Eugenio Mantovani

mHealth and data protection – the letter and the spirit of consent legal requirements

In this article, the role of consent is discussed in the framework of fundamental rights and in the context of mobile health technologies (mHealth), such as smart phones, mobile phones or tablet/palm-held computing devices to provide healthcare. The authors surmise how, in practice, although there will be more emphasis on informed consent formally, there will be less space for genuine individual consent. This betrays a focus more on the letter of consent rules in data protection than their spirit. This risks reducing consent to a tick box operation in a manner analogous to consumer transactions, something manifestly unsuitable for consent, even if only in informational terms, during medical procedures.

Ethics, e-Inclusion and Ageing

Ethical questions about information and communications technologies (ICT) have been debated since World War II. Western democracies have had more than 50 years of experience in addressing and organising the ethical, social and legal aspects (ESLA) of scientific and technological developments. However, this expertise, tradition and experience are not enough to manage the most urgent ethical and social issues and contemporary challenges involving ICT. A systematic and institutional organisation of social values in the context of modern ICT tools is needed.This paper focuses on four major areas: (i) developing a specific approach to ethical issues raised by ICT; (ii) describing in more detail the age-related digital divide in Europe; (iii) identifying technology trends and emerging challenges; and (iv) defining the legal framework for inclusion of senior citizens in the digital society. The paper then concludes with a summary of its key points on the basis of which it makes three proposals as a contribution to efforts aimed at overcoming the exclusion of senior citizens from todays Information Society.

The data protection and medical device frameworks - obstacles to the deployment of mHealth across Europe?

This article examines the receptivity of the current EU legal regime towards innovative mHealth technologies and their deployment on a pan-European basis. At present, a coherent legal strategy towards the development of mHealth technologies does not exist. The deployment of such technologies is influenced in an uncoordinated way by various disparate European legislative initiatives. This article focuses on problems that may be encountered by mHealth platforms through application of the Medical Device and Data Protection Frameworks. Theses frameworks are analysed in this article through the lens of a pan-European deployment of mHealth technologies. The aim throughout is to look for potential problems for the deployment of such technologies posed by these frameworks and, where possible, to suggest improvements.

Ageism and Anti-Ageism in the Legal System: A Review of Key Themes

Social phenomena that have an impact on European societies, such as ageism, can be explored and better understood by looking at the ways in which the law incorporates, supports, or attempts to oppose them. This chapter – which is the first of three different contributions in this book concerned with the legal aspects of ageism in Europe – provides a descriptive overview of the inter-connections between European law and ageing. By describing and summarizing selected elements of, EU human rights and discrimination law, the chapter makes a contribution towards a better understanding of the relationships between law, ageing, and ageism.

Autonomy in ICT for Older Persons at the Crossroads Between Legal and Care Practices

This contribution discusses two types of autonomy in ICT for older persons: autonomy in ICT for older persons as derived from the legal notions of privacy and data protection; and autonomy in ICT for older persons as an achievement on account of by care-in-practice in long-term care. Learning from these modes of enacting autonomy is important in order to prevent ICT for older people from getting trapped either in excessive proceduralised mechanisms or in coercive care practices that may disregard the autonomy of older people.

Towards a Code of Conduct on Privacy for mHealth to Foster Trust Amongst Users of Mobile Health Applications

mHealth has the potential to transform health care by providing more timely and universal access to patients’ and users’ data. However, the potential for continuous patient monitoring and the ubiquitous exchange of sensitive health information, raise important questions about privacy and security. A recent development in the ongoing debate about privacy and mHealth is the Draft Code of Conduct on privacy for mobile health applications. Developed by mHealth industry organisations and facilitated by the European Commission, the Code is expected to foster trust amongst users of mobile applications processing data concerning health (at least where the developers of an mHealth app abide by the Code). This chapter’s aim is to present the Code, and, on this basis, analyse the EU’s legal framework on mobile technologies processing personal data, including health data.

Global law will be Responsive Law, at least with regard to Cyberspace

Multilevel global law is defying formal hierarchy in favour of a qualitative and responsive approach. As the cases of Solange and Kadi indicate, Courts may start giving priority to the legal order that better protects the values at stake. In law making, global law may be more and more responsive. Gone are the days of executives crafting ready-made treaties and bullying ratification back home; communities will react and force lawmakers to adjust and consult. The spectacular fiasco of Acta is a good example. The ACTA case, however, also instils the doubt whether this ‘responsiveness’ will be a general feature of global law or only of global information society law (cyberspace). Referring to the work of Andrew Murray on internet regulation and his discussion of failed enforcement against Wikileaks, one cannot but be prudent. The specific features of the internet make cyberspace another space than regular space. However, it is perhaps not to bold a pick to hold that the mechanism of responsiveness is, in due time and in some unexpected ways, to become a general characteristic of all law.