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Private law and new technologies

Mittwoch, 07.12.2022

Pioneering research with an eye to the future: an interview with our guest researcher Sandra Camacho Clavijo

The study of private law and new technologies is a major research focus of Sandra Camacho Clavijo. In a recent monograph “The Human Cyborg” the professor of private law at the Autonomous University of Barcelona co-authored, she addressed legal issues raised by the implantation of technological devices in the human body. For her latest research, she came to the Faculty of Law in Graz. We met Professor Camacho Clavijo to find out more about her research, her stay in Graz and what’s next on her agenda.


REWI Uni Graz: What research topic are you focusing on during your stay at the Faculty of Law?

Sandra Camacho Clavijo: During this research stay I work on the topic of telemedicine and its regulation. The use of telemedicine has increased considerably in European countries during the COVID era. Europe is experiencing a considerable increase in the number of chronically ill people which is putting a strain on the healthcare system and its resources. Telemedicine can be a way to solve the strain on the health system. In the pandemic we have seen an increased use of telemedicine but I believe that, to give greater legal certainty, regulation is needed.

In countries such as Austria or Spain there is no specific law on telemedicine. France, however, has one for example. My interest is to identify the problems and resolve any doubts that may exist about the regulation of telemedicine.


Are there new insights into the question(s) you are looking at that you got here?

Yes, in Austria for example, in 2014, the Commission for Telehealth Services (Telegesundheitsdienste-Kommission) suggested to establish protocols to promote telemedicine. A relevant issue in Austria is whether or not telemedicine is a medical act and can be admitted. The question arises because it is unclear if telemedicine meets the requirements of the immediate and direct doctor-patient relationship set out by the Austrian federal law containing rules concerning the professional behavior of doctors (§ 49 Subsection 2 Austrian Medical Act [Ärztegesetz]). Is this fulfilled by telemedicine? There are doubts about it, but there seems to be a relaxation of the interpretation of the criterion for admitting the practice of telemedicine in certain cases.

Germany has amended the MBO-Ä ([Muster-]Berufsordnung für die in Deutschland tätigen Ärztinnen und Ärzte) to remove the requirement of immediacy in the doctor-patient relationship and to allow telemedicine. The German reform provides that telemedicine is a complementary tool to medicine and cannot replace it. In this sense, the question is, can there be an exclusive remote medical care? In my opinion, as the German MBO-Ä also states, only in exceptions such as emergencies. This is the answer that Germany has given with the reform of the MBO-Ä. This could also be a path for Austria or Spain in new regulations for telemedicine.

In conclusion, telemedicine should be implemented as a complementary tool to the physician’s performance but not as a replacement.

Another relevant issue that arises is medical liability in telemedicine: physicians have to assess whether the use of telemedicine is appropriate for a specific patient and, if it is not, discontinue the telemedicine route and switch to face to face care. Therefore, doctors will be responsible for their respective decisions. Other questions that I am working on concern informed consent by patients and data protection in telemedicine,  or if physicians can refuse to use telemedicine.


What makes the Faculty of Law in Graz such a valuable research location for your work?

I am hosted by the Centre of European Private Law, a research institution of the Faculty of Law which has given me access to all resources I need to carry out my research on telemedicine. I have also been able to meet up with former colleagues I met at the Max Planck Institute in Hamburg. Also, the faculty library is a great resource for my work, it has a huge catalogue and staff is very attentive. Not only do I have access to the comprehensive physical collections of the library, but also to numerous databases. The services offered for foreign researchers are excellent. Besides, I am taking a German course and my experience is very positive.


How do you like your stay in Graz?

I am really enjoying my stay in Graz. For three years I have been secretary general in the dean’s office of the Faculty of Law at the Autonomous University of Barcelona and, therefore, have been involved in the management of a faculty. My experience at the Faculty of Law of the University of Graz is very positive. I highly value communication here. I am comprehensively informed about all the events happening at the faculty and at the university, and this communication is really important.

The city of Graz is fantastic. It has a beautiful old town and great landmarks, within a very short time you can reach stunning mountains and landscapes, and people are really warm-hearted.


What’s next on your agenda?

A monograph “El derecho civil inclusivo. El nuevo modelo de discapacidad por enfermedad mental” I have written on the disability of people with mental disorders and new technologies will be published shortly in Barcelona. It analyses the system of deep brain stimulation (DBS) as a treatment for mental illnesses (e.g. bipolar disorders) or neurological diseases (e.g. Parkinson’s disease) and its legal consequences as well as the use of new technologies as a support measure for people with disabilities.

Besides that, I am working on a book on telemedicine that will be published in Barcelona at the end of my stay here and will include the results of my work and research in Graz. We are also thinking with other researchers here about the idea of a more ambitious project on the study of telemedicine regulations in different EU countries that would provide conclusions relevant for a possible harmonised regulation in the European Union.

In my future research, I would also like to look into questions arising in the field of robotic surgery, i.e. when robotic machines are used during surgery. This will comprise liability aspects, expert knowledge required for carrying out such surgery or remote assistance during such surgeries.

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