Comment: 'Obligation to cooperate with private SPD non-binding'

This week, the website of the Civil Rights Protection Platform an interesting commentary by lawyer Ab van Eldijk (chairman KDVP Foundation) on the current privatisation of the Electronic Patient Record (EHR). That privatisation is accompanied by great pressure from health insurers on healthcare providers to contractually join this private SPD. Virtually the same SPD, in other words, whose enormous privacy and security risks became clear in 2011. According to Van Eldijk, this is legally unacceptable. Privacy First endorses this view. Indeed, private contractual freedom has a number of principled limits. Among the most important of these limits are 1) the law and 2) morality, in this case medical confidentiality. Below is Van Eldijk's entire commentary:

"After the cancellation of a national Electronic Patient Record (EHR) by the Senate, health insurers are now trying to set up a private version of the national EHR. The way in which health insurers are now trying to make a private relaunch of the SPD possible not only ignores all the Senate's objections to processing medical personal data in this way.
It is also legally untenable.

Healthcare providers have legal professional secrecy. This includes all information a patient entrusts to the healthcare provider and all actions taken by the healthcare provider, such as writing prescriptions, the therapy chosen and keeping a record of the patient.

Therefore, having health insurers enforce the submission of treatment data by GPs/care providers by including provisions on this in contracts is not legally possible. Such a compulsory delivery implies a fundamental and systematic breach of professional secrecy. Only a legal regulation can lift this professional secrecy.

In practice, this mandatory delivery of treatment data amounts to a de facto complete lifting of medical confidentiality. Storage, exchange and use of the compulsorily supplied treatment data no longer take place under the control of healthcare providers involved in the treatment. Consequently, it is removed from the judgment of healthcare providers as to the desirability, usefulness and/or necessity of exchanging treatment data.

A mandatory breach of medical confidentiality by healthcare providers is not possible on the basis of provisions in healthcare insurance contracts as currently imposed on healthcare providers. These provisions involving a breach of professional secrecy are against the law, immoral and consequently non-binding.

It is incomprehensible that the minister thinks she can do nothing about this private relaunch of the SPD. Meanwhile, the Lower House also thinks the minister should intervene. The House believes that healthcare providers and patients should decide for themselves about sharing medical data with others.

But the Lower House ignores the attack on professional secrecy. It is time for healthcare providers, who are after all bound by medical confidentiality, to stand up against this breach of it."