Almost 1.7 million people work in healthcare in the Netherlands. And even so, there is still a major staff shortage. The staffing shortages in healthcare present new challenges for directors and HR professionals. In practice, we see that this can, for example, lead to the hiring of healthcare workers who later turn out not to be so suitable for working in healthcare. In this blog series, we discuss various employment law issues that you may encounter from the application process through to the end of the employment relationship.
In healthcare, the use of artificial intelligence (AI) is increasing steadily. This takes place in both primary and secondary processes. For example, AI is used to support diagnostics, as well as for planning or written reporting. In addition, more and more healthcare applications (such as those for an electronic patient record) are being offered as standard with certain AI functionalities.
While AI brings many benefits, it also creates risks and therefore points of attention that you, as a healthcare provider, need to address. Below is an overview of a number of key themes to work on if you plan to start using AI.
The use of an AI system may be subject to a variety of laws and regulations. Consider, for example, the AI Regulation (because, of course: it is AI), the General Data Protection Regulation (as soon as personal data are processed), and the Medical Device Regulation (if it concerns a medical device). In addition, requirements for AI systems may also arise from laws and regulations applicable to the healthcare provider. Examples include the NIS2/(upcoming) Cybersecurity Act, the Act on Additional Provisions for the Processing of Personal Data in Healthcare, or the Works Councils Act.[1] It is therefore important to identify in advance (preferably in writing) which laws and regulations the use of a particular AI system must comply with.
Depending on the functionalities of an AI system, its use may result in a certain level of risk. That risk level may of course follow from statutory frameworks (such as classification under the AI Regulation, or a high privacy risk under the GDPR), but also from frameworks that apply within the organization itself (for example, how critical is the AI system to business operations?). Depending on the risk classification, it may then be necessary to carry out risk analyses, such as a DPIA, BIA, or FRIA.
Regardless of how risky the use of a particular AI system is and which laws and regulations it does or does not fall under, the obligation of AI literacy applies to all organizations that use AI. In addition, it is important to always observe certain basic standards (such as human oversight and transparency); see, for example, the ‘Ethics guidelines for trustworthy AI’. Finally, an AI policy within the organization is indispensable, because otherwise how would employees know what is and is not permitted, and under what conditions?
Some healthcare providers develop AI systems themselves (fully or partially), while others merely procure them (sometimes almost without noticing). However a healthcare provider comes into contact with AI, once it is used it must be done responsibly and in compliance with laws and regulations. In that context, the agreements with suppliers are also very important. For example, may your data be used to train the AI model? And how, and by whom, will the required risk management be applied? Fortunately, you do not have to reinvent the wheel yourself, and you can, for example, draw inspiration from the AI-model clauses of the European Commission (EC).
It may seem somewhat daunting to see the above list of points of attention laid out, but don’t let that stop you from getting started with AI! The use of AI can bring enormous benefits for both your clients and your employees. In addition, there are always opportunities to collaborate with other healthcare providers and to start small (for example, with a short pilot involving only a limited number of users), which can make it easier to take a more “light” approach at the outset.
Reading tip: Want to learn more about the status of AI in healthcare at the European level? Then read the recent report on this topic published by the European Commission.
Do you have questions about the use of AI in healthcare? Then contact Michelle Wijnant.
Blog series: HR in healthcare
Would you like to receive a monthly overview of updates and blogs in your inbox? Then sign up for our newsletter!
