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PETR ŠUSTEK CYIL 14 (2023) The Explanatory Report to the Convention also puts stress on other fundamental elements of the standard of care, such as its variability over time, the usual simultaneous existence of more than one course of action the doctor can choose from in a given situation, 47 and the need to approach specific health problems of patients individually since “ an intervention must meet criteria of relevance and proportionality between the aim pursued and the means employed. ” 48 In this way, the general delineation of the standard of care under the Convention is materially close to its definition in Czech Act on Health Services, according to which the standard of care consists of a) compliance with the rules of science and acknowledged medical procedures, b) respect for the patient’s autonomy, and c) regard to particular conditions and objective possibilities. 49 The fundamental question in this context is whether a modified standard of care should apply to telemedicine. It will not always be possible to preserve the exact same quality of care without the options that physical contact with the patient offers. Does this mean that remote services should always be excluded in these cases, as some of the recent guidelines suggest (we may at this place recall the above-outlined American policy paper issued by the Federation of State Medical Boards or the American College of Physicians position paper)? 50 Or should it be, at least in some cases, permissible to lower the standard of care for telemedicine? While telemedical services may in some respects provide better quality than the traditional form of care, there will still be certain limitations (such as the absence of a physical examination) that might elevate risk. As any other health service, telemedical services also need to have a positive ratio between benefits and risks to justify its performance. We believe that in assessing this ratio, more subtle benefits for the patient should also be included, such as more comfort, less time duration of the visit, and other similar aspects. 51 It would be up to the patient to decide what weight to give to these considerations when making informed decisions about their healthcare. Furthermore, we believe that it is not possible to answer the question of the standard of care modifications in isolation from the issue of accessibility of health care as mentioned above. In a case-specific manner, the increase in accessibility of care needs to be understood as a benefit of telemedicine that can be weighed against its (potentially increased) risks. The principle that a lower standard of care is better than no expert care at all can already be found in a part of the ethical literature on telemedicine. 52 In the potential future reality where the increasing numbers of patients will struggle to find a quality “physical” care (or any health 49 See Section 4(5) of Act on Health Services. See also HOLČAPEK, T., ŠOLC, M., ŠUSTEK, P. Telemedicine and the standard of care: a call for a new approach? Frontiers in Public Health. (2022, Vol. 11), pp. 2–3. doi: https:// doi.org/10.3389/fpubh.2023.1184971. 50 See The Appropriate Use of Telemedicine Technologies in the Practice of Medicine. Federation of State Medical Boards. (30 April 2022.) accessed 27 August 2023; see DANIEL, H., SNYDER SULMASY, L. Policy Recommendations to Guide the Use of Telemedicine in Primary Care Settings: An American College of Physicians Position Paper. Annals of Internal Medicine. (17 November 2015.) doi: https://doi.org/10.7326/M15-0498. 51 See HOLČAPEK, T., ŠOLC, M., ŠUSTEK, P. Telemedicine and the standard of care: a call for a new approach? Frontiers in Public Health. (2022, Vol. 11), p. 4. doi: https://doi.org/10.3389/fpubh.2023.1184971. 52 See NESHER, L., JOTKOWITZ, A. Ethical issues in the developments of tele-ICUs. Journal of Medical Ethics. (2011, Vol. 37, No. 11), pp. 655–657. doi: https://dx.doi.org/10.1136/jme.2010.040311. 47 See ibid., point 32. 48 Ibid., point 33.

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