CYIL vol. 14 (2023)

CYIL 14 (2023) TELEMEDICINE IN THE CZECH REPUBLIC AND THE CONVENTION … care at all), telemedicine will provide such a benefit both for the individual patients and for the health system as a whole that it would not be just (or feasible) to ignore it. It is not only the matter of public health but also of individual human rights: as Holčapek, Šolc and Šustek put it, “ complete unavailability of care would constitute a more serious violation of the right to protection of health than mere adaptation of its standard to allow for remote provision of care. ” 53 In this light, it is highly commendable that field-specific standards of care for remote practice are gradually issued by the respective expert societies and associations. Such explicitly defined standards would bring about a higher level of legal certainty for all involved and decrease the providers’ vulnerability to frivolous litigation. 54 They would address both crucial questions related to telemedicine, i.e., how to perform remote medical procedures and when to insist on physical care. Professional societies, medical associations, and other relevant bodies can use guidelines to navigate particular challenges concerning various medical specialties and procedures as well as to reflect the unique circumstances of each country. There already exist some specific guidelines, 55 even though in a limited number of medical fields. Their expansion seems to be crucial if telemedicine is to fulfil its potential benefits for the public health as well as for many patients worldwide. 56 3.3 Informed Consent Article 5 of the Convention on Human Rights and Biomedicine contains the general rule on the informed consent: An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time. The scope of information provided in case of telemedicine should, in general, not differ from any other health service. The patient needs to know about all the information that is relevant for their decision-making process, i.e., about the nature of the planned procedure, the reasons behind it, its risks and possible benefits, the impact on their future life, as well as its alternatives. If the telemedical service is provided directly to the patient, the remote nature of the service will be self-evident, making it unlikely that it could be concealed from the patient. Nevertheless, the position of German law requiring that the patient is informed about the nature of the proposed telemedical service including possible differences compared to “physical care” seems to be rational. We believe that the fully informed patient 53 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. 3. doi: https://doi.org/10.3389/fpubh.2023.1184971. 54 See BECKER, Ch., D., DANDY, K., GAUJEAN, M., FUSARO, M., SCURLOCK, C. Legal Perspectives on Telemedicine Part 2: Telemedicine in the Intensive Care Unit and Medicolegal Risk. The Permanente Journal. (2019, Vol. 23, No. 4), doi: https://doi.org/10.7812/TPP/18.294. 55 See for example GRUSKA, M., AIGNER, G., ALTENBERGER, J., BURKART-KÜTTNER, D. (eds.) Recommendations on the utilization of telemedicine in cardiology. Wiener klinische Wochenschrift. (2020, Vol. 132, No. 23–24), pp. 782–800. doi: https://doi.org/10.1007/s00508-020-01762-2. 56 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.

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