Tech Platforms that enable Telemedicine Practice, are required to adhere to, or be in the know of, certain laws and regulations that may be applicable on them, depending on the function performed by such Tech Platforms, in enabling Telemedicine practice. The following seeks to be a general guide on the same.

The applicability of the IT Act is referred to in another post, and not covered in this one.

The Notification of the Telemedicine Practice Guidelines (“Telemedicine Guidelines” / “Guidelines”), as part of Appendix 5 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (“MCI Code”) has made practice of the medical profession, and provision of medical care, over technology platforms, legal and regulated. This regulation will impact a cross section of stakeholders that would be integrated or affiliated with Telemedicine in India, in one way or the other. The regulated stakeholders are Medical Professionals (“MP”), Patients, Caregivers and Technology Platforms.

A Technology Platform (“Platform” / “Tech Platform”) may be a website/mobile app or any other virtual medium used to enable Patients to consult with MP’s.

To state that the Guidelines are more restrictive/regulative of and over the MP’s rather than the Tech Platforms/aggregators/facilitators, would be to state the truth (more on this in a later post). However, the Telemedicine Guidelines itself should be read in conjunction with other laws, rules and regulations. The Guidelines are a guiding document, which lays out the primary principles, i.e. the contours within which, telemedicine practice in India is to be followed. The specific requirements are still regulated by already existing laws and regulations.

Applicable Laws for Tech Platforms

1. The MCI Act and the MCI Code

While the MCI Act administers and enforces regulations regarding the medical profession (including registration, license to practice and educational qualification / standards), the MCI Code laws down the professional and ethical standards to be followed by doctors in their interaction with patients, pharmaceutical companies and within the profession. Tech Platforms are mandated to perform their due diligence, and ensure that MP’s providing services via their platform are compliant with the MCI Act and Code. Ideally, they should integrate the process of verifying the RMP’s on their Platform, and ensure that the relevant details of a RMP are visible to customers/patients on their Platform.

2. D&C Act and Rules

The Guidelines impose restrictions on what drugs/medicines can be prescribed by MP’s, depending on the underlying condition of the Patient  and the mode of consultation (i.e. audio, visual, text based et al.)

While Platforms do not need to take responsibility on the type of Drugs being administered on their Platform (as the MP’s are primarily responsible for the same), the Tech Platforms have been given a general responsibility to report any malpractice to the MCI, and thus would have to ensure internal checks and compliance by the MP’s with the restrictions on drug prescription.

The D&C Act and Rules also require the prescriptions to be signed by the MP, in a particular format. When such prescriptions are provided online, they must be digitally signed as per the Information Technology Act, 2000 (“IT Act”). The Tech Platform is to enable a framework where doctors may digitally sign the prescription as per the IT Act, and send the same to the patients, or directly to pharmacies (after obtaining explicit consent of such patient).

3. Telecom Commercial Communication Customer Preference

Regulations, 2018 (“TCCP Regulations”)

Platforms would be regulated by the TCCP Regulations, and it would apply in such communications they make to those whom they provide their services, i.e. MP’s and Patients/customers. These would regulate the promotional, marketing and transactional messages that Tech Platforms would send to the stakeholders.

4. Consumer Protection Act, 2019 (“CPA”)

The CPA would be more applicable on RMP’s than on the Platform, as courts have recognized that medical services are something that fall within the ambit of regulation of consumer protection legislation in India.[1] The Platforms liability would only arise if it is in some way associated with the actual providing of medical care to consumers, and is actively involved in substituting the role of a MP on the Platform. Thus Platforms should avoid substitution of medical advice through the Platform.

5. Corporate Laws and Foreign Exchange Management Act, 1999 (“FEMA”) Compliances

The Platform would be subject to laws of India that regulate the functioning of an LLP, Pvt. Ltd. Co., Public Co. or a Sole Proprietorship et al. Accordingly, any corporate/commercial activity taken by it may be subject to such regulation, which would include raising funds, either domestically or from foreign sources, and accordingly would be subject to compliances under FEMA.

One of the most significant impacts (post COVID19) on the medical industry will be this the shift from hospital-based services to telemedicine and virtual care. When implementing the tech solution for providing telemedicine based services, the Tech Platforms must evaluate the exact nature of services they offer vis-à-vis the laws mentioned above, as it would impact the liability that may be applicable to them. Moreover, as MP’s and Patients become more use to medical care offered via Telemedicine platforms, the Tech Platforms themselves would have to ensure that the appropriate disclaimers are made to the MP’s and Patients.

The content of this article is intended to provide a general guide on the subject matter. It is not intended to provide specialist advice, and should not be construed as the same.

[1] Indian Medical Association v. V. P. Shantha and Ors AIR 1996 SC 550

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