As of January 1, 2020, the Medical Treatment Agreement Act (WGBO) stipulates in which cases next of kin are entitled to inspect the medical records of a deceased patient. With this right of inspection, an exception is made to the duty of confidentiality of the care provider towards his patient, which remains in full force even after the patient's death. This Legal Update looks at this health law development from an inheritance law perspective.
Authors: Nikki Nuijten & Laurien Berghuis-Knijf
It happens more than once that there are discussions about the testator's legal incapacity and that next of kin want to inspect the medical file in that context. This occurs, for example, when there is doubt about the validity of a will, donations made or cash withdrawals made before death.
The aim of the new regulation in the WGBO is to provide clarity about the next of kin's right of inspection. It follows from article 7:458a WGBO that the care provider gives next of kin access to the medical file of a deceased patient:
when the patient has given consent to this in life(previously already regulated by law);
when a notification of an incident has been received under the Care Quality, Complaints and Disputes Act (Wkkgz) (new);
to anyone who has a compelling interest in inspection(developed in case law);
to parents or guardians of a deceased child under 16 years of age, unless it is contrary to good counseling practice(new).
The ground 'compelling interest' follows from case law, whereby there must be sufficient concrete indications that another compelling interest could be damaged if the duty of confidentiality were not breached. Case law assumes that this is the case when the testator made an amendment to the will (immediately) before his death, as a result of which the legal position of those involved in the inheritance has changed, there are concrete indications to suspect that the testator was incapacitated at the time the will was amended, and clarity about the testator's legal capacity cannot be obtained in any other way than by consulting the medical file.
With the new regulation of article 7:458a WGBO, the legislator has created a legal basis for the ground of exception 'compelling interest'. For a successful reliance on this ground, however, two cumulative criteria - also recognized in case law - must be met:
a) the party asserting that it has a compelling interest must make it plausible with sufficient concrete evidence that this interest might be prejudiced, and
b) the party must make it plausible that inspection is necessary to safeguard this interest.
In addition, the explanatory memorandum states that a compelling interest may include, among other things, the contestation of a legal act by a patient who has - in the meantime - died due to incapacity to give consent. However, the legislator subsequently did not explicitly comment on the division in case law regarding the question to whom (next of kin themselves or the next of kin's medical advisor) access to the medical file should be provided.
Nevertheless, it could be assumed that since Section 7:458a WGBO creates a right of inspection for anyone with a compelling interest, the right of inspection belongs to the next of kin themselves without restrictions.
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This article can also be found in the Privacy in Healthcare file
