CYIL vol. 14 (2023)

PETR ŠUSTEK CYIL 14 (2023) It will only be possible to provide telemedical health services outside a medical facility in two cases explicitly defined in the Act on Health Services. Nevertheless, both cases are relatively broad. They include telemedical services the provision of which: – “ consists only in the use of information and telecommunication technologies, possibly also with the assistance of remote access or a medical device ”, or – “ consists only in the fact that information is obtained remotely or with the help of a medical device (…) and this information is automatically sent to the provider ”. 10 According to the Explanatory Report to the draft law, the first of these situations (the use of information and telecommunication technologies) includes, for example, teleradiology or telepathology, i.e., remote reading and describing radiological images or biopsy samples. The second case represents telemonitoring, i.e., the collection and transmission of data on the patient’s state of health. 11 Nevertheless, the Explanatory Report to the draft law also explicitly stresses that it is still not possible to obtain authorisation solely for the provision of telemedical health services. Furthermore, telemedicine is not considered a special type or form of health service (such as urgent care, preventive care, or inpatient care) 12 but only a method of providing health services. In principle, three types of situations may arise regarding the provision of telemedicine. a) An entity unauthorised to provide health services can mediate the provision of telemedical services. This has been a minority part of Czech medical practice for about a decade. There are various entities that offer the provision of online medical consultations online, but do not themselves hold the necessary authorisation and cannot legally provide health services. Since it is not possible to obtain authorisation solely for telemedicine, every provider must comply with the minimum personal and material requirements set by the law, 13 which would not be economically rational for these entities. For this reason, they enter into contract with health services providers, often physicians with private practice, and act as intermediaries between these providers and patients (typically by running an internet platform where the interaction between the patient and the provider takes place). In these cases, the contracting provider is, from the legal perspective, the only person providing the health service to the patient as well as the only person who may be held liable for medical negligence within the said relationship. 14 The new proposed legislation does not change anything on this principle. 10 Government Bill Amending Act No. 372/2011 Sb., on Health Services and Conditions for Their Provision, as amended, proposed Section 11c(2). 11 Explanatory Report to the Government Bill Amending Act No. 372/2011 Sb., on Health Services and Conditions for Their Provision, as amended, Special Part, to Section 11c, 11(5). 12 See the types and forms of health services under Czech law enumerated in Sections 5 to 10 of Act on Health Services. 13 See Decree of the Ministry of Health No. 92/2012 Sb., on the Requirements for Minimum Technical and Material Equipment of Medical Facilities and Home Care Contact Facilities, and Decree of the Ministry of Health No. 99/2012 Sb., on Minimum Staffing Requirements for Health Services. 14 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. 65.

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