Where does responsibility lie? A new legal analysis of Clinical Decision Support Systems

Dr Megan Prictor1

1University Of Melbourne, Australia

Nature and Scope: CDSSs are widespread in primary healthcare. They compare individual patient data with a knowledge base, and use algorithms to generate clinical recommendations specific to the patient.  Clinicians have expressed concern about whether the use of CDSSs may impact the legal standard of care and their liability in negligence. Recent egregious use of a CDSS in the United States to inappropriately drive up opioid prescription has focused attention on legal issues related to CDSSs.

Issue under consideration:  This paper reports on our analysis of Australian and international legislation and case law in relation to doctors’ legal duty of care to their patients with reference to risk recognition, recall, testing and treatment.

Outcome: Our analysis shows that doctors do not now, but may in future have a duty to utilise well-established CDSSs in patient care.  The use of a CDSS does not heighten the existing duty of care; system design is important in assisting clinicians to better acquit this duty.  There remains a vital role for professional autonomy in the use of such systems, especially considering the potential for inappropriate manipulation of CDSS system design to influence prescribing.


Biography:

Megan Prictor is a Research Fellow with the Health, Law and Emerging Technologies research programme at Melbourne Law School, the University of Melbourne.  She is also a 2021 Dyason Fellow at the University and holds an Early Career Researcher grant for a project investigating networked electronic medical records, genomic test results and the law.

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