• Wednesday, April 24, 2024
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Legal Challenges in Telemedicine: Healthcare Innovation in Nigeria

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Introduction

The rise of tele-powered service delivery, including telemedicine, is reshaping the way healthcare is provided, transcending the limitations of time and space. Nigeria has also embraced telemedicine, but the regulatory framework for this emerging field is still evolving. Unlike countries like Canada that have implemented specific regulations for telemedicine, Nigeria is yet to develop comprehensive and tailored regulations to address its unique challenges. This regulatory gap becomes more significant as telemedicine gains incremental adoption in the Nigerian healthcare system. This article explores the legal challenges associated with telemedicine in Nigeria and provided recommendations for medical practitioners to optimize their practice and guide users in navigating these obstacles. As the field continues to evolve, it is crucial for stakeholders to proactively engage with legal considerations and advocate for the development of a robust regulatory framework that supports the growth and responsible implementation of telemedicine in Nigeria.

1) Lack of comprehensive regulations: Nigeria lacks a focused set of legislation dedicated solely to telemedicine. This creates an air of uncertainty that continues to define the discourse of telemedicine in Nigeria. The resulting puzzle significantly inhibits the operators from framing a clear outlook for their legal and regulatory compliance, while users are presented with a hazy rights and reliefs matrix. To successfully navigate this terrain, players in this sector are tasked not only with searching through the litany of regulatory provisions scattered across various legislations but also with positioning themselves to take the best advantage of these provisions. The key to surmounting this arduous task is to seek prior guidance from qualified legal practitioners who can effectively balance the application of local laws with the emerging best international trends. At a minimum, such guidance must reflect the multi-territorial footprint of the underlying activities and the applicable regulations to deliver solutions that best address the individual needs of the respective players.

2) Licensing and registration: Telemedical practitioners in Nigeria currently access licensing and registration as an instance of medical practice, but not as a dedicated area of practice on its own. The absence of a dedicated licensing regime and a registration framework based on a focused piece of regulation, denies operators and users the benefits of standardization, both in their operation and user experience within the sector. However, the specific requirements and processes for obtaining licenses and registrations for telemedicine are today scattered across litany of legal and regulatory provisions that govern its cellular components.

Operators and users alike are therefore charged to understand and comply with the multifarious licensing and registration requirements. This compliance duplicity is further compounded by the daunting reality of the multi-jurisdictional straddling of the rights and duties underlying these activities. A dedicated licensing and registration process will at the very least, serve to harmonise the multi-jurisdictional diversities with the sole aim of delivering clarity and certainty to operators and users alike.

3) Data protection and privacy: Telemedicine involves the collection, storage, and transmission of sensitive patient information and records. Ensuring the privacy and security of these data is crucial. Healthcare providers offering telemedicine services should adhere to data protection regulations and take appropriate measures to safeguard patient information. A healthcare practitioner is a data processor within the context of the Nigeria Data Protection Regulation (NDPR), and its data protection obligations are clearly outlined in the extant regulation. However, following in the multi-territorial footprint of tele-medical activities, the data protection obligations and rights are likely to assume multi-jurisdictional dimensions, which require operators to seek ample guidance on the scope of their compliance and for users to understand the available rights and protection across the multiple locations of their operations.

4) Cross-border footprint: The cross-border nature of telemedicine makes it difficult for operators to clearly define the specific ambit and scope of their relationships. Telemedicine facilitates seamless cross-border delivery of healthcare services, allowing patients located mainly in Nigeria to consult with healthcare providers located outside the country. This often gives rise to issues related to jurisdiction, professional accountability, and the standard of care, with varying implications and consequences in different jurisdictions. More advanced jurisdictions have made targeted regulatory attempts to address this challenge, but Nigeria still needs to cover this obvious jurisprudential deficit. In the meantime, every intending player within the tele-medical space should seek proper guidance on the prevalent uncertainties and the best ways to navigate them.

5) Reimbursement and insurance coverage: Telemedical activities may occur across multiple zones and territories, introducing a wide range of insurance claim and reimbursement challenges. Despite the growth and improved adoption of health insurance in Nigeria, the Nigerian health insurance framework is yet to provide a suitable framework for the standardization of claims and reimbursement that caters to the complex diversities of telemedicine consultations. The complexities of typical telemedicine risks go beyond the current codes of Nigerian insurance laws and require creative solutions to adapt to emerging insurance and claims-related issues associated with the rapid acceptance of telemedicine in Nigeria.

6) Jurisdictional issues: Telemedicine even in its simplest ramifications can pose complicated jurisdictional challenges along the diverse intersections ofthe chain of activities. Determining which jurisdiction’s laws apply, especially in cross-border scenarios, can be a complex task. Given the technical composition of the service delivery model and channels, this issue can often stretch the usual discourse on conventional conflict of law to its very limit. Therefore, in the absence of a clear-cut regulatory and licensing framework to harness the respective positions, both operators and users must rely on competent advisors to guide them through the murky waters of jurisdictional uncertainties. One way to best address this challenge is to develop agreements that address jurisdictional issues and harmonize legal requirements across regions in permissible circumstances.

7) Medical liability and malpractice: Telemedicine like conventional medical practice, naturally raises questions about medical liability and malpractice in the event of adverse outcomes or negligence. Determining accountability and liability in this intricate overlap of roles, rights, and obligations can be challenging, particularly in cases where the healthcare provider and patient are physically separated. A central feature of healthcare delivery is practice regulation and the legal framework for asserting the liability of practitioners. This seemingly simple task takes on a more complex dimension when healthcare delivery takes place across physical geographical boundaries with diverse standards of professional ethics and accountability. Telehealthcare delivery therefore suffers from the uncertainty of a legal framework and guidelines for related liability and malpractice issues. It is imperative for patients and service providers to seek help in navigating these complexities.

Conclusion

The growth of telemedicine in Nigeria hinges on the establishment of a deliberate legal and regulatory framework, a sentiment echoed by all stakeholders involved. While awaiting government intervention, industry players must proactively position themselves to leverage the potential benefits and mitigate the risks posed by the current regulatory uncertainties. This necessitates the adoption of creative measures, including strategic contractual and legal structuring, that go beyond the capabilities of the average practitioner or user within the telemedical ecosystem. To optimize their positions within this evolving landscape, interested players should seek the guidance of qualified practitioners who can navigate them through the complexities and help them make informed decisions. By taking proactive steps and engaging expert assistance, stakeholders can position themselves for success in the burgeoning telemedicine sector in Nigeria.

Taye Awofiranye is the Managing Partner at The Trusted Advisors

The Trusted Advisors is a leading Nigerian full-service law firm providing cutting-edge and timely legal solutions and services to its clients.

Disclaimer: This article provides general information and does not constitute legal advice.

For specific legal advice, readers are advised to
consult with us on [email protected]