Dutch Minister for Health Edith Schippers, of the Liberal Party, wasn’t able to timely deal with the questions of the Dutch Senate about the legislative proposal concerning electronic health records, and will now have to do so with a new Senate in place.

The legislative proposal raised a lot of questions in the Senate right from the outset. For this reason the Senate organized a meeting with experts from the sector on April 13. The legislative proposal provides frameworks for all electronic health records (EPDs) and also a legal framework for the national EPD, called LSP. Virtually all experts heavily criticized the proposal during the meeting.

Since the expert meeting, the Senate has joined in the criticism of the legislative proposal. The Liberal Party says the proposal does nothing to better protect the privacy of patients. Like the experts, the Liberal Party, the Socialist Party and the Green Party note that a part of the proposal even seems impracticable. The Labour Party is of the opinion that "the legislative proposal offers only disadvantages to patients and no advantages." The expert meeting has made the Socialist Party "even more skeptical than it already was about the usefulness, necessity and the practicability of the proposal."

The Labour Party, the Socialist Party and the Green Party as well as the Liberal Democrats argue for an inquiry into an alternative system for the exchange of data. With an alternative system for the LSP, the "impractical" part of the legislative proposal can be deleted. General practitioners also promote such an alternative.

Specified consent

An important part of the legislative proposal is the introduction of a new way for patients to give consent. Whereas now a patient gives consent to an individual healthcare provider to look into his health record, he will have to give, according to the proposal, "specified consent," which in fact at once gives consent to a whole category of healthcare providers.

This is necessary because the LSP isn’t designed to deal with the current way of giving consent. The LSP cannot live up to the current laws on medical confidentiality and the protection of privacy. As an entire group of healthcare providers will be given consent to in the future, the new definition of specified consent signifies a weakening of the protection of privacy.

According to the experts, the new definition is impractical, creates extensive administrative burdens and healthcare systems are not suited for it. The LSP itself will still have to be made suitable for it as well. Together with the experts, the Liberal Party, the Socialist Party and the Green Party ascertain that this new definition seems inapplicable in practice. According to the Socialist Party the experts find the legislative proposal "so unclear, incomprehensible and complicated that the patient is hardly served by it […] and that it's impractical on certain key issues."

Since it's a central element of the legislative proposal, the Green Party asks the minister "whether the proposal is impractical in its entirety because of it." The Liberal Democrats want the minister to go back to the Dutch Council of State for advice about the specified consent.

Alternative system

Many parliamentary groups wonder whether the right path has been chosen with the LSP. The Green Party wants to know from the minister whether a national health record "is proportional for the necessary exchange of information," pointing to the finding of the Dutch Data Protection Authority that "many healthcare providers fall short in terms of information management and security."

The Liberal Democrats question the minister about the extent of the problem that the LSP should solve. During the expert meeting general practitioners pushed for an alternative system that instantly complies with present laws regarding the medical confidentiality and the protection of privacy. Both the Green Party as well as the Liberal Democrats want to know whether this alternative would already suffice.

The Labour Party and the Socialist Party are in favor of an alternative whereby the patient is in control of his own medical data. For this, citizens would have to get a personal medical record, in case they wish to have one.

The Senate voted down the LSP in 2011 because, among other things, the protection of privacy was not up to standard. Back then, Minister Schippers was responsible for a private relaunch of the national electronic health record.

Large majority in the House of Representatives

Considering the serious doubts of the Senate, it's striking that the House of Representatives accepted this legislative proposal by a large majority on July 1, 2014. Giving consent for the consultation of medical records was also discussed in the House of Representatives. On a proposal of the Christian Democrats, the new definition for specified consent has been included in the legislative proposal.

Prohibitions for healthcare insurers

Healthcare insurers are not allowed to participate in the electronic exchange system or to have access to the exchanged medical data. This is enforced by the Dutch Healthcare Authority. If operators of exchange systems suspect that a healthcare insurer has granted itself access to an EPD, they are obliged to notify the Healthcare Authority about it.

Healthcare insurers can incur large fines if they "grant themselves access" to an electronic exchange system. The maximum penalty per violation is 500,000 euros, or 10 percent of the turnover of the health insurer (whichever amount is greater). Perpetrators can be subject to criminal proceedings. Insurees that have become victims have the right to immediately cancel their insurance. The Liberal Democrats in the Senate wonder how this relates to another legislative proposal by Minister Schippers, which offers health insurers easier access to medical records to check invoices.

On a proposal of the Socialist Party, healthcare providers are prohibited from using financial incentives to persuade people to take part in an EPD. At the moment, such financial incentives are a part of the relaunch of the failed LSP in order to get more patients into the system. The Liberal and Labour Parties and the Christian Democrats in the Senate want to know from the minister whether healthcare insurers actually coerce people to join the LSP, and how she's going to stop this.

Privacy Barometer

Together with the civil rights movement Vrijbit, privacy watchdog Privacy Barometer wrote a letter to the House of Representatives concerning the development of the legislative proposal and the introduction of a national health record. The Socialist Party has submitted this letter in its entirety to the House of Representatives as a parliamentary question.

Contributor: Privacy Barometer