When is Explicit Consent required for Digital Communications?

Question: Given expanded options for interacting with patients remotely, when should physicians secure explicit patient authorization to use of digital communications during virtual care?

Context: It is always important to carefully confirm patient identity before initiating any remote interaction.

Under increased pressure to provide a broader range of virtual care services, including email, texting, videoconferencing, remote monitoring, image and video file transfers, etc., physicians may wonder when explicit agreement needs to be solicited and formally documented. The CPSA, AMA and CMPA have all commented on this question:

• CPSA: COVID-19 Virtual Care
• CPSA: Electronic Communications & Security of Mobile Devices
• CPSA: Telemedicine Standard of Practice
• AMA: Virtual Care
• OIPC: Communicating with Patients Electronically
• RCPSC: Telemedicine and Virtual Care Guidelines
• CMPA: Practising Telehealth
• CMPA: COVID-19 Hub
• Manual: Virtual Care

Answer: The bottom line is that virtual care encounters, however facilitated, must confirm patient identity and willingness to participate in the proposed medium of interaction (i.e., verbal authorization). As long as the telecommunications tool(s) in use are regulated and secure, explicit (non-verbal) assent does not have to be documented:

• Telephony - As long as the telephone interaction is not recorded, patient willingness to converse is implied and there is NO need to request or document formally. 
• Email - Explicit authorization is NOT required if AHS secure email is used. However, email messages should include a disclaimer in the footer (e.g., "Please note that, although this communication is encrypted, confidentiality of information transmitted through e-mail is inherently difficult to protect. Please be aware of this limitation when contacting us using e-mail").
• Connect Care Messaging - Explicit authorization is NOT required when communicating with patients using embedded patient messaging tools (In-Basket and MyAHS Connect portal). 
• Connect Care Virtual Visits - Explicit authorization is NOT required when using virtual visit (or virtual hospital and consultation) tools embedded within Connect Care (coming soon).
• Non-Connect Care Virtual Visits - Explicit authorization is NOT required if AHS videoconferencing or telehealth tools (AHS Skype for Business, AHS RealPresence, AHS Zoom) are used. AHS clinical videoconferences should not be recorded. If this is done, explicit consent should be obtained and documented. Use of the same technologies outside of AHS enterprise licenses (e.g., personal account or university account) is not recommended, would require explicit consent, and can be considered only if no other option is available (see CPSA COVID-19 guidance).

In sum, physicians should be respectful of communication stresses experienced by patients when switching to virtual care. They should discuss the risks and benefits of any new communication tools and the physician should ensure their clinical documentation reflects this discussion.  

As long as communications tool(s) are AHS approved and use is accepted by the patient, a formal documentation of approval from the patient is not required.

• Script: Informing Patients about Virtual Health