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Doctor Alexa Will See You Now – Regulating Artificial Intelligence In Healthcare – Food, Drugs, Healthcare, Life Sciences



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Doctor Alexa Will See You Now – Regulating Artificial Intelligence In Healthcare


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Artificial Intelligence (AI) has enormous potential to transform
healthcare but is uncertainty around applicable regulatory
frameworks hampering technological advances and creating a lack of
trust?

AI in Healthcare

On 31 December 2019, BlueDot, a Toronto-based digital-health
company that uses an AI driven algorithm to track and anticipate
the spread of infectious diseases, alerted its clients to the
detection of unusual pneumonia cases in Wuhan, China. Nine days
later, the World Health Organisation released their first public
warnings about a new coronavirus. On 11 February 2020, the virus
would be given its official name, Covid-19.

AI promises to transform the way we live generally but its
impact in the healthcare sector may be more far reaching that in
any other field. In many ways, AI and healthcare are uniquely
suited given that a primary facet of healthcare is pattern
recognition.

AI is already widely applied across the healthcare spectrum in
clinical care, administration and pharma and current applications
are only scratching the surface in terms of the positive disruptive
impact that AI can have in healthcare. The most widely cited
examples of AI in a current healthcare setting relate to automation
of analysis of medical images, patient intake and communication
(including chatbots) and remote monitoring of vital signs for early
detection. Meanwhile, the pinnacle of AI potential is the promise
of precision medicine which aspires to create patient treatments
that are individualised to a patient’s particular genetic,
behavioural and environmental context based on thousands of
personal data points.

Given the pace at which AI solutions are being developed, the
healthcare regulatory environment is still playing catch-up with
technology and this has influenced companies offering AI medical
devices or solutions which opt to show their AI to be decision
supporting (i.e. assisting a doctor) as opposed to decision making.
While this might make regulatory approval easier, it is problematic
in terms of withholding the progression of innovative AI devices or
solutions.

Regardless of technological advancement, the take up of these
solutions will be dependent upon the trust that can be placed in
them and a key driver of that is a robust regulatory framework
governing AI in healthcare.

Regulation of AI in Europe Generally

The European Commission is in the process of carrying out an
impact assessment initiative aimed at addressing the ethical and
legal issues raised by AI for the purpose of considering
appropriate harmonised frameworks across the single market while
ensuring inclusive societal outcomes (Inception impact
assessment document Ares (2020) 3896535
). A key objective of
the impact assessment is to seek to create a harmonised framework
for AI and to reduce compliance costs derived from legal
fragmentation of divergent Member State approaches.

Key challenges associated with regulation of AI
generally (which are referenced in the inception impact assessment)
include the following:

  • AI’s technological capabilities could result in potential
    breaches of fundamental rights from sources of risk that did not
    exist before (e.g. remote biometric surveillance).

  • Bias and discriminatory outcomes may result from decisions
    taken or supported by AI systems that may remain completely
    unperceived.

  • AI may generate safety risks for users and third parties that
    are not expressely covered by current product safety
    legislation.

  • The characteristics of AI technologies may make it difficult
    for persons who have suffered harm to obtain compensation as it may
    be difficult or impossible to trace back the outcome to a
    particular human action or omission.

The inception impact assessment considers various policy options
that could be undertaken at European level to include the
following:

  • Option 0 / Baseline: This option would result
    in no EU policy change on the basis that current EU legislation on
    the protection of fundamental rights, consumer protection and
    product safety and liability would remain relevant and applicable
    to a large number of emerging AI applications. Inherent risks in
    this approach would be increased fragmantation due to interventions
    at Member State level and a lack of clarity regarding AI specific
    risks.
  • Option 1 / EU “soft law”: This
    option would promote industry initiatives for AI based on a
    “soft law” approach that would build on existing
    ethical codes /guidelines and consist of monitoring and reporting
    on voluntary compliance with such initiatives.
  • Option 2 / An EU voluntary labelling scheme:
    This option would establish a voluntary labelling scheme to enable
    customers to identify AI applications that comply with certain
    requirements for trustworthy AI with the label functioning as an
    indication to the market that the labelled AI application is
    trustworthy.
  • Option 3 / EU legislative instrument: This
    option would involve an EU legislative instrument which would
    establish mandatory requirements for all or certain types of AI in
    relation to training data, record keeping on datasets and
    alogorithms, accuracy and human oversight. Such a legislative
    instrument could be (i) limited to a specific category of AI; (ii)
    limited to “high-risk” applications or (iii) cover all
    AI applications.
  • Option 4 / Combination Approach: This option
    would envisage a combination of any of the above options.

Regulation of AI in Healthcare / Medtech

In September 2020, MedTech Europe published a response to the
inception impact assessment in the context of the medtech sector
and specifically highlighted the following for consideration in the
context of the above outlined options:

  • In most cases in healthcare, AI is a tool used in the
    development of other healthcare products and not as a separate
    entity of its own and whether AI is embedded in a medical device or
    is a self-standing medical device software, it would be covered by
    the existing medtech sectoral regulations (i.e. Medical Device
    Regulation (“MDR”) and In-Vitro
    Diagnostic Regulation (“IVDR”)) which
    trigger considerable strict legal requirements including post
    market surveillance and vigilance obligations.
  • Many requirements that the European Commission have identified
    as being relevant for AI are already included in MDR/IVDR (such as
    safety and performance of AI) and as such would be taken into
    account in the risk/benefit and security assessments during
    development and design of the medical device or medical device
    software.
  • Consideration of existing sectoral legislation is essential in
    order to avoid creating legal uncertainty that may be caused due to
    conflicting legislation.
  • Medical device software must conform to GDPR requirements and
    these requirements are equally applicable to AI based medical
    device software.
  • Medical technologies including medical device software and AI
    with an intended medical purpose are subject to change management
    requirements under MDR/IVDR.

Given that the medtech sector is already heavily regulated,
MedTech Europe have advised caution against generally applicable AI
specific legislation in view of the risk that this could create
conflict with existing legislation (to include MDR/IVDR in the
context of the healthcare / medtech sector). At the same time,
MedTech Europe acknowledge that within the existing medtech
regulatory regimes, it may be necessary for additional guidance to
issue over time to provide interpretation and direction on novel AI
approaches.

What does the future hold?

The period for the public consultation on the impact assessment
is now at an end with the European Commission due to issue feedback
in early 2021.

While MedTech Europe make a strong case for regulation of AI
healthcare solutions to remain within current medtech regulatory
frameworks, it is unclear if such regimes are fully equipped to
deal with particular AI issues such as opacity and lack of
transparency with regard to decision making. However, a sectoral or
risk based approach to regulation would certainly appear sensible
in the already heavily regulated healthcare / medtech sector given
that the industry is currently expending significant resources in
meeting compliance with MDR/IVDR and many of the concerns around
regulation of AI are catered for within the current regulatory
regime.

The regulatory approach that will ultimately be proposed by
European regulators remains to be seen. However, it is clear that
certainty of approach is needed sooner rather than later in order
to avoid patient/practitioner mistrust or a failure to realise the
full transformative potential of AI in healthcare. If the correct
balance can be struck, given that an AI algorithim was one of the
first indicators of Covid-19, it is difficult to see how AI
won’t be a critical component in predicting or preventing
future pandemics.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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