Human Rights – Hannah van Kolfschooten | Digital Health Law in the European Union

Hannah van Kolfschooten and Angela Hefti

All over the world, individuals are taking governments to court for their role in climate change, or rather, their “climate inaction”. The 2022 Global Trends in Climate Change Litigation Policy Report shows that strategic litigation cases to enforce climate laws and policies have doubled since 2015. On 29 March 2023, the Grand Chamber of the European Court of Human Rights (ECtHR) heard its first climate case: KlimaSeniorinnen v. Switzerland. A group of senior women is suing Switzerland for failing to protect them from the harms of climate change. This case is likely the first climate case ever to be decided by a human rights court and is important for two reasons. First, it centers around health rights. Second, it is a case involving women’s health. It shows how women’s health rights could guide international climate litigation.

KlimaSeniorinnen (German for ‘senior climate women’) are suing Switzerland for neglecting the target of the Paris Agreement and failing to take action to limit global warming to a maximum of 1.5 degrees Celsius. Switzerland’s temperature is increasing two to three times faster than the global average, with extreme, life-threatening heatwaves as a result. KlimaSeniorinnen argues that Switzerland’s lack of action has violated their right to health, as interpreted under the European Convention on Human Rights. Specifically, they claim that as women they are more vulnerable to the effects of heatwaves, which exacerbate their existing health problems, and they are therefore disproportionately affected by Switzerland’s climate inaction. Rising temperatures affect women’s health more than men’s, especially pregnant people and heat-related mortality is higher in women than in men.

Climate change is the biggest health emergency of this century and is a new social determinant of health, impacting health directly and indirectly. We can no longer ignore the growing evidence of the impact of climate change on human health, especially for already marginalized populations. While the European Convention does not protect the right to a healthy environment as such, the ECtHR has a long track record of holding governments responsible when they fail to protect the health of their citizens from environmental harms. Examples include methane explosions caused by industrial activities, and toxic emissions from steel plants and toxic industrial waste plants, as well as natural hazards such as earthquakes. This strand of case law will form the basis for the Court to decide the Swiss climate case.

The ECtHR will have to examine the KlimaSeniorinnen case from both a health and a women’s rights perspective. A common issue is whether it is possible for applicants to prove in court that they are directly affected by climate change. In climate cases direct cause is difficult to establish but in this case, the applicants are suffering from heat-related health problems and thus are victims of climate change. To demonstrate the direct effects of extreme heat on their mental and physical health, the Swiss women are providing detailed medical reports. One has severe heat intolerance due to a cardiovascular illness, another has a pacemaker, and a third suffers chronic asthma, exacerbated by heat stress. Their age aggravates these health problems: as all women are aged over 75, they are at risk of dying from heat-related health problems.

Even though the Swiss women did not explicitly raise gender equality arguments, the ECtHR ought to examine the case from a nondiscrimination perspective, as gender inequality and climate change are undeniably interconnected. The ECtHR is increasingly ruling that special human rights guarantees are required because of intersectional factors such as gender and age. Switzerland is party to the Convention on the Elimination of All Forms of Discrimination (CEDAW), also known as the international bill of women’s rights. This treaty requires Switzerland to provide equal protection to women, for example, in accessing healthcare. The KlimaSeniorinnen case may just be the start of strategic human rights litigation at the intersection of climate change and health. The Court’s rich case law on reproductive rights, domestic violence, and sexual violence allows for other links between climate change and women’s health. Cases linking increased rates of domestic violence, forced marriage, and trafficking with climate change and women’s health can be expected.

KlimaSeniorinnen v. Switzerland confirms that climate change is first and foremost a health issue which exacerbates existing patterns of health inequity. The Swiss women make a strong argument that the government has failed to protect them from climate harm. Winning this case would benefit the planet and boost women’s health rights across the Europe, as the Court would recognize governments’ responsibilities to reduce health inequities experienced by women.

Hannah van Kolfschooten is a researcher/lecturer with the Law Centre for Health and Life at the University of Amsterdam, the Netherlands. She is currently a Visiting Researcher at Harvard Law School, USA.

Angela Hefti is a Swiss National Science Foundation Postdoctoral Fellow and a Visiting Researcher at Harvard Law School, USA.

This post was originally published with Health and Human Rights Journal.

Please cite as follows:

Hannah van Kolfschooten and Angela Hefti, ‘Women’s Health Rights can Guide International Climate Litigation: KlimaSeniorinnen v. Switzerland before the European Court of Human Rights’, Health and Human Rights Journal, 15 May 2023 at <https://www.hhrjournal.org/2023/05/womens-health-rights-can-guide-international-climate-litigation-klimaseniorinnen-v-switzerland-before-the-european-court-of-human-rights/>

The Council of Europe, the most important international human rights organization on the European continent, currently is drafting a Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law (AI Convention). The Convention aims to protect fundamental rights against the harms of Artificial Intelligence (AI), and is expected to become a global leading convention, as non-European states such as the United States (U.S.) are considering becoming signatories.

As health care is one of the top industries for AI, the forthcoming AI Convention will have important implications for the protection of health and patients. This post gives a brief outline of the background, scope, and purpose of the AI Convention. It goes on to flag common human rights issues associated with medical AI and then touches upon the most important health rights implications of the current text of the AI Convention.

Background, Scope, and Purpose

Since 1949, the Council of Europe and its human rights court have played an important role in the protection and promotion of human rights in Europe through a long list of treaties, resolutions, and court decisions (some of which relate to new technologies). The Council’s scope is much broader than the European Union’s (EU): it has 47 member states (including all 27 EU Member States) and 5 observer states (including the U.S. and Japan). The observer states are not bound by the Council of Europe but can choose to sign on to the AI Convention — committing to its rules as well.

The AI Convention, which is expected by the end of 2023, will exist in parallel to and aims to complement the EU’s forthcoming AI Act and other regulatory initiatives, including the U.S. AI Bill of Rights. The AI Act focuses on the marketing of products using AI within the EU internal market, while the AI Convention focuses on the protection of the fundamental rights of people affected by AI systems. The Convention is principle-based and will — unlike the AI Act and the AI Bill of Rights — introduce legally binding individual human rights, which also will apply to citizens of non-EU states. The exact scope of the Convention, however, is still under discussion, with states like the U.S., the U.K., and Japan advocating that it remains limited to the public sector.

Medical AI: Challenges for Health and Human Rights

While medical AI can improve the quality and efficiency of health care, it also comes with several risks to health and human rights. System errors in widely used AI could cause mass patient injuries, for example, in AI-powered robot-assisted surgery. Unrepresentative or low-quality datasets used to train AI models may lead to incorrect medical decisions causing health damage, such as false diagnoses or wrong treatment decisions. When datasets reflect existing biases in society, specific populations face greater risk of health harms, reinforcing discrimination and health inequality. The enormous ‘data hunger’ of medical AI may also affect medical privacy, and the opaque nature of many AI applications may put existing health practices and other patients’ rights under pressure, such as the provision of information, informed consent, and legal redress.

The Meaning of the AI Convention for Health and Patients

Lifecycle Regulation of General AI Systems

The definition of the proposed AI Convention is rather broad and includes most medical AI applications: “a machine-based system that is capable of informing or autonomously generating outputs such as predictions, recommendations or decisions using machine and/or human-based data and inputs and influencing the environment that it interacts with.” This means it covers applications like ChatGPT-assisted diagnosis, AI-based fall detection in elderly care facilities, AI-assisted surgery, and menstruation cycle trackers.

If the scope would be limited to uses in the public sector, it would still cover a fair amount of medical AI applications, such as automated disease surveillance, social benefits distribution, and most COVID-19 apps, plus many public health care systems. Moreover, the AI Convention applies to the entire lifecycle of AI: the design, development, and application of AI systems. This is especially important for adaptive AI systems that evolve over time.

This sets the Convention apart from the EU’s AI Act, which focuses on regulating the development phase, and only stipulates strict rules for “high-risk” AI medical devices.

Enforceable Rights for Patients

The AI Convention departs from the understanding that all human rights are potentially impacted by the growing use of AI systems, instead focusing on the specific rights to non-discrimination, privacy and data protection, transparency rights, and the right to redress for harm. It establishes these as enforceable rights — filling an often-criticized gap of other AI regulations.

Foremost, the Convention stipulates that all AI systems undergo a human rights assessment before deployment. Then, the Convention recognizes the right to non-discrimination, which is important for health equity — i.e., in cases of limited internet access in remote areas and insufficient digital skills to understand AI tools. The Convention protects privacy and data protection rights, setting high requirements for data protection, which is important for patients who often share intimate data with their doctor. The Convention also equips patients with the right to redress for harm, requiring robust frameworks for accountability and liability — a much-needed and currently absent solution for medical AI causing harm. The transparency rights put forward by the Convention contribute to the creation of a relationship of trust between patient and doctor and ensure informed consent to medical treatment.

Especially for health care — a sector that is mostly regulated locally — minimal human rights standards are important, as they give patients in all Member States the means to arm themselves against potentially harmful medical AI.

The Council of Europe Cares About Health

Generally, the AI Convention is promising for patients because of the Council of Europe’s long track record of protecting the health and human rights of patients. The Council has published many recommendations on medical-ethical issues aiming for stronger human rights protections in the medical field (i.e., health governance, organ donation, medical data protection). The Human Rights Court has enforced protection for patients against — inter alia — forced medical treatments, medical data breaches, and health discrimination. It has also established strong obligations for states to actively protect the health and patients’ rights of their citizens. Many states have changed their health practices and laws following Court orders, for example, for involuntary psychiatric commitment.

In short: health and patients’ rights benefit from a human-rights approach. The Council of Europe’s AI Convention, being the first binding fundamental rights instrument for AI negotiated at such a widespread scale, holds the potential of uplifting health and patients’ rights worldwide, when medical AI becomes common practice in health care.

Originally posted on Bill of Health, the blog of the Petrie-Flom Center at Harvard Law School. Please cite as:

Hannah van Kolfschooten, ‘The Council of Europe’s Artificial Intelligence Convention: Implications for Health and Patients’, 18 April 2023, Bill of Health, <https://blog.petrieflom.law.harvard.edu/2023/04/18/council-of-europe-artificial-intelligence-convention/>.