Telemedicine was still considered futuristic until the arrival of the COVID-19 pandemic. With cities in lockdown and the imminent danger of mass contagion, online consultations became more than a prospect: they became a necessity. But what about the issue of consent in these cases?
Medical consultations remain the standard practice worldwide, but in some situations, online consultations have proven to be as effective as in-person consultations, demonstrating that... telemedicine He arrived and he's here to stay.
However, it cannot be forgotten that legal and ethical issues must be observed, as established in Resolution No. 2.314/2022, of Federal Council of Medicinewhich defines that both the patient's personal and clinical data must be treated in accordance with the definitions in Article 3, which states:
"Article 3. In telemedicine services, patient data and images contained in the medical record must be preserved, complying with the legal and CFM (Federal Council of Medicine) regulations pertaining to the safekeeping, handling, integrity, veracity, confidentiality, privacy, irrefutability, and guarantee of professional secrecy of the information."
- 7. Personal and clinical data from telemedicine consultations must comply with the definitions of the LGPD (Brazilian General Data Protection Law) and other legal provisions regarding the primary purposes of the data.
- 8. When using institutional platforms, the attending physician must be guaranteed the right to access patient data for the entire legal period during which its preservation is protected.
The Resolution also clarifies the modalities in which telemedicine can be applied, which are: TeleconsultationTeleconsultation TelediagnosticTelesurgery, Telemonitoring or telesurveillance, Teletriage and Teleconsultation.
Consent is also required for teleconsultations.
Article 15 of the Resolution also clarifies that question of consent, making it necessary to obtain consent via a form as explained below:
"Article 15. The patient or their legal representative must authorize telemedicine care and the transmission of their images and data through a (consent and authorization form), free and informed consent, sent electronically or by recording a reading of the text with the agreement, which must be part of the patient's SRES."
Sole paragraph. In all telemedicine consultations, explicit consent must be ensured, in which the patient or their legal representative must be aware that their personal information may be shared and of their right to refuse permission for this, except in situations of medical emergency.
It is important to emphasize that all these issues exist so that patient data, which are sensitive data...be handled with the same authorization, aiming for greater security.
Remembering what constitutes sensitive data according to the General Law of Data Protection:
"Sensitive data includes information that reveals racial or ethnic origin, religious or philosophical beliefs, political opinions, trade union membership, genetic, biometric, health, or sex life data."
This data is commonly targeted by hackers who seek to break into systems in order to later negotiate the sale of this data.
Sensitive data was also used as a way to segregate people in situations such as job applications and refusal to treat patients with some peculiarity not accepted by the doctor in question.
Today, the LGPD (Brazilian General Data Protection Law) not only aims to prevent the misuse of this data, but also has harsh sanctions for those who do so.
The sanctions that can be applied to those who handle or disclose sensitive data can range from fines of up to 2% of the company's revenue (with a limit of up to R$ 50 million), to the blocking or deletion of related personal data, the suspension of the database, and even the partial or total prohibition of the company's activity.
