Travis Gilly (Real Safety AI Foundation) has posted Except for a Physician: How Illinois Wrote the Standard for Consent to Clinical Artificial Intelligence and Exempted the Profession Most Patients See on SSRN. Here is the abstract:
In August 2025 Illinois became the first state to regulate artificial intelligence in therapy. The statute defined consent, named the precise defect that a general intake form containing a line about artificial intelligence amid unrelated material represents, required that the specific tool and its specific purpose be disclosed, and then removed physicians from the definition that triggers all of it. The exclusion is so structured that the statute reaches the advanced practice psychiatric nurse and not the psychiatrist. This Article argues that the resulting condition is not a gap left by legislative silence but an exemption written by a legislature holding the standard in its hand, and that nothing else fills the space. Federally, a single characterization, health care operations, eliminates the consent requirement, closes both independent exclusions in the Illinois biometric statute, and defeats the accounting a patient might otherwise obtain, while an affiliated-entity designation the provider documents for itself sets how far the record then travels. The one Illinois statute that unambiguously conditions a clinical recording on the patient’s agreement is the criminal eavesdropping Article, and its reach ends where disclosure begins; its doctrine of implied consent, developed entirely in custodial settings, treats continued speech as assent in precisely the room where continued speech is least voluntary. Common law is the ordinary residual, and its instrument is calibrated to a hypothetical undifferentiated patient. That calibration is the difficulty. A routine visit to a general practitioner is where psychiatric history is recorded, where anxiety is described aloud, and where psychotropic medication is adjusted, and the empirical record now shows that consent to ambient documentation falls from 81.6 percent to 55.3 percent when patients are told what the tool is, where the audio goes, and who is commercially involved. For a patient whose diagnosis is one that people do not wish to have circulating, an unspecific disclosure does not fail to inform; it prices the visit. The Article grounds a disability civil rights claim in that pricing, develops five disclosure questions as an evaluative instrument, measures Illinois, Texas, and California against them, and finds that no regime answers all five, that Texas has expressly blessed for its public hospitals the same boilerplate line Illinois defined as not consent, and that the carve-out is drawn along a clinical line ambient documentation technology has already erased.
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