Relatives may want to see the medical records of a deceased relative for a variety of reasons. For example, a hereditary disease may be involved or it may be suspected that mistakes were made during treatment. There may also be doubts about the will of the person concerned who has changed his will to the detriment of one or more relatives in the final stage of life. The medical file may then provide clarification in a number of cases. However, the doctor may not simply give next of kin access to it. Although privacy laws no longer apply, the doctor's professional secrecy continues after death.
There is currently no statutory regulation for inspection by next of kin. However, this is going to change: a bill has been submitted to the Senate in which the right of access of next of kin is laid down. The regulation will be part of the so-called Medical Treatment Agreement Act (art. 7:458a and 458b BW; Parliamentary Papers I, 34994).
The regulation is not easy to fathom and has only become more complicated during the parliamentary process. This is not the place to discuss the regulation in detail. What is noticeable, however, is that it lacks a well-known basis for inspection by next of kin, namely the presumed consent of the deceased. What exactly is presumed consent in this context? Why has the government refrained from including this ground in the law? And is it wise to do so? That is what this blog is about.
In general, the patient's consent is an important justification for the doctor to break medical confidentiality. That consent may, of course, include the situation after death. However, it is not often that the patient has expressed an explicit opinion during his lifetime as to who may have access to his or her records after his death. And it cannot be asked of him now. With this in mind, a special ground of justification has been developed in the literature and case law, namely the "presumed consent": would the patient have consented to access by his next of kin if he had been able to answer the question of consent? If so, we speak of presumed consent. In fact, this is a legal fiction in which the doctor must ask himself what the patient in question would have wanted or, if he has too few clues for this, what a reasonable patient would have wanted in such a situation.
For several reasons, the government wants to get rid of presumed consent. First, it referred to an opinion of the Autoriteit Persoonsgegevens, which recommended that presumed consent should not be included in the law, because this ground "undermines a system based on explicit consent and because reconstruction of consent in practice leads to numerous questions of implementation and interpretation. The government also found it objectionable that "presumed consent" could lead to unequal outcomes in practice, because the doctor simply knows one patient better than another. Furthermore, in the majority of cases in which access was previously granted on the basis of 'presumed consent', it would be possible to invoke one of the other justifications provided for in the law.
In particular, physician organization KNMG has advocated that presumed consent as the justification for breaking professional secrecy after death should be legally enshrined. This ground would be more in line with patient self-determination and autonomy. The KNMG further fears unnecessary formalization and legalization.
The government dismissed these objections. From a privacy perspective, I can follow that. Theoretically, the concept of presumed consent is difficult to accommodate, precisely because it involves a reconstruction of the patient's will. In implementation practice, however, the soup is not eaten so hot. That there are "numerous questions of implementation and interpretation" there, as stated, is in any case not demonstrated. In addition, the inequity argument is somewhat far-fetched. And in addition to the grounds that do appear in the law, presumed consent is certainly not superfluous, as the government seems to suggest. At the same time, I think, with the KNMG, that the upcoming regulation, due to its complexity and emphasis on balancing interests, will lead to reluctance on the part of doctors and to more legal proceedings.
Farewell to presumed consent as grounds for inspection by next of kin: theoretically perhaps pure, but not without problems in practice.
This article can also be found in the Privacy in Healthcare file
