Court of Appeal upholds virtual supervision of healthcare procedures amid pandemic

Out-Law News | 27 Oct 2020 | 2:25 pm | 1 min. read

The English and Welsh Court of Appeal has rejected a judicial review attempt against the virtual supervision of medical procedures, recognising that healthcare professionals can still oversee an interaction using digital technology.

The Court rejected an application brought by advocacy group Christian Concern for judicial review of the secretary of state for health’s March 2020 decision to approve the “home of a pregnant woman” as an authorised place to take abortion drug Mifepristone. The approval decision was made in the context of the Covid-19 pandemic, and allowed pregnant women to take Mifepristone at their homes following a virtual consultation with a registered medical practitioner.

Christian Concern challenged the decision. Its application for judicial review was rejected by the Divisional Court, but permission to appeal was granted on limited grounds.

The group argued that where the Abortion Act stated that pregnancies may only be “terminated by a registered medical practitioner”, this should be interpreted literally, so that a situation where a consultation was carried out online by a medical practitioner and the drugs were posted to the patient, who then self-administered the drugs at home, would not meet this definition.

Healthcare expert Louise Fullwood of Pinsent Masons, the law firm behind Out-Law, said if this strict interpretation had been supported by the Court it could have had a “seriously disruptive” effect on many of the medical and healthcare services which have moved online in whole or in part since the start of the coronavirus pandemic.

“Many of us will have experienced interacting with healthcare professionals online or by phone in recent months when GP surgeries and hospital outpatient clinics have been physically closed. For many of us this has been a convenient and welcome option,” Fullwood said.

“However, a strict interpretation as requested by Christian Concern could have led to various such services being deemed no longer lawful if part of the interaction – such as self-administering treatments – were carried out other than face to face in the physical presence of a healthcare professional,” Fullwood said.

The Court of Appeal rejected the argument. It said the interpretation of legislation should take into account not only developments in medical science and medical practice, but also factors such as the development of new communication technologies.

As a result, the court said a healthcare professional could still supervise a procedure or interaction, even when this was done virtually rather than in their physical presence or proximity.

“This is a helpful and indeed timely reinforcement of the legal aspects of the provision of medical or healthcare services at a distance,” Fullwood said.