A Health-Conformant Reading of the GDPR's Right Not to Be Subject to Automated Decision-Making

Medical Law Review 2024

30 Pages Posted: 24 Jul 2024

See all articles by Hannah van Kolfschooten

Hannah van Kolfschooten

Law Centre for Health and Life; University of Amsterdam - Amsterdam Centre for European Law and Governance; Amsterdam Law School

Date Written: May 01, 2024

Abstract

As the use of Artificial Intelligence (AI) technologies in healthcare is expanding, patients in the EU are increasingly subjected to automated medical decision-making. This development poses challenges to the protection of patients' rights. A specific patients' right to not be subject to automated medical decision-making is not considered part of the traditional portfolio of patients' rights. The EU AI Act also does not contain such a right. The GDPR does however provide for the right "not to be subject to a decision based solely on automated processing" in Article 22. At the same time, this provision has been severely critiqued in legal scholarship because of its lack of practical effectiveness. However, in December 2023, the Court of Justice of the EU first provided an interpretation of this right in C-634/21 (SCHUFA)-although in the context of credit scoring. Against this background, this paper provides a critical analysis of the application of Article 22 GDPR to the medical context. The objective of this paper is to evaluate whether Article 22 GDPR may provide patients with the right to refuse automated medical decision-making. It builds on its shortcomings to propose a health-conformant reading to strengthen patients' rights in the EU. [forthcoming in Medical Law Review 2024]

Keywords: AI, artificial intelligence, healthcare, medical devices, privacy, data protection, GDPR, EU law, patients rights, rights of patients, fundamental rights, human rights, machine learning, human intervention, CJEU, Schufa case, C-634/21, Article 22 GDPR, medical law, health law

Suggested Citation

van Kolfschooten, Hannah, A Health-Conformant Reading of the GDPR's Right Not to Be Subject to Automated Decision-Making (May 01, 2024). Medical Law Review 2024, Available at SSRN: https://ssrn.com/abstract=4904129 or http://dx.doi.org/10.2139/ssrn.4904129

Hannah Van Kolfschooten (Contact Author)

Law Centre for Health and Life ( email )

Nieuwe Achtergracht 166
Amsterdam, 1018 WV
Netherlands

University of Amsterdam - Amsterdam Centre for European Law and Governance ( email )

P.O.Box 1030
Amsterdam, 1000 BA
Netherlands

Amsterdam Law School ( email )

Amsterdam, 1018 WB
Netherlands

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