An AI A Day Keeps The Doctor Away?: Regulating Artificial Intelligence In Healthcare – Healthcare

Artificial Intelligence (“AI”) promises to transform
many aspects of everyday life for Canadians. AI tools are predicted
to dramatically improve the provision of heath care by improving
the quality, safety, and efficiency of diagnostic tools, treatment
decisions, and care. Although AI innovations are, in many cases,
still years away from general deployment into the Canadian health
care ecosystem, AI is already used in some circumstances to read
medical images, allowing machine learning to support diagnosticians
in their decision-making.

Like many other jurisdictions, Canada’s health governance
systems currently lack the appropriate legal and regulatory
mechanisms to effectively deal with the challenges that AI poses.
There is currently uncertainty with respect to key issues such as
the related legal requirements for health privacy, medical device
regulation and liability for AI-related harms. In Canada,
regulation of AI in health care involves the additional challenge
of navigating constitutionally fragmented jurisdiction over health
care, which results in layers of governance and the need to
coordinate multiple different actors.

This blog post highlights some of the legal challenges and
issues that need to be addressed in order for Canada to have a
robust and well-regulated governance structure for the use of AI in
health care, including:

  • Coordination of federal and provincial authority;

  • Privacy and oversight with respect to the use of AI in
    treatment;

  • Promotion of Equity through AI; and

  • Liability for AI-related harms.

Coordination of Federal and Provincial Authority

Canada’s federal system and constitutional division of
powers pose unique challenges for the regulation of AI in health
care.1 Under the Constitution, health care is under
provincial jurisdiction. Although similar, each province has its
own set of regulatory frameworks addressing the safety and quality
of health care, health information privacy, informed consent, human
rights and non-discrimination, and

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