Conflitti di interessi e intelligenza artificiale nel procurement sanitario Procedimento algoritmico e captazione preventiva automatica

Abstract

The work seeks to identify whether an intelligent system can be built ad hoc for the automatic and preventive capture of conflicts of interest in the context of Public Administrations that they carry out activities functional to health (health procurement). The legislation on public procurement (especially the health one), the one on “conflicts of interest”, on the protection of personal data and on transparency is explored, arriving at the doctrinal and jurisprudential reflections and perspectives on the relationship between P.A. and artificial intelligence. The writer, undoubtedly, retraces the path traced by the doctrine, arriving at a more compelling solution, i.e. promoting, on the same basis as the so-called “protective algorithm” (i.e. functional to the person and his protection), the notion of “preventive algorithm”, which must be imbued with legal values for the captative decision (ethics by design) and must be persistently imbued with these values until the its natural and material kept running (ethics by default). The primary nature and priority of the “humanization of the algorithm” and its “functionalization” to achieve the psycho-physical well-being of the person, but also that the effectiveness and efficiency of the PA is not hidden. Nor is the need to construct a notion of “ex ante merit screening” of any intelligent system. The work focuses on the doctrinal developments on the “subjective tripartition” of the responsibility of algorithms and elaborates a series of conclusive reflections, establishing that it is absolutely possible to be able to create a captative computer system, in compliance with the fundamental rights of the person, capable of bringing the PA to a rationalization of resources and above all to a legitimate achievement of the objectives. Finally, the work opens some arguments on the civil liability of health robots; on the possibility, through the informed consent collected by an inmate to be able to donate their neuronal data (with the limit of functionalization of the purpose – so-called neuronal privacy –) for study and research in the light of Law no. 10/2020 (on the subject of post mortem body donation for scientific research purposes) and on the possibility of managing one’s data (habeas data and habeas mentem) “now by then”. [edited by Author]