Contributed By Walder Wyss Ltd
From pagers and fax machines to telemedical video conferencing and electronic patient records, the spectrum of information technologies available to healthcare-providers (HCPs), healthcare organisations (HCOs), and patients in Switzerland has proliferated and is expected to reach as yet unexploited heights.
Digital Healthcare as an Umbrella Term
While “digital healthcare” or alternative notions of “electronic health services” and “Health 2.0” are generally understood to represent the sum of information technologies designed to increase the wellbeing, fitness, or health of a given population or the efficiency of healthcare services – eg, by facilitating communication between HCPs, HCOs, and patients – the terms “digital medicine” or “digital therapeutics” describe diagnostic, preventive or therapeutic attributes of information technologies. Digital medicine can thus be read as a sub-category of digital healthcare. When used in this chapter, the term digital healthcare will accordingly be used as an umbrella term covering digital medicine applications.
Differences between Digital Healthcare and Digital Medicine
From a patient’s perspective, digital healthcare technologies often encompass applications that generally inform about human health conditions, enable communication with HCPs, or are intended to increase their general wellbeing, eg, by encouraging an active lifestyle – whereas technologies belonging to the digital medicine realm will make claims to prevent, diagnose or treat a human disease and improve their medical condition.
From an HCP’s perspective, digital healthcare will primarily involve applications that increase service efficiency, such as tele-consultation or administrative case-management platforms, patient records or systems supporting the discovery of new therapies, while digital medicine applications form the object of or influence their medical decision-making and are subject to an according duty of care.
From a regulatory perspective, digital medicine faces more stringent evidentiary requirements to substantiate medical claims and generally requires some form of clinical evaluation to be marketable in Switzerland.
Promises of Digital Healthcare
Besides improving access to healthcare and reducing inefficiencies, one of the promises of digital healthcare technologies lies in their ability to collect real-time data that can facilitate the generation of evidence required to inform medical decision-making. However, as in other sectors, decision-making based on “real-time” or “real-world” evidence has pitfalls – using unfiltered data collected from use may perpetuate system bias and pose privacy concerns – risks that are only partly addressed in current Swiss regulation.
Neither the notion of digital healthcare nor the term digital medicine is currently defined under Swiss regulatory frameworks.
eHealth and mHealth
The Swiss regulator has, however, defined the terms “eHealth” and “mHealth”: As part of an initiative to increase digitisation of the health care sector, the Swiss federal and cantonal administrations jointly adopted an “eHealth strategy 2.0”. According to the strategy, the term eHealth covers “all electronic health services that serve to network the actors in the health system”. The current strategy 2.0 draws on a previous “eHealth strategy Switzerland” which defined “eHealth” as “the integrated use of information and communication technologies (ICT) to design, support and network all processes and participants in the health care system”. Inter alia, the eHealth strategy Switzerland led to the release of “mHealth recommendations” (dated March 2017). These mHealth recommendations refer to mHealth as “medical procedures, healthcare and preventive measures supported by wirelessly connected devices” (abbreviated translation).
Though both the strategies and recommendations offer useful definitions and guidance for legislators, regulators, and economic operators, they do not aim at regulatory qualification, but at serving a basis for reform and allocation of funds. They are thus of limited value when describing the Swiss regulatory landscape.
Lack of a Comprehensive Regime for Digital Healthcare and Digital Medicine
The lack of a regulatory definition is due to the fact that there is currently no comprehensive Swiss legislation on digital healthcare or digital medicine. Rather, aspects of health-related information technologies are generally qualified under each regulatory regime in view of each regulation’s specific objectives.
Depending on their particular functions, features, and claims, digital healthcare and digital medicine may, for example, be subject to:
Both digital healthcare and digital medicine are fuelled by general access to mobile devices equipped with high computing power and storage capacity, enabling real-time collection and processing of health-related data.
With increased connectivity, including wirelessly connected things (internet of things), the idea of healthcare ecosystems tailored to specific indications or (more broadly) conditions, such as diabetes, cardiac issues or depression, designed to follow the entire treatment cycle from prevention and prediction to diagnosis, treatment, adherence and monitoring, is gaining momentum.
Concurrently, innovation is driven by increasingly sophisticated machine-learning and pattern-recognition technologies. Coupled with advances in genetic sequencing technologies, digital medicine applications promise to provide care tailored to an individual’s genetic or physiological makeup and/or increase diagnostic accuracy. Machine-learning algorithms in digital healthcare technologies are used to identify new therapy candidates or improve patient triage efficiency.
Due to a widespread acceptance and embracing of digital technologies within the Swiss population and an aging society weighing on the Swiss social insurance, digitisation of healthcare has become a priority.
At the same time, increased connectivity has also brought about new legal issues. Current legal aspects in digital health include:
Amongst the challenges to digital health are obstacles caused by varying national standards and a regulation that is not tailored to digital health technologies.
During the COVID-19 pandemic, video consultation, telemedical services, and remote monitoring for patients or new digital tools, eg, contact tracing apps, gained ground. The increased use of digital platforms during the pandemic will likely have a lasting and enabling effect on healthcare in Switzerland.
One of the hopes resting on digital healthcare lies in real-time prediction and warning, remote access, efficient triage and resource allocation. Evolving technologies such as the contract-tracing app, developed during the COVID-19 pandemic and designed for disease control, apps measuring air pollution generated during Californian fires or algorithms guiding the distribution of scarce resources could thus also play a crucial role in view of extreme weather conditions and climate change.
Certain technologies could also prove efficient in reducing the carbon imprint contributing to global warming. For example, an efficient allocation of medical supplies driven by digital healthcare applications could on balance optimise supply chains and reduce excess production and resulting waste.
Swiss law is generally characterised by decentralised governance, where default competences lie with the Swiss cantonal authorities.
Inter alia, Swiss cantonal health authorities have authority over medical professional practice and are competent to enforce professional licensing requirements. Their oversight thus touches upon digital health technologies that directly impact professional practice, such as platforms for telemedical services, and raise questions on the distinction between the provision of medical professional care and platforms acting as intermediaries to that care.
Swiss cantonal authorities are also competent by default to enforce the Swiss Therapeutic Products Act (TPA) governing medicinal products, medical devices, and therapies directly linked to medicinal products or medical devices, eg, gene therapies. The cantonal competences under the TPA are superseded where the TPA accords express authority to the Swiss Federal Agency for Therapeutic Products (Swissmedic). Inter alia, Swissmedic is competent for market surveillance of medical devices and has authority over the marketability of medical devices. Digital medicine applications classified as medical devices within the meaning of the TPA may thus fall under both Swissmedic’s and cantonal authorities’ oversight.
Along with regional ethics committees, Swissmedic is also responsible for authorising certain categories of human (interventional) clinical trials with medical devices under the Swiss Clinical Trials Ordinance (ClinO) (eg, medical devices not yet bearing a conformity marking under medical devices regulations). Non-interventional studies with human subjects, including personal data, require an authorisation by the competent ethics committee under the Swiss Federal Human Research Act (HRA).
Swissmedic’s and the cantonal authorities’ competences under the TPA are complemented by competences of the Swiss Federal Office of Public Health (FOPH). Inter alia, the FOPH is also competent for granting certain authorisations under the Federal Act on Human Genetic Testing (HGTA) and for assessing the benefit of candidates for reimbursement under the general mandatory Swiss health insurance scheme.
To keep pace with evolving technologies in digital healthcare, the Swiss regulatory landscape is changing, both in terms of substantive legal regimes and in the way in which regulatory authorities conduct market-surveillance activities.
In terms of substantive regimes, reforms are ongoing in patient records' legislation, medical-device regulations, genetic testing, and data protection laws.
Electronic patient dossier
In view of facilitating inter-operability between HCPs, HCOs, and digital healthcare applications and with the aim of breaking up information silos, the Swiss legislator and regulator laid grounds for an electronic patient dossier (EPD). The EPD is at the heart of the Swiss “eHealth strategy 2.0” and designed to integrate information derived from patient files kept by HCPs and HCOs, information entered by the patient, and mHealth applications connected to the records (cf the definition of mHealth under 1.2 Regulatory Definition). It functions as an overarching link between, and gateway to, patient information stored locally on decentralised filing systems operated by certified EPD providers. To enable access to an EPD, the patient must have given his or her consent with a two-factor authentication. The EPD will be rolled out gradually in the course of 2021.
Medical devices ordinances
The Swiss regulator also adopted a fundamental reform of the medical-device regimes, including in vitro diagnostic medical devices, with a view to harmonising the Swiss regime with the European Union’s Regulations (EU) 2017/745 (MDR) and (EU) 2017/746 (IVDR). The revised Medical Devices Ordinance (MedDO) entered into force on 26 May 2021 and will be supplemented by the Ordinance on In vitro Diagnostic Medical Devices (IvDO), a draft of which was published in April 2021. Both ordinances closely mirror and directly reference the respective EU provisions. Neither ordinance is specifically tailored to devices relying on digital technologies, and guidance on artificial intelligence under the MDR and IVDR is outstanding.
mHealth applications (cf the definition under 1.2 Regulatory Definition) not falling under the regime on medical devices (eg, wearable sensors measuring vital parameters for fitness purposes) are subject to generic, non-healthcare-specific regimes on product safety. In view of addressing health-related risks inherent to mHealth applications, the Swiss regulators adopted recommendations and guidance for a self-declaration of mHealth apps based on quality criteria endorsed by the Swiss eHealth initiative. Both recommendations and guidance are designed as non-binding codes of practice increasing transparency and furthering the development of adequate quality standards.
Reform of the Data Protection Act
To account for the increased role and value of collecting and processing personal data, the Swiss legislator adopted a reformed Federal Data Protection Act (revFDPA), due to apply from mid-2022. The new framework provides for, inter alia, increased transparency requirements while building on previous concepts of the Swiss data protection regime. In contrast to Regulation (EU) 2016/679 (GDPR), the FDPA is based on the principle of permitted data processing with exceptions requiring justification (ie, consent, overriding interests, or legal bases).
Human genetic testing
Further reforms affecting digital healthcare technologies include a revised regime on human genetic testing. The revised Federal Act on Human Genetic Testing (HGTA) and its implementing ordinance are due to apply from 2022.
Amongst the regulatory reform projects currently under way, the new regulations on medical devices and the revised FDPA, as the most far-reaching revisions, are likely to have the most impact on digital healthcare. Their impact is, however, not yet fully discernible, as respective enforcement practices have yet to be adopted.
Shifting Practices in Regulatory Oversight
Regulatory oversight has shifted both procedurally and substantively, ie, in its focus. Changes are most apparent in digital medicine.
Key areas of enforcement are centred around applications causing or contributing to the highest health or privacy risks for patients or users. Thus, enforcement focus lies on high-risk digital medicine applications or other such technologies processing high quantities or a broad spectrum of health-related personal data.
Where authorities open investigations against economic operators, they are generally required to grant those operators a right to be heard, unless the suspected risks require immediate or covert action. Any action would have to be proportionate to the operators’ legitimate interests. As a rule, prior to issuing any binding order, authorities will generally have to give addressees of any such order the opportunity to submit a defensive statement. Upon the issuing of a binding regulatory order, addressees have the right to take recourse before an instance specified in the applicable legal regime (eg, the Federal Administrative Court).
Certain digital healthcare technologies may be subject to generic, non-healthcare-specific legal regimes, such as telecoms regulations, general product-safety regimes, and competition laws.
Digital healthcare technologies qualified as telecommunication services within the meaning of the Swiss Telecommunications Act (TCA) fall under the Swiss Federal Office of Communications’ (OfCom) oversight and have certain reporting, co-operation and documentation obligations under the Swiss Federal Act on the Surveillance of Post and Telecommunications (SPTA).
The TCA regulates the transmission of information and is aimed, inter alia, at ensuring cost-efficient, stable, competitive, and accessible telecoms networks in Switzerland. It defines telecommunication services as the transmission of information for third parties. As per guidance provided by the OfCom, a telecommunications services-provider (TSP) is a person who assumes responsibility for the transmission of end-user signals vis-à-vis end users or other TSPs.
In a recent decision dating from April 2021 and along the lines of the European Court of Justice’s jurisprudence, the Swiss Federal Court held that an internet-based instant messaging app (such as Threema, Signal or Whatsapp), relying on internet access provided and administered by a third party (so-called over-the-top services, or OTT services) does not classify as a TSP. It follows that to be considered a TSP, digital healthcare technologies would have to exercise some form of control over the transmissions network (eg, through a feed-in interconnection agreement allowing users of an internet-based service to access mobile telephone numbers) or provide a contractual guarantee for the correct and uninterrupted transmission of user information.
OTT services enabling one-way or multi-path communication, eg, offering chat or other communication functions between HCPs and patients, may, however, qualify as providers of derived communication services within the meaning of the SPTA. Such providers of derived communication services face certain, albeit reduced, co-operation and reporting obligations in the surveillance of telecoms networks.
Product Safety Laws
Digital healthcare technologies may also fall under non-healthcare-specific product safety laws. As a rule, products intended for consumer use are governed by the general requirements on product safety provided by the Swiss Federal Act on Product Safety (PrSG). Regulatory oversight lies with authorities specified in the Swiss Ordinance on Product Safety (PrSV) or other sector-specific ordinances.
By way of an example, wearables measuring vital parameters and wirelessly connected to other devices may need to observe essential health and safety requirements set out by the Swiss Ordinance on Telecommunications Installations (FAV). Oversight over the observance of such essential health and safety requirements lies with the Swiss Federal Inspectorate for Heavy Current Installations (ESTI).
Oversight over compliance with the Swiss Cartel Act (CartA) lies with the Swiss Competition Commission (COMCO). Digital healthcare platforms fostering the exchange of data between competitors (eg, HCOs competing for patients) which has the effect of co-ordinating competitive behaviour (such as setting prices) may fall into the realm of co-ordinated behaviour prohibited under the CartA. Further, recent developments in the EU have spurred debates on whether violations of data protection laws may constitute an abuse of market power under the CartA. Depending on their specific functions, digital healthcare platforms may thus need to take competition laws into consideration.
The Federal Data Protection and Information Commissioner (FDPIC) is appointed to supervise federal bodies, advise private operators and enforce federal data protection law. Cantonal bodies are subject to oversight by the cantonal data protection bodies. As the healthcare sector becomes increasingly digital and data-driven, the role of the data protection authorities becomes increasingly important, even though their reach, resources and resolve are not at par with their European counterparts. Interaction or co-operation by the Swiss data protection authorities with other agencies is subject to alignment in each case and the delimitation of authority is often blurry.
Definition of Medical Devices under the MedDO
Based on the principle of harmonisation with European medical-device law, the current Swiss definition of medical devices mirrors the MDR.
In summary and in line with the EU regulatory framework, a product, including software, is considered a medical device if it is intended by the manufacturer, inter alia, for the purpose of (each a medical purpose):
Whether a product is intended for a medical purpose is determined in accordance with the manufacturer’s design and claims, as expressed in the product’s labelling, instructions for use, documentation and marketing materials. The qualification of a medical device is determined by a subjective-objective test, meaning that arbitrary disclaimers provided by the manufacturer will be deemed ineffective if they are inconsistent with the product’s intended functions and objective presentation.
Medical Device Software
The Swiss regulatory authority, Swissmedic, issued a guidance document on standalone medical-device software, including apps installed on wearable devices, which references the respective EU/EEA guidance MEDDEV 2.1/6 and describes practical examples of non-medical software.
Specifically, an app providing generic non-personalised medical information or an app for “fitness, wellbeing or nutrition (eg, diets)” (translation) is not considered a medical device. In its guidance, Swissmedic also specifies that – as a rule – the following functions do not qualify as medical in nature:
In order to be considered a medical device, software would thus have to perform a certain degree of data processing tailored to individual patients with a view to achieving a medical purpose.
Software not intended to achieve a medical purpose on its own would not in itself be considered a medical device, but may, for example if it drives or influences a medical device, fall under the scope of the medical-device regime as an accessory to or component of a medical device.
To date, Swissmedic has not made reference to or taken a stance on the new (non-binding) MDR guidance MDCG 2019-11 issued by the European Medical Device Co-ordination Group (MDCG), an advisory body composed of representants from the European national regulators. However, since the definition of medical devices adopted by the Swiss regulator corresponds to the MDR, the MedDO will likely be interpreted in accordance with the MDCG 2019-11.
Self-regulatory Concept of the Medical Device Regime
As in the EU framework, the Swiss ordinances are characterised by a self-regulatory concept based on harmonised technical standards developed by industry organisations and endorsed by Swissmedic. Unlike medicinal products, medical devices do not require a marketing authorisation, but must in principle be marked with a specified conformity marking to be marketable. The marking may only be affixed following a specified risk-based conformity assessment. Depending on the medical device’s risk profile and corresponding classification, manufacturers must involve third parties in the conformity assessment of their devices, ie, notified bodies accredited by the competent accreditation organisation. Irrespective of their class, all devices must undergo a clinical evaluation procedure based on clinical evidence representative of their risk.
Machine Learning-Enabled Medical Device Software
Medical-device technologies based on adaptive machine-learning algorithms have been described as “black box medicine” due to their evolving “learning” output and opacity. Indeed, machine-learning algorithms are characterised by a certain lack of input-to-output traceability, a fact that poses a hurdle in clinical evaluation.
Unlike other regulatory authorities in Europe, Swiss authorities have not yet issued guidance on evidentiary requirements for medical devices based on machine-learning technologies. Respective guidance will likely correspond to guidelines under the MDR and IVDR currently pending with the MDCG. Nor have harmonised technical standards for the general safety and performance requirements specific to machine-learning algorithms yet been endorsed by the Swiss regulator.
New Market Entries
Software providers that offer software, or parts of a greater system, that qualifies as a medical device are not always mindful at the early stages of planning and development that many applications are caught by the regulatory regime. This tends to delay product development and increases cost. At the same time, the new medical-device regime tightens requirements on documentation and security, connectivity and maintenance, which not all newcomers are prepared to satisfy.
Telemedicine is well-established in Switzerland. Certain Swiss health insurance companies offer insurance policies with telemedicine gateways akin to the Health Maintenance Organization (HMO) model where patients must first seek consultation through a designated telemedical portal.
Apart from a few provisions in cantonal law and an accordingly varying degree of liberality towards telemedicine across the Swiss cantons, there is no telemedicine-specific legislation and telemedicine is thus subject to general rules governing conventional forms of healthcare, in particular medical professional standards of care. According to the current code of professional practice of the Swiss Medical Professional Association (FMH), telemedical care conforms to professional standards, provided that, as a rule, treatment is not exclusively based on electronic communication or other form of remote communication.
Current legal issues revolve around the cross-border provision of care and operating licence requirements for telemedical platforms employing or co-operating with physicians.
While the cross-cantonal provision of telemedicine is practically undisputed, licensing requirements for physicians and telemedical platforms providing remote services from EU/EFTA member states are subject to an ongoing debate.
In principle, physicians based in the EU/EEA benefit from an exemption from cantonal professional operating licensing requirements. However, there is currently no jurisprudence or consensus in doctrine on whether telemedical services provided from EU/EEA states without cantonal licences would be subject to the limitation of 90 days per year provided for cross-border services based on the sectoral agreements between the EU and Switzerland. Arguably, the limitation only applies to a physical presence in Switzerland and does not extend to remote telemedical services. Yet, the EU’s notation of services also encompasses correspondence services, suggesting an according interpretation of the term under the sectoral agreements.
Similarly, jurisprudence has not yet been rendered on the question of whether and to what extent the physician’s medical practice will be governed by foreign or Swiss professional standards (country of origin versus country of destination principle). Much like in the EU, an established practice and jurisprudence is lacking. Since Switzerland is not bound by the EU’s patchwork of directives touching upon cross-border medical professional services, the Swiss regulators are not bound by an interpretation of these directives adopted under EU law.
In recent years, certain cantonal authorities have argued that telemedical platforms acting as intermediaries between physicians and patients would require cantonal operating licences and an establishment in Switzerland. Depending on the applicable cantonal provisions, the business model and the relationship between patients and physicians, telemedical platforms may thus have to take into account whether they operate outpatient medical institutions within the meaning of cantonal licensing provisions.
During the COVID-19 pandemic, the medical professional association FMH partnered with a videoconferencing service, offering physicians its platform free of charge. Guidance issued by the FMH during the COVID-19 pandemic specifies that the responsibility for the use of messenger or video services lies with the respective physician. To aid decision-making in the choice of a service, the FMH published guidance listing the most common products for video consultations, including a risk assessment available on its website.
The tariff structures for outpatient treatments are negotiated between tariff partners specified in the health insurance statutes, ie, representatives of health insurers and professional associations. The applicable tariff (TARMED) currently lists only one position “Telephone consultation by the specialist” (cf tariff No 00.0110 et seqq) for telemedical services provided by specialists other than psychiatrists or psychotherapists. During the COVID-19 pandemic, the respective tariff positions were partially and temporarily adapted to account for the need for longer tele-consultations.
The term internet of medical things (IoMT) refers to wirelessly connected sensors transmitting information to other objects in the healthcare ecosystem by way of machine-to-machine (M2M) communication. Possible applications include, for example, inventory or occupancy management in HCOs or real-time monitoring of vital signs in patients.
A systematic roll-out of IoMT applications in healthcare will trigger and amplify general legal issues, including those previously mentioned, such as data privacy and data security, and will expose HCOs, HCPs and patients to new security risks such as hacking, hijacking, and manipulation of digital assistants. Such risks may raise questions on whether Swiss regulatory regimes address those risks sufficiently and whether the current criminal provisions prove effective in combating related crimes.
The Swiss Federal Council published a report dated 29 April 2020 on security standards for IoT devices, which found, among other things, that further legal requirements or guidelines should be developed in close international co-ordination, as fragmented regulations across domestic jurisdictions may prove ineffective and lead to unintended market distortions.
With transmission speeds approximately 100 times faster than 4G networks, the implementation of 5G may further accelerate the development of digital healthcare.
In telehealth, 5G has the potential to unlock the use of virtual reality technology or sensors to enable treating physicians to monitor a patient’s vital parameters. One of the potentials further attributed to 5G is to provide grounds for virtual computerised replication of a surgical procedure remotely controlled by a physician at the patient’s site (as part of a vision termed the “tactile internet”). To achieve 5G’s potential in remote surgical interventions, telecoms-providers will have to ensure very low latency and transmission priority in their networks and healthcare-providers will need to take care when drafting appropriate contractual provisions to address liability risks.
5G may also underpin treatment in disaster areas by enabling real-time tracing of large populations or facilitating inventory and supply management within HCOs.
Personal health-information (PHI), directly or indirectly allowing for insights on an identified or identifiable person’s physical or mental health, is categorised as particularly sensitive data under the general data protection regime set out in the FDPA and its implementing ordinance (ODPA).
Using and sharing PHI within the scope of the Swiss jurisdiction may be subject to multiple legal regimes, including:
The current FDPA is under an ongoing revision; the final text has been adopted in 2020. The revised FDPA (revFDPA) is expected to apply from mid-2022.
General Data Protection Laws
Under the FDPA, and revFDPA, processing PHI in breach of general principles on transparency, good faith, proportionality, data accuracy or data security, and transferring PHI (including genetic data) to other controllers requires a justification. Such justification may lie in:
Where consent is required for lack of other bases, it must be informed, voluntary, and explicit. In principle, consent may be provided in any form, including orally or electronically. Where processing activities and purposes are not self-evident and reasonably transparent from the circumstances, consent must be based on adequate information detailing the respective processing purposes.
As a rule, a justification is unnecessary where a recipient acts as a processor on behalf of a controller and is subject to respective auditing and instruction rights.
PHI may be transferred abroad under the conditions set out in the FDPA. The USA is not deemed to provide an adequate data protection level within the meaning of the FDPA. The Swiss FDPIC recently published a position paper concluding that the Swiss-US Privacy Shield does not provide an adequate data protection level and a certification under the Swiss-US Privacy Shield no longer constitutes a sufficient basis for personal data transfers to the USA. An adequate data protection level must therefore be ensured by other means, eg, through the conclusion of a data transfer agreement, typically using EU standard contractual clauses adapted to Swiss requirements with additional safeguards depending on a case-by-case analysis.
Professional and Official Secrecy
HCPs and HCOs are subject to professional and/or official secrecy obligations. Sharing patient data with third parties is permissible if mandated or permitted on legal grounds or upon informed patient consent. Where such legal bases or consent are lacking, patient data may be entrusted to third parties qualified as auxiliaries (data processors) of the HCP bound by the same professional secrecy as the principal. The majority in doctrine argues that the latter permission also extends to processors located abroad, though certain scholars also take the view that foreign transfers require patient consent to ensure criminal persecution of processors acting in violation of professional secrecy.
Patient consent legalising transfers under professional secrecy obligations need not be obtained in writing and may be given implicitly or explicitly. Consent must, however, be voluntary and given by a person capable of judgement and in full knowledge of all essential circumstances.
Human Research Laws
Similar consent and information requirements are set by the Human Research Act (HRA) and its implementing Human Research Ordinance (HRO).
Specifically, if researchers collecting PHI for an authorised research project intend to make further use of PHI (including genetic data) in unencrypted form for another research project, they must obtain informed consent from the data subject or, as applicable, their legal representative or next of kin. Further use of non-genetic PHI in coded form is permitted, provided data subjects are informed of their right to dissent to that further use. The obligation to inform data subjects and provisions on encryption and key management is further specified in the HRO. Foreign data transfers of genetic research data are only permissible if they are carried out for research purposes and the data subject gave his or her informed consent. Non-genetic research PHI may be transferred abroad under the conditions provided in the FDPA.
Anonymised and Encrypted (Including Pseudonymised) PHI
In principle, Swiss data privacy laws do not apply to anonymised data or object data unrelated to an identified or identifiable person. Like the GDPR, Swiss law is based on a relative qualification, meaning that data will be qualified as “personal” depending on whether the controller, processor or recipient of the data can relate that data to an identified or identifiable person using reasonable means. Conversely, data is considered anonymised where identification is practically impossible because it requires efforts prohibited by law or reasonably disproportionate to any interest in that identification, such that the person in possession of the data would not be expected to take any such means.
Where merging of multiple data sources leads to or allows for an identification of data subjects, the resulting personal data is subject to the data protection regime.
Data encrypted according to the current encryption standard, decipherable only to the person in possession of the relevant key, do not qualify as personal data with regard to processing activities carried out on that encrypted data by a third party. To fall outside the scope of the general data protection provisions, the controller must ensure that only authorised persons have access to the decryption key and that data cannot be decrypted without the decryption key.
Under current legislation, a breach of privacy, including a failure to handle security breaches properly, may lead to civil claims against the controller, including claims for breach of contract. However, financial losses are usually difficult to quantify, which greatly reduces the risk of financial liability. Moreover, the FDPIC may open an investigation into security breaches, which may lead to negative publicity. Besides, infringements are usually not punishable by criminal fines under current law. The revised FDPA will, however, introduce fines of up to CHF250,000 for certain breaches, including failure to comply with minimum security standards.
While the systematic use of technologies based on intelligent (learning) algorithms is still largely experimental in digital therapeutics, machine-learning technologies are gaining ground in, eg, diagnostics, the discovery of new medicinal product candidates or pattern recognition of trends in side effects.
With many applications still at an experimental level, the Swiss regulatory regime has not kept pace with their growing potential. AI-specific Swiss regulations have not yet been adopted. As with medical devices software (cf 5.1 Categories, Risks and Regulations Surrounding Software as a Medical Device Technology), guidance on evidentiary requirements for general healthcare applications have not yet been set. AI- and machine learning-enabled technologies are thus subject to general principles applicable to the respective product category.
Hence, the use of real-time or real-world data as training data and the according risk of perpetuating system bias is currently not specifically addressed under Swiss law. Nor have data access regimes been specifically adapted to the machine-learning context and the fact that machine-learning algorithms require significant amounts and ranges of training data to reach their full potential. The Swiss EPD (as previously described) is based on patient consent and not designed to enable insights based on linking patient records.
In order to support digital healthcare, HCOs need an adequate IT infrastructure suitable to integrate new technologies. Key features of digital healthcare build on connectivity between inter-operable technologies. To ensure inter-operability, the infrastructure must be based on common standards. These standards are still under development. In addition, secure and effective sharing of information relies on stable networks equipped with sufficient capacity. Network operators and technology developers alike will thus play a crucial role in harnessing the digital healthcare potential. As with all systems enabling multi-party co-operation, security issues become particularly important, as well as data and information governance.
Cloud computing of PHI is subject to general data privacy and professional secrecy regimes. It has long been debated if operators under obligations of professional secrecy are permitted to outsource protected information to IT providers abroad, including cloud service-providers. Notwithstanding, there is a general shift towards the cloud across all industries, including regulated industries such as banking and insurance. While the healthcare industry is not spearheading this development, it is following the early adopters closely, and there is a trend towards cloud services in the healthcare industry, driven by economies of scale as well as the requirement for speed and innovation.
One of the accelerators for this development, aside from business requirements, increased regulatory acceptance and more robust contractual controls offered by the market-leading hyper-scalers, is growing awareness of security. In practice, PHI processed in clouds is often encrypted, with key management lying either with the commissioning HCP or HCO or contractually restricted in such a way that decryption is made subject to the HCP’s or HCO’s, as applicable, explicit consent and allowed only to the extent “indispensable”. Additional security controls are contractual safeguards, such as instruction and auditing rights, information and confidentiality obligations, access concepts and risk-specific security requirements.
Under Swiss law, computer programs may be protected by non-registrable copyrights. Unlike in other jurisdictions, commercial intellectual property rights to such computer programs are freely assignable. According to the currently prevailing opinion in doctrine, associated moral rights, such as the right to be named as an author, are non-transferrable, but may be waived. Arguably, their exercise may also be delegated to third parties.
Software as such is not patentable. However, inventions may be patentable provided they have a technical implementation.
The question of how inventions and works of authorship created by artificial intelligence-based technologies are allocated has not yet been decided. Like the European Patent Office (EPO), the majority in doctrine argues that inventorship in patent law – and authorship in copyright law – can only be attributed to natural persons.
Under Swiss general contract laws, designs and inventions conceived or reduced to practice in the performance of an employment agreement belong to the employer. A similar provision is stipulated for computer programs protected by copyrights under the Copy Right Act (CopA). According to this provision, the employer shall have exclusive rights of use in a computer program created by his or her employee in the course of the performance of the employee’s contractual obligations.
Where private sector technology companies are involved in developing a device or medical innovation, intellectual property rights are often allocated to the private sector company funding the research. In practice, research institutions often reserve the right to use intellectual property developed in the course of the collaboration for non-commercial purposes. In some cases, such a reservation may be mandated under competition-law considerations.
Competition-law considerations also play an important role in licensing agreements. For example, contractual clauses creating an obligation placed on the licensee to assign or grant an exclusive licence to a licensor (or a third party designated by the licensor) to any improvements made on the licensed technology require careful assessment.
Given the strictures imposed by intellectual property statutes for multi-party inventions and works of authorship, contractual arrangements often regulate cross-licences in background IP rights, and the allocation of (joint or separate) ownership in foreground IP. Best practice includes fine-tuning the allocation of IP rights to the specific needs of the parties and an awareness that IP allocation is not an issue that should be left to lawyers, but requires business buy-in and alignment with the broader strategies of the parties.
General Principles of Liability
Liability for patient care can be based on the Swiss Product Liability Act (PLA), establishing strict liability for defective products modelled after the EU’s Product Liability Directive 85/374/EEC (PLD), contractual provisions governed by the Swiss Code of Obligations (CO) or the CO’s general regime on torts. In contrast to the PLA, liability under the CO generally requires negligence, with the onus of proof lying on either the claimant or the defendant, depending in principle on whether damages are sought under contract or torts. While strict liability under the PLA cannot be excluded, liability under the CO can be limited to gross negligence and intentional misconduct.
Liability for AI-Enabled Products
As part of an assessment on the need for regulatory reform tailored to artificial intelligence technologies, the Swiss Federal Council (FC) entrusted a working group under the auspices of the Swiss Federal Department of Economics, Education and Research (WBF) with analysing the Swiss regulatory landscape. In its report, the working group held that the current Swiss liability legislation is broad enough to accommodate liability risks emanating from artificial intelligence. Following the report, the FC concluded that new regulations addressing liability for artificial intelligence are currently not a priority.
However, spurred by a project to revise the EU’s PLD, multiple scholars in doctrine have recently argued for a revision of the Swiss PLA. Referencing an ongoing international debate, they identify three risks inherent to artificial intelligence. Firstly, the risk derived from the fact that, by definition, artificial intelligence systems exercise a certain degree of autonomy. Secondly, risks related to their interaction with humans training the artificial intelligence, and, thirdly, their inter-dependence with other systems, eg, healthcare ecosystems. Arguments for a revision project are centred on the definition of a product defect and causality, the allocation of responsibility between manufacturers and users (risk governance), and the burden of proof.
Under the present regime, robots are not endowed with a legal personality; liability lies with a natural or legal person responsible for the damages caused by such robots. Whether the responsibility is with the manufacturer marketing a product or the user training a product with user data, depends on an allocation of risks between the manufacturer and the user and the definition of a product defect. Much like the EU’s PLD, the Swiss PLA defines product defects referencing the legitimate safety expectations of the general public. These expectations are shaped by industry standards. Much will thus depend on the development of adequate standards by standardisation committees, such as the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC). Where users play an integral role in training an artificial intelligence post-market, the manufacture’s influence on compliance with such standards is significantly reduced. Two of the suggestions for reform brought forward in doctrine therefore include provisions on strict liability of users training the devices and/or mandatory insurance schemes.
With respect to bias in AI, there are no concepts under Swiss law that would specifically address AI and potential bias. Generally, the use and outcomes of AI will be attributed to the party or parties that make use of AI-enabled systems. With respect to end-user data, the revised Swiss data protection regime (likely entering into force by mid-2022) requires the controller(s) to inform users about automated decisions, where these could have a substantial adverse effect on end-users, and allow them to challenge the decision and have it reviewed by a natural person.
Damages for harm incurred by an HCO due to disruptions in the commercial supply chain caused by third-party vendors’ products or services will often depend on contractual arrangements between the HCO and the seller or service-provider and the latters’ arrangement with third-party vendors. Should damages from the direct contractual partner of HCOs be unattainable for legal or other reasons, Swiss jurisprudence established principles of third-party liquidation, the concept of a contract with a protective effect in favour of third parties, enabling liquidation of damages suffered by a non-contracting party, or a reversal of the onus of proof under the principle of a producer liability in torts. Whether and which of these principles apply, will depend on the specific facts of the case.
Other ways in which HCOs may safeguard their interests include securing indemnity undertakings from their direct contractual partners.
As Switzerland is a relatively small market that is keenly aware of developments in the international arena, generally the Swiss regulatory landscape will, with some delay, act on international developments. A key topic in this regard is AI, and the EU regulation laying down harmonised rules on artificial intelligence proposed by the EU Commission in June 2021.