Date: 07 August 2023 
20 Av 5783
To: Committee on the Elimination of Racial Discrimination
Re: Draft General Comment No. 37 (2023) on Racial Discrimination in the Enjoyment of the Right to Health
1.	The State of Israel hereby submits to the Committee on the Elimination of Racial Discrimination its comments regarding the draft General Comment No. 37 (2023) on racial discrimination in the enjoyment of the right to health. 
2.	As part of its longstanding commitment to fulfill its obligations under the Convention, the State of Israel welcomes the opportunity to comment on the draft General Comment on racial discrimination in the enjoyment of the right to health.
3.	The State of Israel wish to emphasize that General Comments are intended to provide useful guidance to State Parties in interpreting their obligations under the Convention and to recommend effective measures and "best practices". As such, General Comments do not create binding legal obligations, in and of themselves, nor do they reflect an interpretation of the Convention that is necessarily agreed upon by States Parties.
4.	The following remarks reflect Israel's major observations and concerns arising from the draft General Comment and do not preclude the existence of other issues of concern arising from the Committee's interpretation of the obligations of States Parties under the Convention. The consultation included relevant Government Ministries and units.
General Issues
5.	The definitions for both racism and the right to health in the draft General Comment are broad and may obscure the identification of other causes of disparities in the field of health and in outcomes relating to health issues. 
6.	The Israeli health system and the services it provides meet the standards outlined in the draft General Comment. In the near future, additional tools will be developed in order to strengthen the ability of the health system to further meet these standards. Equality in the health care system in Israel is based on the National Health Insurance Law 5754-1994, and the Patient's Rights Law 5756-1996, which promote equal health care for the entire population. In addition, in order to promote transparency, the Ministry of Health publishes the annual Inequality Report to the general public, and the Civil Service Commission publishes a report detailing the occupational diversity data in Government Ministries, including the Ministry of Health.
7.	Note that Racism Prevention Officers, who are guided and supervised by the National Anti-Racism Unit at the Ministry of Justice, operate throughout the health system - in the Ministry of Health and in each of the Health-funds (HMOs). There is also a plan to appoint Racism Prevention Officers for all hospitals. The Ministry of Health also has a unit in the field of reducing health disparities that handles data collection, analysis, and publication about disparities in infrastructure, personnel, availability of services, and health indicators among different population groups. In 2022, the Ministry's Director General issued Circular No. 08/22, entitled "Standards for promoting equality in the health system". This circular refers, inter alia, to preventing racism, discrimination, exclusion, as well as training and information on the subject, along with the obligation to monitor the handling of complaints on this matter and issue an annual report with the aim of reducing inequality and address racism. These mechanisms are compatible with Paragraphs 39, and 48-9 to the draft General Comment.
8.	In addition, the Ministry of Health's team for Digital Medical Measures published this year a document of guiding principles for the development of machine learning-based technologies, which includes a section dealing with proper representation of the target populations: "Proper representation of the target population within the clinical research and data sets so that the research results can be reasonably generalized to the relevant population. Thus, the data collection protocol must ensure that the characteristics of the target population (for example: age, sex, gender, socio-demographic characteristics etc.), the manner of use, and the model's indicators, are represented in a manner and to a sufficient extent in the clinical research and data sets. This is an important principle to manage possible biases, to promote adequate performance that can be generalized across the target population, assess usability and identify circumstances where the model may underperform."
9.	When speaking about the risks posed by AI system which are related to discrimination, the draft GC does not acknowledge the lifesaving potential (or potential of improvement of the quality of life) of the same AI system. The measurement of these two parameters should be taken into account together (the potential of saving lives or improvement of the quality of life versus the possibility of discrimination), while giving due regard to the lifesaving potential of an AI system.   
Paragraph-Specific Comments
10.	Paragraph 13 - In the health sector in general, and in Israel, there is already extensive regulation addressing how medical devices and drugs can be used; to the extent that AI is embedded in the development of these devices and drugs, that regulation continues to apply. There are already rigorous mechanisms in place. Furthermore, as in most commercial fields, private companies are not required to disclose their development process, which forms part of their intellectual property and trade secrets. In addition, we suggest the rephrasing of the following sentence: "As in other fields, details about their development remain largely unknown and lack of transparency does not allow any adjustment by health providers in practice " with the following suggested wording: "As in other fields, transparency and explainability are a major challenge for sophisticated AI-based products and services, which could adversely impact health providers' ability to provide accurate and unbiased services". We further suggest to remove the part of this paragraph that begins with the words: "However, studies demonstrate […]" until the end.
11.	Paragraph 41-42 – paragraph 41 prohibits the use of AI systems unless there is proof of non-discrimination, before discussing the existing framework and imposing a risk assessment obligation (to the extent necessary). However, in some cases, high-risk applications/systems may also be high-rewarding and life-saving. It seems that the overall prohibition of its use without an assessment of the lifesaving qualities of an AI system misses the goal. In addition, ensuring that existing regulations, including prohibitions on discrimination, are appropriately tailored to the challenges presented by AI. This does not necessarily entail new regulation, but a commitment to properly apply existing regulation. Israel further recommends to add an element of consideration of the benefits that can be derived from the use of AI technologies, together with an element of minimizing the risks for discrimination (in case their annulment is impossible). For example, if there is a system that makes use of a database that has a sub-representation of a certain population, and the system saves lives, then its benefit should also be considered and expressed.
12.	In regard to Paragraph 42 – in the sentence: "Before procuring or deploying such systems, States should adopt appropriate legislative, administrative and other measures […]" – the word "and" should be replaced by the word "or". If this correction is not implemented, we recommend to note that the legislation referred to in this sentence should not specifically refer to AI field, but to legislation relating to non-discrimination in general. 
13.	Paragraph 43 – Israel recommends to add the following sentence: "States should promote the implementation of AI systems that are designed or have the potential to prevent or reduce existing racial discrimination in the provision of health services".
14.	Paragraph 44-47 – Regarding the call for the development of indicators on exposure to health risks and providing public access to information, there are currently no unequivocal indicators that point to a correlation between racism and health outcomes. However, there are measurements of several parameters that can be relevant to the issue, such as the socio-economic status of the physicians or their national origin or the patient's origin. Such indicators may serve as reference to the issue, even if they do not relate to the issue directly.
15.	Paragraph 54 – The section of this paragraph that begins with the words: "Companies should also be open to independent [..]", ignores the potential life-saving benefits of AI applications, and it assumes a binary approach to risks. We suggest rephrasing as follows: "Companies should also be open to independent third-party audits of their artificial intelligence systems, subject to adequate intellectual property safeguards. They should implement risk assessment and mitigation mechanisms before deploying AI systems, and carefully consider whether an AI system should be deployed. Where the risk of discrimination or other human rights violations has been assessed to be too high or impossible to mitigate, including because of the nature of the planned or foreseeable use by a State […]”. Also, in regard to risk verses benefit, please see our remark regarding Para. 41 above.
16.	Paragraph 58 – The Ministry of Health sees the text in this paragraph, a requirement to the establishment of independent monitoring mechanisms to identify gaps, as a requirement to expand and refine the indicators dealing with measuring gaps in the health system, as an outcome of the wide definitions related to discrimination and racism. However, the Ministry already has appropriate mechanisms for monitoring health disparities, which include the "National Program for Quality Indicators in Community Healthcare" on behalf of the School of Medicine at the Jerusalem Hebrew University, an external and independent body that collects data dealing with inequality in the Israeli health-funds, and distributes relevant publications on the subject. Israel also have excellent civil bodies that monitor health disparities, as well as issues of racism.
17.	Paragraph 63 – This Paragraph, inter alia, call for countries to create a temporary waiver on protection of intellectual property rights regarding health technologies to mitigate the impact of global challenges. Israel sees this draft text as contradictory to the aim of promoting the development of technologies. Israel is of the opinion that waiver on protection of intellectual property rights will negatively affect the development of new technologies in the field of health and as a result the entire field of health, including in regard to all vulnerable populations.