Legal issues in digital oral health: a scoping review

In recent decades, and more so after the Covid-19 pandemic began, digital oral health has been increasingly used and telehealth services, technology and devices are fast developing. These tele oral healthcare services are not simply replacement for the existing modality of delivery (e.g., teleconsultation for patients/clients who cannot attend healthcare services), but a different way of using existing and new technology to provide oral healthcare, creating opportunities and features that were not available before [2]. Alongside, this growing use of tele (oral)health, there has been an expansion of guidelines, reviews, recommendations, reports, and research on ICT uses in almost all aspects of human life, including oral health.

Despite the positive impact of digital health on quality of care and its cost-effectiveness, several legal issues arising from these new practices have been identified [46‐48]. Legal issues do not necessarily change whether healthcare delivery is via teledentistry or traditional face-to-face, the individual is still the patient, and with that come responsibilities and accountabilities. However, some technological issues may cause error, and although beyond the control of the practitioners, remain the responsibility of the practitioner [19, 26, 30]. Notwithstanding this, there is a general lack of discussion of legal issues around digital oral health.

Research in this field has mostly focused on the technical aspects of digital oral health, with legal, ethical and financial issues less covered. The current review indicated that the literature in this area has concentrated on familiar issue such consent, data privacy, licensing and jurisdiction, confidentiality, and patient-practitioner relationships. Results indicate that other legal issues (e.g., social media, authentication, e-referrals, e-prescription, remuneration and to a lesser extent, quality and continuity of care, and adequacy of records) are not receiving the same attention (See Table 3). Furthermore, in the present review, most of these issues were cited, but not described. Additionally, in some cases, they were only referred to in the context of specific dental disciplines (e.g., dental radiology, orthodontics) and not as broader issues across general dental practice. Thus, despite the good coverage shown in the present review, some issues (e.g., privacy, security, confidentiality, and patient-practitioner relationship) has not addressed adequately and may still need more scrutiny [3].

Sharing of pictures and images is not completely supported by accuracy (e.g., reliability has not been fully established) [25, 34]. Social media can be used as adjunct media, but may not replace clinical assessment or direct contact [36]. Additionally, for remote consultations using non-dental healthcare provider, there may be a need for more training programs in oral health issues. In addition, changes may be needed in the scope of practice of health professions to provide dental care beyond preventive treatments or using early detection assessments tools.

Conventional face-to-face consultation and treatment has well established legal procedures for patients to complain, and investigations to follow, but in regard to telehealth, the legal uses are not standardised or universal [7]. Postings on social media are legal documents [48, 49]. Around the world there are examples of inappropriate interactions that have cost those who posted. For example, recently two Melbourne dentists demanded the release of personal information from Google over a review and sued an anonymous patient for defamation [50]. This indicates that conventional mechanisms should and are still being used to complain.

Moreover, laws governing the disclosure of commercial agreements are not as clear as in other conventional media [26, 31, 51]. For example, social media does not have the same type of disclosure of any payment received for the promotion of products under the therapeutics goods advertisement code. Dental products advertised on Instagram were the subject of an investigation of the commercial manufacturer/distributor by the Australian Health Practitioner Regulation Agency [52, 53].

For digital health to be effective, new technical skills, technologies and concepts may need to be learned by the oral health workforce [31, 54, 55]. The future workforce should be able to evaluate and interpret the digital health technology that they will encounter in this environment. Thus, training in telehealth care should include more than just acquiring technological skills. Various barriers, both internal and external, may impact on the adoption and acceptance of this technology [56]. External barriers encompass tools, training, and support, while internal barriers involve attitudes, confidence, and beliefs in the need to incorporate technology [56]. In order to be effective, a telehealth curriculum should cover these barriers. Additionally, health professionals must be aware of the legal obligations, regulatory aspects, and funding considerations associated with telehealth [57]. Currently, there are reports that suggest that oral health practitioners are inadequately prepared for the implementation of teledentistry and face challenges in understanding privacy issues, obtaining informed consent, and ensuring record keeping, in digital health situations [11, 12, 25].

Tele(oral)health is quickly evolving and will continue to evolve. While technology can be implemented quickly, challenges are emerging in the development of best practices and norms for the use of these new and emerging digital technologies. Regulators need to keep pace with these changes. Most likely certain recommendations, guidelines, etc. may not be valid in the future due to changing and features of digital health platforms [28]. As with any technological advancements in health, new solutions will require regulations and a thorough evaluation of the intended use of the software and platforms involved. [28].

There is growing evidence that the therapeutic relationship between practitioner and patient when using telehealth can be as effective as in person care as well as evidence supporting patient satisfaction [58, 59]. However, by replacing face-to-face consultation, digital oral health disrupts some of the traditional norms which govern the health practitioner-patient relationship. For example, conveying oral health information in a clear way might be more difficult during telehealth consultations. Patients should be made aware of potential risks involved in teleconsultation. Confidentiality may also be threatened by e-communications, for example, the risk of computer hackers illegally accessing confidential information. An example of this would be the case of the hack of the largest health insurance provider in the world, Medibank [60]. In other scenarios an employee who has access to e-records may communicate information without a patient’s knowledge or consent, or an external technician may access patients’ information when conducting maintenance or repairs.

Thus, before implementing any digital health solutions, oral health practitioners need to be aware of the many legal challenges that the introduction of these technologies involves, be clear where the responsibility lies, and apply extreme caution in following national guidelines (e.g., General Dental Council [61]; Australian Health Practitioner Regulation Agency [8]). Oral health practitioners are recommended to familiarise themselves with the relevant guidelines, or even obtain legal advice, on the technological and ethical aspects of digital oral health [30] and remain aware of the legal requirements of the jurisdiction of practice. For example, at present, there are no well-defined regulations in place to address the legal and ethical issues that may arise due to the use of artificial intelligence and machine learning in health [62]. “Cloud” technology is another example impacted by lack of clear guidelines [63]. The enthusiasm to embrace the advantages that new technologies bring about, should not displace responsibilities for the ethical, social, and legal application of technology [64]. In this way, although legal issues have been discussed for years, they need to be revised and updated to address new challenges. This ought not be seen as a one-time event, but as an ongoing and iterative process. Continuous improvements to guidelines and laws will allow them to adapt and develop to keep pace with changes and challenges in technology and best practices in healthcare.

In the same way, past regulations need to be continually revisited, revised, and updated to ensure that the right to affordable access to digital technology is granted [13]. Laws and regulations are also meant to reduce inequalities in access to digital health, or the inability to use this technology (e.g., geographical, literacy, financial, connectivity, etc.) [4, 65], as well as to improve care to vulnerable populations [13]. The United Nations declared that human rights established within the physical world must also be established within the digital world, since Digital Rights are enablers for other rights [66].

Digital Health technology raises a range of legal questions and risks, many of which have been considered in the present review. Some of the limitations of this scoping review include the inherent lack of quantitative analyses of published studies and being prone to biases. This review could also have been more comprehensive by including countries legislation, however the purpose was not to reach exhaustion, but to reach saturation on the topic [3]. The range of legal issues presented in this review are intended as a starting point for further discussion of legal issues and responsibilities. In discussing them, we should not ignore the potential benefits of digital oral health. It is hoped that this review provides an appropriate and useful starting point for any oral healthcare practitioners as they embark on the digital health journey; as well as to other public health practitioners and managers, enhancing their practical understanding of the key legal, regulatory and financial aspects.