New health technologies and professional’s liability. The role of public law to prevent “remote defensive medicine”

The practical value of remote healthcare services was brought to light by the health crisis related to the Covid-19 pandemic.
European and national institutions agendas need to rely on a new conception of care based on home-interventions and reduced access to emergence hospital to face not only epidemiological emergency but also the challenges arisen from demographic change.
From a public law perspective many issues need to be considered for the purpose of a coherent development of these services and for targeting efficiently the incoming founds.
How is the law fitted to face the challenge of providing appropriate constraints, incentives, and protections to those operating in, and affected by, the field of new health technologies?
How the re-shaping of professional’s liability will interact with the phenomenon of “defensive medicine” (i.e. doctors prescribing exams and cure in excess, or following standard protocols to avoid liability, placing second the real needs of patients)?

Digitalization of healthcare sector: the Electronic Health Record

The digitization of the healthcare sector is a powerful engine: it drives NHS towards more efficient, sustainable and participatory care models. E-health is, in fact, a generic term that indicates the use of information and communication technologies (ICT) to support the health system; it therefore includes a multiplicity of tools and actions. Among the tools of e-health, the Electronic Health Record (FSE) occupies a central place in the Italian legal system. The ESF is a consequence of the process of dematerialization of health documentation (a process started in Italy in 2011, involving medical records, prescriptions and reports). What are the advantages of this tool? What are the practical problems? How do Italy’s digital backwardness and regional fragmentation negatively affect its implementation?

ICT in medicine: rethinking of the administrative control procedures

The employment of ICT in medicine, by limiting physical contacts, imposes a redefinition of the doctor-patient relationship and, consequently, a rethinking of the administrative control procedures.
The technological infrastructures, developed to guarantee the interoperability of health databases and the electronic health record, may be exploited to help developing risk predictive algorithms in the pre-investigation phase. This way, controls and inspections could be planned to focus on the cases that show a higher potential for deviation from the regulatory provisions, in accordance with the proportionality principle. Setting out in advance clear and transparent objectives and criteria for administrative controls should encourage synergy and cooperation between the parties involved in the control relationship, with the effect of limiting coercive and repressive measures, enhancing compliance, and discouraging defensive attitudes and misleading behaviour.

Data governance and Clinical risk management

One of the aspects related to the management of health data and their use to define the actions to be put in place to ensure the greater safety of the patient concerns the organizational structure and management of health risk that requires to prepare preventive and corrective actions especially in situations of health emergency. This activity of prevention and management of health risk is generally traced back to a primary interest of the NHS as it allows greater appropriateness in the use of available resources and guarantees the protection of the patient in the implementation of the collective dimension of the right to health in its “preventive” and “prospective” shape. However, from a “restorative” and “retrospective” perspective, it also introduces the issue of possible interest in the knowledge of data by third parties and therefore imposes further reflections even in the face of a case law that in fact seems to exclude a position legitimizing access by citizens.