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Abstract:
Modern
Medicine is today driven by scientific discoveries in fields such as genetics,
stem cells and CRISPR Cas 9. The implementation of this technology, in the form
of therapeutic treatment, is still carried out by doctors in accordance with
the moral rules they swear to uphold in the Hippocratic Oath.
The
doctor-patient relationship remains a contractual one, based on the moral
precepts of the Oath, one of which is the duty of confidentiality e.g.
What
I may see or hear in the course of treatment or even outside of the treatment
in regard to the life of men, which on no account one must spread abroad, I
will keep to myself’.
However,
modern technology in the shape of AI robots has impacted on this field of
medicine as well. AI platforms run by algorithms, such as IBM's Watson, are now
being used in medical practices to assist doctors in diagnoses and to drive
down costs. Examples are the use of automated diagnoses to pinpoint diabetic
retinopathy by the use of retinal Images. A similar process is used to diagnose
skin cancer. Diagnosis of cancer in a patient's lymph nodes was significantly
advanced by the 2016 Challenge Competition known as 'CAMELYON' 16 which was
arranged to study algorithms used to detect metastases in lymph nodes. The
published outcomes of the competition proved that the algorithm was more
accurate than human doctors in their diagnoses.
From
a legal and ethical point of view it is important to note that the patient’s
symptoms were obtained by the AI robot ‘interviewing’ the patient or by a human
doctor feeding the patient’s data into the AI robot. The net effect is that the
robot is now in possession of sensitive patient information.
Because
the robot is not a ‘person’ in the legal sense of the word, it does not have
‘moral’ instincts to guide it to treat the information in terms of the
confidentiality imprimatur of a human doctor who is bound by the Hippocratic
Oath.
This
paper will examine other provisions which can be taken to protect the patient’s
confidential information, given that the robot is not a moral being which is
capable of being bound by an oath.
Fundamental
to the achievement of this end, we will distinguish between rights of privacy
as opposed to the duty of confidentiality. Very briefly privacy relates to a
person whereas confidentiality is about information. We will also examine how
to determine damages in the event of a breach of confidentiality by an AI
robot.
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