Unacceptable behaviour between healthcare providers

Martin Buijsen

Recently, the Disciplinary Committee heard a case in which three internists sued an internist for sexually transgressive behaviour. The Disciplinary Committee imposed a one-year suspension on the internist. Remarkably, this was the second disciplinary case in which a fellow internist faced allegations of unacceptable behaviour. Earlier, there was a similar case in which an internist-oncologist was removed from the BIG register. Martin Buijsen, Professor of Health Law at Erasmus School of Law, spoke to Medical Contact on the matter.

Application of disciplinary law

Buijsen explains that it is almost always patients who start a case at the Disciplinary Committee but that it is not strange for a judge to rule on sexually transgressive behaviour between healthcare professionals. "In itself, it is not so strange for a disciplinary judge to rule on sexually transgressive behaviour by BIG-registered professionals; it happens more often. Victims are then usually the patients. This is unacceptable sexual behaviour that has taken place towards colleagues. That is the novelty of this case."

That a one-year suspension was imposed by the disciplinary judge is understandable, according to Buijsen. He explains that unacceptable behaviour, after all, affects the working climate and thus has repercussions on treatment relationships. Buijsen: "The earlier case involved an issue of unacceptable behaviour towards a colleague, a nurse in training to become a nursing specialist. And the behaviour towards that colleague was clearly more serious and structural. In that case, a deletion was chosen. I think it was understandable action."

Formation of measure

Medical disciplinary law is a special form of jurisdiction enshrined in the Individual Healthcare Professions Act. Buijsen explains that 'individual' in this context means that it addresses professionals and not, for example, institutions. Directly interested parties can start a disciplinary case under the BIG Act. The Disciplinary Committee first answers whether you are a directly interested party. This includes, for example, patients, relatives and people with an interest in individual healthcare. "It is up to the Disciplinary Committee to determine whether someone who complains is 'directly interested'. That really depends on the circumstances. A health insurer can be 'directly interested' if he complains about a fraudulent professional, for example”, Buijsen explains.

The board then considers whether the complaint can be covered by disciplinary law. In doing so, there is a distinction between the first and second disciplinary standards. "The first disciplinary standard relates to treatment relations. So that is the behaviour a counsellor exhibits towards his patient. The second disciplinary standard is a kind of residual standard. That concerns acting also as a professional, but in a somewhat different capacity. So, it may be in the private sphere, it may be in a way that undermines trust in the profession, and in this case, it concerns behaviour towards colleagues. In principle, that remains outside disciplinary law, except as the disciplinary judge says when it has sufficient repercussions on individual healthcare: when it can affect doctor-patient relations”, Buijsen explains. In this case, the disciplinary judge ruled that consequences in treatment relationships should be feared, so a measure followed.

Gravity of the measure

There is not yet much disciplinary jurisprudence on such cases. Removal from the register is seen as the heaviest and last resort. Buijsen: "The possible measures to be imposed are increasing: warning, reprimand, suspension, fine, partial disqualification, removal from the register registration (taking away the title), professional ban."

Buijsen further explains that it is a judgement on the safety and quality of the professional's actions. "So, a measure does not mean to punish. It is a quality judgement on the actions based on the standards of the profession to which both the disciplinary judge and the accused belong." In a quality judgment, it is essential to consider how severe and weighty the professional standard violated is and the distance from the actual conduct to the conduct that should have occurred. All this is taken into account by the Disciplinary Committee. Buijsen: "In any case, it is true that when a professional is guilty of these facts, the Disciplinary Committee is nevertheless prepared to impose the most severe measure."

Social influences

In recent years, addressing (sexually) transgressive behaviour has become a more critical issue for our society. Buijsen explained that he does not know to what extent this plays a role in disciplinary proceedings. However, he does think we have become more alert to this kind of transgressive behaviour. "This was, of course, also reprehensible ten years ago, but we have all become more sensitive to the role power relations can have and the vulnerabilities that come with power differences, also in healthcare." Buijsen expects more disciplinary cases to follow in the future. The question here is to what extent these cases will provide a frame of reference. "We now have two judgements from the Disciplinary Committee and we will have to wait and see how it unfolds in the future."

prof. mr. dr. Martin Buijsen, professor of Health Law

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