LittleLaw Looks At… Digital Health and Wearable Technology in a Post-Covid World

May 23, 2021

7 min read

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What’s going on here?

In January 2019, Apple CEO Tim Cook stated that health will be the technology company’s “greatest contribution to mankind” Two years later and the already existing trend towards digital health seems even more relevant, highlighted by a global pandemic that has turned the world on its head. The pandemic accelerated the adoption of digital health by hospitals and medical institutions through innovations such as remote mobile doctor consultations, symptom-checking bots and tracking solutions

2020 broke records for investments such as $8.4bn of venture capital money being poured into start-ups in the US digital health sector within the third quarter of the year.³ With Big Tech companies such as Amazon, Google and Alibaba expanding into diagnostics, medical AI, pharmacies and wearables, this is a trend that will only continue to grow.

The scrapping of the original centralised NHS COVID-19 Contact Tracing app after its failure to work effectively led to the second version in collaboration with Apple and Google.⁴ This underlined the increasingly ubiquitous nature of digital technology within healthcare, bringing to the surface conversations around its legal implications such as data privacy, competition and regulation.

Recent developments in digital health

There have been some exciting developments within digital health in recent times. NHS England partnered with a British start-up, Huma, which uses remote monitoring technology that can detect blood-oxygen levels in recovering COVID-19 patients. Alongside this, the technology allows a camera to detect resting heart rate by capturing the blood flow on the skin’s surface.⁵ This data allows for a better picture of overall health remotely in the fight against coronavirus.

Additionally, a UK healthcare platform Careology allows patients to monitor biometric data at home and share a dashboard with their doctor, allowing them to spot any potential issues related to cancer faster and prioritise consultation time. This allows the collection of data across a period of time for a more contextual analysis of health, rather than just providing a snapshot at a particular point in time. This technology has been extended to private COVID-19 patients in London.⁶

Another example is a 5G-equipped smart ambulance system using technology from the O2-backed start-up Visionable, which successfully finished its trial period in November 2020. As every 15 minutes of an untreated stroke leads to three years off of a patient’s life, this system allows high-level treatment to start inside the ambulance itself. This is achieved through video streams to stroke specialists and a live data feed that empowers paramedics to begin accurate treatment earlier. The CT scans are sent through to specialists who can make faster decisions once the patient has reached the hospital. This resulted in the number of patients receiving the treatment within the first three hours jumping from 5% to 41%, in addition to an estimated £19m in savings on treatment and rehabilitation.⁷

Recent developments in wearable technology

Many of the developments are taking place in the wearable technology space. Wearable technology refers to a category of wearable electronic devices at the forefront of the Internet of Things network, in which data can be tracked, received and sent.⁸ With this popular technology already being used by consumers to monitor fitness, GlobalData research estimates that the market value is set to increase from $27bn in 2019 to $52bn by 2023.

One such development of wearable technology in the health sector is a ring by a Finnish start-up Oura, which provides an alternative to wrist-worn trackers.¹⁰ Specifically, this is being used to detect early COVID-19 signs and has been shown to be 90% accurate in detecting the virus before symptoms arise. The ring achieves this by tracking body temperature, heart rate and movement and sends a quarantine text early, helping to stop the spread of the virus.

In a similar way, researchers have been turning to wearables such as Fitbits and Apple Watches to gather real-time streams of data in an attempt to tackle the virus.¹¹ Researchers at Scripps Research and Stanford University have collaborated with Fitbit to advance research and explore personalised healthcare. Stanford researchers found that by studying smartwatch data from 31 COVID-infected patients, 80% of the 31 had data indicating infection at the time or prior to symptoms appearing.¹² The latest Apple Watch 6 has also expanded its health capabilities through new features such as blood oxygen and heart rhythm monitoring, which could be used to help flag early viral symptoms.  

Legal considerations

Regulatory

This increasing popularity of wearable technology raises the importance of regulation, data and competition. In the UK, the Medicines & Healthcare Products Regulatory Agency (MHRA) governs the safety, quality and efficacy of medical devices available on the UK market. The general rule is that wearable technology will be seen as a medical device if it is intended to be used to diagnose, prevent and monitor treatment, alleviate disease or injury or control conception.¹³ As a result, typical fitness trackers currently tend not to be regulated as a medical device and instead are treated as consumer electronics devices, resulting in less stringent regulation.¹ For example, according to the Oura website, the Oura ring is not classed as a medical device.¹⁵ However, given the increasingly blurred lines between consumer technology and the medical field, it will be important for regulators to keep up with developments within the wearables space.

Data Privacy

As wearable technology develops and collects unending streams of personal data from users, data privacy must be a key consideration. With detailed access to information such as blood oxygen levels, location, movements, flagging potential illness and heart rate, the adequate processing and control of this information must comply with the GDPR (General Data Protection Regulation). The GDPR is still currently active in the UK, despite the country’s exit from the European Union. As health data falls into “special category data”, there must be a lawful basis for processing it, such as explicit consent.¹ However, beyond this, as data privacy has very much become a reputational issue, technology companies should be non-invasive and transparent to mitigate further consumer mistrust. 

Competition - Google and Fitbit

The collection of and access to such vast amounts of data also raises competition concerns. In November 2019, Google agreed to acquire Fitbit in a $2.1bn deal. However, the deal raised some serious competition concerns, resulting in a four-month EU Commission investigation. In December 2020, the deal was approved after Google made pledges to appease concerns. The main concerns revolved around competition issues resulting from access to vast amounts of data that could be used for targeted advertising, disadvantaging rivals by making them less compatible or harder to use with Google’s Android system and exclusion of third parties on the Fitbit platform. Google met these concerns by committing to a 10-year pledge to maintain third-party access with user consent, alongside promises not to advertise using health, fitness or location data collected from Fitbit devices or to degrade compatibility of rival smartwatches with the Android system.¹ Rival wearable technology makers complained that these measures do not go far enough to protect competition, criticising Google’s promise to self-regulate and what is seen as an attempt to monopolise the sector.¹

LittleLaw Verdict: Health could most certainly mean wealth (for Big Tech)

In a pandemic era in which the importance of health has been highlighted, the opportunities within the development of digital technology and the capabilities of wearable technology are undeniably exciting. The wearable technology sector should continue to grow as society becomes increasingly conscious of tracking our health and technology capitalises on the opportunity. However, as technology inevitably continues to permeate our personal spheres, it is necessary for regulation and users to keep up with ever-evolving uses of data.

Report written by Yaeno Fernandez

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Footnotes

  1. Kif Leswig, “Tim Cook says that improving people’s health will be ‘Apple’s greatest contribution to mankind’” (Business Insider, 9 January 2019).
  2. Baker McKenzie, “Digital Health Solutions: Top 5 Legal Issues” (Lexology, 5 April 2020).
  3. John Thornhill, “Covid-19 will change healthcare forever” (Financial Times, 17 December 2020).
  4. Matt Burges, “Everything you need to know about the new NHS contact tracing app” (Wired, 22 October 2020).
  5. Siddarth Venkataramakrishnan, “Researchers turn to wearable tech in race to track Covid-19” (Financial Times, 11 June 2020).
  6. Maija Palmer, “Smart ambulances and wearables offer route to speedier treatments” (Financial Times, 24 November 2020).
  7. Maija Palmer, “Smart ambulances and wearables offer route to speedier treatments” (Financial Times, 24 November 2020).
  8. Adam Hayes, “Wearable Technology” (Investopedia, 11 May 2020).
  9. Anon, “Wearable tech set to become a $54bn industry by 2023” (GlobalData, 7 August 2019).
  10. Maija Palmer, “Smart ambulances and wearables offer route to speedier treatments” (Financial Times, 24 November 2020).
  11. Siddarth Venkataramakrishnan, “Researchers turn to wearable tech in race to track Covid-19” (Financial Times, 11 June 2020).
  12. Anon, “Press Release Details: Fitbit Collaborates with Scripps Research and Stanford Medicine to Study the Role of Wearables to Detect, Track and Contain Infectious Diseases like COVID-19” (Fitbit, 14 April 2020).
  13.   Mishcon de Reya LLP, “When is wearable technology considered a medical device?” (Mishcon de Reya News, 2 November 2020).
  14. Becca Caddy, “Wearable tech and regulation: what laws do wearables need to follow?” (Wearable, 19 September 2019).
  15. Anon, “Oura & Medical Conditions” (Oura Ring Webpage).
  16. Anon, “Guide to the General Data Protection Regulation (GDPR): Special category data” (Information Commissioner’s Office).
  17. Anon, “Google’s Fitbit takeover approved by EU” (BBC News, 17 December 2020)
  18. Javier Espinoza, “Wearable tech makers ramp up opposition to Google’s $2.1bn Fitbit deal” (Financial Times, 2 October 2020).

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