Remote Healthcare Services Officially Allowed and Regulated
Turkey has accepted a new regulation on remote health services (“Remote Healthcare Services Regulation”), effective as of February 10th, 2022. As this area was not specifically regulated until this new regulation, several questions could not be clearly answered and interpretation of the supporting legislation was required. Due to the fact that the main legislation regulating health matters was enacted decades ago, it was quite difficult to make a proper interpretation based on the intention of the lawmaker. While there have been certain healthcare providers that had already started their remote operations after the Covid-19 outbreak, the lack of a regulatory framework and the respective laws and court precedents were posing a substantial risk not only on those service providers but also for the associated doctors.
Traditional Doctor Examination
In the traditional procedure of medical diagnosis, doctors first acquire anamnesis from their patients. This is generally followed by a physical examination which is conducted in a manner that would be suitable for patients’ complaints. The classical procedures for physical examination include visual inspection, palpation, percussion, and auscultation. Based on doctors’ professional opinions, they choose the relevant methods and conduct their examination accordingly. It is not possible to set a general principle as to which procedures doctors are required to go through in conducting their examinations. Doctors may also ask the patients to have certain tests done (such as giving a blood sample) and bring back the test results. After going through these procedures, doctors diagnose the medical condition and, if the treatment is going to include the use of a medication, they should issue a prescription to the patient.
Inadmissibility of Online Examination and Treatment before the Remote Healthcare Services Regulation
The regulatory framework that would have been applicable in considering whether online examination, diagnosis, treatment or prescription would be legally admissible, were as summarized below before the Remote Healthcare Services Regulation was put in effect:
a. According to the Medical Deontology Bylaw (Official Journal: 19.02.1960/10436, hereinafter “Deontology Bylaw”) s.16 “Doctors shall report on a medical condition of a patient based on their conscious and scientific opinion which they concluded as a result of the examination which they personally carried out and based on their personal observations.”
b. According to Ethical Rules for Doctors s.23 “Except for emergency situations, doctors cannot start treating their patients before personally examining them.
c. According to Ethical Rules for Doctors s.32, “Doctors, when they deem appropriate, report to their patients, which they personally examined and treated [or have been treating], with respect to the disease.”
d. According to the Regulation on Private Health Institutions Conducting Ambulatory Diagnosis and Treatment (Official Journal: 15.02.2008/26788, “Private Health Institutions Regulation”) s. 17, doctors are required to record information on examination, diagnosis and treatment in compliance with the procedures designated by the Ministry of Health. Likewise, according to its s. 27, all patients must be registered to the protocol ledger. All of these records must be retained by the health institution.
As you may notice, the above instruments repeatedly used the word “personally” (in Turkish: şahsen). According to Turkish Language Institute’s online dictionary, the literal meaning of this word is “without the use of any intermediary.” The second noteworthy expression used in the above instruments is the word “observation” (in Turkish: müşahede). In Turkish, the root of this word is “witness” (in Turkish: şahit). Therefore, the literal meaning of the expression “personal observation” indicate physical observations made without recourse to an intermediary. This literal interpretation appeared to be against the possibility of remote diagnosis and prescription.
The Deontology Bylaw was enacted in 1960 and its section 16 has not been changed since then. The Ethical Rules for Doctors was enacted in 1999 and its above-mentioned sections have not been changed since then. At the time when these instruments were drafted, the technical resources were not sufficient for seeking remote medical attention and consultation with a health professional.
High Court Precedents
There have been several high court decisions holding that it was not permissible for doctors to prescribe medication without seeing the patients and that it would constitute a crime (forgery of documents /fraud against a public institution/abuse of duty) punishable by imprisonment. Furthermore, for prescriptions on medications about which Social Security Insitute (“SSI”) pays contribution, SSI has the right to reclaim the amounts paid from the doctors who issued the prescriptions without seeing the patients. Some of these judgments are briefly summarized below for establishing a general idea with respect to the jurisprudence before the enactment of the Remote Healthcare Services Regulation:
Yargıtay 4. CD., E. 2005/7907 K. 2006/14229 T. 20.9.2006 – In this case, the person for whom a prescription was called in testified that she never went to the health clinic. According to her testimony, she went to a pharmacy, but the medications that she was looking for were not available at that time, so she left her health certificate (in Turkish: sağlık karnesi) in the pharmacy. Although the first instance court exonerated the defendant, the Court of Appeals (Yargıtay) rescinded this decision by saying that the defendant’s action in prescribing medicine without seeing the patient constitutes a crime.
Yargıtay 11. CD., E. 2012/28286 K. 2014/18391 T. 5.11.2014 – In this case the indictment alleged that the defendant prescribed medications to patients having health certificates without actually seeing them and that the defendant was purchasing all medications from a particular pharmacy and giving them to the patients. The allegations also state that some of the prescriptions were not even known by the patients. Such patients testified that they did not even go to the health clinic and they have not acquired the prescribed medications. The first instance court exonerated the defendant, however the Court of Appeals rescinded this decision on the ground that the first instance court’s examination was not sufficient.
Yargıtay 11. CD., E. 2014/7776 K. 2014/20463 T. 28.11.2014 – This case is also concerned with doctors prescribing patients without actually seeing them. The defendants were found guilty of “abuse of duty” and “fraud”.
https://www.lexology.com/library/detail.aspx?g=fb0fdff2-e4b7-43d8-890e-58ae98df0162