AI in notetaking – what’s the risk?

AI and law: a recent case

The use of AI tools and the potential pitfalls of them, is an emerging area of law. While there have been limited court cases regarding health professionals using AI there are some emerging cases in the legal context.

 

In a recent decision concerning a legal practitioner who provided an inaccurate AI generated document to the Federal Court, the Court observed that the material generated by practitioners using AI is still subject to the same professional obligations – as if the practitioner had created the document.

 

Barry Nilsson, therefore, anticipates that Courts will take a similar position in relation to podiatrists, that is, that you are ultimately responsible for the accuracy of any health records you use AI to generate.

 

So, what are your professional obligations and how can you ensure the accuracy of AI in your notetaking?

 

Professional obligations

The Podiatry Board of Australia’s shared Code of Conduct includes several obligations and requirements for podiatrists to maintain clear and accurate health records to ensure good care is provided to patients.

 

Effective notes are notes that are written clearly, concisely, are organised and structured. The information should enable a different podiatrist to assume the client’s care. Your notes should include:

• Any relevant clinical history
• Clinical findings and investigations
• Information given to your client; and
• Your management of the client.

 

AI usage and potential risk

The use of AI for record keeping can present many benefits including improved accuracy, efficiency, increased organisation, accessibility and costs saving.

 

However, there are some risks and limitations of AI which podiatrists should consider. These include, but are not limited to:

• The implementation of the AI software
• Informed consent
• Patient privacy; and
• Record accuracy.

 

Implementation of AI

The use of AI requires proper software integration into the podiatrist’s and/or clinic’s system. Some essential integration elements include:

• Staff training in use of the AI system: Training should ensure staff understand enough about how the AI system works and how to use it while still meeting their professional obligations.
• Policies and procedures for the use of AI: Policies should provide guidelines to ensure the software is used appropriately and in accordance with professional obligations.

 

Informed consent

When using AI, you are required to inform your patients about its use and gain their consent, which must be documented in your records.

 

To ensure you have gained informed consent you should:

• Inform your patient about the use of AI at the clinic and consultation.
• Provide sufficient information for your patient to make an informed decision about its use in their consultation. At a minimum this should include details of which AI tool is being used, what it does and where the information it produces will be collected and stored.
• Record their consent.
• Gain consent from each patient at each consultation where the AI tool will be used.

 

Where a client does not consent to the use of AI to record their information, you are required to manually record client information.

 

Podiatrists are encouraged to review their informed consent obligations under the Shared Code of Conduct and the AHPRA resources on meeting your professional obligations when using AI in healthcare.

 

Client Privacy

Podiatrists are also required to understand whether the use of AI in their practice may result in their client’s personal and health information being stored or used by the AI tool provider and otherwise ensure their use is compliant with privacy legislation. Podiatrists are encouraged to carefully review the terms of use for an AI tool and to consider their professional and legal obligations regarding their client’s information. This may require revision to clinic privacy policies, consent processes and other procedures. The Office of the Australian Information Commissioner (OAIC) has provided a guide to health privacy which contains useful information regarding compliance with privacy obligations.

 

Reviewing AI notes

To ensure you continue to meet your professional obligations as a podiatrist, you are still required to review the records taken by any AI software to ensure the contents are accurate. You should only sign or approve the records generated by AI, once you have reviewed the records and verified them as being complete and accurate.

 

Remember, your clients have the right to access and correct their AI generated health records as they do with any manually generated records.

 

Notetaking and insurance

If faced with a claim, your notes could assist. As a claim can occur months or years after an event, your notes can act as a record of what happened and could assist in your defence, instead of relying purely on memory.

 

Speak to your insurer directly for information about the claims process. If you are part of the APodA Member Insurance Program, BMS can assist you. Speak to BMS on 1800 514 933 or email podiatry@bmsgroup.com.

 

This article is facilitated by BMS with information on AI in note taking, and your professional obligations by Scott Shelly and Alexander Sheridan of Barry Nilsson. BMS covers how notes and records could assist in the event of a claim.