Why is the name of a doctor who is unwell already online before the court has ruled?

Two cases, one underlying aim 

The rules underpinning both cases exist to protect patients from healthcare professionals who pose a risk due to illness or addiction. That aim is not in question, not even for Buijsen. The question that remains is how far the government may go in sharing a person’s health data in order to achieve that aim. 

The difference between the two healthcare professionals 

The difference between the two cases is greater than it appears at first glance. In the case of the anaesthesia assistant, everything had already been finalised by the time his details were published online. A disciplinary tribunal had assessed the merits of the case and made his ban on practising permanent. In the case of the GP with the LOOB, this had not yet happened. The disciplinary tribunal had yet to hear the case, which, according to the rules, must take place within eight weeks of the LOOB being imposed. His name was therefore already in the public domain before a judge had examined the facts. That distinction – between disclosure following a final judgement and disclosure in anticipation of it – lies at the heart of Buijsen’s analysis. 

Where the law leaves no room for manoeuvre 

According to Buijsen, the CIBG’s Overview of Measures serves a clear purpose: patients must be able to see that a healthcare provider is no longer authorised to practise following a disciplinary ruling. If someone is suspended or struck off, their name is removed from the standard BIG register and appears in the overview of measures. On this point, according to Buijsen, the IGJ has no choice; the obligation stems directly from the fact that the BIG register is public. 

Where the law does allow for flexibility 

The situation is different with the LOOB. If the disciplinary complaint submitted to the LOOB subsequently does indeed result in a measure restricting professional competence, the name will automatically be included in the Overview of Measures, just as it is for anaesthesia assistants. But the IGJ is now going further than that. It also immediately publishes a factual account on its own website, including the person’s name, professional title and place of practice. This is precisely where Buijsen’s objection lies. “The IGJ is legally obliged to have the LOOB registered, but when providing information on the website, different choices can be made,” he says. In practical terms, this means that the IGJ could choose to be less specific on its website, for example by reporting a measure without a name or place of practice, as long as the disciplinary tribunal has not yet handed down a final judgement. 

Hoe het CIBG maatregelen categoriseert 

The situation is different with the LOOB. If the disciplinary complaint submitted to the LOOB subsequently does indeed result in a measure restricting professional competence, the name will automatically be included in the Overview of Measures, just as it is for anaesthesia assistants. But the IGJ is now going further than that. It also immediately publishes a factual account on its own website, including the person’s name, professional title and place of practice. This is precisely where Buijsen’s objection lies. “The IGJ is legally obliged to have the LOOB registered, but when providing information on the website, different choices can be made,” he says. In practical terms, this means that the IGJ could choose to be less specific on its website, for example by reporting a measure without a name or place of practice, as long as the disciplinary tribunal has not yet handed down a final judgement. 

Technically straightforward, politically unlikely 

Buijsen argues that the relevant legislation – Chapter IVa of the Health Act and the accompanying Disclosure Decree – should be assessed against the GDPR. In his view, making the necessary amendments would not be a complicated process. The IGJ could simply be granted discretionary powers to decide for itself whether, and how, it publishes a name. Nevertheless, he expects little to change. “Politically, the will simply won’t be there,” he says. “People have little patience for doctors who make mistakes, even if this is the result of an illness: someone has to take the fall.” By this expression, Buijsen means that a culprit must always be identified, even if the law does not actually provide grounds for doing so. Meanwhile, the Dutch Data Protection Authority, which has never before scrutinised the IGJ’s working methods, is now entering into discussions with the minister. Buijsen is cautiously hopeful, but realistic. “By invoking the interests of public health, a great many traditional civil liberties can be curtailed quite easily,” he says. 

Room for a fresh start, with limits 

Even after a sanction has been imposed, the question remains as to what lies ahead for a healthcare professional. Buijsen sees scope for a fresh start in cases of addiction, provided the treatment has been successful. That does, however, depend on the measure imposed. “If a strike is accompanied by a ban on re-registration, then it really is over and done with,” he says. 

Where the choice does lie 

Buijsen’s message boils down to the following. The government must share certain information, such as the fact that a disciplinary tribunal has suspended or struck off someone. But other information, such as a name appearing on the IGJ website before the disciplinary tribunal has reached a verdict, is not a legal obligation but a choice. That choice is currently made in the same way by default, whilst more cautious options also exist. “The IGJ says it has no choice,” concludes Buijsen. “I maintain that it does.”