The recent CFM Resolution no. 2314/2022 finally brings the explicit authorization for telemedicine in Brazil, without linking such procedure to the state of emergency. The period of uncertainty was long, with the technology available in the market, but without specific legislation to bring juridical certainty to physicians.
According to the lawyer Daniele Dobner Eda, a partner at Virmond & Dobner Advogados and a specialist in Medical and Occupational Health and Safety Law, it is known that it began due to the need during a world pandemic. The laws and resolutions in effect at the time could not guarantee the professionals a procedure for using the technology that had juridical certainty.
“In occupational health, the scenario brought more uncertainties. Some professionals understood that telemedicine would fit only to cover the needs of the front line, with the initial care of suspected cases or those affected by Covid-19, to reduce the hospital demands, by leaving such space available only for critical cases,” says the specialist.
Public Emergency
She also mentions that a different understanding emerged, the idea that telemedicine could be used beyond the emergency cases of the pandemic, including occupational health. “Telemedicine was approved before the public emergency experienced by the Pandemic on April 15, 2020, through Law No. 13989 and lasted until the end of the public emergency condition on April 22, 2022. There was no explicit permission or prohibition of the technology for Occupational Health in the cited law, bringing uncertainty to the professionals”, explains Daniele.
She states that the National Association of Occupational Medicine (ANAMT) has explicitly stated, through a letter, its disagreement with the use of telemedicine for occupational purposes. However, there were doubts as to its prohibition, and the letter lacked any legislative effect. “Between April 15, 2020 and August 5, 2021, for more than a year, companies used telemedicine to perform occupational examinations without specific regulation. However, with the advent of Resolution No. 29297 of August 5th, 2021, there was an explicit prohibition for the situation”, she says.
“Art. 6 It is forbidden for the physician who provides assistance to the worker:
I – To perform occupational medical examination by means of telemedicine without face-to-face examination of the worker.”
“Thus, the companies that used to use telemedicine for providing health services to workers were forced to stop using it, in compliance with the Resolution”, she highlights.
However, Resolution 2314/2022, currently in effect, states that Telemedicine can be used for the “prevention of diseases and injuries, management and promotion of health”, as shown below:
“Art. 1 – Telemedicine is defined as the exercise of medicine through Digital, Information and Communication Technologies (DTICs) for the purposes of assistance, education, research, prevention of diseases and injuries, management and promotion of health.”
“From the aforementioned article, it is clear that occupational medicine is nothing more than the branch of medicine that deals with the relationship between the workers and the work, with the main purpose of preventing accidents and occupational diseases, as well as promoting health and quality of life,” says the lawyer.
“In my analysis, Resolution 2.314/2022 revokes the Resolution that forbids telemedicine in occupational examinations (Resolution 2.297/2021), since the text of the legislation in effect contradicts the prohibition. It is based on the prevention of diseases, occupational injuries, and the promotion and management of health, which, as already said, is nothing more than the scope of Occupational Medicine,” she points out.
Consensus
However, since such revocation or authorization is not yet explicitly stated and the understanding is only by interpretation, the legal uncertainty still remains. In Daniela’s opinion, instead of being limited to two different opinions and extreme interpretations, we can reach a consensus.
“Well, today occupational health is, in most cases, the only opportunity that the worker has to have medical screening and the occupational physician is responsible for the initial diagnosis of many diseases. In this sense, the so-called “precariousness of occupational health” is introduced, justifying that telemedicine would take away the opportunity given to the worker to have contact with a physician and to be diagnosed through physical examination”, she points out.
The lawyer states: “We believe that the medical examinations for employment as well as those that demand the analysis of complementary examinations, which compose the Occupational Health Certificate (ASO), must be performed obligatorily in person. Thus, it respects the patient’s first contact with the physician. It is also suggested that the face-to-face examination be mandatory at the dismissal since it is the last contact with the physician and the physician has to diagnose the worker with any disease arising from the work environment”.
She explains that the other medical examinations remain for the use of technology, such as periodic, change of function, screenings, and return-to-work, remain. “These alternative respects the contact of the physician with the worker through the pre-employment examination and paying attention to the technologies that so many other areas of medicine are enjoying,” she adds.
It’s important to point out that the Resolution itself brings the option for Telemedicine as a responsibility of the examining physician, and that he/she must indicate the in-person examination for the continuity of the act, as stated in Article 4:
Article 4 – The physician is assured the autonomy to decide whether to use or refuse telemedicine, indicating face-to-face care whenever he/she deems it necessary.
1º. Medical autonomy is limited to the beneficence and non-maleficence of the patient, in consonance with the ethical and legal precepts.
2º. Medical autonomy is directly related to the responsibility for the medical act.
3º. The physician, when attending via telemedicine, must provide a line of care to the patient, aiming for the patient’s safety and quality of care, indicating face-to-face care when there is evidence of risk.
The lawyer points out that face-to-face care remains the gold standard, and the option of telemedicine in care will assume all the responsibilities arising from it.
She believes that there is a great opportunity for growth in medicine with the authorization of this technology that is already being widely used in other areas. “It’s up to Occupational Medicine to choose whether to advance in this growing trend along with other areas or to maintain its conservatism, delaying a process that, one way or another, is inevitable. The digital world is inherent to the modern world; there is no way to escape it”, she concludes.
Source: Revista Cipa