Municipalities want to have medical details about patients in youth care before they want to pay for this care. The secrecy of the medical profession, however, does not allow this. As a matter of fact, it is this secrecy that guarantees people can talk about their struggles without the local government looking over their shoulder.

Without the permission of those involved, both the processing of medical details by the municipalities and the breaching of medical professional secrecy by professional helpers are not allowed. The Dutch Data Protection Authority (CBP) strongly pointed this out in April 2015.

In order to compel professional youth helpers to put medical details on the invoice, an amendment is necessary. In April 2015, the Dutch cabinet submitted a proposal, but this was received with sharp comments by the House of Representatives and by the CBP.

Martin van Rijn, the State Secretary for Health, Welfare and Sport and Klaas Dijkhoff, the State Secretary of Security and Justice and Minister for Immigration, will have to adapt the proposal, but do not want to wait for the democratic process anymore. They have come up with an interim regulation outside of the House of Representatives that forces youth workers to supply medical information to the local governments. Its concept is in the hands of Privacy Barometer and can be consulted here (pdf).

Unlawful

Such an interim regulation is only allowed when it is founded on a law, especially when it deals with such a crucial issue as medical professional secrecy. Such a regulation has to measure up to the demands of the Law on Personal Data Protection. The interim regulation by Van Rijn and Dijkhoff does not measure up and, therefore, is unlawful.

For example, the necessity to request for all these medical data to be able to pay the invoice has not been looked into. No limits are included on, among others, proportionality. There are hardly any restrictions taken in on who has access to the data and how the data may be used. A (compulsory) Privacy Impact Assessment might have been helpful here, but has not been performed.

No foundation in the Youth Act

Such an interim regulation without parliamentary approval is only possible when allowed under the Youth Act. This is not the case here. In the Youth Act, a number of subjects have been listed for which State Secretaries may come up with additional rules.

Putting down medical details on invoices is not part and parcel. The State Secretaries may think they are appealing to article 7.3.11, the fifth section of the Youth Act, but this article does not deal with medical details on the invoice, but on data securing. This is quite a different cup of tea.

Minimal scenario

It is not sure yet at all that the House of Representatives and the Senate will pass the revised amendment that the State Secretaries will present. In the case of a huge bottleneck, the interim regulation would — at the most — make sure that this specific bottleneck may be solved.

Only strictly necessary data might be included to allow the payments go smoothly. That is all. If an amendment is passed in the future, more permissions may be considered. For now, coming up with an extensive interim regulation that allows much more than strictly needed, shows careless and improper administration.

A minimal scenario might exist of including the patient’s name and the BSN (Citizens Service Number). In their explanation, the State Secretaries write that the municipalities did not want to cooperate in such a minimum scenario, especially because they think the period in which this would be valid is too long and because they find it too much work to add more information afterwards.

This, of course, is insufficient reason to put medical professional secrecy aside.

Wrong path

For the reason that some municipalities refuse to pay because they do not receive any medical data, "a situation […] may develop in which youth care, prevention, child protection measurements or youth rehabilitation cannot be invoiced or paid", according to the State Secretaries.

In order to solve this, Van Rijn and Dijkhoff, in cooperation with the Vereniging van Nederlandse Gemeenten (Association of Dutch Municipalities) and the CBP, made up this shared interim regulation.

If a considerable bottleneck with payments in youth care truly develops, this, of course, is not the path to be taken. In huge problems, one would much rather tackle them together with the Members of the House of Representatives and the Senate.

If seriously substantial bottlenecks develop, it is there where decisions can be taken quickly. It is remarkable that Van Rijn and Dijkhoff would much rather choose to draft an unlawful interim regulation in little backrooms. Perhaps the need may not be as high as is being suggested.

Contributed by Privacy Barometer