This is Allens

Until this year, AI in healthcare had been seen by most as something that will change the industry in future. In 2023, we've seen real-world practical applications enter the market. The key moments are not on the horizon; they're happening right now.

We're seeing clients use AI and digital health technologies to improve patient outcomes, make health services more accessible, create more targeted interventions, and improve disease prevention and early disease detection.

My approach is to come up with guardrails advice for clients – showing which laws apply to them, which might apply in future, how to stay on one side of a regulatory barrier, how to build approved use cases, and how to direct and solve new use cases as they come in. We show them the whole field and they choose the space to play in.

In healthcare, the role of the consumer is ever changing. Patients, family members and carers expect organisations to be transparent regarding technology and data use, and new technologies to be explained to them appropriately. But the development of technology will continue to break down barriers, and as it becomes more personalised and invasive, concepts of individual rights become less straightforward.

This tension between what technology can achieve and how this is balanced with existing – though changing – consumer and regulatory expectations is a major issue the industry is grappling with at the moment.

When advising in this space, there's no 20 years of case law to look back on. You need to understand where the client wants to go and take those first steps with them, rather than point them down a well-worn path.

If a neurological condition renders a patient unable to speak or use their body to give commands, it falls upon family members and carers to provide their consent for brain–computer interfaces that could restore the ability to communicate. Does it sufficiently address that patient's rights to offer an opt-out of such neurotechnology use once the device has been implanted in their body?

Or where neurotechnology goes beyond restoring lost function, to enhance cognitive performance (such as through improving memory, decision making or situation awareness), what other legal and ethical issues do we need to consider? Will technology-neutral legal frameworks be able to address the intricacies of such uses?

In a sector as heavily regulated as healthcare, established players have traditionally been reluctant to be first to market with a new technology. They've preferred to watch someone else go first, and come in second or third when an evidence base is better developed. With so many new entrants in the sector and so many new technologies available, that's starting to change. More and more, I think the most successful companies will be those that can navigate the field of play and seek to lead, rather than follow.

It's starting to become more accepted that, sometimes, when a technology is new, you can't adopt it by building the entire house instantaneously. You have to be willing to change tack and build it as you go.