By Victor Orandi, Matthew Magare

Adequate Healthcare is a global concern and Kenya is no exception. Increasingly the world is turning to ICT to improve healthcare service delivery. Kenya alongside other East African countries increasingly embraces telemedicine.

Telemedicine can be defined as the provision of healthcare services, through ICT, whereby the health personnel and the patient are not in the physical location. It entails the transmission of medical data and information in the form of text, images, sound and other forms in the prevention, diagnosis, treatment and follow up of the patient.

With telemedicine, a patient can send an image of a visible illness and communicate with a doctor through a live video feed. On a more advanced level, surgical procedures can be undertaken with experts dialling from a remote location to provide guidance on the procedure.

Telemedicine is poised to revolutionize the medical sector in Kenya. However, with every upside, there are challenges.  This is due to the legal issues surrounding the practice of telemedicine such as licensing, accreditation and registration of health professionals providing telemedicine services and protection of patient’s personal data.

The current legal framework governing telemedicine is;

1. The Constitution of Kenya, 2010;
2. The Health Act 2017;
3. Kenya Information and Communication Act, 2016; and
4. Access to Information Act, 2016.

The Policy documents in support include;

1. Kenya National eHealth Policy (2016 – 2030);
2. Health Information Policy (2014 – 2030);
3. ICT Policy 2016; and
4. Kenya mHealth Standards and Guidelines.

The Government has endeavoured to streamline the industry through relevant governing policies such as the framework detailed in Kenya National eHealth Policy 2016-2030 (the “Policy”). The Policy’s objective is to create the highest standard of health through the adoption and use of ICT. The Policy provides standards and guidelines that will ensure the easy transfer of health information, establishment of telemedicine standards as well as guidelines to regulate the sharing of health data information through communication networks.

In support of the Policy, the Ministry of Health developed the Kenya mHealth standards and Guidelines to enhance efficiency and effectiveness in the delivery of health services via mobile platforms in Kenya (the “Guidelines”).

The Policy defines mHealth as the use of portable devices such as cell phones to provide healthcare services and information. The Policy requires that in the development, implementation, support and maintenance of mHealth systems is benchmarked on global standards and local standards such as the World Health Organization, Global Observatory for eHealth.

We explore some of the challenges posed by telemedicine in the processes detailed below:

Licensing

Doctors and dentists desiring to practice in Kenya are mandated to comply with the statutory requirements for registration and licensing. Any doctor or dentist who fails to comply with the requirements is deemed to have committed an offence under the Medical Practitioners and Dentists Act, Cap 253 Laws of Kenya.

In regards to opening a pharmaceutical premise or being a pharmaceutical technologist, one has to observe the laid down procedures set out by the Pharmacy and Poisons Act, Cap 244 Laws of Kenya.

With the advent of telemedicine, it will be a challenge for both the regulators and patients who wish to establish whether the medical service providers involved in providing telemedicine services are duly registered and licensed. For example, in an online medical consultation between a doctor and a patient, the online platform may not indicate whether the doctors are properly licensed. The patient will bear the risk of unethical practice.

Registration

The eHealth Policy issues the guidelines and standards to be applied in the delivery of electronically prescribed drugs. The Policy stipulates that the providers must be qualified and licensed pharmacist or pharmaceutical technologists and operating in registered premises. All prescriptions dispensed electronically are required to bear the medical professional’s practising license number issued by the relevant licensing body.

Data Protection

The Guidelines require the eHealth system to ensure that Client’s data is handled in a secure manner by setting up mechanisms that will ensure privacy, confidentiality and integrity. Data should be validated during data entry at source to ascertain that the data collected is accurate and reliable assuring credibility for purposes of reporting and evaluating.

The Guidelines also touch on access to information requiring clear procedures for authorizing access to client data. The eHealth system should ensure that client data is protected at all times from unauthorized access or alterations.  Such protection is achieved through the use of hashing techniques to monitor any changes in data and also use of checksums where necessary.

Legislation in regards to telemedicine is not entirely lacking, health providers need to comply with the prerequisite policies and legal provisions in order to ensure best practice and successful operations of eHealth in Kenya. The Health Act, 2017 contemplates eHealth as a mode of health services and contemplates the enactment of E-legislation that shall streamline and strengthen the system in regards to telemedicine and other forms of eHealth. It is anticipated that this will clarify the lacuna of information in regards to licensing. Meanwhile, clients and patients need to be better informed of their rights when accessing eHealth services.