Research group: Law, Technology and Design Thinking
In this next step of the health industry the use of AI will speed up the pace of all those applications. Massive amounts of data can be analyzed for diagnosis of diseases and ways to cure them, but AI also can be used to profile certain groups within the population to qualify them for cheaper or more expensive health insurance or – on the negative side- even could result in expelling people from necessary care. Also, it could be possible that choices and decisions for treatment between patients will be based on the outcome of AI analysis where the necessary human factor will not be present, resulting in doubtful ethical results. The combination of AI in robotics for medical assistance and treatment, although considered useful, can create doubts about the de-humanization and the required attention for meaningful human control. AI will certainly increase the efficiency in healthcare but is that the most important aspect of healthcare? Will the proposed AI Regulation be a stimulus or an objection to use AI for medical applications?
The medical profession is bound by the Hippocratic oath to follow the ethical as well as practical rules to do no harm. It even gives rules to protect the privacy of patients:
“Whatever I see or hear in the lives of my patients, whether in connection with my professional practice or not, which ought not to be spoken of outside, I will keep secret, as considering all such things to be private.”
As eHealth covers a wide spectrum of smart applications. the EU recognizes that AI will have an immense influence on eHealth in all its aspects. Social care, medical services, medtech industry.[1]
These data are specified in the General Data Protection Regulation (GDPR) as sensitive data and data-subjects need to give severe and explicit permission for those data to be processed, based on requirements of transparency, explainability and informed consent. Is that even possible using AI?
These fears also came up with the use of ehealth data processed by the use of the ‘green-covid-19 certificate’ (European Covid passport) on international and national base.
The proposed AI Regulation, a solution?
It will be very hard to supervise all use of eHealth data in conformity with the requirements of the GDPR but also the proposed European AI-regulation will make it very difficult to exchange AI generated ehealth data by governmental agencies as well as other actors in the medical sector, in particular insurance, as risk-based impact use of AI is forbidden in article 5 of the AI Regulation.[3]
Creating practices and regulations to share more ehealth data with the use of AI can be the solution. Processing and sharing of ehealth data should be made possible taking into account the information sovereignty of the sensitive data subject. This also would be in line with another draft Regulation on Data sharing (Data Governance Act), in which it a.o. is stated to stimulate data sharing a low intensity regulatory intervention would require that individual public sector bodies allowing re-use of data to be technically equipped to ensure that data protection, privacy and confidentiality are fully preserved.[4] Let us see how that will work out.
Notes:
[1] Digital health and care refers to tools and services that use information and communication technologies (ICTs) to improve prevention, diagnosis, treatment, monitoring and management of health and lifestyle. Digital health and care have the potential to innovate and improve access to care, quality of care, and to increase the overall efficiency of the health sector.
[2] White Paper on Artificial Intelligence -A European approach to excellence and trust(COM(2020) 65 final, available at: https://ec.europa.eu/info/sites/info/files/commission-white-paper-artificial-intelligence-feb2020_en.pdf
[3] Artificial Intelligence Act Com/2021/206 Final, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021PC0206
[4] COM(2020) 767 final 2020/0340(COD), available at: https://eur-lex.europa.eu/procedure/EN/2020_340
STAR, Smart Tissue Autonomous Robot Children's National Health System, copyright NOS, available at: https://nos.nl/artikel/2103207-onder-het-mes-bij-dokter-robot