Medicine, Law & the Internet – Professional Survival in the Cyberage

August 31, 2000

Lawyers, doctors, academics, researchers and miscellaneous ITprofessionals gathered in Edinburgh on 27 June 2000 for a full-day conference atthe Royal College of Physicians. The title of the conference, ‘Medicine, Lawand the Internet’, gave little idea of the wide range of novel questions to beraised. Clear answers were far less apparent; but that is only to be expectedwhen one is dealing with phenomena as radical as the instant, free, unregulatedand uncontrollable spread of information throughout the planet. The gatheringwas welcomed to the Queen Mother Conference Centre by host Professor JamesPetrie, President of the Royal College of Physicians.

John Sibbald, Chairman of the SCL Scottish Group, who chaired the firstsession, thanked Lloyds TSB and others for their sponsorship, and Chris Oliver,Trauma Surgeon at Edinburgh’s Royal Infirmary, whose (highly imaginative) ideathe conference was. By way of introduction John observed that medicalinformation is the second most searched for on the Web. Needless to say thefirst is not law, although the BAILII site, developed in response to theSociety’s Access to Law Campaign, represents a giant leap towards fullyhyperlinked, HTML access to UK law and legal material. Changes in the provisionof medical services resulting from access to information via the Net areparalleled by similar changes in the legal world. While the Information Societyoffers huge benefits, John warned that there was a downside. The spread ofknowledge might be constrained by concepts of ownership, commercialisation andcontrol. The result may be that the only knowledge to survive will be thatamenable to storage, dissemination and exploitation for benefit via IT. He sawan urgent requirement to explore the far-reaching ethical, social andphilosophical considerations of such developments.

Keynote Address
Unfortunately, Susan Deacon, the Minister for Health and Community Care, wasunable to attend due to other commitments. Instead lain Gray, her deputy,stepped in. After conveying Ms Deacon’s apologies, the Deputy Ministeroutlined, from the Scottish Executive’s perspective, what the future mighthold for health services generally, comparing the information revolution to theagricultural and industrial revolutions.

In the UK allpublic services (including devolved services) are to be ‘available’ onlineby 2005. As far as the NHS in Scotland (NHSiS) is concerned, the ElectronicClinical Communication Implementation (ECCI) project will lead, over the nextthree years, to electronic transfer of information between healthcareprofessionals, including referral and discharge letters, first outpatientappointments and test results. Clinical messages and information will beavailable throughout the NHSiS via a linked network. The long-term aim is forall clinical information about a patient to be available remotely from thebedside.

Looking furtherinto the future, particularly powerful use of new technology might be made intelemedicine and telecare where treatment can be provided to the patient withoutthe need for the patient and specialist to enter the same physical space. Thereare already Internet sites covering every medical condition imaginable.Accordingly the Internet provides a great opportunity to promote healtheducation and awareness. It also provides a vehicle for dissemination ofspecialist medical knowledge and good practice between health professionals.However, the dangers must not be forgotten. There is an obvious danger in thefree flow of unregulated information. Lack of accreditation and quality controlleaves it open to any unprofessional quack or ruthless advertiser to misinformand exploit the uninformed consumer. As regards the electronic transfer ofpatient confidential information, it is obviously essential that systems are notexposed to accidental or deliberate breaches of confidentiality. Controls mustbe put in place to prevent unauthorised access to information.

Medical & Surgical IT in Scotland
Professor Arnold Maran, President of the Royal College of Surgeons inEdinburgh and self styled ‘computer literate pensioner’, spoke about Medicaland Surgical IT in Scotland from the perspective of a standards setting body.

Commenting on thecurrent level of IT within the NHS, the Professor suggested that many of thefinancial scandals within the NHS within the last 10 years have resulted fromunwise purchasing in the IT arena. Looking to the future, the NHS has now boughtthe licences for a package to link hospitals and GP surgeries throughout thecountry, allowing doctors at the bedside to be linked to literature,formularies, best practice and guidelines. At the instance of Professor Maran,the Royal College of Surgeons set up a Faculty of Informatics. The surgerycourse is now available via their Web site. Their journal is publishedelectronically along with the first in a series of books. The diploma in medicalinformatics can be done over the Internet. To enter the course candidates do atest on the Web site. There are two weekend residential courses and, withdiplomates worldwide, one course is run in Hong Kong. Diplomates are expected tobe able to set up and maintain a Web site, to navigate and find health sitesand, just as importantly, evaluate their content.

Telemedicineoffers unique opportunities. In the US teleconsultation already takes place withexperts being available for an hourly rate with patients worldwide. A hospitalin San Francisco shares a night call in radiology with a hospital in Singapore.Scotland has already begun to lead the way with oil industry links fromAberdeen. It may play an increasingly important role in taking specialistknowledge into the more remote part of the country.

IP Concerns
Professor Hector MacQueen, Dean of the Law Faculty at the University ofEdinburgh, addressed the conference on Intellectual Property Concerns,concentrating on the law of copyright, but commenting that similar questionsarise in the field of patents and trade marks.
Copyright gives the creator of material control over itsdissemination and therefore encourages creation for commercial gain. It ispermissive in nature in that it does not inhibit those who wish to throw theirmaterial open to the world. A balance between private and public interest isachieved by allowing members of the public certain rights (‘public domainrights’), including for example the right to copy for the purposes of study orreview.

Web pages andtheir individual components generally fall within the existing categories ofmaterial protected by copyright law. Typically, written material will beliterary work; pictures will be artistic work; video and audio will be films andsound recordings. Complete Web sites may fall within the definition of adatabase (a collection of material selected by the creator).
The key right given to the copyright owner is to prevent copiesbeing made. A copy of a Web page is made on the RAM of the user’s computerwhenever the page is visited. This may be a technical breach of copyright –although the creator of the Web page has probably impliedly consented to thiscopying by placing the material there in the first place. Downloading a page orsite to the user’s hard drive or printing a page would be less easy tojustify.

Debate continuesas to whether providing a link to a Web site is equivalent to making a copy ofthe site where the link is located. The draft European Directive on Copyright inthe Information Society provides the creator of material the right to controlhow the material is accessed. Logically in terms of the draft Directive, consentwould be required before a link could be made to a protected page. A conflictarises in that the creator of a Web site has to use technical means to controlaccess to his site – to ensure that he is paid for whatever protected materialthe consumer wants. But to do so also prevents the exercise of the public domainrights. The EU has recently decided that Member States will be required toensure that public domain rights are not inhibited in this way.

Data Protection/ Confidentiality
Harry Small, Joint Chairman of the Society for Computers and Law, introducedthe Conference to the law of Data Privacy Compliance. As information is moreeasily transferred and exchanged, so it is increasingly important thatindividuals are protected from indiscriminate dissemination of their privateinformation.

The law has beenstrengthened by the 1995 European Directive requiring harmonisation of dataprivacy laws throughout Europe. Only information about identifiable individualsis protected. Registration is required before personal data can be processed bycomputer. Details as to how the information is to be used must be disclosed atregistration along with an explanation as to how the intended use of thematerial is to be justified. The main ground of justification is that consenthas been given by the individual for use of his or her personal information inthat way. Explicit and specific consent is required to justify the processing ofdata relating to a patient’s health. The consent must be informed consent withspecific information being disclosed to the patient in advance. Individuals havethe right to access the information held. The question of security of theinformation is addressed at registration and is part of legal compliance.

Medical Negligence & Professional Liability
Opening the second session, which was chaired by Professor James Petrie,Neil Brailsford QC, Treasurer of the Faculty of Advocates, spoke on MedicalNegligence and Professional Liability. He discussed the potential impact of theInternet on the standard the courts might expect of ordinarily competent medicalpractitioners.

Practitioners are,of course, expected to keep reasonably abreast of developing knowledge. Lookingback to reported cases from the 1950s and 1980s, he observed that practitionershave only been expected to have regard to the main textbooks in a particularfield and, perhaps, to be aware of the recent thinking expressed in majorjournals. Further, they were only expected to follow the established practicesof their own geographical area.

The Internet nowallows vast quantities of relevant knowledge to be readily available veryquickly. The courts have not yet been asked to decide the extent to whichpractitioners are expected to have regard to information available on theInternet. It seems likely that the courts will now expect practitioners tosearch the Internet and to have regard to any scientifically evaluated materialrecovered. This may add to the burden on medical practitioners. It may also meanthat more, and more detailed, information is available to the court whenassessing the standard of care to be expected.

The Changing Nature of the Practitioner/Patient Relationship
Dr Peter Berrey, GP and IM and T Adviser to Lothian Primary Care NHS Trust,addressed the conference from a medical practitioner’s viewpoint on thistopic. It was clear from his talk that the obvious benefits of IT in theworkplace are counterbalanced in a busy medical practice by additional burdenson the practitioner.

The NHS Net is thegovernment mechanism for relaying information between medical practitioners.Most GP surgeries are linked to the network. It uses the Web with a secureconnection. Medical records are held on the network, although most practicesstill keep manual records as well. There are drawbacks. While the connection issecure around one million employees have access. Records linked to the Internetmight be vulnerable to hackers. Patients have a right of access to the recordswhich might contain information they should not see, for example confidentialbut relevant information about members of their family. The informationcontained in the records has to be input by humans who are vulnerable tomistakes.

Using the Internetto access medical research and guidelines is time consuming and impractical in abusy practice. The Web is disorganised and many sites are unregulated. Whatstatus should be attributed to the information recovered? A guideline cannotprovide patient tailored advice. What is the consequence if a guideline isignored? How do you cope with patients who indiscriminately research theircondition on the Internet?

These and earlierissues were addressed by the panel session which concluded the morning. Dr.Berry and Neil Brailsford were joined by Dr Graeme Laurie, Christopher Oliverand Charlotte Waelde of SCRIPT. Much of the discussion focused on the tensionscreated within the medical profession by the demands imposed by regulation andthe constant threat of negligence suits.

E-commerce & the Pharmacist
In the afternoon session, chaired by Professor Arnold Maran, Helen Darracott,Head of Professional Ethics at Royal Pharmaceutical Society of Great Britain,addressed the Conference one-commerce and the pharmacist. She pointed out thatthe remote patient is nothing new to pharmacists who are used to issuingpharmacy medicine to relatives and friends on behalf of the patient. Informationis obtained from the person presenting and they are given advice as the productis issued. The procedure is highly suitable for being replicated online.

With onlinepurchases the same information is obtained by the purchaser completing a healthquestionnaire. The advice is given over the Internet using e-mailed informationleaflets. The product is dispatched to the purchaser’s home. Legal issuesarise as to exactly where the sale takes place – is it within licensedpremises?

For prescriptionmedicine it is less straightforward. Faxed, e-mail or telephone prescriptionsare not acceptable. Prescription medicine can be issued only where the principalprescription is present or where the pharmacist knows that it is going to bereceived. When prescriptions are received the pharmacist has a duty to ensurethey are genuine. This is more difficult if the doctor is not local to thepharmacist. Electronic prescriptions are necessary before any system can workproperly.

Internet Delivery of Professional Services
There was a change to the Conference schedule when Richard and Grahame Cohenof Epoch Software called to say they had been delayed. In line with theConference theme, their address was seamlessly presented remotely on theirbehalf by John Gailey. The topic for discussion was Commoditisation of the LegalMarketplace. John introduced the concept of the ‘Desktop Lawyer’, which isnow available online to the public ( and to other legal firms whocan incorporate the site into their own.

The service waslaunched in 1999 and uses ‘rapidocs’ document assembly technology to producetailor-made legal documents for the user. The most popular document are wills,divorce forms and contracts for selling cars. In 1999, 4% of simplified divorceapplication forms lodged in court in England were from this site. Access isavailable 24/7 and the most popular time for users is 10pm. There are over60,000 registered users.

The site is anexample of true e-commerce. It has found a new market for legal services ratherthan diverting clients away from conventional practices. The ‘pile high –sell cheap’ business model is novel in the legal profession. Human capital isbeing replaced with information technology. Prices are paid for each item ofbusiness rather than according to time. John, who had spent the lunch break athis own GP’s surgery to receive injections prior to a holiday up the Amazon,concluded his ex tempore tour de force by visiting Web sites with informationabout some of the drugs with which he had just been injected. For absolutecertainty he did a quick search on BAILII to check out any appearance of thesedrugs in any medical negligence cases.

Regulation – Impediment or Facilitator
In the last session, chaired by Hugh Donald WS of Shepherd & Wedderburn,the final speaker of the day was lain Mitchell QC, Vice Chairman of the Societyfor Computers and Law’s Scottish Group. He addressed the conference under theheading Regulation – Impediment or Facilitator?

His openingsuggestion was that there is nothing at all new in the Internet. It is just amodern medium for something mankind has engaged in for a very long time –communicating and expressing ideas. It is not uncontrollable, as was firstthought. Cyberspace is not, in fact, the new Wild West. Real people, real goodsand real services are traded. The real people are subject to the rule of law inthe same way as any other real people.

The Internet isnot being used to its full potential because, rather than being under-regulated,it is being over-regulated. E-commerce will take off only when the public gainsconfidence. In order to engender confidence, the Internet must be seen asstable, ordered and consistent. Piecemeal regulation in one country causescommercial users to relocate to a country with less stringent regulation.Conflicts arise between regulation imposed by one country and another. Theconsistency needed to build confidence is sorely missing. Global solutions areneeded. Only then will the opportunity come for the Internet to flourish.

In the ClosingPanel Session, for which other speakers were joined by Mrs Christine Glover,President of the Royal Pharmaceutical Society of Great Britain and AlastairThornton WS, President of the Law Society of Scotland, panelists were invited tomake predictions as to the future. Libraries will disappear. So will the linebetween advice and advertising. Services will be acquired from the cheapestmarket available worldwide. Competition will put pressure on (legal)professionals to drop their standards in order to compete. This session broughthome once again that, although IT is at present an emerging source of greatbenefit, in time it will become an essential tool for professional survival –Professional Survival in the Cyberage.

Having expressed the Conference’s thanks to the Deputy Minister and otherspeakers, and to all those involved in its organisation, John Sibbald drew theConference to a close. He expressed the wish, put forward by several speakers,that the important dialogue initiated at the Conference, between two of theworld’s oldest professions, could be continued. He very much hoped that theSociety for Computers and Law could take some initiative to carry this forwardby establishing a joint working party and he would take the earliest opportunityto propose this to the Society’s Executive Body.