Healthcare industry has evolved in recent years is a shift to providing healthcare services to patients “remotely”, that is, usually at a patient’s home.
David YatesPartner, Head of Digital & Data
Nileena AlexanderAssociate,Digital & Data
One of the most significant ways in which the healthcare industry has evolved in recent years is a shift to providing healthcare services to patients “remotely”, that is, usually at a patient’s home. This shift was accelerated during the COVID-19 pandemic with different types of “home lockdown” mandated in many jurisdictions. That said, many people are unfamiliar with receiving remote medical services, and often the technology associated with such services is only a mobile phone, or possibly a video call. There are a range of anecdotal reports that suggest that during the COVID-19 pandemic many people did not visit a healthcare professional for other ailments in circumstances where they probably should have done so. Thus, despite a shift towards the provision of healthcare services remotely, there are technological and cultural gaps in terms of the willingness and ability of ordinary people to receive healthcare services in this way in their own homes.
The possibility of the provision of healthcare services in the Metaverse may bridge those gaps.
Before, however, going any further, let’s pause and ask: What is “the Metaverse”? For all the excitement generated amongst commentators about “the Metaverse”, the term has no agreed definition or consistent description. In theory, the Metaverse is an advanced version of the Internet that provides a single, connected, immersive virtual world facilitated through augmented and virtual reality technologies. In reality, key players in the technology industry like to define the Metaverse in a way that aligns with their technological capabilities and offerings. One definition offered is this: “a massively scaled and interoperable network of real-time rendered 3D virtual worlds that can be experienced synchronously and persistently by an effectively unlimited number of users with an individual sense of presence, and with continuity of data, such as identity, history, entitlements, objects, communications and payments” (Matthew Ball, The Metaverse, Liveright Publishing Company, 2022 at page 29).
For now, at least, this idea of the Metaverse is a theory. The Metaverse will be built on a multitude of interconnected virtual worlds. What we have now, however, is a relatively small number of “virtual worlds”, which are disconnected from each other. “Virtual worlds” refer to any computer-generated simulated environment. Some virtual worlds reproduce the real world exactly (a digital twin), or present a fictionalised version of it, or present a completely fictional reality. For the purposes of this article, we will focus on the provision of healthcare services to a patient within a particular virtual world in the Metaverse. The services provided will have three key characteristics: remote delivery of the service; delivery by a digital twin of a service provider to a patient’s digital twin (avatar); and, the use of blockchain technology (distributed databases) to record patient data. These characteristics generate the key legal issues that may arise.
Remote delivery of a healthcare service creates the possibility that the provider is based in a jurisdiction different to the patient. In fact, that is one of the more attractive aspects of this service, as a patient can seek out the best and most cost effective healthcare provider for their needs, regardless of where they are located. However, what legal system will regulate the provision of this healthcare? Will the healthcare provider be licensed to provide services in the jurisdiction of the patient? Which professional standards and obligations will guide the provider and assure the patient? While the healthcare services are provided virtually, in truth the provider and the patient are real people in our real world. This could give rise to considerable confusion if something goes wrong, or the patient wishes to complain or take action. In another scenario, the health care provider is not an actual person, but an AI-driven program that has been “taught” to recognise patterns across the symptoms that a patient describes and thus diagnose the ailment and prescribe a remedy. Plainly, if the program makes a mistake, serious consequences may follow for the patient. Who would be liable for this? Against whom does a patient make a claim?
A challenge for healthcare providers in relation to the Metaverse is patients’ data and privacy and working out how patients’ data will be processed and protected. The UAE has taken a conservative approach in its protection of health data, specifically in relation to the transfer of health data outside of the UAE. Under the health data laws in the UAE, patient data may not be transferred outside of the UAE, except in very limited circumstances. The Abu Dhabi Department of Health has clarified that this requirement extends toward the remote access of such health data that is hosted within the UAE from outside the UAE. A question remains as to whether the transfer of health data to the Metaverse, which can be accessed by healthcare providers located across the globe, would be considered a violation of the laws relating to health data.
Blockchain technology increases the security of data, however it does so by making records saved in the blockchain transparent and immutable, through distributed storage of each record at multiple nodes throughout a network. This in effect is contrary to many protections afforded to individuals in relation to the processing of their personal data. How could a patient withdraw consent to that processing in these circumstances? How could a patient request the transfer of his or her data to another healthcare provider, and that the first provider delete all of that data? The use of blockchain technology in the provision of healthcare in a virtual world must be carefully scrutinised and planned given the UAE Federal Data Protection Law.
The provision of healthcare services in the Metaverse opens up a range of incredibly important and meaningful improvements for patients across the UAE and other jurisdictions, but it comes with a range of legal risks that must be carefully considered to protect healthcare providers and patients alike.
For further information, please contact healthcare@tamimi.com.
Published in January 2023
