Working with AI scribing tools

Dr James Thorpe outlines the medico-legal considerations of using artificial intelligence transcribing software

As technology evolves, so do the ways we work. We know doctors are curious about incorporating artificial intelligence (AI) tools, such as transcribing software, into their practice as it may help facilitate more efficient working and allow them to spend more time engaging with their patients. At Medical Protection, we have seen growing interest in this area, with doctors calling our advice line to further understand the medico-legal risks associated with using these tools.

AI transcribing programmes – sometimes referred to as ambient scribes or AI scribes – include advanced ambient voice technologies, which record a consultation and transcribe it into written note form. This has the potential advantage of saving time taking written notes.

The Irish College of GPs has recently published a useful report, titled The Use of Artificial Intelligence in Irish General Practice.

When considering using ambient scribing, doctors should ensure they have an understanding of the medico-legal risks and are acting in a manner that is consistent with the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners (‘the Guide’).

The Guide states: “You must keep accurate and up-to-date medical records either on paper or in electronic form. These must be legible and clear and include the author, registration number, date and, where appropriate, the time of the entry and should be made contemporaneously in so far as possible.”

Doctors should ensure the notes produced by the transcription software are an accurate reflection of the consultation and do not omit potentially relevant information. It is also important that notes are proportionate and do not contain unnecessary information which may impact future patient care.

Issues such as data protection and consent should also be considered when using such programmes.

Consent

The General Data Protection Regulation (GDPR) requires that there is a lawful basis for processing personal data. Consent is the commonly used lawful basis in medicine.

There should be a policy in place regarding the use of AI, including when informed patient consent should be obtained. Medical Protection advises that informed consent should be sought from patients before using AI tools that require the sharing of their personal data with a third party. The way in which consent is obtained could involve verbal consent during consultations, or a physical consent form provided prior to consultations etc. The type of consent given should be documented within a patient’s medical record. The section in the Medical Council’s Guide on decision-making and consent provides further guidance.

The Data Protection Commission has also published guidance on AI, large language models, and data protection.

Before using an AI system, it suggests clinicians or practices should make sure they fully understand:

• What personal data the system uses and how it is processed;

• Whether any third parties are involved and where the data is sent;

• If the provider retains or re-uses the data in any way; and

• How the system enables compliance with GDPR obligations.

It is useful to also read the Guide on recording patient consultations.

Data protection

Members will need to consider their legal and regulatory obligations when considering use of specific AI software. The Guide states: “You must comply with data protection and any other legislation and regulations relating to maintenance, storage, disposal, and access to records.”

To ensure that the use of AI software is secure and in line with data protection legislation, we would recommend seeking guidance from the Data Protection Commission.

Indemnity

Understandably, doctors may have questions about whether they can request assistance should medico-legal issues arise from their use of AI.

At Medical Protection, we appreciate the benefits that AI as an adjunct to clinical practice can bring, so members can request assistance with matters arising from the use of AI systems, provided that the system is not fully autonomous and that a human retains oversight or final decision-making authority.

Hence, members can request assistance in the usual way where a clinical negligence claim arises from a member’s use of AI software, provided the issue relates to the member’s own clinical judgement or actions. This assistance would apply where Medical Protection is providing the member with indemnity for clinical negligence claims.

Medical Protection would not normally provide indemnity for issues relating to the failure of AI software itself – for example, if the software has been incorrectly programmed or developed.

Members can seek assistance with other medico-legal matters, such as regulatory investigations, arising from the use of AI software as part of their clinical practice, in the usual way.

Where a doctor is working in a HSE or public hospital indemnity for claims is likely to fall to the State Claims Agency (SCA) so doctors may wish to clarify the indemnity situation with the SCA.

It is sensible for doctors to take care when entering into contracts or agreements with AI suppliers and be cautious about agreeing to indemnify against a claim.

Summary

In this rapidly progressing area, doctors should continue to work in a manner consistent with Medical Council, GDPR, and HSE guidance and relevant legislation.

In this rapidly progressing area, doctors should continue to work in a manner consistent with Medical Council, GDPR, and HSE guidance, and relevant legislation

Doctors should contact Medical Protection or their medical defence organisation if they have any medico-legal concerns around the use of AI.