CYIL vol. 14 (2023)

CYIL 14 (2023) TELEMEDICINE IN THE CZECH REPUBLIC AND THE CONVENTION … In this paper, the Czech Republic serves as a case study of a country that has very recently started to improve its legal regulation to explicitly address telemedicine, and that is has also ratified the Convention on Human Rights and Biomedicine. 5 We will analyse the Czech emerging approach to telemedicine in the wider comparative context, identify several provisions of the Convention on Human Rights and Biomedicine that seem to be contentious in this regard, and define what legal approaches fit within the options left by these provisions for the State Parties in their regulation of remote health services. 6 1. Evolving Landscape of Telemedicine in the Czech Republic Until recently, telemedicine had no support in Czech law whatsoever. Only since 1 January 2022, Act No. 372/2011 Sb., on Health Services and Conditions of Their Provision (Act on Health Services) explicitly included consultation services among the exceptions from the prohibition of health services provision outside a medical facility. 7 In particular, “ consultation services outside the medical facility can be provided via remote access or in the patient’s own social environment, or in another place where the patient is currently present ”. 8 A provider who only provides home care is nevertheless obliged to have a so-called contact facility. 9 In the summer of 2023, the Parliament of the Czech Republic started to discuss the bill amending the Act on Health Services. Among the changes that the said draft law may bring about, there is the inclusion of a new Section 11c in the Act on Health Services, which would contain the country’s first legal definition of telemedical health services. For the first time, telemedicine would be included among standard health services. Furthermore, the law would define conditions under which telemedical services can be provided outside of a health facility (which naturally underlies the very concept of telemedicine). The draft law defines telemedical health services as “ health services that are provided remotely using information and telecommunications technologies or a medical device ”. Their provision will be conditional on meeting technical requirements for the quality and security of communication and for encryption of the communication channel. The identity of the communicating parties must be verified. The specific technical obligations of the health services provider related to the mentioned requirements will be determined in the implementing regulation. 5 The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, adopted by the Council of Europe in 1997 and ratified by the Czech Republic in 2001. See also ŠUSTEK, P. Two Decades of the Convention on Biomedicine: Has It Been Any Good? In ŠTURMA, P. (ed.). Czech Yearbook of Public & Private International Law. Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 9. Česká společnost pro mezinárodní právo, Praha 2018, pp. 257–269. 6 We acknowledge that we deliberately exclude issues regarding data protection since they represent a very complex area that is beyond the scope of this paper. 7 See ŠUSTEK, P., ŠOLC, M. Principy GDPR a legální aspekty distanční medicíny. [Principles of GDPR and Legal Aspects of Remote Medicine.] In TÁBORSKÝ, Miloš (ed.). Digitální medicína 2022. [Digital Medicine 2022.] EEZY Publishing, Praha 2022, p. 64. 8 Section 11(5) of Act on Health Services, as amended. 9 Ibid.

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