Top court demands opt-out arrangement for medical privacy and professional secrecy in mental health services
The Netherlands is a democratic state under the rule of law. This means that every government action must 1) be democratically legitimised and 2) subject to the law. So the law determines what the government has to comply with. Just as the prohibition against self-interest applies to every citizen, so it also applies to the government itself. In this sense, the government has an important exemplary function. But what if the government flouts a court ruling? Fortunately, in a constitutional state, citizens can then go to court again to call the government to order. This happened last year in a court case against the Dutch Healthcare Authority (NZa) over medical privacy and professional secrecy in mental healthcare (GGZ). Last week, the Trade and Industry Appeals Tribunal (CBb) ruled that the NZa had failed to comply with an earlier ruling by the Tribunal and must still enforce it. Privacy First briefly explains the Board's ruling for you below.
In 2008, the so-called Diagnosis Treatment Combination (DBC) system was introduced in the Netherlands. This means that every medical treatment has a special code. This code appears on the invoice for yourself and for your health insurer. This allows your health insurer to check your claim. In addition, a short description ('lay description') is given on the invoice. Each DBC registration is also entered (pseudonymised) in a central government database: the DBC Information System (DIS). This database can be consulted by, among others, Statistics Netherlands. Through linking, the DBC data can easily be traced back to individuals. All this constitutes a violation of medical privacy (in the case of patients) and medical confidentiality (in the case of medical specialists), so too in the curative mental health sector. Some years ago, a number of freelance psychiatrists and psychotherapists (including KDVP Foundation and TheFreePsych) rightly pulled the emergency brake on the NZa over this. However, their objections to the DBC system were declared unfounded by the NZa, after which proceedings were brought before the CBb. In August 2010, the Board ruled in favour of psychiatrists and psychotherapists: the NZa had to exclude them from the DBC system from now on. However, the NZa proved unwilling to comply with this ruling, after which new proceedings before the Board followed in early 2011 to confirm the earlier ruling. In its ruling of 8 March last. the Board ruled that the NZa had failed to comply with the earlier ruling:
"It follows from the foregoing that the question whether [the NZa] correctly implemented the Board's earlier decision in its new decision on objection must be answered in the negative." (para 5.33)
The key consideration in the Board's earlier ruling was as follows:
"Providing health insurers with diagnostic information on individual patients infringes the medical privacy of these patients. The appellants have explained in detail the objections from the perspective of the patient, the treatment and the professional secrecy of the practitioner to passing on such information to third parties not involved in the treatment. In the opinion of the Board, these objections are weighty: they concern diagnoses that touch the core of the private life of the person concerned, so that information about them is highly privacy-sensitive. Moreover, as the appellants have argued, confidentiality and secrecy are of great importance in the treatment of psychological complaints." (para 188.8.131.52)
"In any case, the result of this change to the claim system will have to be that the obligation to state the diagnosis classification code, as well as the obligation to state other information on the claim from which a diagnosis can be derived, will be dropped as such." (para 5.42)
In this regard, the Board concludes that the NZa (and VWS) has the powers to achieve this and that an exemption regulation (opt-out) is very achievable. As a brand-new winner of a Big Brother Award, it presents a prime opportunity for minister Schippers to cleanse her privacy blazon by closely monitoring its implementation by the NZa. Privacy First will be happy to continue monitoring this.
Update 10 June 2012: the NZa has since complied with the Board's ruling by amending its regulations. As of 7 June, new NZa policy rules for the GGZ apply 'to the letter and spirit' of the Board's ruling:
1. Patients in psychotherapeutic or psychiatric treatment can decline diagnosis listing on the claim to protect their privacy. When patients want to use their health insurance, they draw up a 'privacy statement' with the practitioner and send it to the insurer. Diagnosis entry on the claim is then no longer mandatory. However, the medical advisor of the health insurance company can ask for information under medical confidentiality.
2. For self-pay patients, diagnosis entry on the bill is no longer mandatory. A privacy notice is not required.
3. In these two cases, transmission of DBC records to the DBC Information System (DIS) is also no longer mandatory.
Update 7 July 2012: Privacy First appears to have cheered too early: KDVP Foundation is appealing against the NZa's new policy rules. "The opt-out scheme is incomplete, ineffective and consequently unusable in the practice of insured care in the mental health sector," KDVP said on its website. Indeed, the NZa appears to have, among other things, "failed to provide the necessary education on the introduction of a privacy opt-out scheme for the mental health sector" and have not sufficiently elaborated the scheme to prevent the exchange of diagnostic information (as yet). With the current opt-out scheme does not, in fact, "prevent diagnostic information from being traceable from codings and declared amounts." The full position of KDVP Foundation can be found at HERE Read. It would behoove the NZa to address the flaws in the opt-out scheme asap.