Crossed perspectives on telemedicine

On 9 June 2022, Simmons & Simmons organised in partnership with Aon a conference entitled "Regards croisés en télémédecine" at the Cercle de l'Union Interalliée (Paris).

During this event, various speakers discussed the central role of the healthcare professional and its evolution with regard to the development of telemedicine in France.

In addition to an overview of the applicable legal and regulatory framework, Simmons & Simmons and Aon wanted to offer a 360 degree discussion with all stakeholders in the sector : patients, healthcare professionals, their insurers and the medical technology industry.

This note provides a summary of the conference and details the list of speakers and their respective organisations at the end of the article. A French version of this article is also available here.

Please contact us if you would like to receive a copy of the materials shown at the conference.

Summary of the event

Mr. Alban de Crémiers (Leah), the first speaker, pointed out that the Covid-19 pandemic had led to a massive development in the use of telemedicine in France.

In this respect, the figures are revealing: the beginning of the pandemic saw a peak of 4.5 million teleconsultations carried out during the months of March/April 2020 (first lockdown), compared to an average of only 10,000 per year between the entry into force of the Decree of 19 October 2010 (which provides for the possibility of a health professional to follow a patient remotely) and Rider 6 to the Medical Convention (which provides for the reimbursement of teleconsultations from 15 September 2018).

Today, about 1 million teleconsultation acts are performed each month in France.

In this context, the deployment of telemedicine in France raises many questions. On the one hand, as to the cases in which it is possible to use telemedicine : for example, in the context of pre-admission, post-operative follow-up for ambulatory surgery, or regular remote patient monitoring. On the other hand, as regards the organisation of care for the professional who will have to organise himself between telemedicine and face-to-face consultations.

Faced with these questions, Mr. de Crémiers concluded that while little attention was paid to telemedicine before the pandemic, Covid-19 has highlighted the use of this tool, so that it is likely that within five years, France will see a massive development in the use of teleconsultations.

The State may also find it in its interest to develop teleconsultations insofar as they allow for better patient follow-up, especially in less accessible or isolated areas. As for the reimbursement of teleconsultations (which is, as a general rule, lower than that granted to face-to-face consultations), this should, according to the expert, be brought into line with that of face-to-face consultations.

Prof. Anne-Catherine Perroy (Simmons & Simmons), the second speaker, went on to recall the definition of telemedicine: telemedicine is a form of remote medical practice using information and communication technologies which puts a medical professional in contact with (i) one or more health professionals or (ii) with the patient. It makes it possible, among other things, to establish a diagnosis, to ensure follow-up for preventive or post-therapeutic purposes and to prescribe products, services or procedures.

It was recalled that the Public Health Code lists five types of telemedicine acts : teleconsultation; tele-expertise; remote medical monitoring; remote medical assistance and assisted medical response in the context of medical regulation.

In particular, teleconsultation, tele-expertise and remote monitoring have been included in the common law of health insurance (respectively in 2018, 2019 and 2022) and teleconsultation, tele-expertise and remote monitoring are now reimbursed when they are part of the care pathway.

In addition to these elements, the regulatory framework for telemedicine, and more broadly for telehealth, is defined on the one hand by the Public Health Code, and good practice on the other.

Indeed, the Public Health Code states that the relevance of the use of telehealth is assessed by the medical professional, the pharmacist or the medical auxiliary, thus underlining the essential role of the health professional in telehealth : only the health professional can assess the relevance of the use of telehealth.

Furthermore, the Charter of good practice in teleconsultation reminds us that (i) teleconsultation must meet the same requirements as face-to-face medical practice ; (ii) the teleconsulting doctor must ensure that the technological prerequisites and the prerequisites of the patient are met before carrying out a teleconsultation ; and (iii) the teleconsulting doctor must be able to ensure continuity of care for the patient.

In view of the above, Prof. Perroy considers the health professional as an essential and indispensable actor in the use of telemedicine: without his expertise and his opinion in favour of the use of telemedicine, it cannot be used, namely to follow a patient in the framework of a regular follow-up, for preventive, therapeutic or post-therapeutic purposes.

Dr. Agnès Kamoun, a specialist in orthodontics and the third speaker, brought a "field" perspective, stating that she has been using teleconsultation since January 2020, when she first registered on the Qare platform.

During her first teleconsultations, Dr. Kamoun became aware of the existence of medical and, in particular, dental deserts.

For example, she found that in some geographical areas it is very difficult to find a place to get medical treatment or even just to get medical advice. The use of teleconsultation could therefore, in her opinion, compensate in certain cases for the absence of health professionals in the vicinity of patients, who would no longer be forced to travel several (tens of) kilometres to be treated or to obtain medical advice.

Moreover, with the lockdown, Dr. Kamoun carried out nearly 400 teleconsultations or remote monitoring of her patients (only on existing patients, not on new ones) from March to May 2020, i.e. in just two months. Since the end of the lockdown, Dr. Kamoun has continued to use teleconsultation and telemonitoring (for her patients only) via video conferencing ("visio") on WhatsApp.

After two years of using telemedicine, Dr. Kamoun has found the experience positive, including maintaining the therapeutic link, more frequent follow-up, monitoring of equipment, and saving time and travel.

However, she also noted some negative points : in particular, the dependence on the equipment used, or the lack of reimbursement in case of teleconsultation or remote monitoring outside of the care pathway (for example, in the case of a simple opinion).

Ms. Céline Le Bars (AON), the fourth speaker, began by pointing out that the use of telemedicine has not, to date, led to any deterioration in the insurance conditions of insured persons, either in France or worldwide.

In terms of predictions, the risks linked to the massive use of telemedicine during the various periods of lockdown linked to the pandemic will necessarily be realised in the next three or four years according to AON. The pandemic has been identified by AON as a factor that will accelerate the deterioration of insurance conditions for telemedicine players: healthcare professionals, healthcare institutions, medical centres, and companies active in the field of medical technology, even though the insurance market has been destabilised since 2018.In particular, Ms. Le Bars stressed the "cyber" risk, the main risk identified and linked to the use of telemedicine.

Finally, Mr. Dauphin (France Assos Santé), the fifth speaker, addressed the issue of the consequences of the use of telemedicine on the patient. He raised the concerns of patients and in particular on (i) the role and place of the health professional with the arrival of the digital medical device, which acts as a third interlocutor in the relationship between the patient and the health professional; (ii) the possible overlapping of digital and health inequalities; and (iii) the role of the patient in the "remote" care pathway. In this respect, Mr. Dauphin questioned the fact that bringing health into patients' homes could make them more anxious and make the care process more cumbersome.

This last intervention was followed by a round table discussion between all the speakers, during which the different speakers highlighted the central and indispensable role of the healthcare professional in any telemedicine system in the broad sense.

Vanessa Carpano-Chauvin opened the discussions by recalling the questions addressed by the different speakers, underlining that they each open the door to many legal questions with uncertainties and some unknown data for manufacturers in the medical technology industry. For example: Where does the medical act begin and end? At what point does the health practitioner intervene and what is their role in the care pathway, which is fairly well defined in France as far as teleconsultation is concerned, but much less so when it comes to implementing medical devices that are increasingly innovative and sophisticated? How far can the use of such medical devices go? And what is the place of the health professional in the care pathway in France? Vanessa Carpano-Chauvin invited the speakers and the audience to continue this debate in the light of these questions. She began by expressing the point of view of the industry she represents, i.e. that the intervention of the healthcare professional remains key, and must be maintained while evolving in the light of progress of the technology, and then opened the floor to questions.

Following a question from the audience, Mr. Dauphin began by reminding the audience that patients' fear of seeing their health professionals replaced by digital tools could be a brake on the development of telemedicine. However, it turned out that the health crisis was able to remove this brake as patients found their health professionals in teleconsultation, and that communication between the them had not fundamentally changed.

Dr. Kamoun also stressed the role of the health professional in the use of teleconsultation or telemonitoring and highlighted the fear expressed by some of her patients of seeing their orthodontist replaced by a digital tool. In this respect, Dr. Kamoun explained that some of her patients are reluctant to use teleconsultation, even when it is a check-up appointment without any therapeutic act, and prefer to travel. According to Dr. Kamoun, it is essential that the "telemedicine" system remains flexible: telemedicine must remain a proposal and not an obligation, whether on the part of the health professional or the patient.

In response to a question from the audience, Prof. Perroy addressed the risk of the uberisation of medicine and recalled that the doctor's intervention must remain full and complete. In this respect, Prof. Perroy recalled that the health professional must never be sidelined, that medicine and therefore, by extension, telemedicine, is an art and not a business, so that telemedicine - as envisaged in the legal texts in France - must rest on two essential pillars: the medical device (CE marked) on the one hand and the health professional on the other.

In this respect, Mr. de Crémiers stressed that the doctor was free to practice his art, and that teleconsultation solutions could, in some cases, offer better follow-up to the patient. Mr. de Crémiers also stressed the need to support healthcare professionals in the deployment of telemedicine solutions in order to ensure the medical service rendered.

Mr. Battle highlighted the efforts of the medical technologies industry he represents to take the necessary steps with the competent unions and orders to regulate the use of the above-mentioned solutions in the health field. He pointed out that institutions, ministries and parliamentarians can approach these issues in two ways: some look at it from a technical or health point of view, while others approach the issue primarily from the perspective of patient reimbursement. A divide has arisen from these complementary positions, and it is clear from the field that there are few interlocutors within the civil service who can claim to have a comprehensive view of the issue. Great opportunities can arise from this situation, where leaders are able to learn and move forward together, hopefully supported by 360° feedback from the field, such as that offered at today's conference.

Ms. Le Bars then returned to the issue of civil liability and certain risks. Ms. Le Bars stressed the need for insurers to provide health professionals and actors with tools to monitor and support the cyber risk. In this respect, it was recalled that the provision of adequate tools would bring more peace of mind to the practitioners, so that they could focus on their medical practice and not on cybersecurity expertise.

To these discussions on civil liability, Mr. de Crémiers added that since 2018, some insurers already cover healthcare professionals in the practice of consulting.

Speakers

Vianney Battle, Align Technology (manufacturer of aligners and intraoral scan)
Vanessa Carpano-Chauvin, Align Technology(manufacturer of aligners and intraoral scan)
Alban De Crémiers, Leah (dental medical devices)
Arthur Dauphin, France Assos Santé (French national union of approved associations of users of the health system)
Dr. Agnès Kamoun, Orthodontist
Céline Le Bars, Aon (Professional insurer)
Prof. Anne-Catherine Perroy, Simmons & Simmons
Alexandre Regniault, Simmons & Simmons