In Austria, there have been efforts to promote the use of telemedical applications for some time. This development accelerated significantly during the COVID pandemic in order to ensure adequate care for patients.
The concept of telemedicine:
Telemedicine is the provision or support of health care services with the help of information and communication technologies (ICT), whereby the patient and the health care provider (GSP, i.e. in particular doctors, pharmacies, hospitals and nursing staff) or two GSPs are not present at the same place (sozialministerium.at).
Areas of application of telemedicine Based on the definition of telemedicine, there is a wide range of telemedical applications. These include teletherapy, in which the treatment of patients takes place by means of telecommunication (e.g. via video telephony), telemonitoring, in which the state of health of patients is monitored without the physical presence of a doctor, teleconsultation, in which treating doctors who are in direct contact with patients request a second opinion from other specialists with the help of telemedicine, and teleconferencing, in which the involvement of other doctors takes place by means of telecommunication during the ongoing treatment of patients.
Legal basis There is currently no separate law regulating telemedicine in Austria. In certain laws there are provisions that have points of contact with telemedicine (e.g. Health Telematics Act 2012, agreement according to Art 15a B-VG on the organisation and financing of health care, etc.). When assessing the admissibility of telemedical applications, data protection law must also be taken into account. In order to assess the question of whether doctors can use telemedicine, reference must be made to the medical professional law.
§ Section 49(2) of the Medical Practitioners Act ("ÄrzteG") obliges doctors to exercise their profession personally and directly, if necessary in cooperation with other doctors. The principle of immediacy means that doctors have to act in person and get a personal impression of the patient's condition. The literature shows that the physical presence of doctors is not an absolute prerequisite for legitimate treatment. The use of telemedical applications therefore does not per se exclude the required immediacy within the meaning of §49 (ÄrzteG), if a careful diagnosis and therapy are possible. However, there has not yet been a decision by the highest court on the immediacy requirement.
Conclusion Even if the current legal situation in Austria does not prohibit the use of telemedicine per se, it is often in tension with the immediacy requirement under the ÄrzteG. The permissibility of a telemedical application must be assessed by doctors in each case with regard to the patient's state of health and the necessary treatment measures. Against the background that, due to technical developments in recent years, discussions about the admissibility of telemedicine in the context of the immediacy requirement are increasing, the creation of a uniform legal framework for the field of telemedicine by the Austrian legislator would be desirable.
This guest commentary originally appeared in Austria Innovativ 4-23 on 1.9.2023.
