On 1 November 2007, 59-year-old Tineke Verhagen disappeared after visiting the mental health institution Parnassia with her son Marco, who has schizophrenia. Four days later, her body is found in a shallow ditch in the nearby Puinduinen. Initially, the medical examiner concluded it was suicide. However, when three more bodies are discovered in or around the Parnassia grounds within a year, doubts begin to arise. Tineke's body is exhumed and re-examined. The police determine that natural death can be ruled out but do not exclude suicide, accident, or foul play. A suspect even emerges, and the police request access to medical records that may contain crucial information. Still, the files remain sealed. In the podcast 'Ik heb levenslang' by KRO-NCRV, Martin Buijsen, professor of Health Law at Erasmus School of Law, discusses medical confidentiality. Because what happens to medical confidentiality when the police want information to solve a murder?
Medical confidentiality
Medical confidentiality is a fundamental principle in healthcare. Physicians and other healthcare professionals are legally obligated to keep patient information confidential. This obligation is enshrined in the Dutch Healthcare Professionals Act (Wet BIG). According to Buijsen, the law defines the concept of confidentiality quite broadly. In 'Ik heb levenslang,' he explains: "If you intentionally breach confidentiality, it constitutes a criminal offence." However, criminal prosecution is only possible if the person to whom the confidential information pertains files a complaint - making it a so-called klachtdelict (offence requiring a formal complaint). Buijsen continues: "But you can also be brought before a disciplinary tribunal if you violate confidentiality. Although the law does not say much, professional norms mainly determine how confidentiality is handled."
Is confidentiality an obstruction?
In the investigation into the murders around the Parnassia mental health institution, a suspect eventually came into view. When the police wanted access to this suspect's medical records, the institution invoked medical confidentiality. It was decided on appeal that the records could not be accessed. However, does confidentiality outweigh the finding of the truth? In the podcast, Buijsen says: "Medical confidentiality is almost as old as the medical profession itself and dates back thousands of years. The idea behind medical confidentiality is that you must have unhindered access to medical assistance when in need. If a doctor were to share that information with third parties freely, people in need would be less inclined to seek help from a physician."
Right to remain silent and right to confidentiality
To illustrate, Buijsen sketches the following scenario in 'Ik heb levenslang': "As a doctor, I might be approached by someone with a gunshot wound. I may suspect that the wound was sustained during the commission of a crime. Should I speak, notify the police, or remain silent and uphold my confidentiality?"
Medical confidentiality includes both a duty of silence and a right to confidentiality. The duty of silence means a physician may not share confidential information about a patient. Anything learned about a patient in a professional context must be kept strictly secret. The right to confidentiality allows doctors to remain silent in legal proceedings to protect that confidentiality. Nevertheless, situations can arise where confidentiality becomes problematic. Buijsen explains that confidentiality requires a doctor to remain silent even if they know a patient has committed a crime as long as there are no indications of an ongoing or future threat. He says in the podcast: "But as soon as a doctor believes that treating a patient could endanger the patient's health or that of others, a moral dilemma arises. If you are reasonably certain that breaking confidentiality could prevent that harm, medical ethics may compel you to breach it. In that case, it is justified."
The boundaries of confidentiality
Buijsen also discusses situations where the police may approach a doctor to ask whether a patient is involved in a crime. While physicians are generally bound to confidentiality, there can be exceptions. According to Buijsen, there are no circumstances in which confidentiality is casually set aside for regular investigative purposes. A doctor must remain silent, even if the police suspect a patient of committing a crime. "A physician is bound to uphold confidentiality, laid out in fairly detailed rules." However, this does not mean that breaking confidentiality is never allowed - it can happen, but only under very strict conditions. For instance, a doctor may breach confidentiality if there is a conflict of duties - for example when the health of the patient or others outweighs the obligation to remain silent. In such cases, the doctor must carefully assess whether breaching confidentiality is necessary to prevent serious harm.
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Want to know more about the murders and medical confidentiality? Listen to the episode of ‘Ik heb levenslang’ here (in Dutch)!
The Midden-Nederland District Court recently ruled that mental health professionals (ggz-hulpverleners) can be required to share client data with the Dutch Healthcare Authority (NZa) as part of so-called zorgvraagtypering—a classification system within the new zorgprestatiemodel (healthcare performance model). A group of mental health clients and advocacy organisations had filed the case, arguing that this mandatory data sharing violates their privacy and undermines the medical confidentiality of their care providers. However, the court rejected the claim, stating that medical confidentiality is not breached in this context and may be limited in the interest of the public good. The ruling has sparked criticism, notably from Buijsen. According to Buijsen, the court fails to grasp the nature and purpose of medical confidentiality, which he argues is not merely a legal right but a deeply rooted moral duty of healthcare professionals. He warns that using confidential information for purposes such as policy-making or oversight puts the trust between patient and caregiver at risk. Want to know more? Read Buijsen’s opinion piece (in Dutch).
