Digital practices and the related use of personal data are now at the heart of many projects in the healthcare sector, and the Covid-19 crisis has had a boosting effect on this phenomenon. A key question is how to use such data for secondary purposes for sake of public health and innovation?
The legal framework for the re-use of health data is complex and designed to seek a balance between, on the one hand, the protection of privacy and the protection of health data, and, on the other hand, the need to promote R&D and IP investments, while public authorities support public or private database and open data initiatives
Discover the article co- authored by Florence Eon-Jaguin, Partner at Withlaw Avocats and Cécile Théard-Jallu, Partner at De Gaulle Fleurance & Associés, published on the Healthcare and Life Sciences News of the International Bar Association*.
*“This article first appeared on the website of the Healthcare and Life Sciences Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.”
Since the Ministry of Health press release of 4 April 2020, issued as part of the management of the COVID 19 crisis, teleconsultation by telephone has been authorised for patients who do not have the ability to use a video connection.
Teleconsultation or telecare acts, as they relate to interpersonal communication, are often carried out using technical solutions delivered by traditional electronic communications operators, but also by so-called "Over The Top" (OTT) players offering, for some, the possibility of sending electronic files and video.
This article highlights some legal benchmarks relating to the confidentiality of health data generated by these acts, in support of a distinction between two usage cases: on the one hand, the use of tools that enable acts to be carried out through interpersonal exchanges (telephone call, instant messaging), and on the other hand, the use of tools that organise the exchange and sharing of documents.
The use case consisting solely of interpersonal exchange is subject to the usual rules of electronic communications, but these have been extended to new players in this sector. On the other hand, the exchange and sharing of documents is subject to specific requirements.
Florence EON-JAGUIN (Withlaw) and Nicolas SAMARCQ (Lexagone) discuss the legal conditions that these national and even European health tracing treatments must comply with in light of the regulations in force (GDPR and ePrivacy) and the recent recommendations of the European Commission.