AI and Health Law

Abstract

Artificial intelligence (AI) tools are portended to dramatically improve the quality and safety of health care as well as efficiency. AI tools will be used to track patient data, triage care, read medical images, diagnose disease, make treatment decisions, support patients in health promotion, and deliver primary, acute, mental, and long-term care. AI innovations are predicted to not only assist but potentially substitute human caregivers, medical service providers, diagnosticians, and expert decision makers. Yet Canada’s complex ecosystem of governance for health care across multiple levels of government, including direct regulation, self-regulation and tort law/delicts, has not been assessed for its ability to bolster “good” AI innovation and deter “bad” AI-related activities across the health care system. Consequently, pathways to the adoption of promising AI technologies may be hampered by uncertainty as to what current laws require to, for example, comply with health privacy laws and avoid tort liability. Moreover, a number of leading task forces and various scholars have opined that legal and governance structures must be reformed to address concerns such as algorithmic bias. For AI technologies to be adopted into and improve health care, it is important to have both regulatory clarity and evidence on whether and how present laws need to be reformed. Canada faces significant challenges in establishing a clear and coordinated regulatory environment for promising AI technologies given its patchwork of patient safety and privacy laws across provinces and territories and its historical reliance on self-regulation of health care professionals.

Keywords: AI; health; healthcare; medical devices; canada