Keagan Padiachy, Legal Advisor, Risk Management, Momentum. (Image: Supplied)

Medical scheme administrators (Administrators) in South Africa have begun to embrace the innovation capabilities brought on by Artificial Intelligence (AI). 

Momentum Health Solutions is one such entity, who through applying AI technologies, is now capable of identifying and predicting potential health risks that enable proactive intervention. 

Additionally, AI in general is set to unlock greater quality in healthcare services by introducing more efficient protocols and treatment pathways. 

However, with significant innovation, arises the need to safeguard against the ethical and newfound risks associated with AI.

Technology overview

AI has recently emerged as a significant driver within the medical scheme industry, becoming a central topic in strategic deliberations, as companies strive to position themselves at the forefront of this technological surge.

Within the medical scheme industry, the applications of AI are extensive and transformative. For instance, AI can analyse vast datasets to discern patterns and predict health outcomes, thereby enabling proactive healthcare management and the formulation of personalised treatment plans. 

Furthermore, AI-driven chatbots can be developed and deployed to manage routine inquiries, providing continuous customer support and thereby alleviating the burden on call centers while enhancing overall operational efficiency.

While the technological advancements of AI offer notable benefits, they also introduce significant legal and industry related challenges that must be addressed.

Legal implications

The Protection of Personal Information Act 4 of 2013 (POPIA) although principles-based, mandates stringent guidelines for the processing of personal data.

AI systems often require access to vast amounts of personal data to function effectively, in the case of healthcare this would may extend to special personal information, raising concerns about compliance with POPIA and the potential for data breaches. 

POPIA does not accommodate the challenges posed by using AI in health care. Although the argument that the data would be de-identified can be made, the risk of reidentification remains possible.

Additionally, the issue of consent may be problematic, as although consent may be given by a member, whether such consent is “informed” is doubtful. 

AI systems are complex in nature and often may behave in unpredictable ways, thus raising doubt as to whether consent can be truly informed, alternatively if such consent is a mere tick-box exercise.

Another significant legal issue is liability when AI systems make errors or cause harm. Traditional legal frameworks, which typically hold human actors responsible, may not be adequate for addressing AI-related incidents.

The issue of determining the liability, becomes complex in cases involving many participants, with its implications being profound. By way of example, an AI application is used to develop a treatment protocol document. 

If the application is trained on a dataset lacking representation of rare conditions or demographic groups, it could incorrectly suggest a standard treatment protocol for a patient with a rare genetic disorder, failing to recognise the disorder’s nuances. 

This could lead to the administration of ineffective or harmful medications, worsening the patient’s condition, if not having more devasting effects. 

In the above scenario, the issue of liability is raised -does liability rest with the medical scheme for prescribing treatment protocols, the medical practitioner for incorrectly applying them, the AI application developer for building the application, or is it a case of joint liability with an apportionment of damages?

It is submitted that South Africa’s legal landscape must evolve to address the data privacy and accountability gaps introduced by AI. 

Legislation needs to be put in place to address these scenarios, potentially drawing on global standards such as the European Union’s (EU) AI Act.

The promulgation of the EU’s AI Act provides a comprehensive regulatory framework for AI technologies. This legislation aims to ensure that AI systems are safe, transparent, and respect fundamental rights, setting a benchmark for global AI regulation.

For the medical scheme industry, the EU AI Act’s provisions on high-risk AI systems are particularly relevant. These provisions mandate rigorous testing, documentation, and oversight to ensure that AI systems used in healthcare are reliable and do not pose undue risks to patients.

Having touched on the intricate legal landscape, it is important for Administrators to explore the broader ramifications of AI in the industry as a whole, where its potential to revolutionise operations is matched by the ethical challenges it presents.

Industry impact

The deployment of AI in healthcare raises ethical and legal debates. One major concern is the potential for bias in AI algorithms. 

These systems are trained on datasets that may not adequately represent South Africa’s diverse population, which could lead to misdiagnosis in underrepresented groups, incorrect treatment protocols, and skewed predictive health outcomes, raising significant ethical concerns. 

If the data used to train AI systems is biased, the outputs may also be biased, leading to unfair treatment. This issue underscores the need for robust regulatory frameworks to ensure that AI systems are transparent, fair, and accountable.

Conclusion

The integration of AI within the medical scheme sector presents significant potential for enhancing healthcare delivery and patient outcomes. Nevertheless, as AI technology progresses, South Africa’s medical schemes face a pivotal juncture. 

It is imperative to develop a comprehensive regulatory framework at this stage to ensure that AI advancements benefit all South Africans equitably, without exacerbating existing disparities in healthcare access or compromising the legitimate interests of patients.

References

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2. AA Jogi, Artificial Intelligence and Healthcare in South Africa: Ethical and Legal Challenges, University of South Africa (UNISA), 2023
3. K Moodley, Artificial intelligence (AI) or augmented intelligence? How big data and AI are transforming healthcare: Challenges and opportunities, South African Medical Journal, 2024
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