Tuesday 16 October 2012

The Digital Patient and the Law

A perplexing aspect of the Digital Patient is how the Law will affect it.  Remember that the digital patient will effectively be "you living in a computer".  However, unlike real life you, which is made up of cells and molecules, your digital you, will be made up of "noughts and ones".  These noughts and ones otherwise known as "bits" in computer terminology (8 bits = 1 byte), will form (using mathematical calculations) a pattern unique to you (based on your appearance) that will generate not just your full body avatar (or other variants of your avatar), but come as close as possible to mimicking the physiological processes (based on your medical data) that make you... you.  The law can affect this digital you, in three ways: First, and this will certainly be the case initially, the digital patient is no more than a form of medical data; this means that the laws governing confidentiality will equally apply here.  However, there is a second and more intriguing possibility, and that is laws that govern how the digital patient avatar interacts with real life people either directly or indirectly through their properties.  Professor Joshua Fairfield of Washington and Lee University School of Law wrote a fascinating and thought-provoking article in UC Irvine Law Review 2012;2:695-772.  In Fairfield's article titled "Avatar Experimentation: Human Subjects Research in Virtual Worlds", he argues that avatars (he was referring to video game avatars, but his thoughts on this equally apply to medical avatars) can cause real harm to real life people and their properties (think viruses and Trojans).  Fairfield continues by saying that social networks have now become so intertwined with virtual worlds that harm to the virtual aspect of a person is increasingly indistinguishable from harm to the real life aspect of the same person.  Could the Digital Patient be used in this way?  This leads to the third area involving the Digital Patient and the Law, and this regards copyright and ownership of your digital you - in most cases, your real you, will not own your digital you.  The latter will be owned by the people that developed the computer program that enabled that program to generate your digital you.  The law is quite clear on copyrighted products (which is what your digital you will be), but it also brings home the point that there could be several versions of your digital you, one per computer program (capable of generating a digital you) and even one per hospital.  How do you choose which version of your digital you, most accurately reflects the real you, and should you seek legal redress, if one version of your digital self (in or from one hospital), gets one aspect of yourself wrong causing serious harm to you?  These issues will affect all of us when the Digital Patient is finally realised, and will walk hand-in-hand, with the potential good that this remarkable technology will bring.

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