CANADA Trends and Developments Contributed by: Martin Lapner, Vanessa Carroll, Taryn C Burnett and Robert Sheahan, Gowling WLG (Canada) LLP
• establishing accountability for the use of technol - ogy by professionals. Several regulators apply their broader standards sur - rounding technology to AI, requiring practitioners to carefully evaluate, apply, and adapt technology in ways that prioritise and protect patient interests (eg, ensuring the use of reputable AI systems and con - tinuing to assess electronic evaluations to identify any inadequate or erroneous results). Other Associa - tions remind healthcare providers of the importance of understanding patients’ comfort and access to emerging AI tools before recommending them, and implementing safeguards to protect patient privacy and avoid conflicts of interest. While most regulators do not prohibit registrants from using AI, many expressly warn against substituting computer-generated assessments, reports, or state - ments for the professional opinion of a healthcare provider. AI and Civil Liability Determining liability in cases involving the use of AI in healthcare remains complex and uncertain, as legal frameworks adapt to both rapidly evolving technolo - gies and the shifting dynamics of human and AI-sup - ported decision-making. The introduction of AI in hospital settings may, for example, require institutions to develop protocols for the appropriate selection, implementation, training, maintenance, and inspection of such technologies, and to ensure that staff are appropriately qualified to use the applications. Developers and vendors may be expected to take reasonable care in the development of AI tools and to warn of limitations and risks. It is challenging to predict how courts may assess healthcare providers’ use of AI, particularly given the evolving nature of these technologies and inconsistent adoption, guidance, and practices. Claims involving the use of software (other than AI) may provide some insight into the potential consideration of AI use in healthcare. These cases, coupled with existing liability principles, mean that individual healthcare providers, institutions, developers of AI systems, and vendors may find themselves defending new types of AI claims
relating to the negligent design, implementation, or use of an AI tool. Looking ahead, the use of AI systems is likely to result in an increasing number of defendants in legal actions, extending beyond traditional healthcare providers to include others in the supply chain, such as develop - ers and vendors of AI systems. As algorithms become more autonomous and less susceptible to real-time human override, it may be harder to portray clinicians or hospitals as the principal risk bearers. At the same time, the opacity of AI systems is expected to cre - ate challenges for plaintiffs in identifying and proving that a specific act or omission caused them harm, potentially shifting the focus back to more traditional defendants, including how product liability claims will be assessed. In this uncertain environment, organisations that develop, distribute, or integrate AI should carefully examine their contractual arrangements and pro - posed reallocations of risk, including through limita - tions of liability, indemnities, and liability protection. Privacy and Cybersecurity The adoption of AI in healthcare raises questions about patient consent, data sharing, and transparency obligations under federal and provincial privacy laws. When applied in the healthcare context, issues may arise relating to authorisation to use the training data - set for the AI model, collection and use of new data to update or fine-tune the model, use of patient infor - mation when interacting with AI, and requirements for consent and/or de-identification of data in each of these cases. These issues must be increasingly investigated, including in the context of a privacy impact assessment prior to implementing an AI tool. There are broad requirements for undertaking privacy impact assessments before implementing systems. For example, in Alberta and Québec, privacy impact assessments are required under health sector-specific privacy legislation. Privacy legislation is also beginning to impose addi - tional obligations with respect to transparency when AI makes or recommends a particular decision, as
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