attendance or postmortem” (Higuchi et al., 1975).

Professor Norio Higuchi also says the significance of the Article 20 is “in a part thereof stipulated to prevent medicine from being performed without an evidence (so-called No-EBM: No Evidence based Medicine), specifically, a part which prohibits a physician from providing medical treatment or issuing a medical prescription without performing a face-to-face consultation for an ordinary patient”.

Among legal actions against violation of the Article 20, the following three precedents were extracted as a specific type in which the Article 20 becomes a point of issue in a medical malpractice suit.

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