CYIL vol. 14 (2023)

PETR ŠUSTEK CYIL 14 (2023) that are in pressing need for clarification for telemedicine: “ 1) determining when a physician patient relationship is established; 2) assuring privacy of patient data; 3) guaranteeing proper evaluation and treatment of the patient consistent with the same standard of care; and 4) limiting the inappropriate prescribing and dispensing of certain medications ”. 33 Overall, the document approaches telemedicine simply as “ one component of the practice of medicine ”. 34 A physician needs to take the history of the patient and conduct all appropriate evaluations according to the standard of care. In fact, “ [w]hen the standard of care that is ordinarily applied to an in-person encounter cannot be met by virtual means, the use of telemedicine technologies is not appropriate ”. 35 3. Telemedicine in the Context of the Convention on Human Rights and Biomedicine The Council of Europe’s Convention on Human Rights and Biomedicine (hereinafter also “Convention”) is a crucial instrument of human rights protection in the area of health care. Even though some of the largest European countries never ratified it (including the United Kingdom, Germany, or Italy), the Convention retains significant influence, being the world’s most comprehensive international document dedicated to human rights in the medical context including everyday clinical practice. Four articles of the Convention seem to be especially relevant to the issue of telemedicine, setting the basic rules on the accessibility of health care, standard of care, informed consent, and compensation for harm. 3.1 Equitable Access to Health Care Article 3 of the Convention on Human Rights and Biomedicine is supposed to ensure the equitable access to health care. According to its wording, “ [p]arties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. ” According to the Explanatory Report to the Convention on Human Rights and Biomedicine (Explanatory Report to the Convention), the State Parties understandably do not have the duty to actually attain equitable access to health care to all, but they are obliged to “ use their best endeavours to reach it ” 36 by taking “ appropriate steps to achieve this aim as far as the available resources permit ”. 37 Equitable access is primarily understood in this context as “ the absence of unjustified discrimination ” in “ obtaining a satisfactory degree of care ” 38 which “ must be of a fitting standard in the light of scientific progress and be subject to a continuous quality assessment ”. 39 The Explanatory Report to the Convention explicitly acknowledges that “ State measures to ensure equitable access may take many different forms and a wide variety of methods may be employed to this end ”. 40 We believe that in the years to come,

33 Ibid., p. 3. 34 Ibid. 35 Ibid. 36 Explanatory Report to the Convention on Human Rights and Biomedicine, point 23.

37 Ibid., point 26. 38 Ibid., point 25. 39 Ibid., point 24. 40 Ibid., point 27.

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