Speaking is silver, silence is gold. This Dutch saying is often used in circumstances where silence is preferred over speech. Such is the case with the duty of confidentiality of healthcare professionals; in principle, a counsellor is obliged to remain silent about what a patient says. But what if the patient confesses to having done illegal things? Is silence still gold in that situation? Or do those circumstances require a healthcare professional to speak up? Martin Buijsen, Professor of Health Law at Erasmus School of Law, explains when the duty of confidentiality of healthcare professionals may be broken.
The essence of the duty of confidentiality is that healthcare professionals are obliged to keep everything that they learn about their clients a secret. This may be information that surfaces during an investigation or interview, but also information that a healthcare professional hears or sees unsolicited. The legislator made the choice that, in principle, a healthcare professionals’ duty of confidentiality outweighs the detection of criminal offences. "Confidentiality is a precondition for unimpeded access to healthcare," Buijsen states. "Suppose a bank robber is injured in a robbery. Such a person is also entitled to proper care in our society. This requires being able to freely tell how an injury occurred. If such a robber has to fear that a doctor will pass on that information to the police, this would form an obstacle to asking for care," Buijsen said.
But when is a healthcare professional allowed to break their duty of confidentiality? "Sometimes it has to be done", Buijsen explains. He gives three clear scenarios: "For example, if there is an imminent threat of an outbreak of a dangerous infectious disease. Or if a caregiver cooperates in terminating life on demand. If the patient himself gives permission, a doctor is also allowed to breach professional secrecy. Those are the clear categories." Then there is the so-called state of emergency. "This is when serious health damage or termination of life can be prevented," Buijsen says. It is not clear when exactly a healthcare professional is allowed to break his or her duty of confidentiality. "That consideration is incredibly complicated", according to Buijsen
Wrongfully breaching the duty of confidentiality by a healthcare professional constitutes an independent criminal offence. Breaking it too soon can result in a prosecution or conviction of the healthcare professional in question. A professional bound by secrecy may not disclose the secret if, in case of emergency, the danger can be averted in a less drastic way. After all, a healthcare professional is also able to threaten to breach.
The discussion about the duty of confidentiality of healthcare professionals flared up after the arrest of a nurse at the Wilhelmina Hospital Assen (WZA) last month. The man was being treated at GGZ Drenthe, where he claimed to had prematurely ended the lives of 20 patients during his job as a lung nurse during the corona pandemic. GGZ Drenthe took this so seriously that they decided to breach confidentiality and report the story to the WZA. The nurse in question had been inactive at the hospital for some time, but was officially suspended after the report.
When is a breach justified?
Buijsen says that having knowledge of criminal offences is not, per se, a valid reason for breaching the duty of confidentiality. Not even if it facilitates detection. "What matters is whether there is a serious threat of health damage that you can prevent", the Health Law Professor explains. "Then there is a moral duty." "In the case of this nurse, that threat to end lives is quite clear. It is easy to follow that healthcare professionals felt compelled to break confidentiality to prevent him from repeating his behaviour."
The fact that the nurse had not been active at the WZA for some time makes no difference in the case, according to Buijsen: "As long as he is still employed, there is an imminent danger, because it is conceivable that he would resume working with patients in the foreseeable future. It is a different case when a nurse who is no longer in the profession would tell in the treatment room years later that he once committed criminal offences. Then that immediate threat is not there."