ABC | Volume 112, Nº4, April 2019

Viewpoint Lopes et al Window to the future or door to chaos? Arq Bras Cardiol. 2019; 112(4):461-465 The medical consultation materializes the doctor-patient interaction. Interaction that gains strength because it is based on the confidence of the patient and the conscience of the doctor. These are the bases of respectability of medicine over time. The CFM, through CFMResolution 1958/2010, 6 announced that the consultation includes acts such as "anamnesis, physical examination, and elaboration of hypotheses or diagnostic conclusions, request for complementary tests, when necessary, and therapeutic prescription as a complete medical act that can be finished or not in a single moment.” The Code of Medical Ethics, 7 in turn, prohibits the prescription of treatment without prior examination of the patient. Here is the precept: “Art. 37. To prescribe treatment or other procedures without direct examination of the patient, except in cases of urgency or emergency and a proven impossibility to perform it, and in this case, to do so immediately after cessation of the disability.” The rules can be harmonized because the sole paragraph of this deontological norm speaks of "remote medical care, in the form of telemedicine or other method," determining to do so with respect to the regulations of the CFM. In establishing the conditions for the practice of telemedicine by doctors in Brazil, the CFM presented a new ethical framework for the practice of medicine in the country. The changes, inserted in the Resolution, update the Code of Medical Ethics, making the old regulation seem like a fossil, in view of the potential for interference of the new digital ethics in medical practice. The Code of Medical Ethics 7 is a rule that has the same hierarchy as CFM Resolution 2.227/2018. 3 Thus, although considered as the major ethical guide, it is not possible to say that the telemedicine Resolution confronts the Code of Medical Ethics in some of its devices, especially in relation to the need for a direct examination of the patient before the prescription, as established in Article 37 of the Code of Ethics. The major problem of the rule in question would be in the teleconsultation, regulated in Article 4, because it dispensed the face-to-face examination of the patient prior to the prescription. Although the need for a previous physical examination has not been completely abolished, since Paragraph 1 "implies as a mandatory premise" that the first visit is compulsory, and a new on-site visit is recommended every 120 days. However, the new rule allows for virtual consultation when practicing healthcare coverage to remote sites, where, in theory, there would be a shortage of human resources. It should be noted that, to a certain extent, the same argument was used in the Mais Médicos Program, when the revalidation of the diploma of doctors graduated abroad was dispensed in order for them to work in the Unified Health System ( Sistema Único de Saúde, SUS). Teleconsultation is regulated as follows, in verbis : "Art. 4 Teleconsultation is the remote medical consultation, mediated by technologies, with doctor and patient located in different geographic spaces. §1 Teleconsultation implies as a mandatory premise the prior establishment of a face-to-face relationship between doctor and patient. § 2 In long-term visits or chronic diseases, it is recommended to consult face-to-face at intervals not exceeding 120 days. § 3 The establishment of a physician-patient relationship in a virtual way is permitted for healthcare coverage in geographically remote areas, provided there are the recommended physical and technical conditions and health professional. § 4 Telemedicine must be duly consented by the patient or his legal representative and performed by free decision and under the professional responsibility of the physician. § 5 In case of participation of other health professionals, they must receive adequate training, under the responsibility of the physician, individual, or technical director of the intermediary company." Resolution 2.227/2018 3 has found strong resistance among physicians, mainly due to its transformative potential. Healthcare providers, large hospitals, and telemedicine solutions companies are euphoric. At the other end, doctors claim that medicine suffered a severe blow for those who had an ethical duty in their practice, turning doctors into true telemarketers. The detailed and impartial analysis of the Resolution in question points, as already mentioned, to an apparent confrontation with the rules of the Code of Medical Ethics. 7 But by far the greatest problem would arise from the existence of possible offenses to the legal system, as verified in Paragraph 5 of Article 4. There, we can see a delegation of medical powers to other health professionals, such as nurses. At this point, the defect of the norm is not only in the possible offense to Article 2 of the Code of Medical Ethics. It goes further, challenging fences imposed by the law. The Federal Constitution of 1988 8 ensures in Item XIII of Article 5 the freedom of professional practice, provided that it is practiced "according to the professional qualifications established by law." However, as the law defines what acts are exclusive to doctors, it arises the illegality of the norm contained in the CFM Resolution, which confers additional competence to other health professionals – nurses for example – to practice acts that are exclusive to the physician. It is known that the Law No. 7.498, from June 25, 1986, 9 which provides for the practice of nursing in Brazil, defines, in Article 1, the practice of that profession throughout the national territory, within the limits of the law. It is not ignored that Article 11 of the aforementioned law attributes to the nurse, as a member of the health team, the competence to prescribe drugs established in public health programs and routinely approved by the health institution. What is said is that the legislation does not attribute to nurses the assignment to participate in teleconsultation, as did CFM in Paragraph 5 of Article 4 of the Resolution discussed. In other words, Paragraph 5 of Article 4 of the Resolution 3 considered provides for the participation of other health professionals, including nurses, in acts exclusive to doctors, in the case of medical consultation, even in its remote version. Neither would the distinguished CFM have the legal competence to assign to the doctor or technical director of "intermediary company" the prerogative to train other health professionals, whose professions are regulated and governed by their own legal system. 462