Artificial Intelligence and Professional Regulation: Best Practices in Charting

This blog is Part 2 of our series, Artificial Intelligence and Professional Regulation

Artificial Intelligence (“AI”) and machine learning are hot topics that have been receiving increasing attention across many industries, including healthcare. As noted in our previous blog, health professions have already integrated AI to increase speed and accuracy across healthcare systems, including a rise in the use of “AI Scribe” services to assist health professionals with summarizing and transcribing patient conversations into detailed chart notes. This blog will provide an overview of best practices for healthcare practitioners who are considering using generative AI with charting.

Privacy Obligations

Prior to obtaining an AI Scribe service, health professionals must ensure that the technology meets the privacy requirements in their jurisdiction. In addition, AI Scribe services may retain large amounts of personal or sensitive data, such as patient personal health information. This can lead to data breaches or misuse, which can compromise privacy and security. Clinics and practices that plan to employ AI to assist in charting and recordkeeping obligations should make sure that they have up-to-date privacy and breach management policies and protocols that deal with contemplated privacy issues that may arise due to the use of AI. Lawyers with experience in privacy and health law can assist by providing guidance and answering questions about whether the AI adequately safeguards patient information.

Consent is Key

AI Scribe services often work by recording patient interactions, which are then transcribed into written chart notes. Prior to recording any conversations with patients, however, health professionals must ensure that they have obtained informed consent from the patient. Keep in mind that although written consent forms can be useful for documenting consent, in addition, consent should always involve a conversation with the patient. Health professionals should explain the risks and benefits of using the technology to their patients, as well as what will happen to the recording after the chart note has been created (i.e., will it be stored in the patient record, or will it be destroyed). If a patient does not consent to the use of AI in creating the chart note, an alternative charting method should be used.

Regulatory Obligations

Regulated health professionals must ensure that the use of the AI Scribe service complies with their regulatory obligations. As noted in our previous blog, AI may “hallucinate” information, creating a risk that incorrect information may be incorporated into a patient’s record. A health professional’s recordkeeping obligations do not change when using AI, and care should be taken to ensure that chart notes generated by AI Scribe services comply with these recordkeeping obligations. In addition, regulatory bodies may have standards or policies that apply to AI-generated records, such as retention periods for recordings or processes for the destruction of such records. As the use of AI Scribe services, and AI generally, becomes more common in healthcare, regulatory bodies are also likely to introduce new policies specifically aimed at the use of AI. All regulated professionals must take care to ensure that their use of technology and AI does not run up against their regulatory obligations. 

Takeaways

Healthcare professions must ensure that they comply with regulatory obligations and privacy obligations when introducing AI into their practices. When using AI Scribe services to assist in charting, in addition to closely reviewing all chart notes and being wary of hallucinations, we recommend consulting with a lawyer to ensure that the AI model complies with regulatory and privacy obligations. Doing this due diligence in advance can help to get ahead of patient complaints, as well as investigations by the Information and Privacy Commission and your regulatory body.

Stay tuned for Part 3 of our blog series on Artificial Intelligence and Professional Regulation, which will focus on existing professional regulation case law involving AI.