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#NAMA: Issues with the consent framework for healthcare data under the Personal Data Protection Bill

In in-person doctor-patient consultation scenarios, the fact that the patient initiated the consult can be construed as consent. This applies especially for out-patient consultations: one does not need a separate mechanism to seek consent from the patient. At MediaNama’s discussion on the impact of the PDP Bill on the healthcare sector held on June 19, both Dr Sunil Shroff, President (TN), Telemedicine Society of India, and Abhishek Malhotra, managing partner at TMT Law agreed with this characterisation. This discussion was supported by Microsoft, Google, TMT Law Practice and the Telemedicine Society of India. Comments have been edited for brevity and clarity. However, in the digital scenario, where the consult is taking place either via telemedicine or other such methods, "there should be a requirement of explicit consent even if it is as simple as opt-in consent," Malhotra said, explaining that this should be enshrined (in-laws and guidelines) because otherwise, especially in India, it is difficult to have control over what exactly could be used and misused. "That’s why I think that regardless of the time limitation or otherwise, explicit consent should necessarily be required," he added. How consent works in digital health and teleconsults Even in digital consults, there is also a distinction between the consent that is given for the consultation itself and the consent that is given for the processing of the information, said Malhotra. "This distinction has been brought about in the Telemedicine Practice Guidelines 2020 as well where, because the patient is initiating the consultation, they…

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