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In this episode of our Digital Transformation Podcast Series, hosted by Dino Wilkinson, we continue looking at the risks and opportunities presented by digitisation in a range of industries. This instalment focuses on the legal issues arising around healthtech, one of the areas of significant digital adoption, in conversation with Claire Petts, a specialist in medical malpractice and healthcare; David Hansom, who leads Clyde & Co’s procurement and state aid practice; and Alec Christie, a Partner in the Sydney office with experience across privacy, cyber, digital transformations and technology.
The discussion explores the breadth and speed of healthtech innovation in the wake of the pandemic, as well as the key lessons learned regarding legal issues such as data privacy, cyber security, procurement and contracts. Our speakers provide insights and advice on how tech providers and the health sector can mitigate these risks before concluding with a look ahead at the issues and claims that could be coming down the line.
As Wilkinson observes: “Few sectors have seen as obvious and visible a transformation as healthcare in the last couple of years”. Covid-19 accelerated the demand for digital, remote, and smart solutions, and healthtech is now the second fastest growing sector in the UK tech space. This picture is reflected around the world, with Christie pointing to the rise in joint ventures (JVs) between large healthcare providers and small cutting-edge tech startups that he is currently seeing in the Australian market.
UK healthtech is still in its infancy; Petts has yet to see large volumes of malpractice claims come through. However, trends in the US indicate that they will start to emerge soon. “In the UK, we haven't seen the peak of it, but I fully anticipate that there will be people not using the technology properly, and a lot of scraps between parties as to whether it's the user, the designer or the maintenance team who's responsible”, she says.
The large size of many healthcare providers, particularly in the public sector, means that procurement professionals are a vital piece of the puzzle for ensuring that healthtech projects succeed. Having the ability to appoint smaller, cutting-edge providers is vital and can be done, but Hansom says that a lack of the right skills is a serious issue, which can lead to oversights in decision-making and agreeing contract terms: “For healthtech to become embedded, particularly in public healthcare systems globally, there does need to be an investment in talent, and the ability of public bodies to run these complex procurements”, he says.
Data is critical for many healthtech digital solutions and innovations, yet Christie believes there is still some way to go to ensure that tech providers and the health sector are aware of their data protection and cyber security responsibilities. He sees real benefit in tech and health providers working together as part of a joint venture to develop healthtech innovations. He stresses that the public is particularly unforgiving when it comes to breaches involving health data: “I think there is a willingness to be innovative and wanting companies to be innovative but there is a dominant expectation of data protection and with healthcare and medical data, the bar is very high”, he says.
Another issue raised by Petts relates to the limitations of data to make accurate diagnoses and the importance of mitigating this risk: “It's about making the clinicians understand what the limitations of the technology might be so that they can pass on those limitations to the patient”, she says. She points to the importance of the right indemnity cover to help protect clinicians, as well as the role of online tools to ensure patients are fully informed.
Looking ahead, our speakers agree that healthtech has huge potential, but also predict a raft of claims coming down the road and a steep learning curve in terms of managing the significant risks. All parties will need to ensure they have the right protections in place at all stages of the process, from procurement and data collection and use to contracts, and then minimising the damage when claims do emerge. Covering all these bases, with the right legal support, will ensure healthtech fulfills its promise - and ultimately puts patients first.