Calvin Ho et al on Trustworthy Use of AI & Big Data Analytics in Health Insurance (WHO Bulletin)

"Ensuring trustworthy use of artificial intelligence and big data analytics in health insurance"

Calvin W L Ho, Joseph Alib & Karel Caalsc
Bulletin of the World Health Organization
Volume 98, Number 4, pp. 229-296

Published in April 2020

Abstract: Technological advances in big data (large amounts of highly varied data from many different sources that may be processed rapidly), data sciences and artificial intelligence can improve health-system functions and promote personalized care and public good. However, these technologies will not replace the fundamental components of the health system, such as ethical leadership and governance, or avoid the need for a robust ethical and regulatory environment. In this paper, we discuss what a robust ethical and regulatory environment might look like for big data analytics in health insurance, and describe examples of safeguards and participatory mechanisms that should be established. First, a clear and effective data governance framework is critical. Legal standards need to be enacted and insurers should be encouraged and given incentives to adopt a human-centred approach in the design and use of big data analytics and artificial intelligence. Second, a clear and accountable process is necessary to explain what information can be used and how it can be used. Third, people whose data may be used should be empowered through their active involvement in determining how their personal data may be managed and governed. Fourth, insurers and governance bodies, including regulators and policy-makers, need to work together to ensure that the big data analytics based on artificial intelligence that are developed are transparent and accurate. Unless an enabling ethical environment is in place, the use of such analytics will likely contribute to the proliferation of unconnected data systems, worsen existing inequalities, and erode trustworthiness and trust.  Click here to read the full article.

摘要: 确保人工智能和大数据分析在医疗保险中的可靠使用 大数据（即，可以快速处理大量不同来源的高度差异 化数据）、数据科学和人工智能领域的技术进步可以 改善医疗系统功能，促进个性化护理和公益服务。然 而，这些技术不会取代医疗系统中的道德领导和治理 等基本组成要素，也不会消除对稳健的道德和监管环 境的需求。在本文中，我们讨论了医疗保险大数据分 析中的稳健道德和监管环境可能是什么样子的，并且 举例描述了应该建立的保障和参与机制。首先，一个 清晰有效的数据治理框架至关重要。需要制定法律标 准，并且鼓励和激励保险公司在设计和使用大数据分析和人工智能方面秉承以人为本的理念。第二，必须 有一个明确的问责流程来解释可以使用哪些信息以及 如何使用这些信息。第三，对于数据被采用的人员， 应该通过积极参与决定如何管理和治理其个人数据的 方式为其赋权。第四，保险公司和治理机构，包括监 管机构和政策制定者，需携手合作，确保基于人工智 能开发的大数据分析是透明且准确的。除非具备有利 的道德环境，否则使用此类分析很可能会导致未连接 的数据系统的分散，加剧现有的不均衡情况，并降低 可靠性和可信度。

HKU Law Colleagues Comment on the Cathay Pacific Data Leak (SCMP)

"‘Cathay Pacific should have alerted shareholders earlier about massive data leak’: calls for Hong Kong stocks regulator to probe matter"

South China Morning Post

4 November 2018

Airline only reported case to stock exchange as ‘inside information’ when approached by the Post Disclosure questioned under Securities and Futures Ordinance, especially since announcement was made after Cathay’s interim results in August.

     The five-month delay by Cathay Pacific Airways in notifying 9.4 million passengers about a data leak has sparked questions over whether the airline should have alerted its shareholders more promptly.

     ...

    Syren Johnstone, executive director of the LLM (compliance and regulation) programme at the University of Hong Kong’s law school, said in general, while a case of data hacking might not necessarily be inside information, it also depended on what had been accessed and the implications for a company’s security system as a whole. Johnstone said Cathay’s delay to inform the market was a concern that required further investigation by regulators to establish facts. He said he expected the Securities and Futures Commission (SFC) to take a closer look at why the hacking was announced after Cathay’s interim results in August [3], “when the data breach had been confirmed internally but not publicly”.

    “Directors should have been aware of the data breach long before their August board meeting to announce the interim results,” Johnstone added. 

    “If they were not aware, it suggests they may not have appropriate safeguards in respect of their disclosure obligations, which is itself a breach of the Securities and Futures Ordinance.” ... Click here to read the full text. 

"Hong Kong’s Cathay Pacific faces first collective legal action over massive data breach, with 200 customers poised to make claims"
South China Morning Post
30 October 2018

Cathay Pacific Airways is facing its first collective legal action in the wake of a massive data breach after about 200 customers expressed their intention to make claims over the leak, the Post has learned.

 ...

    Gary Meggitt, an expert in professional liability and the director of the Asian Institute of International Financial Law at the University of Hong Kong, warned that passengers ran the risk of having to pay legal costs for a claim in the English courts even if they have a “no win-no fee” deal with their lawyers. 

     “If the airline wins, its legal costs could still be on the passengers bringing the claim” he said. There could be “after-the-event” insurance for the passengers to cover these costs but they may still have to pay something. 

     Although successful claimants with “no-win-no fee” deal typically do not have to pay their lawyers’ fees in England, because the loser pays, passengers might still have to pay their own lawyers’ “success fee or bonus”, depending on the how the deal was structured, Meggitt said. Alternatively, it was possible in England for a third party company to fund the claim, but he wasn’t aware if this was the situation here. 

      And while Hong Kong runs a similar common law system to England, he said, passengers should be aware that the actual operation of evidence, lawyer-client confidentiality or the trial could still vary. ... Click here to read the full text. 

Say Goo Appointed to Hong Kong's Insurance Appeals Tribunal

Congratulations to Say Goo on his appointment by the Secretary for Financial Services and the Treasury as a panel member of the Insurance Appeals Tribunal for a term of two years from July 2017 to July 2019.  The Insurance Appeals Tribunal is an independent quasi-judicial body established to review specified decisions of the Insurance Authority (IA), a new independent body that will take over the statutory functions of the Office of the Commissioner of Insurance on 26 June 2017 and eventually take over the regulation of insurance intermediaries.  The Tribunal is chaired by Douglas Lam SC and currently has 23 panel members.

HKU Clinical Legal Education Centre Helps Another Realise Justice in Hong Kong's Court of Final Appeal

Gill Singh has worked in the insurance industry since the mid 1970s.  In late 2006, he met his former colleague and friend, Mr Wong, to discuss future opportunities.  Wong was the Chief Executive Officer of Dah Sing, an insurance company.  Eventually Singh was appointed a senior district manager of Dah Sing in January 2007. However, things did not go as well as expected and he was terminated in August the same year.  

      The insurance company then sued Singh in the District Court to try to recover back a $150,000 sign-on fee and two monthly allowances of $50,000 each.  The contract which Singh signed stated that the sign-on fee was repayable in full if Singh was terminated within three years of his appointment.  However it did not say anything about recovering monthly allowances that were paid.  With the assistance of legal aid, Singh counterclaimed for losses he suffered as a result of the company's failure to report his termination to the Insurance Agents Registration Board (IARB); he could not work for another insurance company as a technical representative or insurance agent until such termination had been registered.  He also counterclaimed for losses arising from the company's failure to report his continuing professional development (CPD) certificate to the  IARB, thereby resulting in his suspension from registration as an insurance agent for three months.  The company argued that it was not in breach of any duty owed to Singh and there was no right of action under the law for any of these breaches.

     On 18 May 2012, the District Court ruled in Singh's favour and held that the two months of paid monthly allowances were not recoverable and that Singh was entitled to damages for the company's breaches of duty in respect of the non-reporting to IARB of Singh's termination and his CPD certificate.  But the company appealed to the Court of Appeal, and on 23 December 2013 the Court of Appeal reversed the District Court's decision.  The Court of Appeal found that the legislation did not create a private right of action for the alleged breaches and the company did not owe a duty of care to Singh.  It also found that even if there was a breach, Singh did not suffer any losses.  After being advised by senior counsel that there was no merit in an appeal, it seemed like this was the end of the road for Singh.

      It was at this point that the HKU Clinical Legal Education Centre became involved when Singh made an appointment to seek legal advice from the Centre.  After an initial meeting in January 2014 with the two law students assigned to the case, Phoebe Suen (then Gov't & Laws 5) and Joel Lee (then LLB 3), the two students diligently researched and prepared a 17-page memo pointing out the likely errors of the Court of Appeal for the advising lawyer, Eric Cheung, principal lecturer and director of clinical legal education.  Cheung read the memo and immediately thought there was a case to take up to the Court of Final Appeal (CFA).  To confirm his beliefs, he sought the advice of the tort law experts in the Faculty of Law.  Eventually, after advising the client and obtaining his instructions, Cheung wrote to the Legal Aid Department and convinced them to change their decision and to fund the appeal to the apex court.  At this stage, Audrey Eu SC leading Kelvin Leung, took over the case but with the continued assistance of various law students up until the case was argued before the CFA in February 2016.  

     On 31 March 2016, the CFA unanimously allowed Singh's appeal and restored the District Court's decision (Dah Sing Insurance Services Limited v Gill Gurbux Singh, FACV18/2015).  Writing for the Court, Mr Justice Tang held that the company had a common law duty of care to make timely reports of termination and CPD certificates to the IARB so as to avoid foreseeable loss to representatives and agents like Singh.  The duties were found in the Code of Practice for the Administration of Insurance Agents.  The decision is an important precedent on the tort liability of insurance companies to their agents and representatives in respect of duties under the Code of Practice.

      This was not the first time for a client of the HKU Clinical Legal Education Centre to win a case in the CFA.  In October 2015, the CFA allowed the appeal in HKSAR v Law Yat Ting [2015] HKCFA 71, a case concerned with whether closing a car door constituted tampering with a motor vehicle.  The injustice had been so obvious that the Department of Justice conceded the appeal and the CFA decided the matter without an oral hearing.

John Lowry on the 'Convoluted and Confused' State of Insurance Fraud Law (LQR)

"Insurance Fraud: the 'Convoluted and Confused' State of the Law"
John Lowry and Philip Rawlings
Law Quarterly Review
2015, Vol. 131 (November)

Abstract: The piece examines from a critical standpoint the approach of insurance contract law to fraudulent claims, with particular reference to fraudulent devices. In English and HK law the remedy is forfeiture of the whole (including any legitimate aspects) of the claim, a form of 'penal non-damages'. The article contrasts the insurance law position with other civil law remedies, for example grossly exaggerated personal injury claims. It also assesses, inter alia, whether the civil courts are an appropriate vehicle for punishing such behaviour.  Will soon be available on Westlaw.  Contact the authors for a copy.

Gary Meggitt on the Doctrine of Insurable Interest

"Insurable interest - the doctrine that would not die"
Gary Meggitt
Legal Studies

June 2015, Vol. 35, Issue 2, pp. 280-301

Abstract: The doctrine of insurable interest grew out of eighteenth-century anxieties over fraudulent seafarers and habitual gamblers. It was created by the courts, entrenched by statute and remains in place to this day despite the fact that it serves no practical or legal purpose. It was hoped by many that, when the English Law Commission and Scottish Law Commission established their joint review of insurance contract law in 2006, the doctrine would be consigned to the proverbial dustbin of history. Eight years later, these hopes have been dashed. The doctrine is here to stay. This paper asks 'Why' and finds the answer to be elusive.