Stories by Craig Horrocks and Emily Fuller

Internet doctors practise 'dangerous nonsense'

The Royal New Zealand College of General Practitioners has expressed its concern that doctors offering Internet-based consultations may open the way to drug abuse and endanger patient safety.
The chair, Ralph Wiles, was reported as saying that a "Web site set up by a group of New Zealand doctors who claim Internet consultations will replace face to face consultations is ‘dangerous nonsense’".
"Online" doctors who prescribe prescription medicines based on "cyber-consultations" rely largely on evidential medicine. The consultation is made by a series of questions submitted to the online patient and the resulting prescription is based on the symptoms that the patient claims to have.
Doctors prescribing to total strangers opens up the possibility of patients lying about their condition to get drugs they don’t need or should not have.
The first question is: "Are cyber-consultations illegal?" New Zealand law doesn’t specifically prohibit the sale of prescription medication over the Internet, provided the patient has a prescription from a doctor.
As there are many doctors now operating in this fashion and the government has not stepped in to stop them, it could be thought that the practice must be legal. However, just because government has not acted (as proven by the Winebox judgement) does not mean this new practice is legal.
The Medical Practitioners Act 1968 assumes a doctor/patient relationship. The New Zealand Courts have never directly considered what constitutes a sufficient relationship. Common sense says it should be illegal, in most cases, for a doctor to write a prescription without physically examining the patient. But that is common sense not the law.
The risk of criminal prosecution is just one risk cyber-doctors face. There is also the risk of civil litigation by the Medical Council and the patient.
There have been cases where the courts considered whether a person is a patient of a doctor and therefore able to claim medical privilege in communications under the Evidence Act. This raises the question that if a person has a cyber-consultation and is not a patient, are the records of that consultation protected by doctor/patient privilege?
But there are more serious reasons why cyber-doctors are exposed to civil liability. While there are no New Zealand cases, proceedings have already been taken in the US against cyber-doctors.
The Washington Medical Commission recently charged a doctor with unprofessional conduct for allegedly prescribing Viagra over the Internet without seeing or physically examining the patients. The Medical Commission said the prescription of drugs such as Viagra requires a full patient examination. Common sense made it into law.
It would be interesting to hear from the Medical Council why no such action has been taken in New Zealand. After all, the risk associated with inappropriate use of Viagra has been identified. The condition, known as priapism — a persistent and painful erection — can result in consequent damage of the muscle that helps to produce an erection and may cause permanent impotence. The problem arises where Viagra is demanded purely for recreational purposes and not to address a legitimate medical problem.
A further illustration would be for example anorexic patients who may still see themselves as "fat". If an anorexic patient appeared at surgery wanting get hold of the drug Xenical, the doctor who prescribed Xenical would be at risk of punitive damages if the patient died.
The question here is whether the online doctor is any less guilty if the patient dies.
To answer this question is easy with some cyber-doctors. Some Web sites have included default tabs for the "symptoms" to be entered automatically when the desired drug is entered by the patient in the "prescription" box. At the extreme the lack of personal contact may mean drug dealers could fabricate a patient and symptoms to access drugs for resale.
Although the Internet can, and should, be used to deliver medical services, the trade-off to efficiency and convenience is patient safety. While our Medical Council may not have our cyber-doctors in its sights, international concern about the uncontrolled sale of medical products over the Internet has been expressed by the World Health Organisation.
The cyber-doctor is a reality check for new forms of business on the Internet. Beware — old laws (and common sense) may still apply.
Craig Horrocks is the managing partner of Clendon Feeney and is part of Clendon Feeney’s technology law team. Emily Fuller is a solicitor at Clendon Feeney practicing company and commercial law. This article, together with further background comments and links to other Web sited can be downloaded from www.clendons.co.nz. Send email to techlaw@clendons.co.nz.

[]