Speech is silver, silence is golden: Non-disclosure agreements still exist in the healthcare world

André den Exter

“In the healthcare sector, we must learn from mistakes,” stated former Minister of Health, Welfare, and Sport Hugo de Jonge in 2021 when concerns arose about non-disclosure agreements in healthcare. Such contracts were banned in July. It is now illegal to silence healthcare clients. However, it continues, as evidenced by a story shared with RTL Nieuws. After her caregiver had intimate contact with her, the woman’s healthcare provider offered her a “settlement agreement”, stating that she could not file a complaint against the caregiver in exchange for compensation. “This has all the characteristics of a non-disclosure agreement,” says Andre den Exter, Associate Professor of Health Law at Erasmus School of Law.

The debate on non-disclosure agreements in healthcare, also known as confidentiality agreements, began in the Dutch House of Representatives in 2020. These agreements establish terms between healthcare providers and clients that prevent clients from discussing incidents that occurred. “It goes without saying that such agreements are undesirable. Prioritizing reputation damage over proper patient care is unacceptable. Suppressing and not reporting boundary-crossing behaviour harms patient care and trust in healthcare, making it undesirable. This was the case before the legal change; now, it has been explicitly made illegal for healthcare providers,” explains Den Exter.  

The recent ban aims to increase transparency in healthcare, protect clients from compulsory silence, and promote a culture in healthcare where mistakes are acknowledged and addressed.  

“… refrains from filing complaints”  

Nevertheless, the story of the affected woman proves that non-disclosure agreements have not disappeared. The client received in-home care for psychological problems for two years. She was repeatedly comforted by a caregiver who, according to her, got too close and sought too much intimacy. The woman indicated that the caregiver’s behaviour had a counterproductive effect on her recovery. After completing her healthcare journey, she filed a complaint. She received apologies and compensation but had to confirm through a “settlement agreement” that she would refrain from filing or disclosing a complaint.  

“This has all the characteristics of a non-disclosure agreement,” says Den Exter. “I am surprised that a jurist was involved in this because these contracts have been prohibited since July 1, 2023.” According to the Associate Professor of Health Law, the agreement is, therefore, null and void. The healthcare provider in question stated that the timing of the contract coincided with the date of the legal abolition of the non-disclosure clause. Before the abolition, the non-disclosure agreement was a standard clause in settlement agreements of the healthcare provider.  

The Inspectorate for Health and Youth Care (IGJ) has received multiple reports of potential non-disclosure agreements. The organization is investigating their contents. “This is a positive development and compels healthcare providers to be transparent, but, more importantly, it forces them to consider what constitutes good care. Additionally, health insurers will pay special attention to the billing statements of healthcare institutions. Allocating public funds to non-disclosure agreements is not an option,” concludes Den Exter.  

Associate professor
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Click here for the full RTL Nieuws article (in Dutch).

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